West Virginia Trial Court Rules, Complete, Downloaded 7-27-2011 from State site

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THE WEST VIRGINIA TRIAL COURT RULES

CHAPTER 1: ADMINISTRATIVE MATTERS

1. EFFECT OF RULES OF GENERAL PRACTICE; DEFINITIONS

1.01 Matters of Statewide Concern 1.02 Repeal of Local Rules 1.03 Authority to Enact Local Rules on Matters Which Are Strictly Local 1.04 Definitions

2. TERMS OF COURT

3. COURT SESSIONS

3.01 Generally 3.02 Opening Court 3.03 Court Security 4. COUNSEL

4.01 Admission to Practice Before the Courts 4.02 Visiting Attorneys; Pro Hac Vice Admission 4.03 Representation of Parties and Pro Se Appearances 4.04 Substitution of Counsel by Stipulation 4.05 Legal Assistance by Law Students 4.06 Bias and Prejudice 4.07 Attire for Court Appearances 4.08 Addressing the Court; Examination of Witnesses 4.09 Contact with Jurors 4.10 Ex Parte Presentations; Duty to Court

5. SCHEDULING CONFLICTS

5.01 Purpose 5.02 General Priorities 5.03 Additional Factors 5.04 Notice of Conflict 5.05 Resolution of Conflict 6. MOTIONS PRACTICE, GENERAL

6.01 Form of Memoranda, Motions and Other Papers 6.02 Citation Form 6.03 Copies of Memoranda 6.04 Copies of Cases and Statutes

West Virginia Trial Court Rules http://www.state.wv.us/wvsca/rules/ctrules.htm

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7. JURIES

7.01 Master List 7.02 Jury Wheel or Jury Box 7.03 Jury Panels and Pools 7.04 Magistrate Court Juries

8. CAMERAS, AUDIO EQUIPMENT AND MEDIA IN THE COURTROOM

8.01 Permission of the Court Required 8.02 Procedure to Obtain Permission 8.03 Termination of Coverage 8.04 Scope of Coverage 8.05 Nonjudicial Meetings 8.06 Equipment and Personnel 8.07 Location of Equipment 8.08 Pooling Arrangements 8.09 Admissibility in Evidence 8.10 Prior Approval to Identify or Video Jurors

9. CUSTODY AND DISPOSITION OF EXHIBITS

9.01 Generally

10. FILING AND REMOVAL OF PAPERS; LIMITATION OF ACCESS TO COURT FILES

10.01 Filing of Papers 10.02 Removal of Papers and Files From Custody of Clerk 10.03 Limitation of Access to Court Files 10.04 Access to Court Files and Other Court Records under the Freedom of Information Act

11. CAPTION AND FORMAT OF ORDERS

11.01 Captions 11.02 Format

12. FILING AND SERVICE BY FACSIMILE TRANSMISSION

12.01 Applicability 12.02 Definitions 12.03 General Provisions 12.04 Filing and Service of Documents in Civil Actions by Facsimile Transmission 12.05 Facsimile Transmission of Domestic Violence Petitions and Protective Orders 12.06 Facsimile Transactions in Criminal Matters

13. COURT LIBRARY

13.01 Generally

14. VIDEOCONFERENCING


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15. ELECTRONIC FILING AND SERVICE

(Note: By Order entered October 9, 2008, TCR 15 was approved, effective immediately.)

15.01 Application 15.02 General Provisions 15.03 Authorization and Signature 15.04 Filing and Service 15.05 Orders and Civil Docket 15.06 Waiver of E-Filing and Service Requirements 15.07 Public Access 15.08 Case Management Order 15.09 Registration and Fees 15.10 Form of documents electronically filed 15.11 Time of electronic filing and service 15.12 Filing of sealed documents 15.13 System or participant errors 15.14 Obligation of participants to maintain proper delivery information

16. TIME STANDARDS

(Note: By Order entered October 9, 2008, TCR 16.05(a) was amended, effective immediately.)

16.01 Purpose 16.02 Implementation 16.03 Definitions 16.04 Time Standards for Criminal Cases 16.05 Time Standards for Civil Cases 16.06 Domestic Relations Proceedings 16.07 Juvenile Delinquency Proceedings 16.08 Abuse and Neglect Proceedings 16.09 Mental Hygiene Proceedings 16.10 Guardianship and Conservatorship Proceedings 16.11 Petitions and Appeals 16.12 Extraordinary, Declaratory Judgment, and Equitable Proceedings 16.13 Duties of Court Officers

17. DISQUALIFICATION AND TEMPORARY ASSIGNMENT OF JUDGES

17.01 Motions for Disqualification 17.02 Voluntary Recusal by a Judge 17.03 Temporary Assignment of a Different Judge 17.04 Applicability 17.05 Time 17.06 Challenge to Disqualification Rulings 17.07 Unavailability under W. Va. Code � 51-2-1(a) 17.08 Sanctions

18. RESERVED


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19. RESERVED

CHAPTER 2: CIVIL MATTERS

20. EXTENSION OF ANSWER DATE

20.01 Generally

21. GUARDIANS AD LITEM

21.02. Application Generally21.02. Appointments Generally21.03. Duties Generally21.04. Definitions21.05. Eligibility for a Supreme Court-Paid Guardian Ad Litem21.06. Compensation for a Supreme Court-Paid Guardian Ad Litem

