Attorney General Peter Kilmartin


Rhode Island District Court
Civil Rules of Procedure

VI. Trials

Index:

  1. Trials

    1. RULES 38 AND 39. [RESERVED]
      RULE 40. ASSIGNMENT OF CASES FOR TRIAL--CONTINUANCES
      1. Assignment of Cases for Trial.
      2. Continuances.
      3. Affidavit or Certificate in Support of Motion.
      RULE 41. DISMISSAL OF ACTIONS
      1. Voluntary Dismissal:
        1. By Plaintiff; by Stipulation.
        2. By Order of Court.
      2. Involuntary Dismissal: Effect Thereof.
        1. On Court's Own Motion.
        2. On Motion of the Defendant.
        3. Effect.
      3. Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim.
      4. Costs of Previously Dismissed Action.
      RULE 42. CONSOLIDATION--SEPARATE TRIALS
      1. Consolidation.
      2. Separate Trials.
      RULE 43. EVIDENCE
      1. Form and Admissibility.
      2. Scope of Examination and Cross-Examination.
      3. [Reserved].
      4. Affirmation in Lieu of Oath.
      5. Evidence on Motions.
      6. Examination of Witnesses.
      7. Copies of Documents.
      8. Order of Trial.
      RULE 44. PROOF OF OFFICIAL RECORD
      1. Authentication of Copy.
      2. Proof of Lack of Record.
      3. Other Proof.
      RULE 45. SUBPOENA
      1. For Attendance of Witnesses;
      2. For Production of Documentary Evidence.
      3. Service.
      4. Subpoena for Taking Depositions.
      5. Subpoena for a Hearing or Trial.
      6. Contempt.
      RULES 46 TO 53. [RESERVED]



RULES 38 AND 39. [RESERVED]

RULE 40. ASSIGNMENT OF CASES FOR TRIAL--CONTINUANCES

    1. (a) Assignment of Cases for Trial. Cases may be assigned for trial or other disposition to the appropriate calendar
      1. (1) by order of the court including rules of practice and general orders adopted for the purpose of assignment or
      2. (2) by written agreement of the parties filed with the clerk or
      3. (3) by motion upon notice to the adverse parties. Precedence shall be given to actions entitled thereto by statute. Cases not assigned for trial within one (1) year after entry may be assigned for trial by the clerk; notice of such assignment shall be served forthwith upon all parties to the action.
    2. (b) Continuances. Continuances shall be granted only upon motion and for good cause shown and upon such terms and conditions as the court shall determine.
    3. (c) Affidavit or Certificate in Support of Motion. The court need not entertain any motion for a continuance based on the absence of a material witness unless such motion be supported by an affidavit which shall state the name of the witness and, if known, the witness' address, the facts to which the witness is expected to testify and the basis for such expectation, the efforts which have been made to procure the witness' attendance or deposition, and the expectation which the party has of procuring the witness' testimony or deposition at a future time. Such motion may, in the discretion of the court, be denied if the adverse party will admit that the absent witness would, if present, testify as stated in the affidavit. A motion for a continuance on the ground of sickness of a party or witness shall be accompanied by a certificate of practicing physician stating the fact of said sickness, and the kind, degree, and the time of beginning thereof. Such motion may be denied if the moving party shall not have notified the adverse party as soon as practicable of the illness and forthcoming motion for a continuance.

RULE 41. DISMISSAL OF ACTIONS

    1. (a) Voluntary Dismissal: Effect Thereof.
      1. (1) By Plaintiff; by Stipulation. An action may be dismissed by the plaintiff without order of court (i) by filing notice of dismissal at any time before service by the adverse party of an answer or a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of this or any other state or of the United States an action based on or including such claim.
      2. (2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him or her of the plaintiff's motion to dismiss, the counterclaim shall remain pending for independent adjudication by the court despite the dismissal of the plaintiff's claim. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
    2. (b) Involuntary Dismissal: Effect Thereof.
      1. (1) On Court's Own Motion. The court may, at any time, in its discretion dismiss any action for failure of the plaintiff to comply with these rules or any order of court, or for lack of prosecution if the action has been pending for more than five (5) years. Notice that an action will be in order for dismissal on a day certain shall be mailed to the plaintiff's attorney of record, or if there be not one to the plaintiff if the plaintiff's address be known. Otherwise such notice shall be published as directed by the cour t and in accordance with statutory provisions.
      2. (2) On Motion of the Defendant. On motion of the defendant the court may, in its discretion, dismiss any action for failure of the plaintiff to comply with these rules or any order of court or for lack of prosecution as provided in paragraph (1) of this subdivision. After the plaintiff has completed the presentation of his or her evidence, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.
      3. (3) Effect. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision (b) and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication upon the merits.
    3. (c) Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to paragraph (1) of subdivision (a) of this rule shall be made before a responsive pleading or a motion for summary judgment is served or, if there is neither, before the introduction of evidence at the trial or hearing.
    4. (d) Costs of Previously Dismissed Action. If a plaintiff who has once dismissed an action in any court commences an action based on or including the same claim against the same defendant the court may make such order for the payme nt of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.

