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H0072...................................by JUDICIARY, RULES AND ADMINISTRATION
SMALL LAWSUIT RESOLUTION ACT - Amends existing law relating to the "Small
Lawsuit Resolution Act" to revise notice provisions; to revise provisions
relating to exclusion or removal of cases from the evaluation process; to
clarify provisions relating to certain judges; to revise provisions relating
to qualification, appointment and compensation of evaluators; to clarify and
revise procedures relating to evaluator authority; to clarify discovery
provisions; to revise prehearing and hearing procedures; to clarify certain
limitations on evaluator decisions; to revise procedures and provisions
relating to trials de novo; to provide for and to revise provisions relating
to fees and costs; to revise provisions and procedures relating to offers of
compromise; to revise provisions relating to judgments; to revise and clarify
provisions relating to the right to trial; and to provide for certain
statistical records.
01/14 House intro - 1st rdg - to printing
01/15 Rpt prt - to Jud
01/24 Rpt out - rec d/p - to 2nd rdg
01/27 2nd rdg - to 3rd rdg
01/28 3rd rdg - PASSED - 68-0-2
AYES -- Andersen, Barraclough, Barrett, Bauer, Bedke, Bell, Black,
Block, Boe, Bolz, Bradford, Campbell, Cannon, Clark, Collins, Crow,
Cuddy, Deal, Denney, Douglas, Eberle, Edmunson, Ellsworth, Eskridge,
Field(18), Field(23), Gagner, Garrett, Harwood, Henbest, Jaquet, Jones,
Kellogg, Kulczyk, Lake, Langford, Langhorst, Martinez, McGeachin,
McKague, Meyer, Miller, Mitchell, Moyle, Nacarrato, Nielsen, Raybould,
Ridinger, Ring, Ringo, Roberts, Robison, Rydalch, Sali, Sayler,
Shepherd, Shirley, Skippen, Smith(30), Smith(24), Smylie, Snodgrass,
Stevenson, Tilman, Trail, Wills, Wood, Mr. Speaker
NAYS -- None
Absent and excused -- Bieter, Schaefer
Floor Sponsor - Smith(24)
Title apvd - to Senate
01/29 Senate intro - 1st rdg - to Jud
02/13 Rpt out - rec d/p - to 2nd rdg
02/14 2nd rdg - to 3rd rdg
02/18 3rd rdg - PASSED - 35-0-0
AYES -- Andreason, Bailey, Brandt, Bunderson, Burkett, Burtenshaw,
Calabretta, Cameron, Compton, Darrington, Davis, Gannon, Geddes, Goedde,
Hill, Ingram, Kennedy, Keough, Little, Lodge, Malepeai, Marley,
McKenzie, McWilliams, Noble, Noh, Pearce, Richardson, Schroeder,
Sorensen, Stegner, Stennett, Sweet, Werk, Williams
NAYS -- None
Absent and excused -- None
Floor Sponsor - Davis
Title apvd - to House
02/19 To enrol
02/20 Rpt enrol - Sp signed
02/21 Pres signed
02/24 To Governor
02/27 Governor signed
Session Law Chapter 29
Effective: 02/27/03 for all complaints filed on
or after 01/01/03; Sunset Clause 06/03/06
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-seventh Legislature First Regular Session - 2003
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 72
BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE
1 AN ACT
2 RELATING TO SMALL LAWSUIT RESOLUTION; AMENDING SECTION 7-1503, IDAHO CODE, TO
3 REVISE NOTICE PROVISIONS, TO STRIKE REFERENCE TO CERTAIN COURT ISSUED
4 SCHEDULING ORDERS AND SCHEDULING CONFERENCES, TO CLARIFY THAT COURTS MAY
5 ORDER THAT CERTAIN CASES PROCEED TO TRIAL PURSUANT TO THE IDAHO RULES OF
6 CIVIL PROCEDURE AND TO REVISE PROVISIONS RELATING TO REMOVAL OF CASES FROM
7 THE EVALUATION PROCESS; AMENDING SECTION 7-1504, IDAHO CODE, TO CLARIFY
8 JUDICIAL REFERENCES, TO CLARIFY THAT ASSIGNMENT OF CERTAIN JUDGES AS
9 EVALUATORS SHALL BE MADE BY THE SUPREME COURT OR ADMINISTRATIVE JUDGE AND
10 TO REVISE PROVISIONS RELATING TO THE SELECTION OF AN EVALUATOR; AMENDING
11 SECTION 7-1505, IDAHO CODE, TO REVISE PROVISIONS RELATING TO REQUESTS BY
12 POTENTIAL EVALUATORS, TO REVISE PROVISIONS RELATING TO THE QUALIFICATION
13 AND APPOINTMENT OF EVALUATORS, TO REVISE PROVISIONS RELATING TO THE DECLI-
14 NATION OF AN APPOINTMENT, TO PROVIDE FOR RELEASE FROM APPOINTMENT AND TO
