Court Rules Archives — LAW OFFICE OF GREGORY A. WILLIAMS

November 21, 2024November 21, 2024

Liability for Killing or Injuring Dog Guide or Service Animal (WA State)

Under the Washington Law Against Discrimination (WLAD), RCW 49.60, is there a provision concerning the killing or injuring of a dog guide or service animal? Here’s my point of view.

IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to either our Williams Law Group Blog* or an official governmental website. This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

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WLAD — LIABILITY FOR KILLING OR INJURING DOG GUIDE OR SERVICE ANIMAL

In Washington State, the rights of individuals with disabilities are protected under a variety of laws, including those governing the treatment of dog guides and service animals. One key WLAD provision is RCW 49.60.370*, which outlines the penalties and remedies for the killing or injury of such animals.

Under this law, if a person negligently or maliciously kills or injures a dog guide or service animal, they are liable for a penalty of $1,000, which must be paid to the user of the animal. This penalty is in addition to any other civil or criminal penalties that may apply. Not only does this law provide financial compensation for the user of the animal, but it also enables the recovery of reasonable attorney’s fees and costs if legal action is required.

Importantly, RCW 49.60.370* clarifies that the Washington State Human Rights Commission has no duty to investigate incidents of negligent or malicious acts against a dog guide or service animal. This means that individuals seeking justice under this statute must take legal action themselves to pursue civil remedies.

THE BLACK-LETTER LAW — RCW 49.60.370

The relevant WLAD section states as follows:

RCW 49.60.370
Liability for killing or injuring dog guide or service animal—Penalty in addition to other remedies or penalties—Recovery of attorneys’ fees and costs—No duty to investigate.

(1) A person who negligently or maliciously kills or injures a dog guide or service animal is liable for a penalty of one thousand dollars, to be paid to the user of the animal. The penalty shall be in addition to and not in lieu of any other remedies or penalties, civil or criminal, provided by law.

(2) A user or owner of a dog guide or service animal, whose animal is negligently or maliciously injured or killed, is entitled to recover reasonable attorneys’ fees and costs incurred in pursuing any civil remedy.

(3) The commission has no duty to investigate any negligent or malicious acts referred to under this section.

RCW 49.60.370* (hyperlinks added).

CONCLUSION

For employers, this law reinforces the need for a respectful and inclusive environment for employees who rely on service animals. It’s crucial that workplace policies support the safety and well-being of both employees and their service animals or guide dogs. In doing so, employers not only comply with the law but also foster a more inclusive and supportive workplace culture. By understanding and respecting the legal rights of employees with disabilities and their service animals and guide dogs, businesses can ensure they provide an environment that is safe, fair, and legally compliant.

READ OUR RELATED ARTICLES

» Definition of Dog Guide (WLAD)

» Definition of Service Animal (WLAD)

» License Waiver for Dog Guide and Service Animals (WLAD)

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September 19, 2024October 21, 2024

Notices of Disqualification

Under Washington State laws and court rules, what are notices of disqualification when engaged in civil litigation? Here’s my point of view.

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NOTICES OF DISQUALIFICATION — DISQUALIFICATION OF JUDGES

The General Law

“Notices of disqualification” concern disqualification of judges during civil litigation. The relevant Washington State law concerning disqualification of judges is, in part, as follows:

Disqualification of judge, transfer to another department, visiting judge—Change of venue generally, criminal cases.

(1) No judge of a superior court of the state of Washington shall sit to hear or try any action or proceeding if that judge has been disqualified pursuant to RCW 4.12.050. …

RCW 4.12.040(1) (emphasis and hyperlink added).

The Notice of Disqualification — RCW 4.12.050

Thus, pursuant to RCW 4.12.050*, any party to a lawsuit may disqualify a judge of a superior court from hearing a matter–subject to certain limitations–as follows:

Notice of disqualification.

(1) Any party to or any attorney appearing in any action or proceeding in a superior court may disqualify a judge from hearing the matter, subject to these limitations:

(a) Notice of disqualification must be filed and called to the attention of the judge before the judge has made any discretionary ruling in the case.

(b) In counties with only one resident judge, the notice of disqualification must be filed not later than the day on which the case is called to be set for trial.

(c) A judge who has been disqualified under this section may decide such issues as the parties agree in writing or on the record in open court.

(d) No party or attorney is permitted to disqualify more than one judge in any matter under this section and RCW 4.12.040*.

(2) Even though they may involve discretion, the following actions by a judge do not cause the loss of the right to file a notice of disqualification against that judge: Arranging the calendar, setting a date for a hearing or trial, ruling on an agreed continuance, issuing an arrest warrant, presiding over criminal preliminary proceedings under CrR 3.2.1*, arraigning the accused, fixing bail, and presiding over juvenile detention and release hearings under JuCR 7.3* and 7.4*.

…

RCW 4.12.050* (emphasis, hyperlinks, and asterisks added).

The Discretionary Ruling Limitation — Timeliness

There are several limitations concerning disqualification of judges. “One limitation is that a notice of disqualification must be filed ‘before the judge has made a discretionary ruling in the case.'” Austin v. King Cnty., 58124-8-II (Wash. App. Jul 02, 2024) (footnote omitted). NOTE:

[The affidavit of prejudice]

“What RCW 4.12.050* calls a ‘notice of disqualification’ is also referred to as an ‘affidavit of prejudice,’ based on previous versions of RCW 4.12.050.”

Austin, 58124-8-II at 3 n.1 (citing Godfrey v. Ste. Michelle Wine Estates Ltd., 194 Wn.2d 957, 961-62, 453 P.3d 992 (2019)) (emphasis and hyperlink added).

“In other words, an affidavit of prejudice is timely if it is filed before the superior court judge makes any order or ruling involving discretion.” Id. at 3 (citing Godfrey v. Ste. Michelle Wine Estates Ltd., 194 Wn.2d 957, 962, 453 P.3d 992 (2019)) (internal quotation marks omitted).

A Matter of Right if All Requirements Met

“If the requirements of RCW 4.12.050(1)* are met, a party can disqualify the judge presiding over the action as a matter of right.” Id. (citing State v. Gentry, 183 Wn.2d 749, 759, 356 P.3d 714 (2015)) (hyperlink added). “A timely notice of disqualification must be granted.” Id. (citing Godfrey, 194 Wn.2d at 961).

A Question of Law Reviewed De Novo

“Whether a judge has made a discretionary decision under RCW 4.12.050* is a question of law that … [courts] review de novo.” Id. (citing State v. Lile, 188 Wn.2d 766, 776, 398 P.3d 1052 (2017)) (hyperlink added).

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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

August 9, 2024October 21, 2024

Judicial Notice of Adjudicative Facts

Under Washington State Court Rules, what is Evidence Rule (ER) 201 — judicial notice of adjudicative facts? Here’s my point of view.

(IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to either our Williams Law Group Blog* or an official governmental website. This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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WA STATE COURT RULES — RULES OF EVIDENCE — PURPOSE & CONSTRUCTION

The Washington State Court Rules, Rules of Evidence*, must “be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.” ER 102*. The WA State Rules of Evidence addresses, inter alia, judicial notice of adjudicative facts.

