§52.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§52.8 STRATEGIC AND PRACTICAL CONSIDERATIONS

This section discusses some of the strategic and practical aspects you should consider when dealing with CR 52.

(1) Who should draft proposed findings and conclusions

CR 52(a) requires the court to make findings and conclusions. RCW 4.44.070 gives any party the right to propose findings and conclusions. Neither CR 52(a) nor the statute requires a party to draft proposed findings and conclusions or imposes a deadline for submitting them.

Some local court rules require the submission of proposed findings and conclusions prior to trial. E.g., Douglas County LR 52(f); King County LCR 4(m). Some local rules also require the prevailing party to submit proposed findings and conclusions. E.g., Benton & Franklin County LCR 52(a); Ferry County LCR 52(a); Snohomish County LCR 52(1); San Juan County LCR 52(f); Spokane County LCR 52(a)(6). The objecting party may be required to submit a copy indicating changes and deletions and an alternative set. E.g., Benton & Franklin County LCR 52(b); Snohomish County LCR 52( 1)(A)-(B). Oral objections without the required documentation may be excluded. E.g., Snohomish County LCR 52(1)(C).

In Peoples National Bank v. Birney's Enterprises, Inc., 54 Wn.App. 668, 669-70, 775P.2d466 (1989), the Court of Appeals warned that the prevailing party has the duty to prepare formal pleadings supporting its position or abide by the consequences of its failure to do so.

In other state courts and in the federal courts, there are many decisions addressing who should prepare findings and conclusions. These decisions also address how the findings and conclusions will be interpreted depending on how they were prepared and adopted. See generally J.A. Bryant, Jr., Annotation, Propriety and Effect of Trial Court's Adoption of Findings Prepared by Prevailing Party, 54 A.L.R.3d 868 (1973 & Supp. 2011).

Some of the options relating to the preparation of findings and conclusions include (1) having both parties submit findings, which the judge may mark up; (2) having both parties submit findings, one of which the court will adopt; and (3) making an oral decision and assigning the prevailing party to submit findings in accordance with the oral decision. See, e.g., id. at 871.

Wholesale adoption of a prevailing party's finding may lead to more careful appellate scrutiny. See, e.g.,Rickards v. Canine Eye Reg. Found., Inc., 704 F.2d 1449, 1453 (9th Cir.), cert, denied, 464 U.S. 994 (1983)...