An Overview of the Alaska Civil Rules
The Rules are a comprehensive body of rules designed to guide every aspect of a civil case in Alaska. They are divided into 12 basic parts and are supplemented by roughly 60 additional appendices. Each rule is assigned to one of the 12 parts. Part 1, which is made up of many of the appendices, is not assigned to any overall part. An overview of the types and nature of these rules is found in the Alaska Rules and Procedures manual published by the Alaska Court System:
"Civil procedure rules govern civil lawsuits, including all civil actions regardless of the type of relief sought . These rules apply to actions such as torts, contract disputes, real property, equity, workers’ compensation, collection actions, condemnation and tax cases, divorces, annulments, dissolutions, custody and support, guardianship, probate, child in need of aid (CINA), juvenile delinquency, adoption, name changes, foreclosures, damages, petitions for review, petitions for hearing, appeals from administrative decisions and jurisdictional direct appeals to the Supreme Court."
The Alaska Civil Rules are numerous and some are rather obscure. They are broken down into a hierarchy, with Rule 1 being the introductory rule. Rule 1 states simply that the Rules are applicable to those civil actions wherein there has been the appropriate filing of a Complaint or Notice of Petition with the Court which is governed by the Alaska Civil Rules. Clearly the Alaska Civil Rules are very important to every party engaged in a civil matter within the Alaska Court System.
The Essentials of the Alaska Civil Rules
The Alaska Civil Rules contain many important provisions that govern the procedures for civil litigation in Alaska state courts. These rules serve as a framework for how civil cases are to be filed, litigated, and decided upon in an orderly and fair manner.
Filing Procedures
The Alaska Civil Rules set forth clear requirements for the initiation of a civil action, including the contents of a complaint, the requirements for service of process on a defendant, and the time limits for defendants to file responsive pleadings after service. For example, Rule 5 sets forth the general requirements for service and filing of documents with the court, while Rule 12 details the defenses a defendant may assert in their initial response to the complaint.
Time Limits
Perhaps the most comprehensive section of the Alaska Civil Rules is Rule 77, which governs almost every aspect of time limits, from the time for filing and service to the timeline of specific proceedings, distance from the courthouse and the innumerable exceptions. With nearly 120 subsections alone, identifying the applicable standards in a given case can be a daunting task. However, though time is flexible, the Alaska Civil Rules are relatively strict when it comes to stipulations and extensions. For example, Rule 6(b) gives the court discretion to grant time extensions for most deadlines, but only if a motion is filed before the expiration of the deadline. In addition, parties can file a stipulation with the court to extend the time for some deadlines under the Alaska Civil Rules, but those stipulations can never exceed 90 days.
Motions
The Alaska Civil Rules prescribe various procedures for litigating pre-trial motions, post-trial motions, and motions in limine. Rule 56, for example, governs motions for summary judgment and states that a "summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." This rule then lays out in detail what constitutes a material fact, what may be submitted by the parties in support of or opposition to a motion, the timelines for filing various documents, and judge’s discretion to grant or deny motions.
Alaska Civil Rules Pretrial Procedures
After a defendant answers the complaint by filing their own responsive pleadings, the court will set a case management conference. At this conference, the defendant will file a counterclaim setting forth their answer to the complaint, and unique claims that may exist between the two parties.
Disputes with discovery are often sorted out after the conference. The judge can set a schedule for completion of discovery or have a presiding judge give the parties a statement on how long the discovery process should take. If there is too much to accomplish within the time the judge has set, the judge may ask for a full settlement conference. Any other disputes that arise between the parties can also be sorted out at the conference. Parties may even have to produce their witnesses for testimony at the conference if discovery isn’t going well, or a system may be created to prepare the witnesses, so they can get a statement on the record.
Alternative dispute resolution (ADR), or mediation, takes place when actual negotiations do not resolve the disputed issues properly. The judge can order the parties into mediation, and it’s a way for them to find a resolution before the case continues in court. It involves having each side sit down with the judge to negotiate a verdict that is agreeable. Parties that refuse to admit fault can use ADR, where they accept responsibility for the conflict without admitting any wrongdoing.