JUDICIAL NOTICE OF ADJUDICATIVE FACTS

Generally, “judicial notice” means “[a] court’s acceptance, for purposes of convenience and without requiring a party’s proof, of a well-known and indisputable fact; the court’s power to accept such a fact <the trial court took judicial notice of the fact that water freezes at 32 degrees Fahrenheit>. Fed. R. Evid. 201.” Black’s Law Dictionary 863-64 (Deluxe 8th ed. 2004).

In Washington State, ER 201* is the relevant rule, and it contains the following topics: (a) the kinds of facts subject to it’s mandate, (b) when notice is discretionary, (c) when notice is mandatory, (d) opportunity to be hard, and (e) timing of the notice. ER 201(a)*.

(a) Kinds of Facts

Under the rule, “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either[:]

(1) generally known within the territorial jurisdiction of the trial court or

(2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

ER 201(b)*.

(b) When Discretionary

The “court MAY take judicial notice, whether requested or not.” ER 201(c)* (emphasis added).

(c) When Mandatory

However, a court MUST “take judicial notice if requested by a party and supplied with the necessary information.” ER 201(d)*.

(d) Opportunity To Be Heard

In any event: “A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.” ER 201(e)*.

(e) Timing of Taking Notice

“Judicial notice may be taken at any stage of the proceeding.” ER 201(f)*.

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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

May 9, 2024October 21, 2024

Civil Procedure: The CR 26(i) Conference Requirement (WA State)

Under Washington State Superior Court Civil Rules (hereinafter, “CR”), what is the CR 26(i) conference requirement? Here’s my point of view.

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The CR 26(i) Conference Requirement (WA State)

In civil litigation in Washington State, adherence to procedural rules is paramount for the smooth functioning of the legal system and ensuring fairness for all parties involved. One such rule that holds significant importance concerning the discovery process is CR 26(i)*. In this article, I delve into what this rule entails and why it’s crucial for civil attorneys practicing in Washington State to understand and comply with it.

Understanding CR 26(i)

Requirement for Conference of Counsel

CR 26(i)* mandates that before presenting any motion or objection concerning Rules 26 through 37 (Depositions and Discovery) of the Washington State Rules of Superior Court*, counsel for the parties involved must confer with each other. This conference should be arranged at a mutually convenient time and can take place either in person or via telephone.

Good Faith Conferencing

The rule emphasizes the necessity of conducting the conference in good faith. This implies that the parties involved should engage in meaningful discussions aimed at resolving issues or reaching agreements regarding the motion or objection at hand.

Sanctions for Non-Compliance

Should the court determine that counsel for any party has willfully refused or failed to confer in good faith as required by CR 26(i)*, it holds the authority to apply sanctions as outlined under Rule 37(b)*. These sanctions can encompass a range of punitive measures, highlighting the seriousness with which the court views non-compliance with procedural requirements.

Certification Requirement

Importantly, any motion seeking an order to compel discovery or obtain protection must include certification from counsel affirming that the conference requirements of CR 26(i)* have been met. This certification serves as evidence of compliance and ensures transparency in the litigation process.

Importance of Compliance

Compliance with CR 26(i)* is not merely a procedural formality; it serves several crucial purposes:

1. Facilitating Communication

By necessitating conference among counsel, the rule promotes open communication and collaboration between parties. This can often lead to the resolution of disputes without the need for court intervention, thereby saving time and resources.

2. Efficient Case Management

Ensuring that parties engage in pre-motion conferences helps streamline the litigation process. By addressing potential issues early on, the court can better manage its docket and expedite proceedings.

3. Promoting Fairness

The requirement for good-faith conferencing underscores the principle of fairness in litigation. It encourages parties to engage in constructive dialogue and seek mutually acceptable solutions, ultimately promoting equitable outcomes.

4. Enhancing Accountability

The certification requirement adds an extra layer of accountability for counsel, reinforcing the importance of compliance with procedural rules. It acts as a safeguard against frivolous or improper motions, thereby promoting the integrity of the legal process.

Conclusion

In civil litigation in Washington State, adherence to procedural rules like CR 26(i) is indispensable. By mandating pre-motion conferences and ensuring good faith engagement among counsel, this rule serves to foster communication, streamline proceedings, and uphold the principles of fairness and accountability within the legal system. Attorneys practicing in Washington State must familiarize themselves with CR 26(i) and diligently adhere to its requirements to navigate civil litigation successfully. Failure to do so can not only result in sanctions but may also undermine the integrity of the litigation process itself.

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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

April 25, 2024October 21, 2024

WA State Rule of Civil Procedure CR 16: A Guide for Litigators

Under Washington State Court Rules, how may litigators utilize WA State Rule of Civil Procedure CR 16 (Pretrial Procedure and Formulating Issues)? Here’s my point of view.

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WA State Rule of Civil Procedure CR 16: A Guide for Litigators

In the legal arena, rules and procedures govern every aspect of a case, ensuring fairness and efficiency in the pursuit of justice. Washington State Rule of Civil Procedure CR 16* is one such crucial guideline that sets the stage for the orderly progression of civil litigation. Understanding CR 16 is essential for attorneys and litigants alike to navigate the complexities of the legal process in Washington State courts effectively.

What is CR 16?

CR 16, short for Washington State Rule of Civil Procedure 16, outlines the requirements and procedures for pretrial conferences and the development of a litigation plan. It serves as a roadmap for streamlining the litigation process, promoting early settlement, and ensuring that cases proceed expeditiously through the court system. The court rule states as follows:

CR 16
PRETRIAL PROCEDURE AND FORMULATING ISSUES

(a) Hearing Matters Considered. By order, or on the motion of any party, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider:

(1) The simplification of the issues;

(2) The necessity or desirability of amendments to the pleadings;

(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;

(4) The limitation of the number of expert witnesses;

(5) Such other matters as may aid in the disposition of the action.

(b) Pretrial Order. The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pretrial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to nonjury actions or extend it to all actions.

CR 16* (emphasis and hyperlink added).

Key Components of CR 16

1. Pretrial Conferences: CR 16 allows–by order, or on the motion of any party–pretrial conferences to facilitate communication between parties and the court during the litigation process. These conferences aim to identify and narrow the issues in dispute, explore opportunities for settlement, and establish a framework for the efficient resolution of the case.

2. Litigation Plan: One of the central features of CR 16 is the formulation of a litigation plan. This plan outlines the parties’ proposed course of action, including simplifying the issues, amendments to the pleadings, the possibility of obtaining admissions of fact and of documents, limiting the number of expert witnesses, and any other pertinent matters essential for the progression of the case. The litigation plan helps parties and the court manage expectations and timelines effectively.

3. Pretrial Orders: The court must issue an order documenting the proceedings of the conference, including any amendments permitted to the pleadings and agreements reached by the parties on relevant matters. The order must delineate the issues remaining for trial, excluding those resolved through admissions or agreements of counsel. Once entered, this order governs the subsequent progression of the case unless modified during the trial to prevent clear injustice. Additionally, the court, at its discretion, may institute a pretrial calendar system for cases to undergo similar consideration. This calendar may be limited to either jury or nonjury cases, or expanded to encompass all types of actions.

