Washington Law Review


Of the several grounds for a new trial in Washington, one in particular has created considerable difficulty for the supreme court, the superior court judges, and counsel. The ground in question is set forth in Rules of Pleading and Procedure 59.04W(9), "That substantial justice has not been done." This is followed by the provision that, "In all cases wherein the trial court grants a motion for a new trial, it shall, in the order granting the motion, give definite reasons of law and facts for so doing." The problem has been one of determining the degree of discretion resting with the superior courts under the above provisions, the scope of review by the supreme court, and for counsel, the criteria for the drafting of new trial orders to avoid reversal on appeal. A study of this problem was undertaken on behalf of the State of Washington Judicial Council. In the belief that the results would be of interest to attorneys generally, the report to the Council has been modified for presentation in this article. An understanding of the rule and its purpose first necessitates an analysis of its historical background. This will be followed by a detailed consideration of the cases interpreting and applying the rule and a comparison of the practice in other jurisdictions. Finally, certain recommendations will be made in the way of a possible amendment to the rule, or a reinterpretation of the rule as it now exists.

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