RULES OF COURT
| IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO RAP 5.2-TIME ALLOWED TO FILE NOTICE, RAP 12.5-MANDATE, NEW ER 502-ATTORNEY-CLIENT PRIVILEGE, AND WORK PRODUCT; LIMITATIONS ON WAIVER, ER 1101-APPLICABILITY OF RULES AND NEW SET OF FAMILY LAW CIVIL RULES (FLCR) | ) ) ) ) ) ) ) ) ) ) |
ORDER NO. 25700-A-937 |
Now, therefore, it is hereby
ORDERED:
(a) That pursuant to the provisions of GR 9(g), the proposed amendments as attached hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January 2010.
(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.
(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2010. Comment may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.
DATED at Olympia, Washington this 3rd day of December, 2009.
| For the Court | |
| Gerry L. Alexander | |
| CHIEF JUSTICE |
Suggested Amendment
RULES OF APPELLATE PROCEDURE (RAP)
Rule 5.2 - Time Allowed to File Notice)
(Clarifies the timing of a notice of discretionary review when
a motion for reconsideration is filed)
Submitted by the Board of Governors of the Washington State
Bar Association
RULES OF APPELLATE PROCEDURE (RAP)
RAP 5.2 - Time Allowed to File Notice
(b) Notice for Discretionary Review. Except as provided
in rules 3.2(e) and 5.2 (d) and (f), a notice for
discretionary review must be filed in the trial court within
the longer of (1) 30 days after the act of the trial court
which that the party filing the notice wants reviewed, or (2)
30 days after entry of an order deciding a timely motion for
reconsideration of that act under CR 59.
[(c) - (g) unchanged.]
Suggested Amendment
RULES OF APPELLATE PROCEDURE (RAP)
Rule 12.5 - Mandate
(Clarifies when the Court of Appeals will issue a mandate)
Submitted by the Board of Governors of the Washington State
Bar Association
The suggested amendment resolves this conflict between RAP 12.5(b) and RAP 13.4(a) essentially by deferring to the time limits in the latter rule. In dealing with motions for reconsideration and to publish, the suggested amendment to RAP 12.5 (b)(2) ties issuance of the mandate to the existing deadline for filing a petition for review in RAP 13.4(a). In this way, the mandate will not issue until after the opportunity to petition for review has passed.
This suggested amendment does not add a motion to publish to the list in the first sentence of RAP 12.5(b) of pleadings that the parties can stipulate not to file in order to accelerate issuance of the mandate. If the parties make the stipulation as currently provided in the first sentence, the rest of section (b) -- including the suggested provision about a motion to publish -- would not apply, so there will be no conflict: the mandate will issue notwithstanding the motion to publish and the parties will have already agreed not to seek review by the Supreme Court. If the parties want to stipulate about a motion for reconsideration and petition for review, they are free to work out between them whether that stipulation is contingent on either of them refraining from filing a motion to publish.
RULES OF APPELLATE PROCEDURE (RAP)
RAP 12.5 - Mandate
(b) When Mandate Issued by Court of Appeals. The clerk of the Court of Appeals will issue the mandate for a Court of Appeals decision terminating review upon stipulation of the parties that no motion for reconsideration or petition for review will be filed. In the absence of that stipulation, and except to the extent the mandate is stayed as provided in rule 12.6, the clerk will issue the mandate:
(1) Thirty (30) days after the decision is filed, unless (i) a motion for reconsideration of the decision or a motion to publish has been earlier filed, (ii) a petition for review to the Supreme Court has been earlier filed, or (iii) the decision is a ruling of the commissioner or clerk and a motion to modify the ruling has been earlier filed.
(2) If a motion for reconsideration or motion to publish
is timely filed and denied, 30 days after expiration of the
time for filing a petition for review under rule 13.4(a)
filing the order denying the motion for reconsideration,
unless a petition for review to the Supreme Court has been
earlier filed.
(3) If a petition for review has been timely filed and denied by the Supreme Court, upon denial of the petition for review.
[(c) - (e) unchanged]
Suggested New Rule
WASHINGTON RULES OF EVIDENCE (ER)
Rule 502 - Attorney-Client Privilege, and Work Product; Limitations on Waiver)
(Adding provisions conforming to Federal Rule of Evidence 502)
Submitted by the Board of Governors of the Washington State
Bar Association
Washington law would evolve further, but still not completely, if the Court were to adopt suggested amendments to CR 26 and 45, which the Court has published for comment. If adopted, those amendments would establish what is often referred to as a "claw back" procedure that is based on 2006 amendments to Federal Rules of Civil Procedure 26 and 45. The procedure would allow parties to assert claims of an inadvertent production of privileged communications or work product. However, that procedure would not affect the law that controls the substantive resolution of those claims.
Until recently, there was essentially no law in Washington regarding whether, and under what circumstances, the inadvertent disclosure of attorney-client privilege and work product material caused a waiver of those protections. See Harris v. Drake, 152 Wn.2d 480, 495, 99 P.3d 872 (2004) (Alexander, C.J., dissenting) ("Indeed, there are no Washington cases discussing the inadvertent disclosure of work product protected materials.")
