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H0627................................by JUDICIARY, RULES AND ADMINISTRATION
SMALL LAWSUIT RESOLUTION ACT - Adds to existing law to provide a small
lawsuit resolution procedure; to provide for qualification, appointment and
compensation of evaluators; to provide authority for evaluators; to provide
for prehearing and hearing procedures; to provide for evaluation decisions,
awards, judgments and the award of attorney's fees and costs; to provide
for appeals and trial de novo; and to provide for statistical records.
02/12 House intro - 1st rdg - to printing
02/13 Rpt prt - to Jud
02/20 Rpt out - rec d/p - to 2nd rdg
02/21 2nd rdg - to 3rd rdg
02/26 3rd rdg - PASSED - 68-0-2
AYES -- Aikele, Barraclough, Barrett, Bedke, Bell, Bieter, Black,
Block, Boe, Bolz, Bradford, Bruneel, Callister, Campbell, Clark,
Collins, Cuddy, Deal, Denney, Ellis, Ellsworth, Eskridge, Field(13),
Field(20), Gagner, Gould, Hadley, Hammond, Harwood, Henbest, Higgins,
Hornbeck, Jaquet, Jones, Kellogg(Duncan), Kendell, Kunz, Lake,
Langford, Loertscher, Mader, Martinez, McKague, Meyer, Montgomery,
Moyle, Pearce, Pischner, Pomeroy, Raybould, Ridinger, Roberts,
Robison, Sali, Schaefer, Sellman, Shepherd, Smith(33), Smith(23),
Smylie, Stevenson, Stone, Tilman, Trail, Wheeler, Wood, Young, Mr.
Speaker
NAYS -- None
Absent and excused -- Crow, Mortensen
Floor Sponsor - Smith(23)
Title apvd - to Senate
02/27 Senate intro - 1st rdg - to Jud
03/07 Rpt out - rec d/p - to 2nd rdg
03/08 2nd rdg - to 3rd rdg
03/14 3rd rdg - PASSED - 35-0-0
AYES -- Andreason, Boatright, Branch(Bartlett), Brandt, Bunderson,
Burtenshaw, Cameron, Darrington, Davis, Deide, Dunklin, Frasure,
Geddes, Goedde, Hawkins, Hill, Ingram, Ipsen, Keough, King-Barrutia,
Little, Lodge, Marley, Noh, Richardson, Risch, Sandy, Schroeder,
Sims, Sorensen, Stegner, Stennett, Thorne, Wheeler, Williams
NAYS -- None
Absent and excused -- None
Floor Sponsor - Davis
Title apvd - to House
03/14 To enrol
03/15 Rpt enrol - Sp signed
Pres signed
03/15 To Governor
03/20 Governor signed
Session Law Chapter 137
Effective: 01/01/03, for all cases filed on or after date
Sunset clause:06/30/06
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-sixth Legislature Second Regular Session - 2002