If the court feels there is no further possibility of a settlement being reached, they will simply order the trial. The minute order that is issued contains all of the rulings that were made upon the conference. The litigants will have 30 days to appeal or have the judge modify their decisions.
If any of the litigants, the judge, or the lawyers feel that more time is needed to sort out the dispute, a pretrial statement can be entered. This statement is a written agreement presented to the court, telling the judge what evidence or arguments will be presented at trial. There are deadlines about when the statement can be entered. This time frame makes sure that things are set in concrete, and a settlement will not happen right before the trial begins. After the statement, the judge can issue a scheduling order, telling the participants how to proceed until the day of court.
Trial Stage and Courtroom Decorum
As the matter proceeds to trial, there are additional considerations. Alaska Civil Rule 43 provides for the taking of testimony. In general, Rule 43(a) sets forth how testimony may be taken. The testimony can be in open court, in writing, or by deposition. To support or oppose a motion or at a hearing or trial, a party may offer testimony of witnesses orally, by deposition, or at a hearing or trial by proffered oral statements, if all parties are represented. Affidavits and declarations may also be used. In other words, the presentation of testimony in actually live court is no longer the sole or even primary method for taking testimony. In most cases, you will not meet the witnesses in the flesh, so to speak, until they take the stand.
The general rule on witnesses for trial purposes is set forth in Alaska Civil Rule 43(b)(1). Except as otherwise provided in these rules or by order of the Court, every person who is a witness shall be examined only as follows: (i) orally in open court in the presence and under the personal direction of the trial judge in the presence of the jury, unless the party against whom testimony is being presented waives a jury, or unless the Court otherwise directs for good cause shown, or (ii) through a deposition taken in compliance with these rules.
If the party against whom the testimony is offered is in default of appearance, it may be given in evidence by the plaintiff. If the action is against an unrepresented non-appearing party who has not answered the complaint, the Court may hear the testimony and allow it to be used in the case, but the party against which such testimony is offered may not be held so far concluded by the testimony given unless that party is satisfied by the opposing or cross-examination or otherwise, in open Court, of any fact for which such testimony is offered in evidence.
Extrajudicial witnesses may not be contacted about the case or the substance of their anticipated testimony. There are certain limited exceptions to this rule. For example, it may be permissible to discuss tone, nuance, or demeanor of the potential testimony. It is clear, however, that no effort should be made to discuss the substance of the testimony before the testimony is actually taken.
For the time being, proceedings before the jury are governed by Alaska Civil Rule 47. In unusual cases, the Alaska Supreme Court may consider allowing the parties to make a special request for a jury of more than 12 juror. For statistical purposes the Alaska Department of Health and Social Services collects case data that identifies the number of trials that resulted in a jury verdict and the verdict rendered by the jury. The majority of cases do not have a verdict at the conclusion of the trial. This is a very important statistic for lawyers thinking about trial. A trial is often difficult to predict and the stakes are high, so many cases settle before verdict or in some cases settlement has become preferable. If your case is on the edge or your jury pool is not representative, a certified jury may be the answer.
Once a verdict is reached it must be recorded and entered in the record. The verdict must be returned, and recorded upon the minutes, or otherwise, and be signed by the jurors concurring therein, and they and the trials judge must attest to the fact of the returning, and the findings. A verdict must be unanimous. There is no provision for a hung jury. The Alaska Supreme Court has held that a general verdict is sufficient if the verdict form clearly states that the jury is returning its verdict on both liability and damages.
Motions, Judgments and Appeals
Post-trial motions are governed by Alaska Civil Rules 59(e) and 59(j). A motion under Civil Rule 59(e) allows a party to request that the court correct an error in law that affected the outcome of the case, including any calculation or clerical errors in the judgment. The motion must be filed and served within 10 days after entry of the judgment on the Civil Rule 58(d) list. A party may not submit affidavits without leave of court, but the court may order any party to submit such affidavits if it intends to rule on the motion. Generally, a motion under Civil Rule 59(e) stays the time for appeal, but a court may permit the appeal to proceed before ruling on the motion by determining the appeal will not be prejudiced. The time for appeal runs from the entry of the order denying the motion. Under Alaska Civil Rule 59(j), a party can move the court to amend the judgment under Alaska Civil Rules 54(b) and 56. A party must submit the motion and supporting memoranda no later than 15 days after entry of the judgment on the Civil Rule 58(d) list . The court will not grant a motion under 59(j) if it would alter the substance of the judgment but the party may seek modification under Civil Rule 60. If a new trial is ordered, the judgment may be vacated under Civil Rule 60(a) and the new judgment will relate back to the date of the original judgment.