The current suggested amendment would fill that gap by providing the substantive law to resolve such waiver claims. The amendment would add a new Rule of Evidence 502 based closely on Federal Rule of Evidence FRE 502, which was signed into law on September 19, 2008. The suggested new ER 502 would comprise six sections, each corresponding to a section of the federal rule1:
(a) Disclosure made in a Washington State proceeding or to a Washington State office or agency; scope of a waiver. This section provides for when a disclosure of privilege communication can operate to waive the privilege for other, undisclosed communications. In other words, it addresses the scope of "subject matter waiver."
(b) Inadvertent disclosure. This section provides for the circumstances under which an inadvertent disclosure in a Washington proceeding can cause the waiver of attorney-client privilege or work product protection.
(c) Disclosure made in a non-Washington State proceeding. This section provides for the circumstances under which a disclosure in a non-Washington proceeding, in the absence of a court order, can cause the waiver in a Washington proceeding of attorney-client privilege or work product protection.
(d) Controlling effect of a court order. This section provides for the effect of court orders on the waiver of privilege or work product.
(e) Controlling effect of a party agreement. This section provides for the effect of party agreement, in the absence of a court order, on the waiver of privilege or work product.
(f) Definitions. This section provides definitions for "attorney-client privilege" and "work-product protection" as used in the rule.
Following the federal model will provide Washington courts and practitioners access to authority interpreting that model. Several states (including Arizona, Arkansas, Iowa, Louisiana) are considering or have adopted some version of the federal rule in their evidence rules, civil rules, or both.
Suggested new ER 502 would be consistent with RPC 4.4(b) and would complement and work in concert with the pending suggested "claw back" amendments to CR 26 and CR 45.
Suggested new ER 502 would also be consistent with the Washington Court of Appeals' recent use of the new federal rule to resolve a claim of an inadvertent waiver. Sitterson v. Evergreen School District No., 147 Wn. App. 576, 196 P.3d 735 (2008), was the first appellate ruling in Washington deciding whether inadvertent production waives the attorney-client privilege. The court noted that there are three potential approaches to waiver by inadvertent production: "(1) the traditional 'absolute waiver' approach...; (2) the absolute 'no waiver' approach; and (3) the 'balanced' approach." Id., 147 Wn. App. at 585-86. The court decided to apply the "balanced approach," and cited as support for that decision the fact that "Congress recently amended the federal rules of evidence to reflect a balanced approach to inadvertent waiver of the attorney client privilege." Id. at 587-88 and n.8 (quoting FRE 502).
1The only section of the federal rule not mirrored in the suggested Washington rule is FRE 502(f), which deals with the
controlling effect of the federal rule on other types of proceedings, including state proceedings. Such a provision is unnecessary in
Washington, where there is no question of application of the ERs to an inferior jurisdiction and where the suggested new ER 502 will
have the same application as all other ERs in Washington proceedings.
WASHINGTON RULES OF EVIDENCE (ER)
ER 502 - ATTORNEY-CLIENT PRIVILEGE AND WORK PRODUCT; LIMITATIONS ON WAIVER
(a) Disclosure Made in a Washington Proceeding or to a Washington Office or Agency; Scope of a Waiver. When the disclosure is made in a Washington proceeding or to a Washington office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in any proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.
(b) Inadvertent Disclosure. When made in a Washington proceeding or to a Washington office or agency, the disclosure does not operate as a waiver in any proceeding if:
(1) the disclosure is inadvertent;
(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and
(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following CR 26 (b)(6).[1]
(c) Disclosure Made in a Non-Washington Proceeding. When the disclosure is made in a non-Washington proceeding and is not the subject of a court order concerning waiver, the disclosure does not operate as a waiver in a Washington proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been made in a Washington proceeding; or
(2) is not a waiver under the law of the jurisdiction where the disclosure occurred.
(d) Controlling Effect of a Court Order. A Washington court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court -- in which event the disclosure is also not a waiver in any other proceeding.
(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a Washington proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
(f) Definitions. In this rule:
(1) "attorney-client privilege" means the protection that applicable law provides for confidential attorney-client communications; and
(2) "work-product protection" means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.
1The Court has published for comment a suggested amendment to add a new CR 26 (b)(6). The text of this suggested
amendment assumes adoption of the new CR 26 (b)(6). If the Court does not adopt that new subsection, the phrase ", including (if
applicable) following CR 26 (b)(6)" should be removed from this suggested new rule.
Suggested Amendment
WASHINGTON RULES OF EVIDENCE (ER)
Rule 1101 - Applicability of Rules
(Clarifying the exemption for certain juvenile court hearings
from the Rules of Evidence)
Submitted by the Board of Governors of the Washington State
Bar Association
The current language of ER 1101 (c)(3) references RCW 13.34.130(4), which in prior years governed review hearings in dependency matters but now addresses other matters. This reference is out of date; RCW 13.34.138 is the current statute. In addition, courts adjudicate review hearings in At-Risk Youth (ARY) proceedings (RCW 13.32A.198) and permanency planning hearings in dependencies (RCW 13.34.145) without the Rules of Evidence, but these types of hearings are not specifically mentioned in ER 1101 (c)(3).