22. MOTIONS PRACTICE, CIVIL

22.01 Motions, Responses, and Supporting Memoranda 22.02 Motions to Dismiss 22.03 Hearings on Motions 22.04 Action on Motions 22.05 Effect of Failure to Appear at Oral Argument or Hearing

23. TRIAL, CIVIL

23.01 Non-Jury Matters 23.02 Cases to be Tried by a Jury: Proposed Jury Instructions; Proposed Verdict Form 23.03 Voir Dire 23.04 Opening Statements and Closing Arguments 23.05 Stipulations

24. PREPARATION AND SUBMISSION OF ORDERS

24.01 Generally

25. MEDIATION

25.01 Scope 25.02 Mediation Defined 25.03 Selection of Cases for Mediation 25.04 Listing of Mediators 25.05 Selection of Mediator 25.06 Compensation of Mediator 25.07 Mediator Disqualification 25.08 Provision of Preliminary Information to the Mediator 25.09 Timeframes for Conduct of Mediation 25.10 Appearances; Sanctions 25.11 Participation 25.12 Confidentiality of Mediation Process 25.13 Immunity


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25.14 Enforceability of Settlement Agreement 25.15 Report of Mediator 25.16 Statistical Information

26. MASS LITIGATION(Note, by Order entered October 9, 2008, TCR 26 was amended, effective immediately)

26.01 Mass Litigation -- Preamble 26.02 Mass Litigation Panel 26.03 Application 26.04 Definitions 26.05 Panel Duties 26.06 Motion to Refer Actions as Mass Litigation 26.07 Assignment of Presiding Judge in Mass Litigation 26.08 Powers of Presiding Judge 26.09 Motion to Join in Existing Mass Litigation 26.10 Class Actions 26.11 Official Reporter 26.12 Scope; Conflicts

27. PUBLIC FUNDING FOR EXPERT ASSISTANCE IN CHILD ABUSE OR NEGLECT CASES

27.01 Motion and Appointment 27.02 Compensation of Experts

28. Reasonable Efforts and Contrary to the Welfare Findings in Juvenile Cases

29. RESERVED

CHAPTER 3: CRIMINAL MATTERS

30. CONDITIONS OF RELEASE

30.01 Hearing on Motion for Reconsideration of Conditions of Release 30.02 Scheduling of Hearings 30.03 Effect of Having Been Released Previous to Indictment

31. BONDING AGENTS AND BAIL BONDS

31.01 Generally

Nov. 25, 2009 Order Declining to Issue Rules Governing Statewide Licenses to Engage in theBusiness of Issuing Surety Bonds in Criminal Cases

32. DISCOVERY AND INSPECTION IN THE CIRCUIT COURTS

32.01 Generally 32.02 Mandatory Discovery 32.03 Discovery Conference


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32.04 Items Not Subject to Disclosure 32.05 Continuing Duty to Disclose 32.06 Regulation of Discovery 32.07 Statement of Witnesses 32.08 Exchange of Exhibit Lists 32.09 Additional Motions for Discovery

33. ARTICLES OF EVIDENCE

33.01 State's Evidence

34. DEPOSITIONS

34.01 Authorization for Deposition 34.02 Incarcerated Defendants

35. PUBLIC FUNDING FOR EXPERT ASSISTANCE

35.01 Motion 35.02 Service of Motion 35.03 Ex Parte Motion 35.04 Judicial Determination of Whether to Proceed Ex Parte 35.05 Compensation of Experts

36. MOTIONS PRACTICE, CRIMINAL

36.01 Generally 36.02 Motions for an Extension of Time 36.03 Time for Filing Motions 36.04 Time for Filing Responses and Replies 36.05 Limitation on Memoranda

37. SPEEDY TRIAL

37.01 Authority 37.02 Motion for Speedy Trial

38. CONTINUANCES

38.01 Procedure for Obtaining Continuance


39.01 Appointment 39.02 Duties 39.03 Compensation

40. PRETRIAL CONFERENCE

40.01 Authority 40.02 Purpose 40.03 Attendance and Participation at the Pretrial Conference


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41. CHANGES TO PLEA

41.01 Notice of Change of Plea Hearing

42. TRIAL, CRIMINAL

42.01 Presentation of Statement of Facts and Potential Witnesses 42.02 Presentation of Jury Instructions 42.03 Voir Dire 42.04 Opening Statements and Closing Arguments 42.05 Stipulations

43. PRESENTENCE INVESTIGATION AND REPORT

43.01 Investigation, Report, and Objections 43.02 Disclosure

44. PETITION FOR DISCLOSURE OF PRESENTENCE OR PROBATION

RECORDS 44.01 Generally

APPENDICES:

Appendix A: NOTICE OF BOND ENCUMBRANCE

Appendix B: RELEASE OF NOTICE OF BOND ENCUMBRANCE

Reporter's Note: The following Trial Court Rules apply in magistrate court as well as incircuit court: 5, 7.04, 8, 10.04, 12, and 31.01.