Benefits of CR 16

1. Efficiency: By promoting early communication and establishing clear guidelines for case management, CR 16 helps expedite the litigation process, reducing delays and unnecessary expenses for all parties involved.

2. Clarity and Predictability: The requirement to develop a litigation plan provides clarity and predictability regarding the progression of the case, enabling parties to allocate resources more effectively and plan their litigation strategies accordingly.

3. Encouragement of Settlement: Through pretrial conferences and the exploration of settlement options, CR 16 encourages parties to resolve their disputes outside of court, potentially saving time, money, and emotional energy associated with protracted litigation.

4. Judicial Oversight: By empowering the court to actively manage the case through case management orders, CR 16 ensures that proceedings are conducted in a fair and orderly manner, with judicial oversight to address any procedural issues that may arise.

Conclusion

Washington State Rule of Civil Procedure CR 16 plays a vital role in promoting efficiency, fairness, and effective case management in civil litigation. By allowing pretrial conferences, formulating litigation plans, and providing for judicial oversight, CR 16 helps streamline the litigation process and facilitates the early resolution of disputes. Attorneys and litigants should familiarize themselves with CR 16’s requirements to navigate the complexities of civil litigation in Washington State courts successfully.

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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

March 28, 2024October 21, 2024

Employment Law 101: How to Commence a Civil Legal Action

Under Washington State laws and court rules, how does a plaintiff commence a civil legal action (i.e., civil lawsuit)? Here’s my point of view.

(IMPORTANT: All hyperlinks in this article with an asterisk (*) will take the reader away from this website to an external website. This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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Introduction

In Washington State civil litigation, the commencement of a legal action is a critical step that sets the stage for the entire legal process. Let’s delve into the key aspects of initiating a civil action as outlined in the state’s rules and statutes. NOTE: this article only addresses commencement in Washington State Superior Courts*.

How to Commence a Civil Legal Action

Except as provided in Washington State Superior Court Civil Rules (CR), CR 4.1*, a civil action in Washington State can be commenced in two primary ways:

1. Service of Summons and Complaint:

The action is initiated by serving a copy of a summons along with a copy of the complaint, as outlined in Rule 4* of the state’s legal procedures. This service of documents is a fundamental step in officially notifying the defendant of the legal proceedings against them.

2. Filing a Complaint:

Alternatively, a civil action can also be commenced by directly filing a complaint with the court. This formal submission of the complaint initiates the legal process and sets the case in motion.

See CR 3*.

Timely Response and Filing Fee Requirement

Upon commencing the action, there are specific timelines and requirements that parties must adhere to:

Written Demand for Filing:

If any other party in the case makes a written demand, the plaintiff instituting the action must pay the filing fee and file the summons and complaint within 14 days after service of the demand. Failure to do so renders the service void.

Effect on Statute of Limitations:

It’s important to note that an action is not considered commenced for the purpose of tolling any statute of limitations unless specified otherwise in RCW 4.16.170*. This statute outlines exceptions where the commencement of an action may affect the timeline within which legal actions can be pursued.

Ensuring Legal Compliance and Timely Action

Complying with the rules regarding commencement of civil actions is crucial for all parties involved. It ensures that legal proceedings are initiated in a timely and legally valid manner, preventing potential disputes or challenges regarding the validity of service or commencement.

Conclusion

Initiating a civil action in Washington State involves careful adherence to procedural rules regarding service, filing, and responding to demands. Understanding these rules and timelines is essential for legal practitioners and parties involved in civil litigation, ensuring a smooth and legally compliant commencement of the legal process.

—–

*NOTE: Links with a single asterisk (*) will take the reader away from our website to an external governmental website.

Read Our Related Articles

We invite you to read more of our articles related to this topic:

» Employment Law 101: Statute of Limitations

» Employment Law 101: The Complaint

» Employment Law 101: The Defendant

» Employment Law 101: The Summons

» Tolling and Commencement Are Reconcilable (WA State)**

» WLAD Statute of Limitations

» WLAD Statute of Limitations: Equitable Tolling

—–

**NOTE: The link will take the reader to our Williams Law Group Blog – an external website.

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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

–gw

March 21, 2024October 21, 2024

Employment Law 101: Affirmative Defense

Under Washington State laws, what is an “affirmative defense” within the context of civil litigation? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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Definition of Affirmative Defense

In civil litigation under Washington State laws, the concept of affirmative defense plays a crucial role in legal proceedings. An affirmative defense is a legal argument or justification presented by the defendant in response to a plaintiff‘s claim. Unlike a denial or a simple assertion that the plaintiff’s allegations are false, an affirmative defense asserts new facts or legal theories that, if proven, would defeat or mitigate the plaintiff’s claims.

examples

One common example of an affirmative defense is the statute of limitations. This defense asserts that even if the plaintiff’s allegations are true, the claim is barred because it was not brought within the time period specified by law. Other affirmative defenses may include, but are not limited to failure to mitigate damages, assumption of risk, contributory negligence, and duress, among others.

TIMING

In Washington State, it is essential for defendants to raise affirmative defenses promptly during litigation according to court rules. A defendant’s failure to timely do so can lead to the affirmative defense being forfeited and rendered unusable in subsequent stages of the litigation process.

burden of proof

It’s important to note that the burden of proof for an affirmative defense usually falls on the defendant. This means that the defendant must present evidence and convince the court that the affirmative defense applies to the case and should result in a favorable outcome for the defendant.

Conclusion

In summary, an affirmative defense in Washington State civil litigation is a legal argument or justification presented by the defendant to defeat or mitigate the plaintiff’s claims. It introduces new facts or legal theories that, if proven, can provide a legal basis for the defendant’s position in the case. Understanding affirmative defenses is essential for both plaintiffs and defendants in navigating the complexities of civil litigation in Washington State.

READ OUR RELATED ARTICLES

We invite you to read more of our articles related to this topic:

» Affirmative and Negative Defenses

» Employment Law 101: Statute of Limitations

» Employment Law 101: The Defendant

» Employment Law 101: The Plaintiff

LEARN MORE

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

–gw

March 14, 2024October 21, 2024

The Virtual Law Office (WA State)

Under Washington State laws, rules, and regulations, what is a virtual law office? Here’s my point of view.

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THE VIRTUAL LAW OFFICE (WA STATE)

The Washington State Bar Association (WSBA) recently released an Advisory Opinion concerning the “Ethical Practices of the Virtual or Hybrid Law Office.” Therein, WSBA determined, as follows:

Many lawyers are choosing to do some or all their work remotely, from home or other remote locations. Advances in the reliability and accessibility of on-line resources, cloud computing, video conferencing, and email services have allowed the development of the virtual law office, by which the lawyer does not maintain a physical office. The COVID-19 pandemic accelerated this trend, causing many lawyers to work remotely (virtually), or to split their time between a traditional office and a remote office (a hybrid office)….

Although this modern business model may appear radically different from the traditional brick and mortar law office model, the underlying principles of an ethical law practice remain the same. The core duties of diligence, loyalty, and confidentiality apply whether the office is virtual or physical. For the most part, the Rules of Professional Conduct (RPC) apply no differently in the virtual office context. However, there are areas that raise special considerations in the virtual law office.

WSBA Advisory Opinion 201601 (2022) (internal citation omitted) (emphasis added).