The suggested amendment confirms that the above hearings, as well as those already listed in ER 1101 (c)(3), are exempt from the Rules of Evidence. By using the terms "preliminary determinations in juvenile court," "juvenile court hearings on declining jurisdiction," and "disposition, review, and permanency planning hearings in juvenile court," the suggested amendment confirms that the following juvenile hearings are exempt from the Rules of Evidence:
1. Preliminary determinations;
2. Hearings on declining jurisdiction (RCW 13.40.110);
3. Disposition hearings in offender (RCW 13.40.150), dependency (RCW 13.34.130), ARY (13.32A.197), and Child in Need of Services (CHINS) (RCW 13.32A.179) proceedings;
4. Review hearings in dependency (RCW 13.34.138), ARY (RCW 13.32A.198), and CHINS (RCW 13.32A.190) proceedings; and
5. Permanency planning hearings in dependency (RCW 13.34.145) proceedings.
The suggested amendment eliminates specific statutory references to avoid the need to amend ER 1101 (c)(3) again if the juvenile statutes are changed. Because the terms used are specific terms of art that are well understood by practitioners in juvenile law, there is no need to cite the specific statutes. The drafters of the suggested amendment do not intend for juvenile hearings other than those listed above (under whichever RCW sections govern them in future) to be exempt from the Rules of Evidence.
The drafters of the suggested amendment intend no change to the application of the Rules of Evidence when contempt is adjudicated in these juvenile hearings. Regardless of whether the type of hearing in general is exempt from the Rules of Evidence, under current law the Rules of Evidence must be applied when non-direct contempt is adjudicated. See, e.g., In re M.B., 101 Wn. App. 425, 469 & n.114, 3 P.3d 780 (2000) (Rules of Evidence apply to contempt issues in ARY, CHINS, and dependency proceedings); ER 1101 (c)(3) (stating that the Rules of Evidence do not apply to contempt proceedings in which the court may act summarily, meaning direct contempt, thus indicating that the Rules of Evidence do apply when the basis for the contempt is an action that occurred outside of the courtroom). An attempt to reflect this current law on contempt proceedings more expressly and broadly in the Rules of Evidence is beyond the scope of this suggested amendment.
WASHINGTON RULES OF EVIDENCE (ER)
ER 1101 - Applicability of Rules
(c) When Rules Need Not Be Applied. The rules (other than with respect to privileges, the rape shield statute and ER 412) need not be applied in the following situations:
(1) Preliminary Questions of Fact. [unchanged]
(2) Grand Jury. [unchanged]
(3) Miscellaneous Proceedings. Proceedings for
extradition or rendition; detainer proceedings under RCW 9.100; preliminary determinations in criminal cases;
sentencing, or granting or revoking probation; issuance of
warrants for arrest, criminal summonses, and search warrants;
proceedings with respect to release on bail or otherwise;
contempt proceedings in which the court may act summarily;
habeas corpus proceedings; small claims court; supplemental
proceedings under RCW 6.32; coroners' inquests; preliminary
determinations in juvenile court proceedings under RCW Title
13; juvenile court hearings on declining jurisdiction under
RCW 13.40.110; disposition, hearings in juvenile court;
review, and permanency planning hearings in juvenile court
under RCW 13.32A.190 and RCW 13.34.130(4); dispositional
determinations related to treatment for alcoholism,
intoxication, or drug addiction under RCW 70.96A; and
dispositional determinations under the Civil Commitment Act,
RCW 71.05.
(4) Applications for Protection Orders. [unchanged]
[(d) unchanged]
Suggested New Rules
SUPERIOR COURT FAMILY LAW CIVIL RULES (FLCR)
(Creating new Family Law Civil Rules)
Submitted by the Board of Governors of the Washington State
Bar Association
In 2006, a coalition of eight Washington State Bar Association sections asked the WSBA Court Rules and Procedures Committee to consider the impact of the proliferation of local rules on litigants and their counsel. The coalition recommended abolishment of all local rules with the exception of those rules governing docket management. The Court Rules and Procedures Committee suggested to the Board of Governors that a special task force be convened to evaluate this issue. In the fall of 2006 the WSBA created and chartered the Local Rules Task Force ("the Task Force") and by early winter 2007 appointed its co-chairs and members.
The Task Force consists of representatives of various stakeholders concerned with the proper promulgation, amendment, and application of the local rules of Superior Courts, including court administrators, judges, and lawyer-practitioners. The practitioner group has been augmented by representatives of the family law bar, whose procedures have given rise to a distinct body of rules. Practitioners include members of the trial bar from both the public and private sectors. Jurists include both current and former members of the bench. The Task Force is co-chaired by Supreme Court Justice Charles W. Johnson and attorney Lish Whitson.
The Task Force was created to review the purpose and function of local rules; the impact of local rules on courts, litigants (both pro se and represented) and the trial bar; and possible means to mitigate the detrimental effects of the ever-increasing number of local rules. The Task Force was charged with reviewing the model local rules and practices in other states with non-unified court systems to develop recommendations on possible improvements or modifications to Washington's local rulemaking process and authorizations, in addition to looking at the work product of the earlier efforts in this state to stem the proliferation of local rules. In discharging its mission under this Charter, the Task Force was mindful of the directive in Rule 1 of the Superior Court Civil Rules that the court rules "shall be construed and administered to secure the just, speedy, and inexpensive determination of every action."