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 627
BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE
1 AN ACT
2 RELATING TO SPECIAL COURT PROCEEDINGS; AMENDING TITLE 7, IDAHO CODE, BY THE
3 ADDITION OF A NEW CHAPTER 15, TITLE 7, IDAHO CODE, TO PROVIDE A SHORT
4 TITLE, TO PROVIDE AUTHORIZATION, TO PROVIDE FOR APPLICATION OF THE CHAP-
5 TER, TO PROVIDE FOR INITIATION OF THE PROCESS, TO PROVIDE A PROCEDURE AND
6 TO PROVIDE FOR MOTIONS FOR REMOVAL FROM EVALUATION, TO AUTHORIZE CERTAIN
7 PERSONS TO ACT AS EVALUATORS, TO PROVIDE FOR APPROVED EVALUATORS, TO PRO-
8 VIDE FOR THE SELECTION OF EVALUATORS, TO AUTHORIZE THE SUPREME COURT TO
9 PRESCRIBE RULES, STANDARDS AND PROCEDURES AND TO PROVIDE FOR EXEMPTION
10 FROM OPERATION OF THE CHAPTER, TO PROVIDE FOR THE QUALIFICATION, APPOINT-
11 MENT AND COMPENSATION OF EVALUATORS, TO PROVIDE AUTHORITY FOR EVALUATORS
12 AND TO PROVIDE A PROCEDURE FOR SERVICE, FILING AND COMPUTATION OF TIME, TO
13 PROVIDE FOR DISCOVERY, TO PROVIDE FOR PREHEARING AND HEARING PROCEDURES,
14 TO PROVIDE FOR EVALUATION DECISIONS AND AWARDS, TO PROVIDE FOR APPEALS, TO
15 PROVIDE FOR TRIAL DE NOVO, TO PROVIDE FOR THE AWARD OF COSTS AND
16 ATTORNEY'S FEES, TO PROVIDE FOR JUDGMENT, TO PROVIDE FOR THE APPLICATION
17 OF OTHER LAWS AND TO PROVIDE FOR JUDGMENT FOR EVALUATOR'S FEES AND COSTS,
18 TO PROVIDE FOR THE RIGHT TO TRIAL BY JURY, TO PROVIDE FOR SEVERABILITY, TO
19 PROVIDE FOR CERTAIN STATISTICAL RECORDS AND TO PROVIDE FOR COMMENCEMENT OF
20 COMPILATION OF EVALUATOR LISTS; TO PROVIDE AN EFFECTIVE DATE, TO PROVIDE
21 FOR APPLICATION AND TO PROVIDE A SUNSET CLAUSE.
22 Be It Enacted by the Legislature of the State of Idaho:
23 SECTION 1. That Title 7, Idaho Code, be, and the same is hereby amended
24 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap-
25 ter 15, Title 7, Idaho Code, and to read as follows:
26 CHAPTER 15
27 SMALL LAWSUIT RESOLUTION ACT
28 7-1501. SHORT TITLE. This chapter shall be referred to as the "Small Law-
29 suit Resolution Act."
30 7-1502. AUTHORIZATION. To reduce the cost and expense of litigation and
31 encourage the swift, fair and cost-effective resolution of disputes, the leg-
32 islature hereby establishes a system to encourage civil litigants to resolve
33 their disputes through alternative dispute resolution. The procedures to be
34 utilized under this chapter, while based on the alternative dispute resolution
35 processes of arbitration, mediation, and early neutral evaluation, are
36 intended to be as informal as practicable to accomplish these concurrent
37 objectives.
38 7-1503. ACTIONS TO WHICH THE IDAHO CIVIL EVALUATION OPTION APPLIES --
39 INITIATION OF PROCESS -- OPTION TO MEDIATE -- MOTIONS FOR REMOVAL FROM EVALUA-
40 TION. (1) Civil actions in which the sole relief sought is a money judgment in
2
1 which the parties agree that the total claims for all damages sought by a
2 party do not exceed twenty-five thousand dollars ($25,000) shall be subject to
3 the provisions of this chapter. This chapter shall not apply to appeals from
4 the magistrates division, disputes subject to arbitration under chapter 9,
5 title 7, Idaho Code, proceedings in the small claims division of the district
6 court, cases seeking a punitive damages award, or cases in which this chapter
7 has been previously invoked.
8 (2) The provisions of this chapter may be initiated by any party by the
9 filing of a notice with the court. The notice shall be filed at least one hun-
10 dred fifty (150) days prior to a scheduled trial but, without the consent of
11 all parties, may not be filed within forty-five (45) days following the ser-
12 vice of a complaint. The trial court shall retain jurisdiction over a case
13 proceeding under this chapter and the case shall remain on the court's active
14 calendar.
15 (3) The parties shall confer after the filing of the notice to determine
16 if they wish to undertake evaluation or mediation. If they agree to mediate,
17 the parties may agree upon a mediator or utilize as mediator an individual
18 selected pursuant to the evaluator selection provisions of this chapter. If a
19 mediation has been conducted under this chapter, and the mediation has not
20 resulted in the settlement of all claims, within fourteen (14) days following
21 such mediation, the parties shall file a notice with the clerk of the court
22 that a mediation has been completed, that all claims have not been settled and
23 specifying the claims which remain. Within twenty-eight (28) days after the
24 notice is filed, the court shall issue a scheduling order or hold a scheduling
25 conference pursuant to the Idaho rules of civil procedure.