CHAPTER 1: ADMINISTRATIVE MATTERS

1. EFFECT OF LOCAL RULES OF GENERAL PRACTICE; DEFINITIONS

1.01 Matters of Statewide Concern

The West Virginia Rules of Civil Procedure, the West Virginia Rules of Criminal Procedure,and the following rule subject areas called The West Virginia Trial Court Rules are declared tobe of statewide concern and shall preempt and control in their form and content over anydiffering local rule.

1.02 Repeal of Local Rules


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All circuit court local rules, including local procedures and standing orders having the effectof local rules, enacted before July 1, 1999, which are inconsistent with these Trial Court Rulesor other rules of court are hereby repealed.

Any existing circuit court local rule not in conflict with these Trial Court Rules or other rulesof court must be timely submitted to the Supreme Court of Appeals in accordance with TCR1.03. Said rule shall remain in effect, until it is rejected by order of the Supreme Court ofAppeals. Any existing local rule which is not submitted to the Supreme Court of Appeals priorto September 1, 1999, shall be repealed, effective September 1, 1999.

1.03 Authority to Enact Local Rules on Matters Which Are Strictly Local

Each court, and in multi-judge circuits by action of a majority of its judges, may from time totime propose local rules and amendments of local rules not inconsistent with the West VirginiaRules of Civil Procedure, the West Virginia Rules of Criminal Procedure, the West Virginia TrialCourt Rules, or with any directive of the Supreme Court of Appeals of West Virginia. Aproposed rule or amendment shall not be effective until approved by the Supreme Court ofAppeals. No local procedure shall be effective unless adopted as a local rule in accordancewith this section. To obtain approval, seven copies of any proposed local rule or amendment ofa local rule shall be submitted to the Supreme Court of Appeals through the Office of theClerk. Reasonable uniformity of local rules is required. Numbering and format of any proposedlocal rule or amendment of a local rule shall be as prescribed by the Supreme Court ofAppeals. The Supreme Court of Appeals' approval of a local rule or local procedure shall notpreclude review of that rule or procedure under the law or circumstances of a particular case.

1.04 Definitions

For the purpose of these Trial Court Rules:

(a) "Judicial officer" - A circuit judge.

(b) "Business days" - Days other than Saturdays, Sundays, and legal holidays as set forth inW.Va. R.Civ.P. 6(a).

(c) "Days," when not preceded by the adjective "business" - Calendar days countedsequentially, without regard for Saturdays, Sundays, legal holidays, or other exceptions.

(d) “Brief” - A statement of the law that supports a motion made by counsel or that opposesa motion made by another counsel.

(e) “Clerk” - The circuit clerk of any county in West Virginia or any deputy thereof and, in anyrule applying in magistrate court, the magistrate court clerk or deputy.

(f) “Court” - circuit court. In addition, the term “court” may also mean magistrate courtproceedings, when specific reference is made to magistrate court.

(g) “Counsel” - Any attorney who has made an appearance for any party, or any pro selitigant.

(h) “Judicial day” - any day, including any Saturday or legal holiday, other than Sunday.

(i) “Memorandum of Law” - see “Brief.”


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(j) “Pleading” - A pleading permitted by W.Va. R.Civ.P. 7.

(k) “Pro Se” - representing one's self without counsel of record.

(l) “TCR” - Trial Court Rule(s).

(m) W.Va. R.Civ.P. - West Virginia Rules of Civil Procedure.

(n) W.Va. R.Crim.P. - West Virginia Rules of Criminal Procedure.

(o) W.Va. R.Evid. - West Virginia Rules of Evidence.

2. TERMS OF COURT

The terms of the circuit courts shall commence and be held each year as provided in thisrule.

2.01 First Circuit. For the county of Brooke, on the first Monday in March, June, andNovember; for the county of Hancock, on the second Tuesday of January, April, andSeptember; and for the county of Ohio, on the second Monday of January, May, andSeptember.

2.02 Second Circuit. For the county of Marshall, on the second Tuesday in March, July, andNovember; for the county of Tyler, on the second Tuesday in February, June, and October; forthe county of Wetzel, on the second Tuesday in January, May, and September.

2.03 Third Circuit. For the county of Doddridge, on the second Monday in February and Julyand the fourth Monday in October; for the county of Pleasants, on the second Monday inJanuary, the third Monday in May, and the fourth Monday in September; for the county ofRitchie, on the fourth Monday in January, the first Monday in June, and the first Monday inOctober.

2.04 Fourth Circuit. For the county of Wirt, on the last Monday in March, June, andSeptember; for the county of Wood, on the second Monday in January, May, and September.

2.05 Fifth Circuit. For the county of Calhoun, on the first Tuesday in January, May, andSeptember; for the county of Jackson, on the fourth Tuesday in February, June, and October;for the county of Roane, on the fourth Tuesday in January, May, and September.

2.06 Sixth Circuit. For the county of Cabell, on the first Monday in January and May, and thesecond Tuesday in September.