The Task Force spent 18 months reviewing every Superior Court local rule from all 39 counties, and unearthed numerous problems which have contributed to the proliferation of local rules. Some of the concerns that were studied include:
Local rules vary greatly from county to county, both in terms of content and numbering.
Local rules are often created in reaction to specific incidents. They commonly persist long after their usefulness, without being reviewed or repealed.
Often, civil, criminal, and family law rules are commingled in a single set of local rules.
The sheer number of local rules, combined with commingling and lack of uniformity, causes problems for litigants by making the rules more difficult to understand and follow, creating traps for the unwary.
The burden and cost placed upon counsel and litigants required to comply with different local rules in each county increases the cost of litigation, which has the effect of reducing access to equal justice.
In some counties, failure to follow local rules can result in the loss of substantive rights.
Some individual judges have established "procedures" for their courts that are not even codified as local rules, such as different colored paper for different pleadings.
Some local rules, rather than being purely procedural in nature, contain matters of substantive law. Worse, some local rules may be best described as "legislating via court rule."
Some counties include statewide rules, statutes, and even case law in their local rules.
Some local rules are outdated, referencing obsolete technology and procedures, or have not been modified to reflect changes in the law or statewide rules.
Some local rules are outright contradictory to statewide rules.
Local rules differ with regard to the format of pleadings, forms, page limitations, and brief requirements -- some with procedurally significant impacts -- and do not comply with GR 14.
There is currently no mechanism for assuring the uniformity of the local rules or for the systematic approval, review, or elimination of local rules from county to county.
During its work, the Task Force became especially concerned about the complex issues and procedures surrounding family law cases. The Task Force learned that family law is a distinct area of law with its own special problems, and that many counties had enacted both civil and family law local rules in an effort to accommodate the special nature of family law cases. The Task Force's review revealed there is often cross-over between family law rules and civil rules at both the state and local levels, because family law cases are also civil law cases. This forces family law practitioners and pro se litigants to not only be cognizant of local rules that are clearly identified as family law local rules, but also of local civil rules containing provisions applicable to family law cases. At the same time, both practitioners and pro se litigants must also keep in mind state Civil Rules in order to find all the rules that may apply to their family law case.
The Task Force created a family law subcommittee with special expertise in family law issues. All local rules as they related to family law matters were separately reviewed by this subcommittee. The subcommittee reported serious access to justice issues, such as the practice of some courts to adopt local rules making court services both mandatory and with required service fees. In addition, the subcommittee found that a number of family law related local rules, rather than being purely procedural in nature, contained matters of substantive law or were substantive with no corresponding authority in law. Finally, there are also specific topic areas of interest to family law practitioners and litigants with no counterpart in the Civil Rules.
The Task Force has presented an interim report to the WSBA Board of Governors (available on the WSBA website, www.wsba.org) and is continuing its important work. As the first step in its ongoing efforts to curb the proliferation of local rules, eliminate sources of confusion and traps for the unwary, and promote and facilitate access to justice, the Task Force has promulgated a proposed set of Superior Court Family Law Civil Rules ("FLCR"). The FLCR are intended to secure the just, speedy, and inexpensive determination of family law matters. The proposed FLCR parallel the Superior Court Civil Rules ("CR") and are intended to provide the framework for general management of family law cases.
Key components of the FLCR include:
Specific provisions for timing and scheduling of motions, as well as delivery of responses and replies (FLCR 6(d));
Specific language allowing for presentation of telephonic oral argument, at the court's discretion, and imposing page limits and other restrictions on motions (FLCR 7);
Format requirements (FLCR 10(d));
Provision for information exchange/automatic discovery of documents commonly required for family law actions (FLCR 16(c));
Entry of automatic temporary orders to preserve the status quo on petitions to dissolve marriages, relationships, or meretricious relationships (FLCR 16(d));
Provisions addressing the use of courthouse facilitators (FLCR 87); and
Authority to require participation in extra-judicial services/parenting seminars (FLCR 88).
The Task Force anticipates that the FLCR will eliminate the need for many counties' local rules; however, the Task Force also recognizes that different counties have different needs. For example, large counties may feel they have more of a need to manage case flow via local rules. Once adopted, under GR 7, CR 83, and proposed FLCR 83, any County proposing to modify the FLCR would be required to submit their proposed local rules to the Supreme Court for review and approval prior to implementation. The Task Force anticipates working with the state Supreme Court in a concentrated effort to work with counties to eliminate local rules that do not comply with GR 7, CR 1, and/or CR 83, or which are otherwise unnecessary or inappropriate.
In addition to submitting the suggested Family Law Civil Rules, the WSBA Board of Governors respectfully recommends that the Supreme Court establish a timetable and methodology for counties to bring their local rules into conformance.
SUPERIOR COURT FAMILY LAW CIVIL RULES (FLCR)
RULE 1 SCOPE OF RULES
RULE 2 ONE FORM OF ACTION [Reserved. See CR 2.]