26 (4) If the parties are not able to agree whether to undertake a mediation
27 or an evaluation under this chapter, a party has seven (7) days after the fil-
28 ing of the notice of the initiation of the provisions of this chapter to file
29 a motion seeking the court to order which form of alternative dispute resolu-
30 tion will be used. The moving party has a right to a hearing pursuant to the
31 Idaho rules of civil procedure. In making its determination on the motion, the
32 court shall consider, among other factors it deems relevant, the nature of the
33 claim(s) and the defense(s), the prior experience, if any, of the parties or
34 their counsel with mediation or evaluation, in this or other cases, the poten-
35 tial likelihood that the facts alleged in a claim, if proven, will lead to
36 liability of one party to another, and the complexity of the case. If the
37 court does not determine that mediation is a preferable means of alternative
38 dispute resolution for the particular case, it shall order the parties to con-
39 duct an evaluation under the provisions of this chapter.
40 (5) Any party may move the court for removal from the evaluation at any
41 stage for good cause. The court shall grant such motion upon its determination
42 that there has been a substantial change in circumstances or that there is a
43 reasonable potential for the moving party to later seek amendment to its
44 pleadings to allow that party to pursue punitive damages, making the evalua-
45 tion option an inappropriate method to obtain resolution of the particular
46 dispute.
47 7-1504. SELECTION OF EVALUATOR -- COURT ADMINISTRATION OF PROCEDURE --
48 RULES, STANDARDS AND PROCEDURES -- EXEMPTION FROM OPERATION OF THE CHAPTER.
49 (1) All senior and sitting magistrate judges, district judges and appellate
50 court judges and justices are authorized to act as civil litigation
51 evaluators. The supreme court may establish by rule, procedures for the
52 appointment and use, where available, of such judges as evaluators for the
53 purposes of this chapter.
54 (2) The supreme court shall maintain a list of private civil litigation
3
1 evaluators who are approved to serve in each district pursuant to this chapter
2 and any rules adopted by the supreme court. Each county's clerk of the court
3 shall from time to time be provided by the supreme court a list of evaluators
4 who are approved to serve in that county pursuant to this chapter and any
5 rules adopted by the supreme court.
6 (3) Unless a judge is assigned as an evaluator pursuant to court rule, or
7 unless the parties have agreed in advance to the selection of a particular
8 evaluator, upon receipt of a notice of initiation of the provisions of this
9 chapter, the clerk of the court shall provide each party to the case a list
10 containing the names of the same five (5) randomly selected evaluators. If
11 there are more than two (2) parties to the litigation, the clerk will provide
12 ten (10) names.
13 (4) In every case each party may submit requests for replacement list(s)
14 to the clerk within three (3) days of receipt of a list of evaluators. Upon
15 receipt of such a request, the clerk of the court shall provide each party to
16 the case a new list containing an appropriate number of names of randomly
17 selected evaluators.
18 (5) Within seven (7) days of receipt of the list, it shall be the duty
19 of the party that filed the notice initiating proceedings under this chapter
20 to initiate contact with the representatives of the other litigants for the
21 purpose of selecting an evaluator. Unless the parties agree on a particular
22 evaluator or a different method of selection, selection of the evaluator will
23 be by alternating strikes. The representative of the initiating party shall
24 strike an evaluator's name, the opposing counsel shall then strike an
25 evaluator's name with the parties alternating until only one (1) name is left.
26 If there are more than two (2) parties, the strikes shall be made in the order
27 the parties' names appear on the case caption commencing with the initiating
28 party. The initiating party shall file notice of the selected evaluator within
29 ten (10) days of the receipt of the list.
30 (6) If there is any dispute or failure to cooperate with the selection
31 procedures contained in this section, any party may file a motion with the
32 court for assistance in selection of an evaluator. No hearing shall be
33 required and the court shall rule on such motion expeditiously and take what-
34 ever steps are necessary to obtain the prompt selection of an evaluator. If
35 the court finds that a party has requested a replacement list of evaluators
36 unreasonably or determines it is otherwise appropriate, the court may appoint
37 a sitting or retired judge or a private lawyer from the list of approved
38 evaluators to serve as evaluator for the case.
39 (7) Upon application by any party made no sooner than fourteen (14) days
40 after the filing of the notice of request for civil evaluation, the clerk
41 shall assign by random lot any of the individuals identified on the list as
42 the evaluator if no notice of selection or motion for assistance has been
43 filed.
44 (8) Nothing shall preclude the parties stipulating to the appointment of
45 any individual who agrees to serve as their evaluator under this statute. If
46 the parties stipulate to the appointment of an evaluator different from one on
47 the list provided by the clerk, they shall file a joint statement to that
48 effect with the court.