15 PROVIDE FOR THE COMPENSATION OF CERTAIN SITTING OR SENIOR JUDGES; AMENDING
16 SECTION 7-1506, IDAHO CODE, TO CLARIFY AND REVISE PROCEDURES RELATING TO
17 EVALUATOR AUTHORITY AND TO MAKE A TECHNICAL CORRECTION; AMENDING SECTION
18 7-1507, IDAHO CODE, TO CLARIFY CERTAIN DOCUMENTS TO WHICH A CLAIMANT IS
19 ENTITLED; AMENDING SECTION 7-1508, IDAHO CODE, TO REVISE PREHEARING AND
20 HEARING PROCEDURES; AMENDING SECTION 7-1509, IDAHO CODE, TO STRIKE REFER-
21 ENCE TO AWARDS AND APPEALS, TO CLARIFY CERTAIN LIMITATIONS ON EVALUATOR
22 DECISIONS, TO PROVIDE THAT CERTAIN COSTS AND ATTORNEY'S FEES SHALL BE
23 AWARDED BY THE COURT, TO REVISE PROCEDURES FOR REQUESTS FOR TRIAL DE NOVO,
24 TO STRIKE REFERENCE TO WRITTEN NOTICES OF APPEAL, TO STRIKE REFERENCE TO
25 CERTAIN COURT ISSUED SCHEDULING ORDERS AND SCHEDULING CONFERENCES, TO PRO-
26 VIDE FOR THE USE OF CERTAIN RECORDED STATEMENTS AT TRIALS DE NOVO, TO PRO-
27 VIDE FOR CERTAIN VIOLATIONS BY ATTORNEYS OF PARTIES, TO PROVIDE FOR THE
28 ASSESSMENT OF EVALUATOR FEES, TO PROVIDE FOR THE ASSESSMENT OF DESIGNATED
29 COSTS AND FEES AGAINST CERTAIN PARTIES THAT REQUEST TRIALS DE NOVO, TO
30 DEFINE "COSTS AND REASONABLE ATTORNEY'S FEES," TO PROVIDE FOR THE AWARD OF
31 OTHER EXPERT WITNESS FEES AND EXPENSES, TO REVISE PROVISIONS AND PROCE-
32 DURES RELATING TO OFFERS OF COMPROMISE, TO REVISE CRITERIA RELATING TO THE
33 DETERMINATION OF WHETHER A PARTY REQUESTING A TRIAL DE NOVO HAS IMPROVED
34 ITS POSITION, TO REVISE PROVISIONS AND PROCEDURES RELATING TO PRESENTATION
35 TO THE COURT OF A JUDGMENT AND ENTERING OF THE JUDGMENT, TO STRIKE REFER-
36 ENCE TO THE AWARD OF CERTAIN WITNESS FEES AND OTHER COSTS AND TO CLARIFY
37 PROVISIONS RELATING TO THE APPLICATION OF OTHER STATUTES OR RULES REGARD-
38 ING FEES OR COSTS; AMENDING SECTION 7-1510, IDAHO CODE, TO REVISE AND
39 CLARIFY PROVISIONS RELATING TO THE RIGHT TO TRIAL; AMENDING SECTION
40 7-1512, IDAHO CODE, TO PROVIDE FOR CERTAIN STATISTICAL RECORDS, TO STRIKE
41 REFERENCE TO APPEALS FROM EVALUATION AWARDS AND TO MAKE A TECHNICAL COR-
42 RECTION; DECLARING AN EMERGENCY, TO PROVIDE FOR APPLICATION AND TO PROVIDE
43 A SUNSET CLAUSE.
44 Be It Enacted by the Legislature of the State of Idaho:
2
1 SECTION 1. That Section 7-1503, Idaho Code, be, and the same is hereby
2 amended to read as follows:
3 7-1503. ACTIONS TO WHICH THE IDAHO CIVIL EVALUATION OPTION APPLIES --
4 INITIATION OF PROCESS -- OPTION TO MEDIATE -- MOTIONS FOR REMOVAL FROM EVALUA-
5 TION. (1) Civil actions in which the sole relief sought is a money judgment in
6 which the parties agree that the total claims for all damages sought by a
7 party do not exceed twenty-five thousand dollars ($25,000) shall be subject to
8 the provisions of this chapter. This chapter shall not apply to appeals from
9 the magistrates division, disputes subject to arbitration under chapter 9,
10 title 7, Idaho Code, proceedings in the small claims division of the district
11 court, cases seeking a punitive damages award, or cases in which this chapter
12 has been previously invoked.
13 (2) The provisions of this chapter may be initiated by any party by the
14 filing of a notice with the court. The notice shall be filed at least one hun-
15 dred fifty (150) days prior to a scheduled trial but, without the consent of
16 all parties, may not be filed within forty-five (45) days following the ser-
17 vice of a complaint. For actions pending in the magistrates division, however,
18 notice shall be filed at least one hundred (100) days prior to a scheduled
19 trial but, without consent of all the parties, may not be filed within thirty
20 (30) days following the service of a complaint. The trial court shall retain
21 jurisdiction over a case proceeding under this chapter and the case shall
22 remain on the court's active calendar.