RULE 2A STIPULATIONS [Reserved. See CR 2A.]
RULE 3 COMMENCEMENT OF ACTION [Reserved. See CR 3.]
RULE 4 PROCESS [Reserved. See CR 4.]
(b) Summons -- Content, Form.
(1) Content. The summons shall contain the title of the action, the name of the county and the court in which the action is brought, the names of the parties, as petitioner and respondent, a direction to the respondent to serve a copy of his or her response on the person who has signed the summons, the time limit within which the copy of the response must be served, notice that failure to serve a copy of the response within the stated time may result in a judgment by default, the signature and address of the petitioner or petitioner's attorney, and the date.
(2) Form. The summons for personal service in actions subject to this rule and within this State shall be substantially in the form provided in the pattern forms approved by the Administrative Office of the Courts. The summons for personal service out of state should be adapted from this form and must include the modifications required by statute. See RCW 4.28.180.
RULE 4.2 PROCESS - LIMITED REPRESENTATION [Reserved. See CR 4.2]
RULE 5 SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS [Reserved. See CR 5.]
(a) Computation. [Reserved. See CR 6(a).]
(b) Enlargement. [Reserved. See CR 6(b).]
(c) Proceeding Not to Fail for Want of Judge or Session of Court. [Reserved. See CR 6(c).]
(d) For Motions - Affidavits. The time frames set forth in CR 6(d) shall be the minimum allowed for any family law motion other than one brought under a motion to shorten time or a motion seeking temporary relief as set forth below. Any county may expand the time frames set forth in CR 6(d) to allow for additional time of up to fourteen (14) days for the original notice as well as for responsive and reply documents.
(1) Motion to Shorten Time. For good cause shown by motion of a party, the court may alter the time periods set forth in this rule to allow for the hearing of an emergent matter. All such motions shall be supported by a written affidavit setting forth the basis for the good cause and emergent nature of the matter justifying the waiver of time to allow the granting of the motion to shorten time and setting forth the efforts to provide advance notice to the opposing party. Local courts pursuant to rule 83 may impose procedural requirements associated with such motions, such as before whom the motion must be presented.
(2) Motion Seeking Temporary Relief. Notwithstanding the time limits prescribed in this rule, and subject to the relief available in this rule, a party bringing a motion for temporary relief shall serve that written motion and notice of the hearing thereof not later than ten (10) days before the time specified for the hearing. When such a motion is supported by affidavit, opposing affidavits may be served not later than three (3) days before the hearing. Reply pleadings shall be due no later than one day prior to the hearing. This subsection shall not control any motion that may be heard ex parte.
(3) Oral Arguments on Motions. Local rules adopted pursuant to rule 83 may establish a method for the timely and efficient scheduling of oral arguments on motions in cases governed by these rules. Acceptable methods shall include: (a) a limit on the time allocated for oral argument so long as an equal amount of time is provided for each litigant; (b) regular calendars with pre-set time slots assigned to the parties for oral argument of no fewer than ten minutes per side including rebuttal; and (c) special calendars for oral arguments requiring more than a total of thirty minutes.
(e) Additional Time After Service by Mail. [Reserved. See CR 6(e).]
At the discretion of each Superior Court, oral argument
may be presented by pro se parties or counsel by telephone in
family law motions. For testimonial proceedings, see CR 43.
(a) Pleadings. [Reserved. See CR 7(a).]
(b) Motions and Other Papers. [Reserved. See CR 7(b).]
(c) Demurrers, Pleas, etc. Abolished. [Reserved. See CR 7(c).]
(d) Security for Costs. [Reserved. See CR 7(d).]
(e) Page Limits.
(1) Issues To Be Decided Solely On The Pleadings. In matters where the court will decide an issue or motion for relief solely on the pleadings submitted by the litigants, the motion and reply pleadings of the moving party and the responsive pleadings of the responding party shall be limited to a total of twenty-five (25) pages per party, including all declarations or affidavits of non-expert witnesses.
(2) Issues To Be Decided After A Testimonial Proceeding. In matters where the court will decide an issue or motion for relief only after the taking of oral testimony, the motion and reply pleadings of the moving party and the responsive pleadings of the responding party shall be limited to a total of ten (10) pages per party, including all declarations or affidavits of non-expert witnesses.
(3) Increasing Page Limits. Local rules adopted pursuant to rule 83 may increase the number of pages allowed but all such increases shall be applied equally to all parties.
(4) Exception to Page Limits. This page limit rule does not apply to trial briefs, memorandums of law, guardian ad litem reports, expert reports and evaluations, transcripts, emails, text messages, exhibits other than declarations or affidavits, financial declarations, or any financial or medical documents filed under seal.
(f) Use of Pattern Forms. All pleadings shall be on forms approved by the Administrative Office of the Courts or on substantially similar forms. A party may delete unnecessary portions of the forms according to the rules established by the Administrative Office of the Courts. A party may supplement the mandatory forms with additional material. A party's failure to use the mandatory forms or follow the format rules shall not be a reason to dismiss a case, refuse a filing, or strike a pleading. However, the court may require the party to submit a corrected pleading and may impose terms payable to the opposing party or payable to the court, or both.
