Lewis Roca Rothgerber LLP has prepared this document to inform counsel we work with who are outside of Arizona about certain recurring issues that they should be aware of when litigating here. The document obviously is not exhaustive, but we hope it is helpful and please just let us know if you have any questions about its contents.
Rule 56(f) Requests on Motions for Summary Judgment: While Arizona’s standard for gaining relief against a motion for summary judgment under Rule 56(f) is similar to the federal standard, the procedure differs substantially. In order to extend the party’s deadline for responding to the motion for summary judgment, the party must obtain an order from the court under Rule 56(f) before their response deadline. To gain an expedited ruling on a Rule 56(f) application, the party must file an application, supporting affidavit, request for expedited hearing, and a separate certification that the party made good faith efforts to resolve the matter with the other party. If these procedures are followed, the court is to hold an expedited hearing on the Rule 56(f) request within seven days after the filing of the request for expedited hearing. If a party wishes to avoid responding to a motion for summary judgment under Rule 56(f), the party will need to seek relief promptly after the filing and service of the motion for summary judgment and follow the procedure laid out in the Rule.
Shifting Attorneys’ Fees in Contract Actions: Arizona has a fee-shifting statute applicable to contract actions. Specifically, in an action “arising out of contract,” the court “may award” attorneys’ fees to the “successful party.” “If a written settlement offer is rejected and the judgment finally obtained is equal to or more favorable to the offeror than an offer made in writing to settle any contested action arising out of a contract, the offeror is deemed to be the successful party from the date of the offer.” A.R.S. § 12-341.01(a). In state court, parties must specifically allege entitlement to fees under Section 12-341.01(a) in their pleadings. Rule 54(g)(1), Ariz. R. Civ. P. The Arizona Court of Appeals has interpreted “pleadings” for purposes of Rule 54(g)(1) to include motions to dismiss. Failure to request fees in an answer or motion to dismiss thus waives a subsequent claim for fees.
Community Property: Arizona is a community property state. To enforce a judgment against the community property, normally both spouses must be named as defendants even if only one spouse’s conduct gave rise to the lawsuit.
Apportionment of Fault: In actions for personal injury, property damage or wrongful death, the trier of fact must assign a percentage of fault to parties (plaintiffs and defendants) and nonparties that contributed to the alleged injury, property damage or death. To determine the amount of judgment entered against each defendant, the trier of fact multiplies the amount of recoverable damages by each defendant’s percentage of fault. Defendants that want nonparties’ fault to be considered must file a Notice of Nonparties at Fault by the deadline set by rule. A.R.S. § 12-2506; Rule 26(b)(5), Ariz. R. Civ. P.
Restatement: In the absence of controlling law, Arizona courts typically follow the RESTATEMENT. In re Herbst Trust, 206 Ariz. 214, 217, 76 P.3d 888, 891 (App. 2003).
Experts: Arizona state courts long-applied the Frye standard governing admissibility of expert testimony. However, on September 7, 2011, the Arizona Supreme Court amended Arizona Rule of Evidence 702 to adopt the language of Federal Rule of Evidence 702. Arizona is thus now in line with the majority of states in following the federal Daubert standard.
Initial Disclosure Obligations: Arizona’s disclosure rules are much broader than the federal rule and similar rules in most states. State court initial disclosure statements generally must be exchanged within 40 days of the filing of a responsive pleading and must include, among other things, 1) the factual basis and legal theories of all claims and defenses, 2) contact information for all witnesses expected to be called at trial and a “fair description of the substance of each witness’ expected testimony,” 3) the computation and measure of all alleged damages, along with the documents and testimony supporting the computations, and 4) production of all documents that “may be relevant to the subject matter of the action” or that “appear reasonably calculated to lead to the discovery of admissible evidence.” Rule 26.1, Ariz. R. Civ. P. Sanctions can result from untimely or incomplete disclosures, including, for example, inadmissibility of evidence or in rare cases the ultimate sanction of default or dismissal. Rule 37, Ariz. R. Civ. P.
Similarity of State and Federal Rules: Many (but not all) of Arizona’s Rules of Civil Procedure and Rules of Evidence are modeled after the federal rules. In the absence of Arizona precedent, state courts seek guidance from federal case law when interpreting state rules. State v. Johnson, 132 Ariz. 5, 8, 643 P.2d 708, 711 (App. 1981). Links to the various state court rules can be found at http://azcourts.gov/Default.aspx?alias=azcourts.gov/rules
Local Rules: Local rules govern practice in both federal and state trial courts. The Local Rules of Practice for the U.S. District Court for the District of Arizona are at: http://www.azd.uscourts.gov/local-rules. Every county in Arizona has local rules governing practice in the Superior Court of that county; we can provide you with the local rules of any Arizona Superior Court in which you appear.
Federal Judge’s Individual Rules: Many of our District Court judges have their own rules governing proceedings in their courtrooms.
Federal Magistrate Judges: Federal Magistrates do not preside over civil cases without consent of all parties. However, District Court judges in Tucson (but not Phoenix) sometimes “refer” cases to Magistrates to handle pre-trial matters; the Magistrates will hear motions and prepare a "report and recommendation" to the assigned District Court judge, who then makes the final decision after the parties have been given an opportunity to object to the report and recommendation. Tucson Magistrates frequently handle discovery disputes; Phoenix Magistrates rarely do. Both Phoenix and Tucson Magistrates often are assigned to act as settlement judges.
Information About State Court Judges: State appellate judges and trial court judges in Maricopa (Phoenix) and Pima (Tucson) Counties are not elected but instead appointed by the Governor based on a merit selection process.
Rotation of State Court Judges: State court trial judges generally are assigned to a specialized division (e.g. civil, criminal, domestic relations, juvenile and probate). Judges periodically rotate to different divisions. When the judge assigned to your case rotates to a different division, the case will be reassigned to a different judge. Only in rare circumstances does a judge keep a case after rotating to a different division.
State Court Complex Division: Parties can move to have their case designated as a “complex case,” which is a matter requiring more hands-on, continuous judicial management. Factors supporting designation as “complex” include i) large numbers of separately-represented parties, ii) the likelihood of numerous motions raising difficult or novel legal issues, iii) voluminous documentary evidence, iv) coordination with related actions, and v) the case would benefit from permanent assignment to a single judge who would have acquired substantial knowledge in a specialized area of law. Rule 8(i), Ariz. R. Civ. P.
Striking Judges: Each “side” (not each “party”) in state court is entitled as a matter of right to a change of one judge. Parties must file the Notice of Change of Judge within time limits set by rule or will waive their right to change judge. Rule 42(f), Ariz. R. Civ. P.
Jury Vote Requirement: Trials in federal court require unanimous juries to reach a verdict; most state court civil cases can be decided by the votes of six out of eight jurors.
Juror Conduct: Jurors in state court are permitted to submit written questions directed to witnesses or the court. Rule 39(b)(10), Ariz. R. Civ. P. Jurors also are permitted to discuss the evidence among themselves during the course of the trial. Rule 39(f), Ariz. R. Civ. P.
Attorneys Fees in State Court Appeals: In state court appeals, parties seeking recovery of attorneys' fees must include the request for fees in their brief or in a separate motion for fees filed prior to oral argument or submission of the appeal. Rule 21(c), ARCAP. Parties can recover fees on an interlocutory basis even if the matter is remanded.