§52.4 Comparison with Federal Rule

• Jurisdiction: Washington

§52.4COMPARISON WITH FEDERAL RULE

CR 52(a) corresponds to FED. R. CIV. P. 52(a) but differs from it in a number of important respects. State v. Agee, 89 Wn.2d 416, 421, 573P.2d355 (1977). CR 52(a) does not contain the standard for appellate review of findings of fact. In contrast, FED. R. CIV. P. 52(a)(6) states that a finding of fact "must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the witnesses' credibility." This "clearly erroneous" standard for review of findings in federal court is more stringent than the standard for review in state courts in Washington. See §52.6(10), below.

CR 52(a) enumerates certain interlocutory decisions that require entry of findings and conclusions. FED. R. CIV. P. 52(a) does not contain a similar list. FED. R. CIV. P. 52(a) permits findings to be orally stated and recorded in open court. See DGHI Enters, v. Pac. Cities, Inc., 137 Wn.2d 933, 947 n.59, 977P.2d1231 (1999) ("In 1983, the Federal rule, FRCP 52 was amended to permit judges to make findings of fact and conclusions of law orally") CR 52(a) does not contain such language.

The deadline for bringing a motion to amend findings under CR 52(b) is 10 days, while the deadline for a similar motion is 28 days under FED. R. CIV. P. 52(b).

Caveat: Note that the rule for counting days differs in state and federal practice. Compare CR 6(a) (intermediate weekend days and holidays are counted when the prescribed time is 7 days or more), with FED. R. CIV. P. 6(a) (weekend days and holidays are always included).

The 1991 amendment to FED. R. CIV. P. 52(c) permits the court in a bench trial to enter judgment at any time it can make a dispositive finding on the evidence. Amendments to Fed. Rules of Civ. Pro. Supreme Ct. of the U.S., 134 F.R.D. 525, 690 (1991). The federal trial court is not required to wait until the close of plaintiff s case to make a finding and is not required to receive oral testimony. See Granite State Ins. Co. v. Smart Modular Techs., Inc., 76 F.3d 1023, 1030-31 (9th Cir. 1996) (where equitable estoppel issue tried by court, court was not required to receive live rebuttal testimony; an offer of proof was sufficient). FED. R. CIV. P. 52(c) has no counterpart in CR 52.

CR 52(d), regarding "Judgment Without Findings, etc.," has no federal counterpart.