49 (9) To the extent it deems necessary, the supreme court may prescribe
50 rules to reduce the costs of evaluation under this chapter. It may also pre-
51 scribe forms to be used in the evaluation process, and other rules, standards
52 or procedures it deems appropriate to effectuate the purposes of this chapter.
53 (10) The supreme court may exempt all cases filed in the courts of any
54 county from the operation of this chapter if, following application made by
55 the administrative judge of the judicial district which includes that county,
4
1 the supreme court determines the county does not have sufficient judicial or
2 other resources to implement and effectuate the purposes of this chapter or
3 for other good cause shown.
4 7-1505. QUALIFICATIONS, APPOINTMENT AND COMPENSATION OF EVALUATORS. (1)
5 Any individual desiring to be on a list of private civil litigation evaluators
6 under this chapter shall submit a request to the supreme court identifying
7 each district in which the individual wishes to serve. The task of acting as
8 an evaluator under this chapter shall be a service to the judiciary and the
9 legal profession. The legislature encourages members of the bar to accept up
10 to two (2) appointments under this chapter on a pro bono basis each year.
11 (2) To serve as a private civil litigation evaluator, a person must cur-
12 rently be an active member of the Idaho state bar association and have had
13 such membership for a minimum of seven (7) years or be a retired judge. To the
14 extent it deems them necessary, the supreme court may prescribe by rule addi-
15 tional qualifications for civil litigation evaluators in some or all cases
16 with the purpose of providing the largest pool of individuals with the knowl-
17 edge and experience to fairly determine claims under this chapter at minimal
18 or no cost to litigants.
19 (3) Upon appointment in each case, the evaluator must sign an oath to
20 fulfill the duties of the office, including the impartial, unbiased and timely
21 discharge of those duties. He must also affirmatively state that he has no
22 conflict of interest. Challenges to the service of an evaluator shall be made
23 by motion to the trial court and shall be heard expeditiously. Evaluators may
24 decline any appointments for the balance of a calendar year without cause
25 after serving as an evaluator twice during the year. The trial court may
26 otherwise excuse evaluators from an appointment for good cause. If an
27 evaluator declines or is excused from service, a new list shall be requested
28 from the clerk for selection of an evaluator.
29 (4) Evaluators shall submit their rates of hourly compensation, if any,
30 to the supreme court when submitting their request to be on the list of civil
31 litigation evaluators. The clerk shall include the rate of hourly compensa-
32 tion, if any, for each evaluator in the list of names submitted to the par-
33 ties. The parties shall each pay an equal portion of a private evaluator's fee
34 if any is charged as well as an equal portion of any actual costs incurred by
35 the private evaluator. Individuals who wish to serve as private civil litiga-
36 tion evaluators under this chapter other than on a pro bono basis shall agree
37 to serve as an evaluator in exchange for a fee not to exceed one thousand dol-
38 lars ($1,000) unless the parties agree otherwise. Provided however, that
39 judges assigned as evaluators pursuant to court rule shall not be compensated
40 by the parties.
41 7-1506. EVALUATOR AUTHORITY -- PROCEDURES RELATING TO SERVICE, FILING AND
42 COMPUTATION OF TIME. (1) An evaluator has the authority to:
43 (a) Decide procedural issues relating to the conduct of the evalua-
44 tion, including discovery disputes, arising before or during the evalua-
45 tion process except issues relating to the qualification of the evaluator,
46 which shall be decided by the trial court.
47 (b) Invite, with reasonable notice, the parties to submit pre-evaluation
48 briefs;
49 (c) Examine any site or object relevant to the case;
50 (d) Administer oaths and affirmations to witnesses for the purposes of
51 the evaluation;
52 (e) Rule on the admissibility of evidence;
53 (f) Determine the facts, decide the law, issue a decision, and make an
5
1 award;
2 (g) Adjust or extend statutory deadlines set forth in this chapter, for
3 good cause shown; and
4 (h) Take such other acts as are necessary to accomplish the object of a
5 fair, swift, and cost-effective determination of the case.
6 (2) An evaluator shall not decide motions to dismiss, motions to add or
7 change parties in the case, or motions for summary judgment. Any such motion
8 shall be presented to the trial court for determination.