23 (3) The parties shall confer after the filing of the notice to determine
24 if they wish to undertake evaluation or mediation. If they agree to mediate,
25 the parties may agree upon a mediator or utilize as mediator an individual
26 selected pursuant to the evaluator selection provisions of this chapter. If a
27 mediation has been conducted under this chapter, and the mediation has not
28 resulted in the settlement of all claims, within fourteen (14) days following
29 such mediation, the parties shall file a notice with the clerk of the court
30 that a mediation has been completed, that all claims have not been settled and
31 specifying the claims which remain. Within twenty-eight (28) days after the
32 notice is filed, the court shall issue a scheduling order or hold a scheduling
33 conference pursuant to the Idaho rules of civil procedure.
34 (4) If the parties are not able to agree whether to undertake a mediation
35 or an evaluation under this chapter, a party has seven (7) days after the fil-
36 ing of the notice of the initiation of the provisions of this chapter to file
37 a motion seeking the court to order which form of alternative dispute resolu-
38 tion will be used. The moving party has a right to a hearing pursuant to the
39 Idaho rules of civil procedure. In making its determination on the motion, the
40 court shall consider, among other factors it deems relevant, the nature of the
41 claim(s) and the defense(s), the prior experience, if any, of the parties or
42 their counsel with mediation or evaluation, in this or other cases, the poten-
43 tial likelihood that the facts alleged in a claim, if proven, will lead to
44 liability of one party to another, and the complexity of the case. If the
45 court does not determine that mediation is a preferable means of alternative
46 dispute resolution for the particular case, it shall order the parties to con-
47 duct an evaluation under the provisions of this chapter. However, if the court
48 determines that neither mediation nor evaluation is appropriate in the case,
49 it may order that the case proceed to trial in accordance with the Idaho rules
50 of civil procedure.
51 (5) Any party may move the court for removal from the evaluation at any
52 stage for good cause. The court shall grant such motion upon its determination
53 that there has been including, but not limited to, a substantial change in
54 circumstances or that there is a reasonable potential for the moving party to
3
1 later seek amendment to its pleadings to allow that party to pursue punitive
2 damages, making the evaluation option an inappropriate method to obtain reso-
3 lution of the particular dispute.
4 SECTION 2. That Section 7-1504, Idaho Code, be, and the same is hereby
5 amended to read as follows:
6 7-1504. SELECTION OF EVALUATOR -- COURT ADMINISTRATION OF PROCEDURE --
7 RULES, STANDARDS AND PROCEDURES -- EXEMPTION FROM OPERATION OF THE CHAPTER.
8 (1) All senior and sitting magistrate judges, district judges and appellate
9 court judges and justices, whether classified as sitting, senior or retired,
10 are authorized to act as civil litigation evaluators. The supreme court may
11 establish by rule, procedures for the appointment and use, where available, of
12 such judges as evaluators for the purposes of this chapter.
13 (2) The supreme court shall maintain a list of private civil litigation
14 evaluators who are approved to serve in each district pursuant to this chapter
15 and any rules adopted by the supreme court. Each county's clerk of the court
16 shall from time to time be provided by the supreme court a list of evaluators
17 who are approved to serve in that county pursuant to this chapter and any
18 rules adopted by the supreme court.
19 (3) Unless a sitting or senior judge is assigned by the supreme court or
20 administrative judge as an evaluator, pursuant to court rule, or unless the
21 parties have agreed in advance to the selection of a particular evaluator,
22 upon receipt of a notice of initiation of the provisions of this chapter, the
23 clerk of the court shall provide each party to the case a list containing the
24 names of the same five (5) randomly selected evaluators. If there are more
25 than two (2) parties to the litigation, the clerk will provide ten (10) names.
26 (4) In every case each party may submit requests for replacement list(s)
27 to the clerk within three (3) days of receipt of a list of evaluators. Upon
28 receipt of such a request, the clerk of the court shall provide each party to
29 the case a new list containing an appropriate number of names of randomly
30 selected evaluators.
31 (5) Within seven (7) days of receipt of the list, it shall be the duty
32 of the party that filed the notice initiating proceedings under this chapter
33 to initiate contact with the representatives of the other litigants party or
34 parties for the purpose of selecting an evaluator. Unless the parties agree on
35 a particular evaluator or a different method of selection, selection of the
36 evaluator will be by alternating strikes. The representative of the initiating
37 party shall strike an evaluator's name, the opposing counsel party shall then
38 strike an evaluator's name with the parties alternating until only one (1)
39 name is left. If there are more than two (2) parties, the strikes shall be
40 made in the order the parties' names appear on the case caption commencing
41 with the initiating party. The initiating party shall file notice of the
42 selected evaluator within ten (10) days of the receipt of the list.