RULE 42. CONSOLIDATION--SEPARATE TRIALS

    1. (a) Consolidation. When actions involving a common question of law or fact are pending before the court, in the same division or different divisions, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning the proceedings therein as may tend to avoid unnecessary costs or delay.
    2. (b) Separate Trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial in the division where the action is pending or in a different division of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.

RULE 43. EVIDENCE

    1. (a) Form and Admissibility. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute or by these rules. All evidence shall be admitted which is admissible under the statutes of this state, or under the rules of evidence applied in the cour ts of this state. The competency of a witness to testify shall be determined in like manner.
    2. (b) Scope of Examination and Cross-Examination. A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him or her by leading questions and contradict and impeach him or her in all respects as if he or she had been called by the adverse party, except by evidence of bad character, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his or her examination in chief.
    3. (c) [Reserved].
    4. (d) Affirmation in Lieu of Oath. Whenever under these rules an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof.
    5. (e) Evidence on Motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.
    6. (f) Examination of Witnesses. The examination and cross-examination of any witness shall be conducted by one (1) attorney only on each side. The attorney shall stand while so examining or cross-examining unless the court otherwise permits.
    7. (g) Copies of Documents. A certified copy of each will, deed or other recorded instrument used in evidence shall be filed in all cases, unless an original is left on file until the case is finally decided.
    8. (h) Order of Trial.
      1. (1) Opening and Closing. The party holding the affirmative shall in all cases, except on motions, open and close the question before the court. On motions the moving party shall open and close.
      2. (2) Several Issues. When there are several issues, with respect to some of which the affirmative is on the plaintiff and with respect to others it is on the defendant, the plaintiff shall open and close.
    9. (i) Withdrawal of Evidence. Attorneys shall withdraw forthwith after the final disposition of cases, with the approval of the court, all books, papers, documents, plats, and things introduced in evidence and not required by statute, rule, or special order to remain on file, upon leaving copies thereof duly attested by the clerk, if the court shall so direct. If the same are not withdrawn within thirty (30) days the clerks shall not be required to preserve the same; but no original paper for absolute or contingent payment of money, such as a bill, bond, note or the like, shall be taken from the files until the clerk has noted on the face thereof, if the same be the cause of action, the state or result, as the case may be, of the action thereon.

RULE 44. PROOF OF OFFICIAL RECORD

    1. (a) Authentication of Copy. An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by the officer's deputy. If the office in which the record is kept is outside of this state but within the United States or within a territory or insular possession subject to the dominion of the United States, a certificate that such officer has the custody of the record shall be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his or her office. If the office in which the record is kept is in a foreign state or country, such certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign state or country in which the record is kept, and authenticated by the seal of his or her office.
    2. (b) Proof of Lack of Record. A written statement signed by an officer having the custody of an official record or by the officer's deputy that after diligent search no record or entry of a specified tenor is found to exist in the records of his or her office is admissible as evidence that the records of his or her office contain no such record or entry, provided that if the record is kept without the state, the statement shall be accompanied by a certificate as required by subdivision (a) of this rule.
    3. (c) Other Proof. This rule does not prevent the proof of official records or of entry or lack of entry therein by any method authorized by any applicable statute or by the rules of evidence at common law.

RULE 45. SUBPOENA

    1. (a) For Attendance of Witnesses; Form; Issuance. Every subpoena shall be issued by the clerk of court or a notary public or other officer authorized by statute, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified.
    2. (b) For Production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.
    3. (c) Service. A subpoena may be served by the sheriff, by his deputy, by a constable, or by any other person who is not a party and is not less than eighteen (18) years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to the person the fees for one (1) day's attendance and the mileage allowed by law. When the subpoena is issued on behalf of the state or an officer or agency thereof, fees and mileage need not be tendered. A subpoena may be served at any place within the state.
    4. (d) Subpoena for Taking Depositions. Proof of service of a notice to take a deposition as provided in Rules 30(a) and 31(a) constitutes a sufficient authorization for the issuance of subpoenas for the persons named or described therein. The subpoena may command the person to whom it is directed to produce designated books, papers, documents, or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26(b), but in that event the subpoena will be subject to the provisions of subdivision (b) of Rule 30 and subdivision (b) of this Rule 45.
    5. (e) Subpoena for a Hearing or Trial. Subpoenas for attendance at a hearing or trial shall be issued at the request of any party.
    6. (f) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him or her may be deemed a contempt of the court in which the action is pending.
    7. '

RULES 46 TO 53. [RESERVED]