9 (3) After the case is assigned to the evaluator, service shall be made
10 consistent with rule 5 of the Idaho rules of civil procedure, except that doc-
11 uments used in the evaluation shall be filed with the evaluator instead of the
12 court.
13 (4) Time shall be computed pursuant to the Idaho rules of civil proce-
14 dure.
15 (5) Except for the authority expressly given to an evaluator by this
16 chapter, all issues shall be determined by the court.
17 7-1507. DISCOVERY. (1) Unless the evaluator orders otherwise:
18 (a) A defending party may demand in writing a statement from each claim-
19 ant setting forth separately the amounts of any special, general or other
20 damages sought in the evaluation. Such statement shall be served on all
21 parties no later than twenty-one (21) days after receipt of the demand;
22 (b) A party may take the deposition of another party pursuant to the
23 Idaho rules of civil procedure;
24 (c) If the physical or mental condition of a claimant is at issue, the
25 defending parties may obtain the relevant medical reports of the claimant
26 and one (1) defendant's medical examination of the claimant. The evaluator
27 shall decide any limitations to be placed on the time, place, manner, con-
28 ditions or scope of the examination if requested. A claimant shall have an
29 absolute right to a copy of any document created by the examiner or the
30 examiner's employees or agents during or after the examination. Such mate-
31 rials shall be provided to the claimant within fourteen (14) days of the
32 date of the examination and no later than twenty-one (21) days prior to
33 the evaluation hearing date. Failure to timely provide the medical
34 examiner's materials shall be a basis for vacating and rescheduling the
35 hearing or for excluding the evidence in the discretion of the evaluator;
36 (d) The parties may submit requests for admission to one another pursuant
37 to the Idaho rules of civil procedure.
38 (2) The conclusions and foundations therefore of any expert opinion tes-
39 timony that a party intends to offer at the evaluation shall be submitted in
40 writing to the opposing party no later than twenty-one (21) days prior to the
41 evaluation. Medical records are deemed to fulfill the requirements of this
42 subsection. If the opposing party concludes that it needs to take the expert's
43 deposition and the parties cannot reach agreement to do so, the written report
44 shall be submitted to the evaluator who, after hearing the opposing party's
45 reasons for requesting the deposition, may order it to go forward. The
46 evaluator's determination that such discovery will occur shall be based on
47 whether it is necessary to obtain a fair determination of the case. If a party
48 wishes to offer the live testimony of any expert witness at the evaluation,
49 notice of the intent to do so must be given to the other parties no later than
50 twenty-one (21) days prior to the evaluation and the opposing parties shall
51 have the right to depose the expert before the evaluation is conducted.
52 (3) No additional discovery shall be due or obtained for the purpose of
53 the evaluation unless the parties stipulate thereto or the evaluator has
54 ordered otherwise based on the evaluator's determination that such discovery
6
1 is necessary to obtain a fair, swift and cost-effective determination of the
2 case.
3 (4) Costs of all depositions, including fees for expert testimony, and
4 medical examinations shall be paid by the party requesting the examination or
5 testimony.
6 7-1508. PREHEARING AND HEARING PROCEDURES. (1) The evaluator shall set
7 the time and place of the evaluation hearing and shall give reasonable notice
8 of the hearing to the parties. The parties may agree to hold the hearing by
9 telephone. Except by stipulation among the parties and the evaluator, or for
10 good cause shown, the hearing shall be scheduled to take place no sooner than
11 twenty-eight (28) days, nor later than seventy (70) days, from the date of
12 the assignment of the case to the evaluator. If a case will be heard later
13 than seventy (70) days from the date of assignment, the evaluator shall file a
14 notice with the trial court providing reasons for the delay and informing the
15 court of the date of the hearing.
16 (2) Except for good cause shown, no party shall be allowed more than
17 three (3) hours for presentation of its case at an evaluation hearing.
18 (3) Counsel for the parties and the evaluator may issue subpoenas for the
19 hearing in the manner provided in the Idaho rules of civil procedure.
20 (4) At least fourteen (14) days prior to the date of the evaluation, each
21 party shall file with the evaluator and serve upon all other parties a
22 prehearing statement containing a list of witnesses the party intends to call
23 at the evaluation hearing and a list of exhibits and documentary evidence a
24 party intends to utilize at the hearing. The document will identify whether
25 the testimony shall be live, presented in a sworn writing, or taken by tele-
26 phone. Upon request, all written and other tangible evidence identified shall
27 be made available for the opposing party's inspection and copying at least
28 seven (7) days prior to the hearing date. The evaluator shall have the right
29 to exclude any evidence not provided in compliance with this section.
