Rules of Appellate Procedure: Has the Court Returned to Archaic Appellate Procedural Practices?

The Washington Supreme Court has charted a path of “slavish adherence” to procedural rules. In Thomas v. French’s the supreme court stated by way of dicta that failure to comply with the Rules of Appellate Procedure (RAP) requiring inclusion of jury instructions in an appellate brief would result in nonconsideration of the claimed error. The appellant challenged the failure of the trial court to give a number of proposed instructions concerning mutuality of contract, duties owed, and the limitation of damages. The proffered instructions were not set out in appellant’s brief as required by RAP 10.4(c): If a party presents an issue which requires study of a statute, rule, regulation, jury instruction, finding of fact, exhibit, or the like, the party should type the material portions of the text out verbatim or include them by facsimile copy in the text or in an appendix to the brief.’ In refusing to consider the claimed error, the court stated the rule was promulgated to aid the expeditious and orderly appellate process. Absent such a rule, the justices would be required to sift through each voluminous case file in order to find the materials pertinent to a given objection. Furthermore, the court relied on two cases’ which it stated placed attorneys on “notice” that the penalty for noncompliance with RAP 10.4(c) would be nonconsideration of the claimed error.

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Robert W. Hamilton, Rules of Appellate Procedure: Has the Court Returned to Archaic Appellate Procedural Practices?, 19 Gonz. L. Rev. 167 (1983).

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