43 (6) If there is any dispute or failure to cooperate with the selection
44 procedures contained in this section, any party may file a motion with the
45 court for assistance in selection of an evaluator. No hearing shall be
46 required and the court shall rule on such motion expeditiously and take what-
47 ever steps are necessary to obtain the prompt selection of an evaluator. If
48 the court finds that a party has requested a replacement list of evaluators
49 unreasonably or determines it is otherwise appropriate, the court may appoint
50 a sitting or retired judge or a private lawyer from the list of approved
51 evaluators to serve as evaluator for the case.
52 (7) Upon application by any party made no sooner than fourteen (14) days
53 after the filing of the notice of request for civil evaluation, the clerk
4
1 shall assign by random lot any of the individuals identified on the list as
2 the evaluator if no notice of selection or motion for assistance has been
3 filed.
4 (8) Nothing shall preclude the parties stipulating to the appointment of
5 any individual who agrees to serve as their evaluator under this statute. If
6 the parties stipulate to the appointment of an evaluator different from one on
7 the list provided by the clerk, they shall file a joint statement to that
8 effect with the court.
9 (9) To the extent it deems necessary, the supreme court may prescribe
10 rules to reduce the costs of evaluation under this chapter. It may also pre-
11 scribe forms to be used in the evaluation process, and other rules, standards
12 or procedures it deems appropriate to effectuate the purposes of this chapter.
13 (10) The supreme court may exempt all cases filed in the courts of any
14 county from the operation of this chapter if, following application made by
15 the administrative judge of the judicial district which includes that county,
16 the supreme court determines the county does not have sufficient judicial or
17 other resources to implement and effectuate the purposes of this chapter or
18 for other good cause shown.
19 SECTION 3. That Section 7-1505, Idaho Code, be, and the same is hereby
20 amended to read as follows:
21 7-1505. QUALIFICATIONS, APPOINTMENT AND COMPENSATION OF EVALUATORS. (1)
22 Any individual desiring to be on a list of private civil litigation evaluators
23 under this chapter shall submit a request to the supreme court identifying
24 each district county in which the individual wishes to serve. The task of act-
25 ing as an evaluator under this chapter shall be a service to the judiciary and
26 the legal profession. The legislature encourages members of the bar to accept
27 up to two (2) appointments under this chapter on a pro bono basis each year.
28 (2) To serve be listed as a private civil litigation evaluator, a person
29 must currently be an active member of the Idaho state bar association and have
30 had such membership for a minimum of seven (7) years or be a retired or senior
31 judge. To the extent it deems them necessary, the supreme court may prescribe
32 by rule additional qualifications for civil litigation evaluators in some or
33 all cases with the purpose of providing the largest pool of individuals with
34 the knowledge and experience to fairly determine claims under this chapter at
35 minimal or no cost to litigants.
36 (3) Upon appointment in each case, the evaluator must sign an oath to
37 fulfill the duties of the office, including the impartial, unbiased and timely
38 discharge of those duties. He must also affirmatively state that he has no
39 conflict of interest or, in the alternative, make a written disclosure of any
40 conflict of interest to the parties, which they may waive by filing a written
41 consent with the evaluator. Challenges to the service of an evaluator shall be
42 made by motion to the trial court and shall be heard expeditiously. Evaluators
43 may decline any an appointments for the balance of a calendar year without
44 cause after serving as an evaluator twice during the year. The trial court may
45 otherwise excuse also release evaluators from an appointment for good cause.
46 If an evaluator declines or is excused released from service, a new list shall
47 be requested from the clerk for selection of an evaluator.
48 (4) Evaluators shall submit their rates of hourly compensation, if any,
49 to the supreme court when submitting their request to be on the list of civil
50 litigation evaluators. The clerk shall include the rate of hourly compensa-
51 tion, if any, for each evaluator in the list of names submitted to the par-
52 ties. The parties shall each pay an equal portion of a private evaluator's fee
53 if any is charged as well as an equal portion of any actual costs incurred by
5
1 the private evaluator. Individuals who wish to serve as private civil litiga-
2 tion evaluators under this chapter other than on a pro bono basis shall agree
3 to serve as an evaluator in exchange for a fee not to exceed one thousand dol-
4 lars ($1,000) unless the parties agree otherwise. Provided however, that sit-
5 ting or senior judges assigned appointed as evaluators pursuant to court rule
6 by the supreme court or administrative judge as part of their judicial service
7 shall not be compensated by the parties. Retired or senior judges selected by
8 the parties from the roster of private civil litigation evaluators maintained
9 by the supreme court through the administrative director of the courts shall
10 be compensated by the parties in accordance with this subsection.