Must in-state attorneys have a physical office address?

In its advisory opinion, the WSBA also addressed whether in-state attorneys are required to have a physical office address by evaluating both its bylaws and Admission to Practice Rules, as follows:

[WSBA BYLAWS]

There is no requirement that WSBA members have a physical office address. Section III(C)(1) of the Bylaws of the Washington State Bar Association (WSBA) requires that each member furnish both a “physical residence address” and a “principal office address.” The physical residential address is used to determine the member’s district for Board of Governors elections. The Bylaws do not require that a principal office address be a physical address….

[WSBA ADMISSION TO PRACTICE RULES]

Similarly, Admission and Practice Rule (APR) 13(b) requires a lawyer to advise the WSBA of a “current mailing address” and to update that address within 10 days of any change. Nothing in that rule indicates the mailing address must be a physical address.

WSBA Advisory Opinion 201601 (emphasis, and hyperlinks added). Thus, the WSBA and its relevant Advisory Opinion do not require attorneys to have a physical office address.

Conclusion

In conclusion, the landscape of legal practice in Washington State has seen a significant evolution with the emergence of virtual law offices, a trend accelerated by the COVID-19 pandemic. The recent Advisory Opinion by the Washington State Bar Association (WSBA) underscores that while the setting may differ from traditional brick-and-mortar establishments, the fundamental ethical principles governing legal practice remain unwavering. Despite the absence of a physical office, attorneys must adhere to core duties of diligence, loyalty, and confidentiality, as outlined in the Rules of Professional Conduct (RPC).

Importantly, the opinion clarifies that in-state attorneys are not mandated to maintain a physical office address, as confirmed by both WSBA Bylaws and Admission to Practice Rules. This recognition signals a progressive shift in the legal profession, accommodating modern realities without compromising ethical standards. As attorneys continue to embrace virtual or hybrid models, this guidance provides clarity and assurance, ensuring a seamless integration of technology and tradition in the pursuit of justice and legal excellence.

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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

March 7, 2024October 21, 2024

Can lawyers provide clients with financial assistance for lawsuits?

IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

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Can lawyers provide clients with financial assistance for lawsuits?

answer:

In Washington State, a lawyer cannot, “while representing a client in connection with contemplated or pending litigation, advance or guarantee financial assistance to a client, except that:

(1) a lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses; and

(2) in matters maintained as class actions only, repayment of expenses of litigation may be contingent on the outcome of the matter.

Washington State Court Rules: Rules of Professional Conduct, Rule 1.8(e) (emphasis added).

THE POLICY:

According to the Washington State Rules of Professional Conduct, the policy for this financial-assistance limitation is as follows:

Lawyers may not subsidize lawsuits or administrative proceedings brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, because to do so would encourage clients to pursue lawsuits that might not otherwise be brought and because such assistance gives lawyers too great a financial stake in the litigation.

Id. at Rule 1.8 (comment 10) (internal citation omitted).

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If you need legal assistance, consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

February 1, 2024October 21, 2024

The Implied Cause of Action Rule

Under Washington State laws, what is the Implied Cause of Action Rule? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

(IMPORTANT: This article is for entertainment purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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THE IMPLIED CAUSE OF ACTION RULE: WA STATE

Washington State courts may apply the Implied Cause of Action Rule to Washington State statutes that create a right on the part of individuals but do not indicate explicitly an intent to create a remedy. See Bennett v. Hardy, 113 Wn.2d 912, 921, 784 P.2d 1258, (1990).

a judicial canon of construction

Accordingly, the Implied Cause of Action Rule is a judicial canon directing that “when a statute … [has] provided a right of recovery, it is incumbent upon the court to devise a remedy. 2A C. Sands, Sutherland’s Statutes and Statutory Construction § 55.03 (4th ed. 1973).” Bennett, 113 Wn.2d at 920, 784 P.2d 1258 (citing State v. Manuel, 94 Wash.2d 695, 699, 619 P.2d 977 (1980); see also Krystad v. Lau, 65 Wash.2d 827, 846, 400 P.2d 72 (1965) (implying a right of action under the state’s labor relations act for an employee who claimed that his employer, in violation of the statute, had interfered with the employee’s labor activities); State ex rel. Phillips v. State Liquor Control Bd., 59 Wash.2d 565, 570, 369 P.2d 844 (1962) (“[c]ourts have consistently held that when a statute gives a new right and no specific remedy, the common law will provide a remedy”)) (alteration in original) (emphasis added) (internal quotation marks omitted).

This judicial canon has its roots in federal law as well as the Restatement of Torts.

NOTE: A judicial canon of construction is “[a] rule used in construing legal instruments, esp. contracts and statutes.” Black’s Law Dictionary 219 (8th ed. 2004) (emphasis added). “A frequent criticism of the canons [of construction], made forcefully by Professor Llewellyn many years ago, is that for every canon one might bring to bear on a point there is an equal and opposite canon. This is an exaggeration; but what is true is that there is a canon to support every possible result.” Id. (citing Richard A. Posner, The Federal Courts: Crisis and Reform 276 (1985)) (internal quotation marks omitted).

Federal Law

“The federal courts also recognize an implied cause of action under a statute which provides protection to a specified class of persons but creates no remedy.” Bennett, 113 Wn.2d at 920, 784 P.2d 1258 (referencing Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); In re WPPSS Sec. Litig., 823 F.2d 1349 (9th Cir.1987)).

THE RESTATEMENT OF TORTS

The Washington State Supreme Court has found that “The Restatement of Torts recognizes the implied right of action [as well]:

When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.

Bennett, 113 Wn.2d at 920, 784 P.2d 1258 (citing Restatement (Second) of Torts § 874A (1979)) (emphasis added).

THE ELEMENTS

Washington courts have borrowed “from the test used by federal courts in determining whether to imply a cause of action.” Id. Accordingly, the Washington State Implied Right of Action Rule requires that the following issues be answered in the affirmative:

(1) whether the plaintiff is within the class for whose “especial” benefit the statute was enacted;

(2) whether legislative intent, explicitly or implicitly, supports creating or denying a remedy;

(3) whether implying a remedy is consistent with the underlying purpose of the legislation.

Id. at 920-21 (internal citations omitted) (emphasis added).

the assumptions

Lastly, the court may make two important assumptions under the Implied Right of Action Rule:

(1) “[t]he [Washington State Legislature] is aware of the doctrine of implied statutory causes of action [when it drafts legislation;] and

[(2) the court can] also assume that the legislature would not enact a remedial statute granting rights to an identifiable class without enabling members of that class to enforce those rights.”

See id. at 919-20 (paragraph formatting added).

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–gw

January 4, 2024October 21, 2024

Employment Law 101: Requests for Admission

Under Washington State laws, what are “Requests for Admission” within the context of civil litigation? Here’s my point of view.

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INTRODUCTION: REQUESTS FOR ADMISSION (CIVIL LITIGATION)

Within the context of Washington State civil litigation, Requests for Admission (RFAs) play an important role in the pre-trial discovery process. This formal procedure allows parties involved in a lawsuit to narrow down the issues and facts that are genuinely in dispute. In this blog post, I discuss Requests for Admission, exploring their purpose and significance in the litigation process.