2.07 Seventh Circuit. For the county of Logan, on the second Monday in January, May, andSeptember.

2.08 Eighth Circuit. For the county of McDowell, on the third Monday in February, June, andOctober.

2.09 Ninth Circuit. For the county of Mercer, on the second Monday in February, June, andOctober.

2.10 Tenth Circuit. For the county of Raleigh, on the second Monday in January, May, andSeptember.


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2.11 Eleventh Circuit. For the county of Greenbrier, on the first Tuesday in February, June,and October; for the county of Pocahontas, on the first Tuesday in April, August, andDecember.

2.12 Twelfth Circuit. For the county of Fayette, on the second Tuesday in January, May, andSeptember.

2.13 Thirteenth Circuit. For the county of Kanawha, on the second Monday in January, May,and September.

2.14 Fourteenth Circuit. For the county of Braxton, on the first Monday in February, June,and October; for the county of Clay, on the third Monday in March, on the second Monday inJuly, and on the first Monday in November; for the county of Gilmer, on the first Monday inMarch, July, and November; for the county of Webster, on the second Monday in January, onthe first Monday in May and September.

2.15 Fifteenth Circuit. For the county of Harrison, on the first Monday in January, May andSeptember.

2.16 Sixteenth Circuit. For the county of Marion, on the second Monday in February, June,and October.

2.17 Seventeenth Circuit. For the county of Monongalia, on the Thursday after the firstMonday in January, May, and September.

2.18 Eighteenth Circuit. For the county of Preston, on the first Tuesday in March and June,and on the third Tuesday in October.

2.19 Nineteenth Circuit. For the county of Barbour, on the fourth Monday in February, May,and October; for the county of Taylor, on the second Monday in January, April, and September.

2.20 Twentieth Circuit. For the county of Randolph, on the last Monday in February, Juneand October.

2.21 Twenty-First Circuit. For the county of Grant, on the first Tuesday in March andNovember, and the second Tuesday in July; for the county of Mineral, on the second Tuesdayin January, and the first Tuesday in May and September; for the county of Tucker, on thesecond Tuesday in February, and on the first Tuesday in June and October.

2.22 Twenty-Second Circuit. For the county of Hampshire, on the first Tuesday in January,May, and September; for the county of Hardy, on the first Tuesday in February, June, andOctober; for the county of Pendleton, on the first Tuesday in March, July, and November.

2.23 Twenty-Third Circuit. For the county of Berkeley, on the third Tuesday in February, May,and October; for the county of Jefferson, on the third Tuesday in January, April, andSeptember; for the county of Morgan, on the first Tuesday in January, April, and September.

2.24 Twenty-Fourth Circuit. For the county of Wayne, on the first Monday in March, July, andNovember.

2.25 Twenty-Fifth Circuit. For the county of Boone, on the third Monday in January, April,and September; for the county of Lincoln, on the third Monday in January, April, andSeptember.


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2.26 Twenty-Sixth Circuit. For the county of Lewis, on the first Monday in March andNovember, and the second Monday in July; for the county of Upshur, on the second Monday inJanuary, May, and September.

2.27 Twenty-Seventh Circuit. For the county of Wyoming, on the first Monday in February,May, and October.

2.28 Twenty-Eighth Circuit. For the county of Nicholas, on the second Tuesday in January,May, and September.

2.29 Twenty-Ninth Circuit. For the county of Mason, on the first Monday in January, May,and September; for the county of Putnam, on the first Monday in March and on the secondMonday in July and November.

2.30 Thirtieth Circuit. For the county of Mingo, on the third Monday in January, April, andSeptember.

2.31 Thirty-First Circuit. For the county of Monroe, on the second Tuesday in January andSeptember, and on the third Tuesday in May; for the county of Summers, on the first Tuesdayin March and on the third Tuesday in July and November.

3. COURT SESSIONS

3.01 Generally

The court is considered open and in continuous session in all divisions of the circuit court inaccordance with the provisions of W.Va. R.Civ.P. 77 and other controlling statutes and rules.

Court proceedings may be conducted on any judicial day, as judicial day is defined in TCR1.04(i). The effects of Saturdays, Sundays, and legal holidays for matters such as timecomputation are governed by W.Va. Code �� 2-2-1 and 2-2-2 as well as by applicable rulespromulgated by the Supreme Court of Appeals.

3.02 Opening Court

When the judge enters the room for the purpose of opening court, the sheriff, deputy, ordesignated bailiff shall say in a distinct voice: "Silence, all present will arise. The Judge of the_______ Court of _______ County." Then the sheriff, deputy, or designated bailiff shall makethe following proclamation: "Oyez! Oyez! Oyez! Silence is now commanded under pain of fineand imprisonment, while the Honorable Judge _______________ of the ____________ Courtof ____________ County, is sitting. All persons having motions to make, pleadings to enter oractions to prosecute come forward and they shall be heard. God save the State of WestVirginia and this Honorable Court."

3.03 Court Security

A bailiff shall be present at all times while the court is in session.

The bailiff shall be either the sheriff or a deputy sheriff; but in any event, the bailiff shall beapproved by the presiding circuit judge.

Upon request by the presiding circuit judge, the sheriff shall provide a sufficient number ofbailiffs to maintain order in the courtroom at all times and to enforce the rules and orders of the


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court pertaining to conduct in the courtroom.