RULE 8 GENERAL RULES OF PLEADING [Reserved. See CR 8.]
RULE 9 PLEADING SPECIAL MATTERS [Reserved. See CR 9.]
(a) Caption. [Reserved. See CR 10(a).]
(b) Paragraphs; Separate Statements. [Reserved. See CR 10(b).]
(c) Adoption by Reference; Exhibits. [Reserved. See CR 10(c).]
(d) Format Requirements. To the extent this subsection (d) establishes format requirements different from those established by GR 14, the requirements of this subsection (d) shall apply in actions governed by these rules.
(1) Handwritten Documents. To ensure access to the courts for any party appearing pro se, all courts shall allow the submission of pleadings that are legibly handwritten in black or blue ink using only one side of each page. Declarations shall be appropriately verified and formatted.
(2) Font Size for Typed or Computer Generated Documents. Except for footnotes and citations from other documents inserted into the pleading, all typed or computer generated documents shall be prepared using a minimum of 11-point fonts and shall be double-spaced. Local rules adopted pursuant to rule 83 may allow or indicate a non-mandatory preference for a larger sized printing but documents prepared using the minimum size set forth herein shall not be disallowed.
(3) Paper Color. All pleadings and bench copies shall be prepared on white paper.
(e) Format Recommendations. [Reserved. See CR 10(e).]
(f) Personal Identifiers Prohibited. [Reserved. See CR 10(f).]
(g) Unpublished Opinions. [Reserved. See CR 10(g).]
RULE 11 SIGNING AND DRAFTING OF PLEADINGS, MOTIONS, AND LEGAL MEMORANDA; SANCTIONS [Reserved. See CR 11.]
RULE 12 DEFENSES & OBJECTIONS [Reserved. See CR 12.]
RULE 13 COUNTERCLAIM AND CROSS CLAIMS [Reserved. See CR 13.]
RULE 14 THIRD PARTY PRACTICE [Reserved. See CR 14.]
RULE 15 AMENDED & SUPPLEMENTAL PLEADINGS [Reserved. See CR 15.]
(a) Hearing Matters Considered. [Reserved. See CR
16(a).
(b) Pretrial Order. [Reserved. See CR 16(b).]
(c) Information Exchange/Automatic Discovery. At least fourteen days prior to settlement conference or thirty days prior to trial, whichever is sooner, for any case involving dissolution of marriage or similar dissolutions or the setting of child support, the parties shall exchange:
(1) Complete individual and business tax returns with all schedules and applicable W-2 and 1099 forms for the past two years;
(2) Pay stubs for the last six months;
(3) Balance statements for mortgages, installment purchase contracts, credit cards or other debts from the date of separation to the current date;
(4) Statements for retirement accounts, bank accounts, brokerage or investment accounts or other accounts of assets from the date of separation to the current date;
(5) Appraisals of real or personal property;
(6) Blue book valuations or appraisals of automotive and recreational vehicles;
(7) Summary of tracing of separate property;
(8) Life insurance documents;
(9) Business valuations;
(10) Disclosure of expert witnesses; and
(11) Joint management reports or similar documentation, if any.
(d) Automatic Temporary Orders Preserving Status Quo. Upon the filing of any petition under Title 26 RCW to dissolve any relationship and any complaint to dissolve a meretricious relationship, the court may upon its own initiative issue a temporary order that:
(1) Restrains the parties from transferring or disposing of any property absent written agreement or court order;
(2) Restrains the parties from changing any automobile, health or other insurance absent written agreement or court order;
(3) Makes each party responsible for his/her debts incurred subsequent to the filing of the petition;
(4) Requires notification of extraordinary expenditures or liabilities incurred after issuance of the automatic temporary order;
(5) Requires each party to grant the opposing party access to all tax, financial, legal and household records;
(6) Restrains parents from changing the place of residence of the parties' children absent written agreement or court order;
(7) Authorizes each parent to have full access to the children's education and medical records as per statute; and
(8) Restrains parents from exposing the children to negative or derogatory commentary about the other parent.
(a) Real Party in Interest. [Reserved. See CR 17(a).]
(b) Capacity to Sue or Be Sued. [Reserved. See CR 17(b).]
(c) Infants, or Incompetent Persons. [Reserved. See CR 17(c).]
(d) Actions on Assigned Choses in Action. [Reserved. See CR 17(d).]
(e) Public Corporations. [Reserved. See CR 17(e).]
(f) Tort Actions Against State. [Reserved. See CR 17(f).]
RULE 18 JOINDER OF CLAIMS & REMEDIES [Reserved. See CR 18.]
RULE 19 JOINDER OF PERSONS NEEDED FOR JUST ADJUDICATION [Reserved. See CR 19.]
RULE 20 PERMISSIVE JOINDER OF PARTIES [Reserved. See CR 20.]
RULE 21 MISJOINDER AND NONJOINDER OF PARTIES [Reserved. See CR 21.]
RULE 22 INTERPLEADER [Reserved. See CR 22.]
RULE 23 CLASS ACTIONS [Reserved. See CR 23.]