11 SECTION 4. That Section 7-1506, Idaho Code, be, and the same is hereby
12 amended to read as follows:
13 7-1506. EVALUATOR AUTHORITY -- PROCEDURES RELATING TO SERVICE, FILING AND
14 COMPUTATION OF TIME. (1) Solely for the purpose of an evaluation, aAn evalua-
15 tor has the authority to:
16 (a) Decide procedural issues and deadlines relating to the conduct of
17 the evaluation, including discovery disputes, arising before or during
18 the evaluation process except issues relating to the qualification of the
19 evaluator, which shall be decided by the trial court.
20 (b) Invite, with reasonable notice, the parties to submit pre-evaluation
21 preevaluation briefs;
22 (c) Examine any site or object relevant to the case;
23 (d) Administer oaths and affirmations to witnesses for the purposes of
24 the evaluation;
25 (e) Rule on the admissibility of evidence;
26 (f) Determine the facts, decide the law, and issue a written evaluation
27 decision,; and make an award;
28 (g) Adjust or extend statutory deadlines set forth in this chapter, for
29 good cause shown; and
30 (h) Take such other acts as are necessary to accomplish the object of a
31 fair, swift, and cost-effective determination of the case.
32 (2) An evaluator shall not decide motions to dismiss, motions to add or
33 change parties in the case, or motions for summary judgment. Any such motion
34 shall be presented to the trial court for determination.
35 (3) After the case is assigned to the evaluator, service shall be made
36 consistent with rule 5 of the Idaho rules of civil procedure, except that doc-
37 uments used in the evaluation shall be filed with the evaluator instead of the
38 court.
39 (4) Time shall be computed pursuant to the Idaho rules of civil proce-
40 dure.
41 (5) Except for the authority expressly given to an evaluator by this
42 chapter, all issues shall be determined by the court.
43 SECTION 5. That Section 7-1507, Idaho Code, be, and the same is hereby
44 amended to read as follows:
45 7-1507. DISCOVERY. (1) Unless the evaluator orders otherwise:
46 (a) A defending party may demand in writing a statement from each claim-
47 ant setting forth separately the amounts of any special, general or other
48 damages sought in the evaluation. Such statement shall be served on all
49 parties no later than twenty-one (21) days after receipt of the demand;
50 (b) A party may take the deposition of another party pursuant to the
51 Idaho rules of civil procedure;
6
1 (c) If the physical or mental condition of a claimant is at issue, the
2 defending parties may obtain the relevant medical reports of the claimant
3 and one (1) defendant's medical examination of the claimant. The evaluator
4 shall decide any limitations to be placed on the time, place, manner, con-
5 ditions or scope of the examination if requested. A claimant shall have an
6 absolute right to a copy of any document relating to the claimant which is
7 created by the examiner or the examiner's employees or agents during or
8 after the examination. Such materials shall be provided to the claimant
9 within fourteen (14) days of the date of the examination and no later than
10 twenty-one (21) days prior to the evaluation hearing date. Failure to
11 timely provide the medical examiner's materials shall be a basis for
12 vacating and rescheduling the hearing or for excluding the evidence in the
13 discretion of the evaluator;
14 (d) The parties may submit requests for admission to one another pursuant
15 to the Idaho rules of civil procedure.
16 (2) The conclusions and foundations therefore of any expert opinion tes-
17 timony that a party intends to offer at the evaluation shall be submitted in
18 writing to the opposing party no later than twenty-one (21) days prior to the
19 evaluation. Medical records are deemed to fulfill the requirements of this
20 subsection. If the opposing party concludes that it needs to take the expert's
21 deposition and the parties cannot reach agreement to do so, the written report
22 shall be submitted to the evaluator who, after hearing the opposing party's
23 reasons for requesting the deposition, may order it to go forward. The
24 evaluator's determination that such discovery will occur shall be based on
25 whether it is necessary to obtain a fair determination of the case. If a party
26 wishes to offer the live testimony of any expert witness at the evaluation,
27 notice of the intent to do so must be given to the other parties no later than
28 twenty-one (21) days prior to the evaluation and the opposing parties shall
29 have the right to depose the expert before the evaluation is conducted.
30 (3) No additional discovery shall be due or obtained for the purpose of
31 the evaluation unless the parties stipulate thereto or the evaluator has
32 ordered otherwise based on the evaluator's determination that such discovery
33 is necessary to obtain a fair, swift and cost-effective determination of the
34 case.
35 (4) Costs of all depositions, including fees for expert testimony, and
36 medical examinations shall be paid by the party requesting the examination or
37 testimony.
38 SECTION 6. That Section 7-1508, Idaho Code, be, and the same is hereby
39 amended to read as follows:
40 7-1508. PREHEARING AND HEARING PROCEDURES. (1) The evaluator shall set
41 the time and place of the evaluation hearing and shall give reasonable notice
42 of the hearing to the parties. The parties may agree to hold the hearing by
43 telephone. Except by stipulation among the parties and the evaluator, or for
44 good cause shown, the hearing shall be scheduled to take place no sooner than
45 twenty-eight (28) days, nor later than seventy (70) days, from the date of
46 the assignment of the case to the evaluator. If a case will be heard later
47 than seventy (70) days from the date of assignment, the evaluator shall file a
48 notice with the trial court providing reasons for the delay and informing the
49 court of the date of the hearing.