I. Definition and Purpose of Requests for Admission

Requests for Admission involve the creation of written statements by one party, which are then served on any other party within the pending action. These statements seek admissions or denials regarding particular facts or the authenticity of specific documents pertinent to the case. In contrast to alternative discovery methods, Requests for Admission specifically aim to refine and narrow down the issues in dispute, fostering increased efficiency in the legal proceedings.

The primary purposes of Requests for Admission in Washington State include:

1. Issue Framing:

RFAs help define and clarify the key issues that are genuinely in dispute between the parties. By stipulating certain facts, the parties can streamline the litigation process and avoid unnecessary disputes over uncontested matters.

2. Cost and Time Efficiency:

By admitting facts that are not in dispute, the parties can reduce the scope of the trial, thereby saving time and litigation costs. This promotes a more expeditious resolution of the case.

II. Significance in Litigation Strategy

Requests for Admission can significantly impact the overall litigation strategy. Properly executed RFAs can:

1. Narrow Down Issues:

By compelling the opposing party to admit certain facts, RFAs can help narrow down the issues in dispute, making the trial more focused and efficient.

2. Evidentiary Value:

Admissions made through RFAs can be used as evidence at trial. This can simplify the presentation of evidence and contribute to a more straightforward case presentation.

3. Cost Savings:

Streamlining the issues at an early stage through RFAs can lead to cost savings for both parties by minimizing the time and resources required for trial preparation.

Conclusion

Requests for Admission serve as a powerful tool in the toolkit of litigators in Washington State. When utilized effectively, RFAs can contribute to a more streamlined and cost-effective litigation process, ultimately facilitating the swift resolution of disputes. Understanding the procedural aspects and strategic implications of Requests for Admission is essential for legal professionals navigating the complex landscape of civil litigation in Washington State.

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» Employment Law 101: Interrogatories

» Employment Law 101: Requests for Production

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–gw

December 28, 2023October 21, 2024

Employment Law 101: Requests for Production

Under Washington State laws, what are “requests for production” within the context of civil litigation? Here’s my point of view.

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INTRODUCTION: REQUESTS FOR PRODUCTION

In the context of Washington State civil litigation, effective discovery processes play a crucial role in ensuring a fair and transparent legal system. One essential component of the discovery phase is the “request for production.” This legal mechanism serves as a powerful tool for parties involved in civil litigation, allowing them to obtain relevant documents and information from the opposing party. In this blog post, I explain the request for production within the context of Washington State civil-litigation law.

Definition and Purpose

A request for production is a formal legal request made by one party to another, seeking the production of documents, electronically stored information, and things; or entry onto land for inspection and other purposes. Generally, the requested production must be relevant to the pending litigation. This process is governed by the Washington State civil rules (and associated local court rules), which outline the procedures and guidelines for civil cases within the state.

The primary purpose of a request for production is to facilitate the exchange of information between parties, ensuring that each side has access to the necessary evidence to build and present their case. This mechanism promotes transparency, fairness, and the efficient resolution of legal disputes.

Key Components of a Request for Production

Specificity and Relevance:

• Requests must be specific and clearly state the documents or items being sought.

• Generally, the requested items must be relevant to the issues in the case.

Timing and Procedure:

• Requests for production are typically made after the initial pleadings but before trial.

• Parties must adhere to the timelines and procedures outlined in the Washington State civil rules (and associated local court rules).

Format and Delivery:

• Requests must be in writing and served on the opposing party.

• The requesting party must “specify a reasonable time, place, and manner of making the production and performing the related acts[.]” See CR 34(b)(2)(B).

Objections and Responses:

• The party responding to the request is entitled to raise objections. It is imperative that objections be voiced promptly, and the corresponding responses must be furnished within the specified time constraints.

Privilege and Confidentiality:

• Generally, the requesting party cannot demand the production of documents protected by attorney-client privilege or other recognized privileges.

• The responding party may redact or withhold certain information based on privilege or confidentiality.

Consequences of Non-Compliance

Failure to comply with a valid request for production can have serious consequences. The court may impose sanctions, including monetary penalties or adverse inferences against the non-compliant party. Therefore, parties should approach the request for production process with diligence and in full accordance with the established legal framework.

Conclusion

Requests for production are a fundamental element in the Washington State civil-litigation, discovery process. Ensuring compliance with the Washington rules of civil procedure enables parties to establish an equitable exchange of information, fostering an environment of fairness and ultimately supporting the equitable resolution of legal conflicts. Given the intricacies involved in requests for production and other discovery mechanisms, parties are encouraged to seek the counsel of seasoned legal professionals for effective navigation of the legal processes.

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» Employment Law 101: Depositions

» Employment Law 101: Discovery (WA State)

» Employment Law 101: Interrogatories

» Employment Law 101: Requests for Admission

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–gw

November 16, 2023October 21, 2024

Employment Law 101: Summary Judgment (WA State)

Under Washington State laws, what is “summary judgment” within the context of a lawsuit? Here’s my point of view.

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Introduction: Summary Judgment

In Washington State, the term “summary judgment” holds significant weight and plays a crucial role in the legal process. It is a procedural tool that allows parties in a lawsuit to seek a swift resolution without proceeding to a full trial; within the context of employment law, employer-defendants typically use this tool against employee–plaintiffs during litigation. This article aims to shed light on the concept of summary judgment within the context of Washington State law, outlining its purpose, criteria, and implications for litigants.

Overview of Summary Judgment

Summary judgment is a legal mechanism designed to expedite the resolution of cases by allowing the court to decide a case without a trial when there is no genuine dispute of material facts. This process is grounded in the belief that if there are no factual issues in dispute, the case can be resolved based on the applicable law. View the associated Washington State Superior Court Civil Rule (CR 56) — NOTE: the link will take you to an external website managed by Washington State.

Purpose and Criteria

The primary purpose of summary judgment is to save time and resources by eliminating the need for a trial when there is no real controversy. To be granted summary judgment in Washington State, a moving party must demonstrate the absence of any genuine issues of material fact and establish that they are entitled to judgment as a matter of law.

Key Criteria for a Successful Motion for Summary Judgment

1. No Genuine Dispute of Material Facts:

The movant must show that there are no genuine disputes regarding the essential facts of the case. All relevant facts must be clear and uncontested.

2. Legal Entitlement to Judgment:

The movant must demonstrate that, based on the established facts and applicable law, they are entitled to judgment in their favor.

3. Burden of Proof:

The burden of proof rests with the party seeking summary judgment. They must present sufficient evidence to convince the court that no trial is necessary.

4. Admissible Evidence:

The proof presented to support a motion for summary judgment must be admissible and adhere to the legal standards mandated by the court.

Implications and Limitations

While summary judgment is a powerful tool, it is not applicable in all cases. Certain types of claims, such as those involving credibility determinations or complex factual disputes, may be less amenable to summary judgment. Additionally, it is not a substitute for a trial when there are genuine issues of material fact that must be resolved by the trier of fact.

Conclusion

Under Washington State laws, summary judgment serves as an effective mechanism for streamlining the legal process and promoting judicial efficiency. It allows for the prompt resolution of cases where there is no real dispute of material facts. Within the context of employment law, employer-defendants typically use this tool against employee-plaintiffs during litigation.

