§44.1.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§44.1.8 STRATEGIC AND PRACTICAL CONSIDERATIONS

It is important to consider when to plead or give reasonable notice of the issue of foreign law, and whether Washington or foreign law will apply.

(1)When to plead or give notice

If a party intends to raise an issue of foreign law, the party must give notice of such law in its pleadings or other writing according to CR 9(k). The rule does not provide explicit guidance with respect to the time when notice of reliance on sister-state, federal, or other U.S. jurisdiction law must be served and filed with the court. Rather, under the "reasonable notice" concept, the trial court has discretion to determine whether notice of such U.S. foreign law has been reasonably given. See, e.g., Rodriguez v. Travelers Ins. Co., 54 Wn.App. 725, 775 P.2d 973, review denied, 113 Wn.2d 1022 (1989).

It is possible to give notice at trial if the issue was not apparent until then; but in the absence of mitigating circumstances, a party generally will not be permitted to raise an issue of foreign law after the pretrial conference if there is one. Cf. Valdesa Compania Naviera, S.A. v. Frota Nacional de Petroleiros, 348 F.2d 33 (3d Cir. 1965).

A party may use the provisions of CR 15 to modify the notice (or lack of notice) given in its pleadings. The considerations applicable to amendments under CR 15 apply by analogy when notice is given outside the pleadings for United States jurisdictions.

C

...