30 (5) The evaluator shall control the mode and order of proof with the
31 objectives of making the presentation of evidence effective for the ascertain-
32 ment of facts, avoiding the needless consumption of time, protecting witnesses
33 from harassment and undue embarrassment, and ensuring the fair, swift, and
34 cost-effective determination of the case. Witnesses shall testify under oath
35 administered by the evaluator with the full penalty of law to apply to viola-
36 tion of that oath. The evaluator may allow testimony by telephone or other
37 nontraditional means. The evaluator may question any witness. A party has the
38 right to cross-examine any other party and any witness called by another
39 party.
40 (6) The hearing may be recorded electronically upon the request of any
41 party, the cost to be borne by that party.
42 (7) Proceedings shall be under the control of the evaluator and as infor-
43 mal as practicable. The extent to which the formal rules of evidence will be
44 applied shall rest in the discretion of the evaluator. To the extent deter-
45 mined applicable, the evaluator shall construe those rules liberally in order
46 to effectuate a fair, swift and cost-efficient procedure. Expert opinion tes-
47 timony shall only be allowed if the conclusions and foundations therefore were
48 appropriately disclosed and, if offered live, subjected to the opportunity for
49 deposition pursuant to section 7-1507(2), Idaho Code, and otherwise admissible
50 under the Idaho rules of evidence.
51 (8) To effectuate the fair, swift and cost-efficient nature of the evalu-
52 ation, the following documents shall be presumed admissible and may be pro-
53 vided to the evaluator prior to the hearing, provided the documents are dis-
54 closed in the prehearing statement and, where relevant, the name, address and
7
1 telephone number of the author of the document is contained in the document or
2 set forth in the prehearing statement:
3 (a) Any written contract between the parties;
4 (b) A copy of any billing statement or invoice prepared in the normal
5 course of business;
6 (c) Copies of any correspondence between the parties;
7 (d) Any document that would be admissible under rule 803(6) of the Idaho
8 rules of evidence;
9 (e) A bill, report, chart, or record of a hospital, doctor, dentist, reg-
10 istered nurse, licensed practical nurse, physical therapist, psychologist
11 or other health care provider, on a letterhead, or billhead or otherwise
12 clearly identifiable as part of the provider's professional record;
13 (f) A bill for drugs, medical appliances or other related expenses on
14 letterhead, or billhead or otherwise clearly identifiable as part of a
15 provider's professional record;
16 (g) A bill for, or estimate of, property damage or loss on a letterhead
17 or billhead. In the case of an estimate, the offering party shall notify
18 the adverse party no later than, as part of the prehearing statement,
19 whether the property was repaired, in full or in part and provide the
20 actual bill showing the cost of repairs;
21 (h) A police, weather, or wage loss report or standard life expectancy
22 table to the extent it is relevant without need for authentication;
23 (i) A photograph, videotape, x-ray, drawing, map, blueprint, or similar
24 evidence to the extent it is relevant without the need for authentication;
25 (j) The written statement of any witness made as part of a police inves-
26 tigation;
27 (k) The written statement of any witness, including a written report of
28 any expert witness that contains a statement of opinion based on proper
29 qualifications which the witness would be allowed to express if testifying
30 in person;
31 (l) A document not specifically covered by the foregoing but having
32 equivalent circumstantial guarantees of trustworthiness, the admission of
33 which would help in the swift, fair and cost-effective resolution of the
34 dispute or otherwise serve the interests of justice.
35 (9) The admission of a document under subsection (8) of this section does
36 not, in any manner, restrict argument or proof relating to the weight of the
37 evidence admitted, nor does it limit the evaluator's discretion to determine
38 the weight of the evidence after hearing all evidence and the arguments of the
39 parties.