Read Our Related Articles

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» Employment Law 101: Mediation

» Employment Law 101: Motions

» Employment Law 101: Remedies

» Employment Law 101: Statute of Limitations

» Employment Law 101: The Complaint

» Employment Law 101: The Defendant

» Employment Law 101: The Plaintiff

» Employment Law 101: The Summons

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–gw

October 26, 2023October 21, 2024

Employment Law 101: Motions

Under Washington State laws, what are “motions” within the context of litigation? Here’s my point of view.

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Introduction: Motions

Within the context of legal proceedings, motions play a fundamental role in the pursuit of justice and the efficient functioning of the judicial system. In Washington State, as in most jurisdictions, motions serve as crucial tools for parties to request specific actions or decisions from the court. This blog post aims to provide an understanding of what a motion is within the context of Washington State law.

What is a Motion?

A motion is a formal request made by a party to a lawsuit to the court for a specific ruling or action. These requests can encompass a wide range of matters, from procedural issues to substantive legal questions. In Washington State law, motions are vital in shaping the course of litigation and ensuring a fair and just outcome.

Types of Motions

1. Procedural Motions:

These motions pertain to the conduct of the lawsuit rather than the underlying legal issues. Common procedural motions in Washington State include motions for continuance, motions to dismiss, motions for summary judgment, and motions to compel discovery.

2. Substantive Motions:

Substantive motions deal with the actual legal issues of the case. Examples of substantive motions in Washington State law include motions for injunctive relief, motions for a new trial, and motions for judgment as a matter of law (formerly known as judgments notwithstanding the verdict).

3. Interlocutory Motions:

These motions are made before a final judgment in a case, and they typically address temporary or preliminary matters. A common example in Washington State is a motion for a preliminary injunction, which seeks to preserve the status quo while the case is ongoing.

4. Ex Parte Motions:

An ex parte motion is made by one party without notice to the opposing party. These are usually reserved for emergency situations where immediate action is necessary, such as a protective order or temporary restraining order.

5. Oral vs. Written Motions:

In Washington State, parties may make oral motions during court hearings or submit written motions, depending on the specific court rules and the nature of the request. Generally, written motions provide a more detailed and organized presentation of the argument.

General Procedure for Filing a Motion

1. Draft the Motion:

A motion should be drafted carefully, following the relevant rules and format requirements. It must state the specific request, the legal basis for the request, and any supporting evidence or case law.

2. Serve the Opposing Party:

In Washington State, the rules of civil procedure usually require that the motion and any supporting documents be served on the opposing party. The timing and method of service can vary based on the nature of the motion and the court’s rules.

3. Set a Hearing Date:

Many motions in Washington State require a hearing where both parties can present their arguments before the court. The party filing the motion typically schedules this hearing with the court and provides notice to the opposing party.

4. Court Decision:

After the hearing, the court will make a ruling on the motion. The court’s decision may be immediate or take some time, depending on the complexity of the issues involved.

Conclusion

In the complex legal landscape of Washington State, motions are indispensable tools that shape the trajectory of legal proceedings. Whether addressing procedural matters or substantive legal issues, motions are key instruments for parties to seek redress, ensure a fair trial, and promote the orderly administration of justice. Understanding the various types of motions and the procedural aspects of filing them is essential for anyone navigating the Washington State legal system.

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» Employment Law 101: Alternative Dispute Resolution

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» Employment Law 101: Discovery (WA State)

» Employment Law 101: Legal Theory

» Employment Law 101: Mediation

» Employment Law 101: Remedies

» Employment Law 101: Statute of Limitations

» Employment Law 101: Summary Judgment (WA State)

» Employment Law 101: The Complaint

» Employment Law 101: The Defendant

» Employment Law 101: The Plaintiff

» Employment Law 101: The Summons

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–gw

September 7, 2023October 21, 2024

Employment Law 101: The Complaint

Under Washington State law, what is a “complaint” within the context of legal proceedings? Here’s my point of view.

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INTRODUCTION: THE COMPLAINT

In Washington State jurisprudence, a “complaint” refers to a formal written document that commences a civil lawsuit. This crucial document is typically filed by the plaintiff, the party initiating the legal action, against the defendant, the party being sued. The complaint serves as a detailed statement of the plaintiff‘s claims, outlining the legal basis for their grievances and the specific relief or remedy they seek from the court. Essentially, it marks the beginning of the legal process in Washington State.

COMPONENTS OF THE COMPLAINT

A well-constructed complaint in Washington State must encompass specific elements to be legally valid and sufficient to initiate a lawsuit. These essential components include:

1. Caption:

The complaint begins with a caption that identifies both the court and all the parties involved in the lawsuit, listing the plaintiff(s) and defendant(s). This section provides clarity about the parties and their roles in the legal dispute.

2. Jurisdiction and Venue:

It is imperative for the complaint to specify the court’s jurisdiction over the matter and the appropriate venue where the lawsuit should be heard. This ensures that the case is heard in the correct jurisdiction.

3. Statement of Facts:

The heart of the complaint lies in the statement of facts. This section presents a comprehensive narrative that details the events leading to the dispute. It typically answers the fundamental questions of “who,” “what,” “when,” “where,” and “how” regarding the alleged wrongdoing.

4. Legal Claims:

Within the complaint, the plaintiff articulates the legal claims or causes of action they are pursuing. These claims must be firmly grounded in Washington State law (or other relevant/applicable law) and must be presented with sufficient detail to provide the defendant with a clear understanding of the allegations.

5. Request for Relief:

The complaint typically concludes with a segment that outlines the specific remedies or relief sought by the plaintiff. This may include monetary damages, injunctive relief, or other forms of legal remedies available under Washington State law.

CONCLUSION

In Washington State jurisprudence, a “complaint” serves as the bedrock of a civil lawsuit, marking the initiation of legal proceedings. This formal document elucidates the plaintiff’s grievances, legal claims, and the relief sought from the court. Understanding the components and significance of a complaint is essential for individuals navigating the legal landscape in Washington State. It signifies the initial step in a legal journey that may ultimately lead to justice, resolution, and the protection of individual rights in a state that upholds the rule of law.

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» Employment Law 101: Mediation

» Employment Law 101: Motions

» Employment Law 101: Remedies

» Employment Law 101: Statute of Limitations

» Employment Law 101: Summary Judgment

» Employment Law 101: The Defendant

» Employment Law 101: The Plaintiff

» Employment Law 101: The Summons

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August 31, 2023October 21, 2024

Employment Law 101: The Summons

What is a “summons” within the context of legal proceedings? Here’s my point of view.

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INTRODUCTION: THE SUMMONS

In the sphere of legal proceedings, understanding the terminology and processes involved is crucial to ensuring individuals are well-equipped to navigate the complexities of the legal system. One such term that holds significance in legal circles is “summons.” A summons serves as a foundational element in initiating legal action and warrants a comprehensive understanding. This blog post aims to elucidate the definition of a summons, its purpose, and the key components associated with this crucial legal document.