50 (2) Except for good cause shown Subject to the evaluator's discretion, no
51 party shall be allowed more than three (3) hours for presentation of its case
52 at an evaluation hearing.
53 (3) Counsel for the parties and the evaluator may issue subpoenas for the
7
1 hearing in the manner provided in the Idaho rules of civil procedure.
2 (4) Unless otherwise agreed by the parties, aAt least fourteen seven
3 (147) days prior to the date of the evaluation, each party shall file with the
4 evaluator and serve upon all other parties a prehearing statement containing a
5 list of witnesses the party intends to call at the evaluation hearing and a
6 list of exhibits and documentary evidence a party intends to utilize at the
7 hearing. The document will identify whether the testimony shall be live, pre-
8 sented in a sworn writing, or taken by telephone. Upon request, aAll written
9 and other tangible evidence identified shall be made available for the oppos-
10 ing party's inspection and copying at least seven (7) days prior to the hear-
11 ing date. The evaluator shall have the right to may exclude any evidence not
12 provided in compliance with this section.
13 (5) The evaluator shall control the mode and order of proof with the
14 objectives of making the presentation of evidence effective for the ascertain-
15 ment of facts, avoiding the needless consumption of time, protecting witnesses
16 from harassment and undue embarrassment, and ensuring the fair, swift, and
17 cost-effective determination of the case. Witnesses shall testify under oath
18 administered by the evaluator with the full penalty of law to apply to viola-
19 tion of that oath. The evaluator may allow testimony by telephone or other
20 nontraditional means. The evaluator may question any witness. A party has the
21 right to cross-examine any other party and any witness called by another
22 party.
23 (6) The hearing may be recorded electronically upon A stenographic or
24 electronic recording may be made at the request and at the expense of any
25 party, the cost to be borne by that party.
26 (7) Proceedings shall be under the control of the evaluator and as infor-
27 mal as practicable. The extent to which the formal rules of evidence will be
28 applied shall rest in the discretion of the evaluator. To the extent deter-
29 mined applicable, the evaluator shall construe those rules liberally in order
30 to effectuate a fair, swift and cost-efficient procedure. Expert opinion tes-
31 timony shall only be allowed if the conclusions and foundations therefore were
32 appropriately disclosed and, if offered live, subjected to the opportunity for
33 deposition pursuant to section 7-1507(2), Idaho Code, and otherwise admissible
34 under the Idaho rules of evidence.
35 (8) To effectuate the fair, swift and cost-efficient nature of the evalu-
36 ation, the following documents shall be presumed admissible and may be pro-
37 vided to the evaluator prior to the hearing, provided the documents are dis-
38 closed in the prehearing statement and, where relevant, the name, address and
39 telephone number of the author of the document is contained in the document or
40 set forth in the prehearing statement:
41 (a) Any written contract between the parties;
42 (b) A copy of any billing statement or invoice prepared in the normal
43 course of business;
44 (c) Copies of any correspondence between the parties except documents
45 inadmissible under rule 408 of the Idaho rules of evidence;
46 (d) Any document that would be admissible under rule 803(6) of the Idaho
47 rules of evidence;
48 (e) A bill, report, chart, or record of a hospital, doctor, dentist, reg-
49 istered nurse, licensed practical nurse, physical therapist, psychologist
50 or other health care provider, on a letterhead, or billhead or otherwise
51 clearly identifiable as part of the provider's professional record;
52 (f) A bill for drugs, medical appliances or other related expenses on
53 letterhead, or billhead or otherwise clearly identifiable as part of a
54 provider's professional record;
55 (g) A bill for, or estimate of, property damage or loss on a letterhead
8
1 or billhead. In the case of an estimate, the offering party shall notify
2 the adverse party no later than, as part of the prehearing statement,
3 whether the property was repaired, in full or in part and provide the
4 actual bill showing the cost of repairs;
5 (h) A police, weather, or wage loss report or standard life expectancy
6 table to the extent it is relevant without need for authentication;
7 (i) A photograph, videotape, x-ray, drawing, map, blueprint, or similar
8 evidence to the extent it is relevant without the need for authentication;
9 (j) The written statement of any witness made as part of a police inves-
10 tigation;
11 (k) The written statement of any witness, including a written report of
12 any expert witness that contains a statement of opinion based on proper
13 qualifications which the witness would be allowed to express if testifying
14 in person;
15 (l) A document not specifically covered by the foregoing but having
16 equivalent circumstantial guarantees of trustworthiness, the admission of
17 which would help in the swift, fair and cost-effective resolution of the
18 dispute or otherwise serve the interests of justice.