4. COUNSEL

4.01 Admission to Practice Before the Courts

Any person admitted to practice before the Supreme Court of Appeals of West Virginia andin good standing as a member of its bar shall be permitted to practice before the courts of thisState.

4.02 Visiting Attorneys; Pro Hac Vice Admission

Any person who has not been admitted to practice before the Supreme Court of Appeals ofWest Virginia, but who is a member in good standing of the bar of the Supreme Court of theUnited States, the bar of the highest court of any other state in the United States, or the bar ofthe District of Columbia (which bar shall extend like privileges to members of The West VirginiaState Bar), shall be permitted to appear pro hac vice as a visiting attorney in a particular case,in association with a person admitted to practice before the Supreme Court of Appeals of WestVirginia and in good standing as a member of its bar, in accordance with Rule 8.0 of the Rulesfor Admission to the Practice of Law and as herein provided. In addition to the otherrequirements of Rule 8.0 of the Rules for Admission to the Practice of Law, the verifiedstatement of application shall contain an explicit statement that notice has been sent and the$350 fee has been paid to The West Virginia State Bar.

The court, at its discretion, may set the matter of pro hac vice admission for hearing.

Any pleading, motion, or other paper filed by a visiting attorney not in compliance with thisrule may be stricken from the record after fifteen (15) days written notice mailed to the visitingattorney at his or her address as known to the clerk.

4.03 Representation of Parties and Pro Se Appearances; Withdrawal

(a) Every party to proceedings before any court, except parties appearing pro se, shall berepresented by a person admitted to practice before the Supreme Court of Appeals of WestVirginia and in good standing as a member of its bar and may be represented by a visitingattorney as provided in Rule 4.02. A party appearing pro se shall, at his or her first appearance,file with the clerk their complete names and addresses where pleadings, notices, and otherpapers may be served upon them, and their telephone numbers.

(b) No attorney who has entered an appearance in any civil or criminal action shall withdrawthe appearance or have it stricken from the record, except by order. Such approval shall rest inthe sound discretion of the court, but shall not be granted until the attorney seeking towithdraw has made reasonable effort to give actual notice to the client:

(1) that the attorney wishes to withdraw;

(2) that the court retains jurisdiction;

(3) that the client has the burden of keeping the court informed where notice, pleadings, orother papers may be served;

(4) that the client has the obligation of preparing for trial or hire other counsel to prepare fortrial when the trial date has been set;


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(5) that if the client fails or refuses to meet these burdens, the client may suffer possibledefault;

(6) that the dates of any proceedings, including trial, and the holding of any suchproceedings will not be affected by the withdrawal of any counsel;

(7) that service of process may be made upon the client at the client's last known address;and

(8) of the client's right to object immediately to attorney's intent to withdraw.

The attorney seeking to withdraw shall prepare a written notification certificate stating thatthe above notification requirements have been met, the manner by which such notification wasgiven, and setting forth the client's last known address and telephone number. Before thecourt permits the withdrawal, the court may set the matter for hearing, at which time the clientshall be notified by the withdrawing attorney of the effective date of the withdrawal. If the courtpermits the withdrawal without a hearing, the client shall be notified by the withdrawingattorney of the effective date of the withdrawal. Following effective withdrawal of the attorney,all pleadings, notices, or other papers may be served on the party directly by mail at the lastknown address of the party until new counsel enters an appearance.

4.04 Substitution of Counsel by Stipulation

A stipulation for substitution of counsel shall:

(a) bear the written approval of the client;

(b) bear the signed statement by the substituting attorney consenting to the substitution andstating that the substituting attorney is advised of the trial date and will be prepared for trial onsuch date; and

(c) be accompanied by a proposed written order, which may be presented ex parte; and

(d) be served upon opposing counsel.

4.05 Legal Assistance by Law Students

Legal assistance by law students shall be governed by Rule 10.0 et seq. of the Rules forAdmission to the Practice of Law.

At the law student's first appearance, he or she shall provide a copy of the Rule 10.0certificate to the judicial officer.

4.06 Bias and Prejudice

The West Virginia Supreme Court of Appeals aspires to achieve absolute fairness in thedetermination of cases and matters before all the courts of this State and expects the higheststandards of professionalism, human decency, and considerate behavior toward others from itsjudicial officers, lawyers, and court personnel, as well as from all witnesses, litigants, and otherpersons who come before the courts. As to matters in issue before any court, conduct andstatements toward one another must be without bias with regard to such factors as gender,race, ethnicity, religion, handicap, age, and sexual orientation when such conduct orstatements bear no reasonable relationship to a good faith effort to argue or present a position


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on the merits. Judicial officers must ensure that appropriate action is taken to preserve aneutral and fair forum for all persons. Nothing in this rule, however, is intended to infringeunnecessarily or improperly upon the otherwise legitimate rights, including the right of freedomof speech, of any person, nor to impede or interfere with the aggressive advocacy of causesand positions by lawyers and litigants.

4.07 Attire for Court Appearances

Counsel shall at all court appearances present themselves attired in a manner befitting theirprofession and indicative of their respect for the court, and shall admonish their clients andwitnesses concerning inappropriate courtroom attire.