RULE 23.1 DERIVATIVE ACTIONS BY SHAREHOLDERS [Reserved. See CR 23.1]
RULE 23.2 ACTIONS RELATING TO UNINCORPORATED ASSOCIATIONS [Reserved. See CR 23.2]
RULE 24 INTERVENTION [Reserved. See CR 24.]
RULE 25 SUBSTITUTION OF PARTIES [Reserved. See CR 25.]
RULE 26 GENERAL PROVISIONS GOVERNING DISCOVERY [Reserved. See CR 26.]
RULE 27 PERPETUATION OF TESTIMONY [Reserved. See CR 27]
RULE 28 PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN [Reserved. See CR 28.]
RULE 29 STIPULATIONS REGARDING DISCOVERY PROCEDURE [Reserved. See CR 29.]
RULE 30 DEPOSITIONS UPON ORAL EXAMINATION [Reserved. See CR 30.]
RULE 31 DEPOSITIONS UPON WRITTEN QUESTIONS [Reserved. See CR 31.]
RULE 32 USE OF DEPOSITIONS IN COURT PROCEEDINGS [Reserved. See CR 32.]
RULE 33 INTERROGATORIES TO PARTIES [Reserved. See CR 33.]
RULE 34 PRODUCTION OF DOCUMENTS & THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES [Reserved. See CR 34.]
RULE 35 PHYSICAL AND MENTAL EXAMINATION OF PERSONS [Reserved. See CR 35.]
RULE 36 REQUESTS FOR ADMISSION [Reserved. See CR 36.]
RULE 37 FAILURE TO MAKE DISCOVERY - SANCTIONS [Reserved. See CR 37.]
RULE 38 JURY TRIAL OF RIGHT [Reserved. See CR 38.]
RULE 39 TRIAL BY JURY OR BY THE COURT [Reserved. See CR 39.]
Local rules adopted pursuant to rule 83 may establish a
system that creates case schedules and the assignment of
judicial teams for the efficient management of cases.
RULE 41 DISMISSAL OF ACTIONS [Reserved. See CR 41.]
RULE 42 CONSOLIDATIONS; SEPARATE TRIALS [Reserved. See CR 42.]
RULE 43 TAKING OF TESTIMONY [Reserved. See CR 43.]
RULE 44 PROOF OF OFFICIAL RECORD [Reserved. See CR 44.]
RULE 44.1 DETERMINATION OF FOREIGN LAW [Reserved. See CR 44.1]
RULE 45 SUBPOENA [Reserved. See CR 45.]
RULE 46 EXCEPTIONS UNNECESSARY [Reserved. See CR 46.]
RULE 47 JURORS [Reserved. See CR 47.]
RULE 48 JURIES OF LESS THAN TWELVE [Reserved. See CR 48.]
RULE 49 VERDICTS [Reserved. See CR 49.]
RULE 50 JUDGMENT AS A MATTER OF LAW IN JURY TRIALS; ALTERNATIVE MOTION FOR NEW TRIAL; CONDITIONAL RULINGS [Reserved. See CR 50]
RULE 51 INSTRUCTION TO JURY AND DELIBERATION [Reserved. See CR 51.]
(a) Requirements.
(1) Generally. [Reserved. See CR 52 (a)(1).]
(2) Specifically Required. [Reserved. See CR 52 (a)(2).]
(A) Temporary Injunctions. [Reserved. See CR 52 (a)(2)(A).
(B) Title 26 RCW Cases. Without in any way limiting the requirements of CR 52(1), findings and conclusions are required in all Title 26 RCW cases in which the court makes specific findings of physical or sexual abuse or exploitation of a child, whether heard ex parte or not. Where such findings of physical or sexual abuse or exploitation of a child are entered, the court shall direct the court clerk to notify the state patrol of the findings as required by law.
(C) Other. [Reserved. See 52 (a)(2)(C).]
(3) Proposed. [Reserved. See CR 52 (a)(3).]
(4) Form. [Reserved. See CR 52 (a)(4).]
(5) When Unnecessary. [Reserved. See CR 52 (a)(5).]
(b) Amendment of Findings. [Reserved. See CR 52(b).]
(c) Presentation. [Reserved. See CR 52(c).]
(d) Judgment without Findings, etc. [Reserved. See CR 52(d).]
(e) Time Limit for Decision. [Reserved. See CR 52(e).]
RULE 53 MASTERS [RESERVED]
RULE 53.1 REFEREES [Reserved. See CR 53.1.]
RULE 53.2 COURT COMMISSIONERS [Reserved. See CR 53.2.]
RULE 53.3 APPOINTMENT OF MASTERS IN DISCOVERY MATTERS [Reserved. See CR 53.3.]
RULE 53.4 PROCEDURES FOR MANDATORY MEDIATION OF HEALTH CARE CLAIMS [Reserved. See CR 53.4.]
Any court may refer parties in any case governed by these
rules to mediation or settlement conferences prior to setting
the matter for trial. In cases where either of the parties is
indigent or such referral would pose a significant financial
hardship on either party, the court shall not require
participation in such services without also providing funding
to pay for the service.