19 (9) The admission of a document under subsection (8) of this section does
20 not, in any manner, restrict argument or proof relating to the weight of the
21 evidence admitted, nor does it limit the evaluator's discretion to determine
22 the weight of the evidence after hearing all evidence and the arguments of the
23 parties.
24 (10) The evaluation hearing may proceed, and a decision may issue, in the
25 absence of any party who, after due notice, fails to participate or to obtain
26 a continuance. Continuances shall only be granted for good cause and for the
27 shortest practicable time. If a party is absent, the evaluator may permit any
28 party present to submit evidence supporting such present party's position in
29 the case. In a case involving more than one (1) defendant, the absence of a
30 defendant shall not preclude the evaluator from assessing as part of the
31 award, damages against the defendant or defendants who are absent. The evalua-
32 tor, for good cause shown, may allow an absent party an opportunity to appear
33 at a subsequent hearing before making an award. A party who fails to partici-
34 pate in the hearing or prehearing process without good cause waives the right
35 to a trial de novo. If it is shown to the trial court by clear and convincing
36 evidence that a party or its counsel has not acted in good faith during the
37 evaluation, the trial court may impose any appropriate sanction against such
38 party or its counsel.
39 SECTION 7. That Section 7-1509, Idaho Code, be, and the same is hereby
40 amended to read as follows:
41 7-1509. EVALUATION DECISION AND AWARD -- APPEALS -- TRIAL DE NOVO -- MIS-
42 CELLANEOUS. (1) Within fourteen (14) days following the evaluation, the evalu-
43 ator shall issue a written, signed decision. The evaluator shall determine all
44 issues raised by the pleadings, including a determination of any damages. The
45 evaluator shall apply the applicable law as it exists; however, neither find-
46 ings of fact nor conclusions of law shall be required. The decision and award
47 shall be served on the parties. The evaluator shall file a notice of issuance
48 of the evaluator's decision with the clerk of the court, together with proof
49 of service of the notice and the decision on the parties. The decision and
50 award shall not be filed with the clerk of the court. No The evaluator's award
51 decision shall not exceed twenty-five thousand dollars ($25,000) in total
52 damages to a party. No The evaluator's award decision shall not include exem-
53 plary or punitive damages. An evaluator may, in addition, award costs and
9
1 attorney's fees under the terms of an applicable contract. All other costs and
2 attorney's fees to which a party is entitled by statute or court rule shall be
3 awarded by the court.
4 (2) Within twenty-one (201) days after the notice of issuance of the
5 evaluator's decision has been filed with the clerk of the court, any party
6 may file with the clerk a written notice of appeal and request for a trial de
7 novo in the district court on all issues of law and fact. Within twenty-eight
8 (28) days after the request for a trial de novo has been filed, the court
9 shall issue a scheduling order or hold a scheduling conference pursuant to the
10 Idaho rules of civil procedure.
11 (3) The trial de novo shall proceed as if the evaluation had not
12 occurred. No reference to the evaluation or to the amount of the evaluation
13 award decision shall be made to the trial court or the jury during any part of
14 the trial de novo. Discovery taken and recorded statements made during the
15 evaluation process may be used at the trial de novo as provided in the Idaho
16 rules of civil procedure and the Idaho rules of evidence; however, no refer-
17 ence shall be made to the fact that any statement was made in an evaluation
18 proceeding. Any dollar amount sought, demanded or awarded during the evalua-
19 tion, including the parties' agreement that for the purposes of the evaluation
20 the claim is limited to twenty-five thousand dollars ($25,000), shall be
21 treated as an offer of compromise pursuant to the Idaho rules of evidence and
22 shall not be admissible at trial. Any examination made pursuant to the provi-
23 sions of section 7-1507(1)(c), Idaho Code, shall be subject to rule 35 of the
24 Idaho rules of civil procedure. Any violation of the provisions of this sub-
25 section by a party or its representatives attorney shall be subject to appro-
26 priate sanctions by the trial court.
27 (4) The relief sought at trial shall not be limited by the evaluation;
28 provided however, that judgment for damages of more than twenty-five thousand
29 dollars ($25,000), exclusive of costs and fees, may not be entered for a party
30 who has agreed that its claim does not exceed twenty-five thousand dollars
31 ($25,000) for the purposes of initiating alternative dispute resolution under
32 this chapter and shall be reduced by the court unless the claimant establishes
33 the applicability of the factors of rule 60 of the Idaho rules of civil proce-
34 dure. An evaluator may not be called as a witness at the trial de novo.
35 (5) The trial court shall assess costs, and reasonable attorney's fees,
36 and the entire amount of the evaluator's fee against a party who appeals from
37 an evaluation award requests a trial de novo and fails to improve its position
38 at the trial de novo by at least fifteen percent (15%). For purposes of this
39 subsection, "costs and reasonable attorney's fees" means all attorney's fees
40 and costs as provided for by statute or court rule incurred after the filing
41 of a request for a trial de novo. In addition, the court shall award all other
42 expert witness fees and expenses in excess of those permitted by statute or
43 rule if the court finds that they were reasonably incurred.