4.08 Addressing the Court; Examination of Witnesses

A court may direct that counsel stand when addressing the court. Only one counsel for eachparty may participate in examination and cross-examination of a witness. With the court'spermission, counsel may approach a witness.

Rule 4.09. Contact with Jurors.

No party, nor his or her agent or attorney, shall communicate or attempt to communicatewith any member of the jury or any member of the juror's immediate family who resides in thesame household, until that juror has been excused from further service for a particular term ofcourt, without first applying for (with notice to all other parties) and obtaining an order allowingsuch communication. The application shall contain a description of the proposed contact, andan executed certificate by each person involved that no inappropriate contact will be made. Thecircuit court shall liberally grant the request.”

4.10 Ex Parte Presentations; Duty to Court

In the event that any ex parte matter has been presented to any judicial officer and therequested relief is denied for any reason, such matter shall not be presented to any otherjudicial officer without making a full disclosure of the prior presentation.

5. SCHEDULING CONFLICTS

Reporter's Note: TCR Rules 5.01 - 5.05 apply in magistrate court as well as in the other courtsreferenced in TCR 5.01.

5.01 Purpose

These rules have been adopted in order to provide a uniform standard for the resolution ofscheduling conflicts between and among State and federal magistrate, trial and appellatecourts and federal bankruptcy courts of West Virginia.

5.02 General Priorities

In resolving scheduling conflicts the following priorities should ordinarily prevail: (a)appellate cases should prevail over trial cases; (b) criminal felony trials should prevail over civiltrials; (c) cases in which the trial date has been first set (by published calendar, order or notice)should take precedence over cases which were set later; (d) trials should prevail over hearings,and hearings should prevail over conferences; and, (e) trials and hearings of a judge in travelstatus should prevail over trials and hearings of a judge sitting in residence.


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5.03 Additional Factors

In addition to the priorities set forth in TCR 5.02, consideration should be given to thefollowing factors in the resolution of scheduling conflicts: (a) age of the cases and number ofprevious continuances; (b) whether sanctions for delay have been previously imposed; (c) thecomplexity of the cases; (d) the estimated trial time; (e) the number of attorneys and partiesinvolved; (f) whether the majority of parties and witnesses are local or will be summoned fromoutside the venue; (g) whether the trial involves a jury; (h) the difficulty or ease ofrescheduling; and, (i) the existence of any constitutional or statutory provision granting priorityto a particular type of litigation.

5.04 Notice of Conflict

It shall be the duty of an attorney upon learning of an imminent scheduling conflict to givewritten notice to opposing counsel, the clerks of all courts, and the presiding judges, if known,in all cases, stating therein the circumstances above relevant to a resolution of the conflictunder these rules. Ex parte communication is inappropriate, unless there is insufficient time toresolve the conflict by written notice.

5.05 Resolution of Conflict

The judges of the courts involved in a scheduling conflict shall promptly confer, resolve theconflict, and notify counsel of the resolution. Nothing in these rules is intended to discouragecounsel from resolving conflicts or to prevent courts from voluntarily yielding a favorablescheduling position. Judges are urged to communicate with each other in an effort to lessenthe impact of conflicts and continuances on all courts.

6. MOTIONS PRACTICE, GENERAL

6.01 Form of Memoranda, Motions, and Other Papers

(a) Generally: Regarding Paper Size, Format, and Spacing. All memoranda, motions, andother papers shall be printed or typed and reproduced by any duplicating or copying processwhich produces a clear black image on white paper. The individual copies shall be securelybound with metal staples or fasteners at the top left corner and the page size shall be eightand one-half (8 1/2) inches by eleven (11) inches. The text shall be double-spaced and be nosmaller than twelve (12)- point proportionally spaced or eleven (11)-point nonproportionallyspaced type. Footnotes and indented quotations may be single-spaced, and footnote text shallbe no smaller than eleven (11)-point proportionally spaced or ten (10)-point nonproportionallyspaced type. Margins shall be no less than one inch.

(b) Captions. A motion, response to a motion, or memorandum shall contain captions settingforth (1) the name of the court; (2) the number of the case, if assigned; (3) on the line belowthe case-number line, the name of the assigned judge; (4) the style of the case; and (5) a briefdescriptive title indicating the nature of the document. A motion, response to a motion, ormemorandum shall also contain the name, bar identification number, address, and telephonenumber of the counsel or party, if unrepresented by counsel, filing the document. Counselshall also name the party they are representing.

(c) Time for Filing. Except by permission or order of the court, no pleading shall be filed lessthan forty-eight (48) hours prior to oral presentation or argument of a proceeding.


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6.02 Citation Form

Citations in motions and memoranda must be in a generally accepted citation form.

6.03 Copies of Memoranda

Parties must file with the clerk of court the original of each memorandum. In addition, onecopy of each memorandum shall be filed with the presiding judicial officer and served upon onall parties.

6.04 Copies of Cases and Statutes

If a motion or memorandum contains a citation to a case not reported in United StatesReports (U.S.), West Virginia Reports (W.Va.), or South Eastern Reporter (S.E., S.E.2d), acopy of that case must be attached. If a motion or memorandum contains a citation to a statuteother than a West Virginia or federal statute, a copy of the statute must be attached. If a motionor memorandum contains a citation to any regulation, a copy of that regulation must beattached. The attachment requirement applies only with respect to the copy of the motion ormemorandum transmitted to the judicial officer and to opposing counsel, not to any copy filedin the office of the clerk.