RULE 54 JUDGMENTS AND COSTS [Reserved. See CR 54.]
RULE 55 DEFAULT AND JUDGMENT [Reserved. See CR 55.]
RULE 56 SUMMARY JUDGMENT [Reserved. See CR 56.]
RULE 57 DECLARATORY JUDGMENTS [Reserved. See CR 57.]
RULE 58 ENTRY OF JUDGMENT [Reserved. See CR 58.]
RULE 59 NEW TRIAL, RECONSIDERATION, AND AMENDMENT OF JUDGMENTS [Reserved. See CR 59.]
RULE 60 RELIEF FROM JUDGMENT OR ORDER [Reserved. See CR 60.]
RULE 61 HARMLESS ERROR [RESERVED] [Reserved. See CR 61.]
RULE 62 STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT [Reserved. See CR 62.]
RULE 63 JUDGES [Reserved. See CR 63.]
RULE 64 SEIZURE OF PERSON OR PROPERTY [Reserved. See CR 64.]
RULE 65 INJUNCTIONS [Reserved. See CR 65.]
RULE 65.1 SECURITY - PROCEEDINGS AGAINST SURETIES [Reserved. See CR 65.1]
RULE 66 RECEIVERSHIP PROCEEDINGS [RESERVED] [Reserved. See CR 66.]
RULE 67 DEPOSIT IN COURT [Reserved. See CR 67.]
RULE 68 OFFER OF JUDGMENT [Reserved. See CR 68.]
RULE 69 EXECUTION [Reserved. See CR 69.]
RULE 70 JUDGMENT FOR SPECIFIC ACTS; VESTING TITLE [Reserved. See CR 70.]
RULE 70.1 APPEARANCE BY ATTORNEY [Reserved. See CR 70.1]
RULE 71 WITHDRAWAL OF ATTORNEY [Reserved. See CR 71.]
RULE 72 Reserved
RULE 73 Reserved
RULE 74 Reserved
RULE 75 Reserved
RULE 76 Reserved
RULE 77 SUPERIOR COURTS AND JUDICIAL OFFICERS [Reserved. See CR 77.
RULE 78 CLERKS [Reserved. See CR 78.]
RULE 79 BOOKS AND RECORDS KEPT BY THE CLERK [Reserved. See CR 79.]
RULE 80 COURT REPORTERS [Reserved. See CR 80.]
Except where inconsistent with rules or statutes
applicable to special proceedings or Title 26 RCW proceedings,
these rules shall govern all family law proceedings. Where
statutes relating to special proceedings or Title 26 RCW
proceedings provide for procedure under former statutes
applicable generally to family law actions, the procedure
shall be governed by these rules.
RULE 82 VENUE [Reserved. See CR 82.]
RULE 82.5 TRIBAL COURT JURISDICTION [Reserved. See CR 82.5]
(a) Adoption. Each court, in accordance with GR 7, may
from time to time make and amend local rules that are not
inconsistent with these rules and that govern that court's
practice in cases governed by these rules. Local rules shall
conform to the same numbering and index system as these rules.
Local rules shall be denoted as Local Family Law Civil Rules
(with the official abbreviation of LFLCR).
(b) Scope and Limitations. Local court rules shall be limited to procedural matters and shall not address substantive legal issues. Statutes and case law rulings shall not be restated and set forth in local rules but may be cited for purposes of reference pointers only.
RULE 84 FORMS [Reserved] [See RULE 7(f).]
These rules shall be known and cited as the Family Law
Civil Rules. FLCR is the official abbreviation.
These rules and amendments promulgated pursuant to
authority granted to the Supreme Court shall govern all
proceedings in all Title 26 RCW actions after the rules and
amendments take effect and also all further proceedings in
actions pending on their effective dates except to the extent
that in the opinion of the superior court, expressed by its
order, the application of these rules in a particular action
pending when the rules take effect would not be feasible or
would work injustice, in which event the procedure existing at
the time the action was brought applies.
A court may require a party appearing pro se to meet with
a GR 27 courthouse facilitator or may require review by a GR
27 courthouse facilitator of certain documents prepared by a
party appearing pro se prior to submission of those documents
to a judicial officer. In cases where either party is
indigent or use of a GR 27 courthouse facilitator would pose a
significant financial hardship on either party, or where a
lawyer has signed documents to indicate review of documents
prepared by a party appearing pro se, the court shall not
require the use of a GR 27 courthouse facilitator without also
providing funding to pay for that use.
Subject to the following provisions, a court may require
parties to participate in parenting seminars regarding the
effect of divorce or separation of parents prior to entry of a
parenting plan as set forth in RCW 26.12.172 as the statute
may be amended from time to time:
(a) In no case shall opposing parties be required to attend parenting seminars together;
(b) In cases where either of the parties is indigent or such participation in a parenting seminar would pose a significant financial hardship on either party, the court shall not require participation in a parenting seminar without also providing funding to pay for the seminar;
(c) The court must provide a means of waiving the requirement to participate in a parenting seminar for good cause shown; and
(d) Failure of a party to participate in a parenting seminar shall not be the basis for the court denying entry of a final order in the action.
Reviser's note: The spelling error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.
Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.