44 (6) Up to forty-five (45) Within twenty-one (21) days following the fil-
45 ing of the notice of issuance of the evaluator's decision request for trial de
46 novo, a party may serve upon the other party(ies) a written offer of compro-
47 mise. If an offer of compromise is not accepted by the other party(ies) within
48 ten fourteen (104) days after service thereof, the amount used for determin-
49 ing whether the party appealing the evaluator's award requesting the trial de
50 novo has improved its position shall be the amount of the offer of compromise.
51 Neither the evaluator's decision nor the offer of compromise shall be submit-
52 ted to the trial court until the verdict or judgment has been rendered in the
53 trial de novo.
54 (7) The trial court may assess some or all costs and reasonable attor-
55 ney's fees against a party who withdraws its request for a trial de novo where
10
1 the withdrawal is not in conjunction with the acceptance of an offer of com-
2 promise.
3 (8) For the purposes of this section "costs and reasonable attorney's
4 fees" means all those provided for by statute or rule as well as all expert
5 witness fees and other expenses the court finds were reasonably incurred after
6 the appeal from the evaluation award was filed.
7 (9) If no appeal request for trial de novo has been filed at the expira-
8 tion of twenty-one (21) days following the filing of the evaluator's notice of
9 decision, a judgment may be presented to the court by any party accompanied by
10 a copy of the evaluator's award decision. If the judgment is in conformity
11 with the evaluator's award decision it shall be entered and shall have the
12 same force and effect as any other judgment in a civil action but shall not be
13 subject to appellate review and may only be set aside pursuant to the provi-
14 sions of rule 60 of the Idaho rules of civil procedure. An accepted offer of
15 compromise may also be presented to the court to be converted to a judgment.
16 (10) Witness fees and other costs provided for by statute or court rule in
17 district court proceedings shall be awarded by the court upon entry of judg-
18 ment to the same extent and in the same manner as if the hearing had been held
19 in court.
20 (119) Except as provided in subsection (5) of this section, tThe provi-
21 sions of this chapter do not affect or preclude the application of any other
22 statute or rule regarding fees or costs including, but not limited to, those
23 in title 7 or 12, Idaho Code, section 41-1839, Idaho Code, or the Idaho rules
24 of civil procedure. Awards of damages and of attorney's fees and costs, when
25 made to opposing parties, shall be set off against one another and judgment
26 shall be entered for the net amount to the party(ies) entitled thereto.
27 (120) An evaluator may obtain a judgment for his fees and costs in the
28 pending litigation against any party that refuses to pay its share. Judgment
29 shall be obtained by motion to the trial court which shall only be granted
30 after the party failing to pay has had the opportunity to be heard and object.
31 SECTION 8. That Section 7-1510, Idaho Code, be, and the same is hereby
32 amended to read as follows:
33 7-1510. RIGHT TO TRIAL. BY JURY. The intent of this chapter is to main-
34 tain the right to a court or jury trial and the provisions of this statute
35 shall not be construed to uphold impair that right.
36 SECTION 9. That Section 7-1512, Idaho Code, be, and the same is hereby
37 amended to read as follows:
38 7-1512. STATISTICAL RECORDS -- COMPILATION OF EVALUATOR LIST. (1) The
39 supreme court shall keep statistical records of the number of requests for
40 evaluation filed pursuant to the provisions of this chapter, the number of
41 appeals from evaluation awards requests for trial de novo hereunder, and the
42 number of instances in which a party improves its position by at least fifteen
43 percent (15%) on appeal at trial.
44 (2) Commencing no later than July 1, 2002, the supreme court shall begin
45 compiling the names of individuals desiring to serve as civil litigation
46 evaluators in each judicial district.
47 SECTION 10. An emergency existing therefor, which emergency is hereby
48 declared to exist, this act shall be in full force and effect on and after its
49 passage and approval, and shall apply to all cases for which initial com-
50 plaints are filed on or after January 1, 2003. This act shall be null, void
11
1 and of no force and effect on and after June 30, 2006, provided, however, that
2 the provisions of the act shall continue to apply to all applicable cases in
3 which initial complaints are filed on or before June 30, 2006.
STATEMENT OF PURPOSE
RS 12414C1
Clarification and amendments concerning: notice provisions;
scheduling order; case removal; evaluation designation and
appointment or removal; evaluator compensation; procedural
process; award of costs and fees; evidence admissibility;
determination for judgement and trial de novo; and other
technical corrections to make the act function in different court
settings and in conformance with existing law and Supreme Court
rules.
FISCAL IMPACT
No fiscal impact.
Contact
Name: Leon Smith
Phone: 332-1000
STATEMENT OF PURPOSE/FISCAL NOTE H72