40 (10) The evaluation hearing may proceed, and a decision may issue, in the
41 absence of any party who, after due notice, fails to participate or to obtain
42 a continuance. Continuances shall only be granted for good cause and for the
43 shortest practicable time. If a party is absent, the evaluator may permit any
44 party present to submit evidence supporting such present party's position in
45 the case. In a case involving more than one (1) defendant, the absence of a
46 defendant shall not preclude the evaluator from assessing as part of the
47 award, damages against the defendant or defendants who are absent. The
48 evaluator, for good cause shown, may allow an absent party an opportunity to
49 appear at a subsequent hearing before making an award. A party who fails to
50 participate in the hearing or prehearing process without good cause waives the
51 right to a trial de novo. If it is shown to the trial court by clear and con-
52 vincing evidence that a party or its counsel has not acted in good faith dur-
53 ing the evaluation, the trial court may impose any appropriate sanction
54 against such party or its counsel.
8
1 7-1509. EVALUATION DECISION AND AWARD -- APPEALS -- TRIAL DE NOVO -- MIS-
2 CELLANEOUS. (1) Within fourteen (14) days following the evaluation, the
3 evaluator shall issue a written, signed decision. The evaluator shall deter-
4 mine all issues raised by the pleadings, including a determination of any
5 damages. The evaluator shall apply the applicable law as it exists; however,
6 neither findings of fact nor conclusions of law shall be required. The deci-
7 sion and award shall be served on the parties. The evaluator shall file a
8 notice of issuance of the evaluator's decision with the clerk of the court,
9 together with proof of service of the notice and the decision on the parties.
10 The decision and award shall not be filed with the clerk of the court. No
11 evaluator's award shall exceed twenty-five thousand dollars ($25,000) in total
12 damages to a party. No evaluator's award shall include exemplary or punitive
13 damages. An evaluator may, in addition, award costs and attorney's fees under
14 the terms of an applicable contract.
15 (2) Within twenty (20) days after the notice of issuance of the
16 evaluator's decision has been filed with the clerk of the court, any party
17 may file with the clerk a written notice of appeal and request for a trial de
18 novo in the district court on all issues of law and fact. Within twenty-eight
19 (28) days after the request for a trial de novo has been filed, the court
20 shall issue a scheduling order or hold a scheduling conference pursuant to the
21 Idaho rules of civil procedure.
22 (3) The trial de novo shall proceed as if the evaluation had not
23 occurred. No reference to the evaluation or to the amount of the evaluation
24 award shall be made to the trial court or the jury during any part of the
25 trial de novo. Discovery taken and statements made during the evaluation proc-
26 ess may be used at the trial de novo as provided in the Idaho rules of civil
27 procedure and the Idaho rules of evidence; however, no reference shall be made
28 to the fact that any statement was made in an evaluation proceeding. Any dol-
29 lar amount sought, demanded or awarded during the evaluation, including the
30 parties' agreement that for the purposes of the evaluation the claim is lim-
31 ited to twenty-five thousand dollars ($25,000), shall be treated as an offer
32 of compromise pursuant to the Idaho rules of evidence and shall not be admis-
33 sible at trial. Any examination made pursuant to the provisions of section
34 7-1507(1)(c), Idaho Code, shall be subject to rule 35 of the Idaho rules of
35 civil procedure. Any violation of the provisions of this subsection by a party
36 or its representatives shall be subject to appropriate sanctions by the trial
37 court.
38 (4) The relief sought at trial shall not be limited by the evaluation;
39 provided however, that judgment for damages of more than twenty-five thousand
40 dollars ($25,000), exclusive of costs and fees, may not be entered for a party
41 who has agreed that its claim does not exceed twenty-five thousand dollars
42 ($25,000) for the purposes of initiating alternative dispute resolution under
43 this chapter and shall be reduced by the court unless the claimant establishes
44 the applicability of the factors of rule 60 of the Idaho rules of civil proce-
45 dure. An evaluator may not be called as a witness at the trial de novo.
46 (5) The trial court shall assess costs and reasonable attorney's fees
47 against a party who appeals from an evaluation award and fails to improve its
48 position at the trial de novo by at least fifteen percent (15%).
49 (6) Up to forty-five (45) days following the filing of the notice of
50 issuance of the evaluator's decision, a party may serve upon the other
51 party(ies) a written offer of compromise. If an offer of compromise is not
52 accepted by the other party(ies) within ten (10) days after service thereof,
53 the amount used for determining whether the party appealing the evaluator's
54 award has improved its position shall be the amount of the offer of compro-
55 mise. Neither the evaluator's decision nor the offer of compromise shall be
9
1 submitted to the trial court until the verdict or judgment has been rendered
2 in the trial de novo.