An appeal must be authorized by statute. See AS 22.07.010. Unless a statute requires a different time, the party appealing from a final judgment may file an appeal no later than 30 days after the date of the distribution of the Civil Rule 58(d) list. An appellant must file a notice of appeal within 30 days of the last day for filing a notice of appeal. See Alaska Appellate Rule 204 and Alaska Civil Rule 77(g). An appellant who has been granted a waiver of the prepayment of costs and fees, or any person aggrieved by an interlocutory order or judgment may seek permission to file an appeal both under Alaska Appellate Rule 402(b).
The Latest on Alaska Civil Rules
In 2006, the Alaska Supreme Court adopted substantial amendments to Rules 18, 26, 28, 62, 77, and 79, which commenced on January 1, 2007. These state amendments impact several key aspects of case management, including expert evidence, discovery, and electronic filing procedures. These are significant changes and practitioners and litigants need to be aware of them.
Of particular note is the Alaska Supreme Court’s 2006 revision to Rule 82. This rule previously outlined scale of attorney fees to be assessed against losing litigants at court discretion, but these revisions empower the judge overseeing the case to determine the litigation cost in accordance with the provisions outlined in the prior rule. Moreover, the revisions specifically empower trial judges to award attorney’s fees in an equitable manner, reserving the right to base their findings of cost on analysis of the following criteria:
Within the revised Rule 82, the Alaska Supreme Court notably clarified that "in equity and justice" denotes an equal apportionment between plaintiff and defendant for each party’s expenses, as opposed to declaring either side responsible for the entire substantive denied claim. Further revision draws distinction between circumstances where payment of costs will not be applied to winning parties who receive compensatory relief from loss of income or income-qualifying funds, versus cases in which the victory is of a nature allowing for discretionary cost award application. Here, the court’s discretion, guided by relevant Rule 82 factors, is invoked to assess winning party attorney’s fees against losing litigant commensurate to the equitable interests involved.
Additional amendments which consolidate and simplify prior rules in the Alaska Civil Rules include Rules 11, 26, and 52. These rules are further bolstered by revised provisions on discovery of electronic documents, invoking a favorable report from the Alaska Supreme Court Permanent Rules Advisory Commission and the Alaska Bar Association Civil Rules Committee to enact these revisions.
The full text of the Alaska Civil Rules Amendments can be found in the following link: www.courts.alaska.gov/ (click "Righthand Menu" "Rules" "Civil Rules Amendments").
Helpful Tips for the Alaska Civil Rules
When practicing in Alaska state and federal courts, attorneys and litigants should be aware of some practical advice when dealing with the Alaska Civil Rules. There are several rules that may surprise some out-of-state civil practitioners. Pursuant to Rule 37 (a)(4), there is no "safe harbor" period before a motion for discovery sanctions can be filed. The rule also provides that the Court in its discretion can award additional attorney’s fees caused by a motion for sanctions. Therefore, after an unsuccessful meet and confer, the attorney must make a decision on whether a motion to compel is necessary, or whether to wait to see if the attorney who withholds discovery will eventually produce materials voluntarily. Attorneys are also advised to be familiar with the Electronic Filing and Service Rules , which govern state service by electronic means under Alaska R. Civ. P. Rule 5(c) & and R. Admin. 12. In addition to definitions of "served," these rules provide that attorneys receive notice via e-mail, but if the attorney has filed an original paper copy of a document, service via email is voluntary. The Alaska Administrative Bulletin publishes all rules and changes to rules which can be reviewed on a monthly basis. For litigants going to court, attorneys should be aware that there is no Opposition to a Motion for Temporary Restraining Order or Expedited Relief and that if a motion is not resolved by the Court when it is in camera (i.e. on the record), then the Court will hold a hearing on the motion from the courtroom if necessary.