Rule 40.Assignment of cases

Group 6: Trials · Last amended April 28, 2015 · Last verified July 13, 2026

In one sentenceRule 40 sets the mechanics for getting a case onto the trial or motion docket, through a notice of trial and note of issue, and covers docketing preferences, continuances, and the deadline for a motion to change the assigned judge.

Full Text of Rule 40

Text sizeJump to: (a) (b) (c) (d) (e) (f)

(a) Notice of trial — Note of issue.

(1) Of fact. At any time after the issues of fact are completed in any case by the service of complaint and answer or reply when necessary, as herein provided, either party may cause the issues of fact to be brought on for trial, by serving upon the opposite party a notice of trial at least 3 days before any day provided by rules of court for setting causes for trial, which notice shall give the title of the cause as in the pleadings, and notify the opposite party that the issues in such action will be brought on for trial at the time set by the court; and the party giving such notice of trial shall, at least 5 days before the day of setting such causes for trial, file with the clerk of the court a note of issue containing the title of the action, the names of the attorneys and the date when the last pleading was served; and the clerk shall thereupon enter the cause upon the trial docket according to the date of the issue.

(2) Of law. In case an issue of law raised upon the pleadings is desired to be brought on for argument, either party shall, at least 5 days before the day set apart by the court under its rules for hearing issues of law, serve upon the opposite party a like notice of trial and furnish the clerk of the court with a note of issue as above provided, which note of issue shall specify that the issue to be tried is an issue of law; and the clerk of the court shall thereupon enter such action upon the motion docket of the court.

(3) Adjournments. When a cause has once been placed upon either docket of the court, if not tried or argued at the time for which notice was given, it need not be noticed for a subsequent session or day, but shall remain upon the docket from session to session or from law day to law day until final disposition or stricken off by the court.

(4) Filing note by opposite party. The party upon whom notice of trial is served may file the note of issue and cause the action to be placed upon the calendar without further notice by the served party.

(5) Issue may be brought to trial by either party. Either party, after the notice of trial, whether given by either party, may bring the issue to trial, and in the absence of the adverse party, unless the court for good cause otherwise directs, may proceed with the case, and take a dismissal of the action, or a verdict or judgment, as the case may require.

(b) Methods. Each superior court may provide by local rule for placing of actions upon the trial calendar

(1) without request of the parties or (2) upon request of a party and notice to the other parties or (3) in such other manner as the court deems expedient.

(c) Preferences. In setting cases for trial, unless otherwise provided by statute, preference shall be given to criminal over civil cases, and cases where the defendant or a witness is in confinement shall have preference over other cases.

(d) Trials. When a cause is set and called for trial, it shall be tried or dismissed, unless good cause is shown for a continuance. The court may in a proper case, and upon terms, reset the same.

(e) Continuances. A motion to continue a trial on the ground of the absence of evidence shall only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it, and also the name and address of the witness or witnesses. The court may also require the moving party to state upon affidavit the evidence which he expects to obtain; and if the adverse party admits that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial shall not be continued. The court, upon its allowance of the motion, may impose terms or conditions upon the moving party.

(f) Change of judge. Any right under RCW 4.12.050 to seek disqualification of a judge will be deemed waived unless, in addition to the limitations in the statute, the motion and affidavit is filed with the court no later than thirty days prior to trial before a pre-assigned judge. For purposes of this rule, “trial” includes any review or appeal from an administrative body. If a case is reassigned to a different judge less than forty days prior to trial, a party may then move for a change of judge within ten days of such reassignment, unless the moving party has previously made such a motion.

End

Amendment History

Adopted May 5, 1967, effective July 1, 1967; amended, effective Oct. 19, 1999; amended, effective April 28, 2015.

Plain-English Summary

Once the pleadings close, a case does not try itself, someone has to put it on the court's calendar. Rule 40 lays out how. Either party can serve a notice of trial on the opposing side at least three days before the court's next day for setting causes, and then file a note of issue with the clerk at least five days before that setting day. The note of issue has to identify the case, name the attorneys, and state when the last pleading was served, and the clerk enters the case on the trial docket by date. An issue of law raised on the pleadings follows the same pattern for the motion docket, with its own five-day notice.

A case that reaches the docket but is not tried or argued at its scheduled time does not fall off the calendar. It stays there from session to session, or from law day to law day, until it is finally resolved or struck by the court. Superior courts have flexibility in how they schedule cases for trial, they can set them without a request from the parties, on a party's request with notice to the others, or by whatever other method the court finds workable. Where preferences matter, criminal cases come ahead of civil cases, and civil cases involving a confined defendant or witness come ahead of the rest.

Once set and called, a case gets tried or dismissed unless there is good cause for a continuance. A continuance sought for missing evidence needs an affidavit showing why the evidence matters, what efforts were made to get it, and the name and address of the witness who would supply it; the court can also require the moving party to state under oath what the evidence would show, and if the other side admits that evidence would be given as described, the continuance can be denied. Finally, the rule sets firm deadlines for a motion to disqualify the assigned judge: the motion and affidavit have to be filed at least thirty days before trial when a judge has been pre-assigned, but if the case is reassigned to a different judge less than forty days before trial, the affected party gets ten days from that reassignment to move, unless that party already used its one opportunity to move for a change of judge.

Frequently Asked Questions

What is the difference between a notice of trial and a note of issue?

The notice of trial goes to the opposing party, announcing that a case will be brought on for trial or argument. The note of issue is filed with the clerk, identifying the case, the attorneys, and the date of the last pleading, and it is what triggers the clerk to place the case on the docket.

How much advance notice does a notice of trial require?

At least three days before the court's next day for setting causes for trial. The note of issue itself must then be filed with the clerk at least five days before that setting day.

What happens to a case that is on the docket but is not reached at its scheduled time?

It is not removed. The case stays on the docket from session to session, or from law day to law day, until it is finally resolved or the court strikes it.

What cases get scheduling preference over ordinary civil cases?

Criminal cases are preferred over civil cases, and a civil case where the defendant or a witness is held in confinement is preferred over other civil cases, unless a statute directs otherwise.

What must a party show to get a trial continuance for missing evidence?

An affidavit establishing that the evidence is material, that the party used due diligence to obtain it, and identifying the witness by name and address. The court can require the moving party to state under affidavit what the evidence would show, and if the opposing party admits the evidence would be given as stated, the court may deny the continuance.

How soon before trial must a motion to disqualify the assigned judge be filed?

At least thirty days before trial if the judge was pre-assigned. If the case is reassigned to a different judge less than forty days before trial, the party gets ten days from the reassignment to move, unless that party already made a change-of-judge motion in the case.

Source & verification. Rule text and amendment history are reproduced verbatim from the Washington Superior Court Civil Rules, adopted by the Supreme Court of Washington. Last verified July 13, 2026. · Official source

Also known as: note of issue Washingtonnotice of trial requirementstrial continuance affidavitchange of judge deadlineCR 40