3 (7) The trial court may assess some or all costs and reasonable
4 attorney's fees against a party who withdraws its request for a trial de novo
5 where the withdrawal is not in conjunction with the acceptance of an offer of
6 compromise.
7 (8) For the purposes of this section "costs and reasonable attorney's
8 fees" means all those provided for by statute or rule as well as all expert
9 witness fees and other expenses the court finds were reasonably incurred after
10 the appeal from the evaluation award was filed.
11 (9) If no appeal has been filed at the expiration of twenty-one (21) days
12 following the filing of the evaluator's notice of decision, a judgment may be
13 presented to the court by any party accompanied by a copy of the evaluator's
14 award. If the judgment is in conformity with the evaluator's award it shall be
15 entered and shall have the same force and effect as any other judgment in a
16 civil action but shall not be subject to appellate review and may only be set
17 aside pursuant to the provisions of rule 60 of the Idaho rules of civil proce-
18 dure.
19 (10) Witness fees and other costs provided for by statute or court rule in
20 district court proceedings shall be awarded by the court upon entry of judg-
21 ment to the same extent and in the same manner as if the hearing had been held
22 in court.
23 (11) The provisions of this chapter do not affect or preclude the applica-
24 tion of any other statute or rule regarding fees or costs including, but not
25 limited to, those in title 7 or 12, Idaho Code, section 41-1839, Idaho Code,
26 or the Idaho rules of civil procedure. Awards of damages and of attorney's
27 fees and costs, when made to opposing parties, shall be set off against one
28 another and judgment shall be entered for the net amount to the party(ies)
29 entitled thereto.
30 (12) An evaluator may obtain a judgment for his fees and costs in the
31 pending litigation against any party that refuses to pay its share. Judgment
32 shall be obtained by motion to the trial court which shall only be granted
33 after the party failing to pay has had the opportunity to be heard and object.
34 7-1510. RIGHT TO TRIAL BY JURY. The intent of this chapter is to maintain
35 the right to a jury trial and the provisions of this statute shall be con-
36 strued to uphold that right.
37 7-1511. SEVERABILITY. If any provision of this chapter or its application
38 to any person or circumstance is held invalid, the remainder of the chapter or
39 the application of the provision to other persons or circumstances is not
40 affected.
41 7-1512. STATISTICAL RECORDS -- COMPILATION OF EVALUATOR LIST. (1) The
42 supreme court shall keep statistical records of the number of requests for
43 evaluation filed pursuant to the provisions of this chapter, the number of
44 appeals from evaluation awards hereunder, the number of instances in which a
45 party improves its position by at least fifteen percent (15%) on appeal.
46 (2) Commencing no later than July 1, 2002, the supreme court shall begin
47 compiling the names of individuals desiring to serve as civil litigation
48 evaluators in each judicial district.
49 SECTION 2. This act shall be in full force and effect on and after Janu-
50 ary 1, 2003, and shall apply to all cases for which initial complaints are
51 filed on or after January 1, 2003. This act shall be null, void and of no
10
1 force and effect on and after June 30, 2006, provided, however, that the pro-
2 visions of the act shall continue to apply to all applicable cases in which
3 initial complaints are filed on or before June 30, 2006.
STATEMENT OF PURPOSE
RS 12023
This legislation is intended to reduce the cost of litigation and
speed the resolution of conflicts that have resulted in a lawsuit
if the damages sought are $25,000 or less. It provides for
independent case evaluations based on a review of the evidence by
impartial evaluators. Once a case has been through the
evaluation process any party, if dissatisfied with the results,
may still proceed to trial without mention of the evaluation
process. However, if the dissatisfied party fails to improve its
position by 15% or more at trial, it will be required to pay the
other side's attorney's fees and costs.
The legislation is designed to apply to smaller claims for money
damages and is based on a system that has been used in other
states with a number of years experience. It has resulted in the
reduction of court caseloads and faster resolution of lawsuits.
FISCAL NOTE
This legislation should have a positive impact on the state
General Fund by reducing court caseloads, relieving courts,
judges, clerks and other court personnel of time spent on the
cases settled by this evaluation procedure.
Contact:
Name: Rep Leon Smith
Sen Bart Davis
Phone: 332-1000
STATEMENT OF PURPOSE/FISCAL NOTE Bill No.627