7. JURIES

Reporter's Note: TCR 7.04 applies in magistrate court as well as in circuit court.

7.01 Master List

A master list of prospective jurors shall be maintained as provided in W.Va. Code � 52-1-5,and shall be compiled either by selecting a random sample of names from each source listused or by merging the complete lists. Either method must allow for the removal of allduplicate names from the resulting master list. The master list shall be compiled at least onceevery two years at a time designated by the chief judge.

7.02 Jury Wheel or Jury Box

Jury wheels or jury boxes maintained under the provisions of W.Va. Code � 52-1-6 mayinclude the entire master list or a randomly selected subset thereof.

7.03 Jury Panels and Pools

Any panel or pool of jurors drawn from the jury wheel or box pursuant to W.Va. Code �52-1-7 shall be available for jury selection and service in both circuit and magistrate court.Separate panels or pools of jurors for circuit and magistrate court shall not be maintained.

7.04 Magistrate Court Juries

When a jury trial is scheduled in magistrate court, the magistrate court clerk shall forthwith,but no later than five days before the scheduled trial date, inform the circuit clerk of thenumber of prospective jurors required. The circuit clerk shall randomly select the number ofjurors required for magistrate court from the panel or pool of jurors available for service in thecircuit court. The circuit clerk shall contact or otherwise arrange for the jurors so selected toappear at the specified date, time and place of the magistrate court trial. If, before the trialdate, it becomes known that the jury panel will not be needed, the magistrate clerk shall


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forthwith so inform the circuit clerk, who shall notify the scheduled jurors.

Processing of payment for jurors for service in magistrate court shall be the responsibility ofthe circuit clerk solely, in the same manner as compensation for service in the circuit court asprovided in W.Va. Code �� 52-1-17, 52-1-19, and 52-1-20.

Upon completion of service in magistrate court, a juror or the juror's name shall be returnedto the circuit court pool of jurors.

8. CAMERAS, AUDIO EQUIPMENT, AND MEDIA IN THE COURTROOM

Reporter's Note: TCR 8.01 - 8.10 apply in magistrate court as well as in circuit court.

8.01 Permission of the Court Required

Cameras and audio equipment may be permitted in and around the courtrooms at thediscretion of each presiding circuit judge or magistrate (hereafter in this Rule 8, presidingofficer).

8.02 Procedure to Obtain Permission

The presiding officer, based upon requests made by a party or any other person at least oneday in advance of the proceedings, shall decide whether to allow camera and/or audiocoverage of proceedings in and around the courtroom in a given case. A party, witness, orcounsel may object to such coverage of any case or of any portion of the proceedings, and thepresiding officer shall rule upon such an objection. The decision whether to cover judicialproceedings shall be left to the discretion of the individual media organization for whichcoverage has been approved.

It shall be the affirmative duty of the media personnel to affirm that they have read theserules and will abide by the same and further to demonstrate to the presiding officer sufficientlyand in advance of any proceeding that the equipment sought to be used does not produce adistracting sound or light. A failure to obtain such advance approval may preclude the use ofsuch equipment in any proceeding.

8.03 Termination of Coverage

After the proceedings have commenced, the presiding officer shall terminate coverage ofany portion of the proceedings or of the remainder of the proceedings if the presiding officerdetermines that coverage will impede justice or deny any party a fair trial.

8.04 Scope of Coverage

Camera coverage shall be limited to those proceedings open to the public. In order toprotect the attorney-client privilege and the right to effective assistance of counsel, there shallnot be audio coverage or broadcast of any conferences occurring between or among attorneysand their clients; or between and among attorneys, clients, and the presiding officer.

8.05 Nonjudicial Meetings

Coverage of any nonjudicial meeting or other gathering in the courtrooms shall bedetermined by the concurrence of the sponsoring group and the presiding officer and shall be


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conducted in accordance with these rules. These rules shall not limit media coverage ofceremonial proceedings conducted in court facilities under such terms and conditions as maybe established by the prior consent of the presiding officer.

8.06 Equipment and Personnel

The following equipment and persons shall be the maximum equipment and broadcastpersonnel permitted in the courtroom at any one time:

(a) One portable television camera or film camera with not more than one person operatingthe same.

(b) One still photographer with one camera and not more than two lenses and necessaryrelated equipment.

(c) As used in these rules, “television equipment” includes both film and videotape cameras.Only television equipment which does not produce distracting sound or light shall be employedin the courtroom. No artificial lighting (other than that normally present in the courtroom) shallbe employed in the courtroom except that, with the concurrence of the presiding officer,modifications and additions may be made to lighting in the courtroom, provided that suchmodifications or additions are installed and maintained without public expense.

(d) Only film and video cameras without working audio pickup, unless otherwise approvedby the presiding officer, shall be employed in the courtroom. Only still camera equipment thatdoes not produce distracting sound or light shall be employed in the courtroom.