Definition of Summons

Generally, a summons is a formal legal document issued by a plaintiff, plaintiff’s attorney, court, or authorized judicial entity and served only by qualified individuals/methods. See CR 4(c). Accordingly, the summons serves as a notification to an individual, business/corporation, governmental entity, or other organization informing them that they are being sued or that they are required to appear in court as a party in a legal matter. Essentially, a summons acts as an official call to action, compelling the recipient to participate in the legal process either as a defendant or a witness.

Purpose

The primary purpose of a summons is to ensure that due process is followed in legal proceedings. It provides notice to individuals about their involvement in a legal case, affording them the opportunity to respond appropriately. By issuing a summons, the court system guarantees that all parties have a fair chance to present their side of the case and defend their interests.

Components

A typical summons consists of several key components:

1. Court Information:

This includes the name of the court where the case has been filed. It provides recipients with essential details about the jurisdiction in which the legal action is taking place.

2. Case Information:

The summons includes vital details about the lawsuit including, but not limited to the case number, names of the parties involved, and a brief description of the nature of the case.

3. Date and Time:

The summons specifies the date and time when the recipient is required to appear in court. This is a critical element, as failing to appear on the designated date can result in legal consequences.

4. Response Deadline:

If the recipient is being sued, the summons will include a deadline by which they must respond to the allegations. This could involve filing a formal response or pleading, such as an answer or a motion to dismiss.

5. Contact Information:

The summons typically provides contact information for the court clerk or the legal representative of the party initiating the legal action. This allows recipients to seek clarification or guidance if needed.

6. Legal Warning:

Often, a summons includes a legal warning that outlines the potential consequences of ignoring the summons or failing to respond within the specified timeframe. This serves as a reminder of the seriousness of the matter.

Conclusion

A summons stands as a foundational piece that upholds the principles of due process and fairness. Its role in notifying individuals of their involvement in a legal case cannot be understated. By comprehending its definition, purpose, and components, individuals can better navigate the legal landscape and ensure that their rights are protected. Whether appearing as a defendant or a witness, responding to a summons in a timely and appropriate manner is a vital step in the pursuit of justice.

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» Employment Law 101: Alternative Dispute Resolution

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» Employment Law 101: Legal Theory

» Employment Law 101: Mediation

» Employment Law 101: Motions

» Employment Law 101: Remedies

» Employment Law 101: Statute of Limitations

» Employment Law 101: Summary Judgment

» Employment Law 101: The Complaint

» Employment Law 101: The Defendant

» Employment Law 101: The Plaintiff

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August 3, 2023October 21, 2024

Self-Serving Declarations (WA State)

Under Washington State laws, must a nonmoving party’s “self-serving” declarations be taken as true on summary judgment in a civil lawsuit? Here’s my point of view.

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SUMMARY JUDGMENT: CIVIL CASES

In my Washington State employment law practice (I only represent employee-plaintiffs), employer-defendants typically file motions for summary judgment against my clients. “Summary judgment is a judgment entered by a court for one party and against another party without a full trial.” See Summary Judgment, Cornell Law School: Legal Information Institute, https://www.law.cornell.edu/wex/summary_judgment (last visited August 3, 2023). “In civil cases, either party may make a pre-trial motion for summary judgment.” Id.

In Washington, “[s]ummary judgment is appropriate if a plaintiff fails to show sufficient evidence to establish a question of fact as to the existence of an element on which he or she will have the burden of proof at trial.” Mackey v. Home Depot USA, Inc., 12 Wn.App.2d 557, 569 (Div. 2 2020), review denied, 468 P.3d 616 (2020) (citing Lake Chelan Shores Homeowners Ass’n v. St. Paul Fire & Marine Ins. Co., 176 Wn.App. 168, 179, 313 P.3d 408 (2013)).

SELF-SERVING DECLARATIONS (WA STATE)

When defending against motions for summary judgment, my clients often file declarations that employers claim are “self-serving.” But “on summary judgment a nonmoving party’s declaration must be taken as true and can create a genuine issue of material fact even if it is ‘self-serving.'” Id. at 575 (citing Reagan v. Newton, 7 Wn.App.2d 781, 806, 436 P.3d 411, review denied, 193 Wn.2d 1030 (2019)) (emphasis added).

However, “[a] plaintiff cannot contradict unambiguous deposition testimony with a subsequent declaration.” Id. at 587, fn. 3 (citing Robinson v. Avis Rent A Car Sys., Inc., 106 Wn.App. 104, 121, 22 P.3d 818 (2001)).

CONCLUSION

Thus, under Washington State laws, I believe that a nonmoving party’s “self-serving” declaration must be taken as true on summary judgment of a civil lawsuit unless it contradicts unambiguous deposition testimony.

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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

March 23, 2023October 21, 2024

Motion to Dismiss Under CR 12(b)(6)

Under Washington State court rules, how do judges generally address a motion to dismiss under CR 12(b)(6)? Here’s my point of view.

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WASHINGTON STATE SUPERIOR COURT CIVIL RULES (CR)

Pursuant to the Washington State Superior Court Civil Rules (hereinafter, “CR”), a motion to dismiss under CR 12(b)(6) may be presented as follows:

(b) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

…

(6) failure to state a claim upon which relief can be granted[ ]

CR 12(b)(6) (first emphasis in original). Thus, pleaders may assert the defense of “failure to state a claim upon which relief can be granted” by, inter alia, motion (hereinafter, “motion(s) to dismiss under CR 12(b)(6)” or “motion to dismiss”). Employment discrimination defendants (usually employers) typically file motions to dismiss under CR 12(b)(6) early in the case and file motions for summary judgment near the end of the case. There are significant differences between the two types of motions.

MOTION TO DISMISS VERSUS MOTION FOR SUMMARY JUDGMENT

“A motion to dismiss questions only the legal sufficiency of the allegations in a pleading.” Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 742 (Wash. 1977). “The court need not find that any support for the alleged facts exists or would be admissible in trial as would be its duty on a motion for summary judgment.” Id. (emphasis added).

HOW JUDGES GENERALLY ADDRESS THE MOTION TO DISMISS UNDER CR 12(B)(6)

“The question under CR 12(b)(6) is basically a legal one, and the facts are considered only as a conceptual background for the legal determination.” Id. (citing Brown v. MacPherson’s, Inc., 86 Wash.2d 293, 298, 545 P.2d 13 (1975)). Thus, “[t]he only issue Before the trial judge is whether it can be said there is no state of facts which plaintiff could have proven entitling him to relief under his claim.” Id. (citing Barnum v. State, 72 Wash.2d 928, 435 P.2d 678 (1967); Grimsby v. Samson, 85 Wash.2d 52, 55, 530 P.2d 291 (1975)).

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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

February 16, 2023October 21, 2024

Canon of Administrative-Agency Interpretations

Under Washington State canons of statutory construction, what is the canon of administrative-agency interpretations? Here’s my point of view.

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THE CANON OF ADMINISTRATIVE-AGENCY INTERPRETATIONS

According to the canon of administrative-agency interpretations:

Generally, administrative agency interpretations of statutes are given great weight.

Magula v. Benton Franklin Title Co., Inc., 131 Wn.2d 171, 177, 930 P.2d 307 (Wash. 1997) (citing Doe v. Boeing Co., 121 Wash.2d 8, 15, 846 P.2d 531 (1993) (“[The Washington Law Against Discrimination,] RCW 49.60[,] does not define ‘handicap’; deference is given by court to Human Rights Commission administrative rule defining ‘handicap'”).

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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

-gw

January 13, 2022October 21, 2024

Rendering a Verdict: WA State Versus Federal Court

Under both Washington State and federal statutes and court rules, what is the difference in number of jurors required to render a jury verdict in a civil trial? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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WASHINGTON STATE

In Washington, only five jurors in a jury of six, or ten jurors in a jury of twelve, are required to render a verdict in a civil trial. RCW 4.44.380. The relevant text is as follows:

In all trials by juries of six in the superior court, except criminal trials, when five of the jurors agree upon a verdict, the verdict so agreed upon shall be signed by the presiding juror, and the verdict shall stand as the verdict of the whole jury, and have all the force and effect of a verdict agreed to by six jurors. In cases where the jury is twelve in number, a verdict reached by ten shall have the same force and effect as described above, and the same procedures shall be followed.

Id. However, pursuant to the Superior Court Civil Rules, “The parties may stipulate that the jury shall consist of any number less than 12 or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury.” CR 48.

U.S. DISTRICT COURT

Alternatively, in the United States District Court, unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least six members; and a jury must begin with at least six and no more than twelve members. FRCP 48. Each juror must partake in the verdict unless they are excused pursuant to Rule 47(c). Id.

CONCLUSION

A significant difference between federal and Washington State court systems appears to be that, unless the parties stipulate otherwise, Washington Superior Courts generally require a specific majority of jurors to render a verdict whereas the United States District Court requires unanimity.

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June 26, 2021October 20, 2024

The Relative and Qualifying Words-and-Phrases Rule

Under Washington State canons of statutory construction, what is the Relative and Qualifying Words-and-Phrases Rule? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.

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THE RELATIVE AND QUALIFYING WORDS-AND-PHRASES RULE

In Washington State, “[c]ourts construe relative and qualifying words and phrases, both grammatically and legally, to refer to the last antecedent if a contrary intention does not appear in the statute.” Fraternal Order of Eagles v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 240, 59 P.3d 655 (Wash. 2002) (citing In re Application of Andy, 49 Wn.2d 449, 302 P.2d 963 (1956); see, e.g. Caughey v. Employment Sec. Dep’t, 81 Wn.2d 597, 602, 503 P.2d 460 (1972) (“[W]here no contrary intention appears in a statute, relative and qualifying words and phrases refer to the last antecedent.”)).

“The reason for this rule … is to make clear what is being modified.” Id.

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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

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June 9, 2021October 20, 2024

The Harmonizing Rule

Under Washington State canons of statutory construction, what is the Harmonizing Rule? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer | Terms of Use | Privacy Policy before proceeding.)

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THE HARMONZING RULE

According to Washington State courts, “[a]pparent conflicts between a court rule and a statutory provision should be harmonized, and both given effect if possible.” Nearing v. Golden State Foods Corporation, 114 Wn.2d 817, 821, 792 P.2d 500 (Wash. 1990) (citing Emwright v. King Cy., 96 Wash.2d 538, 543, 637 P.2d 656 (1981)).

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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.

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June 3, 2021October 20, 2024

Inadvertent Waiver of Res Judicata

Under Washington State Superior Court Civil Rules, how is the inadvertent waiver of the affirmative defenses of res judicata, priority of action, and claim splitting addressed? Here’s my point of view.

(IMPORTANT: This article is for informational purposes only and is based upon my point of view. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. This article may be a repost from one of our retired blogs. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.)

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WAIVER OF AFFIRMATIVE DEFENSES

The Washington State Supreme Court developed two relevant tests to determine whether a waiver of affirmative defenses has occurred:

(1) waiver based on civil rules; and

(2) common law waiver.

Compare, Farmers Ins. Co. v. Miller, 87 Wash.2d 70, 76, 549 P.2d 9 (1976) (explaining waiver pursuant to civil rules), with Oltman v. Holland America Line USA, Inc., 163 Wn.2d 236, 178 P.3d 981 (2008) (explaining common law doctrine of waiver).

It is not uncommon for defendant-employers in employment discrimination cases to inadvertently waive the affirmative defenses of res judicata, priority of action, and/or claim splitting under the civil rules (this article does not address common law waiver).

WAIVER BASED ON CIVIL RULES: RES JUDICATA, PRIORITY OF ACTION, AND CLAIM SPLITTING

Under CR 8(c), res judicata is listed as an affirmative defense and must be specifically pled. See, e.g., Rainier Nat. Bank v. Lewis, 30 Wn.App. 419, 422, 635 P.2d 153 (Wash.App. Div. 1 1981) (holding “failure of consideration” is an affirmative defense under CR 8(c) and must be specifically pled).

Particularly, in order for res judicata to have a preclusive effect, the second court must be advised of the prior proceeding, and the burden of pleading “res judicata” is listed among the affirmative defenses. See, Phillip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash.L.Rev. 805, 812 (1985) (quotations omitted) (emphasis added).

Moreover, although CR 8(c) specifically delineates 20 affirmative defenses, parties must also affirmatively plead “any other matter constituting an avoidance or affirmative defense.” Beaupre v. Pierce County, 161 Wn.2d 568, 575, 166 P.3d 712 (Wash. 2007). Thus, “claim splitting” and “priority of action” must also be specifically pled as affirmative defenses.

If specific defenses are not (1) affirmatively pled, (2) asserted with a motion under CR 12(b), or (3) tried by the express or implied consent of the parties, they will be deemed to have been waived and may not thereafter be considered as triable issues in the case. Rainier Nat. Bank, 30 Wn.App. at 422 (citing Farmers Ins. Co. v. Miller, 87 Wash.2d 70, 76, 549 P.2d 9 (1976))(emphasis added).

This affirmative defense requirement will not be abrogated where it affects the substantial rights of the parties. Id. (internal citations omitted) (emphasis added).

EXAMPLE: RAINIER NAT. BANK v. LEWIS

For example, in Rainier Nat. Bank v. Lewis, the plaintiff-bank brought an action to recover funds from a default loan guaranteed by defendants, and defendants specifically plead the affirmative defense of “failure of consideration” for the first time at summary judgment; the court held that defendants failed to specifically plead the affirmative defense “failure of consideration” in their answer and it was therefore waived. Rainier Nat. Bank v. Lewis, 30 Wn.App. 419, 635 P.2d 153 (Wash.App. Div 1 1981) (emphasis added).

CONCLUSION

Under Washington State Superior Court Civil Rules, the affirmative defenses of res judicata, priority of action, or claim splitting may be inadvertently waived if not properly plead.

An employment discrimination plaintiff facing a defendant’s motion for summary judgment based upon defenses of priority of action rule, claim splitting, and/or res judicata would be wise to evaluate whether the defendant has properly asserted such affirmative defenses at the beginning of the case in their responsive pleading; there might be a strong argument for waiver based on the civil rules. I have successfully made this argument on multiple occasions against defendant-employers at summary judgment.

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If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Law Office of Gregory A. Williams, or the author of this article; please refer to our Disclaimer | Terms of Use | Privacy Policy for more information.