(e) Audio equipment of any type shall not be permitted in the courtroom at any time, withoutprior permission of the presiding officer. If permission is given, not more than one audio systemfor radio broadcast shall be permitted in any proceeding. If a technically suitable audio systemexists in the court facility, audio pickup for both radio and television shall be accomplished fromsuch system. If a technically suitable audio system does not exist in the court facility,microphones and related wiring shall be unobtrusive and shall be located in places designatedin advance of the proceeding by the presiding officer.

8.07 Location of Equipment

The equipment as designated above shall be located in the courtroom as follows:

(a) Television equipment shall be positioned in such location in the courtroom as shall bedesignated by the presiding officer. All camera equipment shall be positioned only in sucharea. Television equipment shall be positioned in an area outside the courtroom if that istechnically possible. Cables and wiring will be placed in a safe and unobtrusive manner.

(b) A still camera photographer shall position himself or herself in such location in thecourtroom as shall be designated by the presiding officer. The photographer shall assume afixed position within the designated area and shall act so as not to create a disturbance or callattention to himself or herself through further movement. The photographer shall not moveabout the courtroom.

(c) Audio equipment shall be positioned in such location in the courtroom as shall bedesignated by the presiding officer. Cables and wiring will be placed in a safe and unobtrusivemanner.


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(d) Representatives of the media shall not move about the courtroom while a proceeding isin progress, and equipment, once positioned, shall not be moved during a proceeding.

8.08 Pooling Arrangements

Any pooling arrangements among those seeking to provide camera coverage that arerequired by these limitations on equipment and personnel shall be the sole responsibility ofmedia persons. The presiding officer will not resolve any dispute regarding the same. In theabsence of an advance agreement on pooling by multiple media representatives, the presidingofficer may exclude all contesting video media equipment from the courtroom.

8.09 Admissibility in Evidence

None of the film, videotape, photograph, or audiotape developed during any proceedingshall be admissible as evidence in the proceeding out of which it arose, any proceedingsubsequent or collateral thereto, or upon any retrial or appeal of such proceeding, unless thepresiding officer has designated it as part of the official record of the proceeding.

8.10 Prior Approval to Identify or Show Jurors

Without prior approval by the presiding officer, no person shall broadcast or publish anywritten report, film, videotape, photograph, audio tape, or other report of any kind or character,taken or made in or out of the courtroom where the face of a juror is shown or the identity ofany juror is stated or is otherwise discernable. Nothing herein shall be interpreted to prohibit ajuror from voluntarily disclosing his or her identity to the media, after the completion of suchjuror's term of service.

9. CUSTODY AND DISPOSITION OF EXHIBITS

9.01 Generally

After being marked for identification, exhibits of a documentary nature admitted in evidenceor made a part of the record in any case pending or tried in court shall be placed in thecustody of the clerk unless otherwise ordered. The court may order that exhibits, models, andmaterials admitted in evidence that cannot be stored conveniently in the clerk's facilities beretained in the custody of the attorney or party producing them at trial unless otherwiseordered, and the attorney or party shall execute a receipt therefor. All exhibits admitted inevidence in a criminal case that are in the nature of controlled substances, legal or counterfeitmoney, firearms, dangerous devices, or contraband of any kind shall be retained by the clerkpending disposition of the case and any appeal, and until the court authorizes destruction orother disposal of such exhibits.

A party or attorney who has custody of an exhibit shall keep it available for the use of thecourt or any appellate court, and shall grant the reasonable request of any party to examine orreproduce the exhibit for use in the proceeding.

Upon application and proper notice, the court may order that documentary exhibits retainedby the clerk be returned to the party to whom they belong, provided that copies are filed inplace of the originals.

After final judgment and after the time for motion for new trial and appeal has passed, orupon the filing of a stipulation waiving and abandoning the right to appeal and to move for anew trial, the clerk is authorized, without further order, to return all exhibits in civil cases to the


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appropriate parties or their counsel.

10. FILING AND REMOVAL OF PAPERS; LIMITATION OF ACCESS TO COURT FILES


10.01 Filing of Papers

Except as otherwise permitted or required by these rules or other rules of court, the originalof all papers that must be filed with the court shall be filed at the clerk's office, on papermeasuring eight and one-half (8 1/2) inches in width and eleven (11) inches in length, clearlyprinted or typed and reproduced by any duplicating or copying process which produces a clearblack image on white paper. If more than one page in length, the papers must be bound on thetop left corner and not bound at the top. The clerk shall bind the same in the folder or jacket atthe left side and not at the top.

10.02 Removal of Papers and Files from Custody of Clerk

(a) Removal of Papers. No papers shall be removed from any file, except by order of court.Papers on file in the office of the clerk shall be produced pursuant to subpoena from a court ofcompetent jurisdiction directing their production.

(b) Removal of Files. No files may be removed from the office of the clerk, except upon orderof the court. The clerk may, however, permit temporary removal of a court file by authorizedcourt personnel, provided that the clerk maintain a record of the individual removing the file,noting, at minimum, the date and time of its removal and return.

10.03 Limitation of Access to Court Files

(a) Nature of Order. Upon motion by either party named in any civil action, the court maylimit access to court files. The order of limitation shall specify the nature of the limitation, theduration of the limitation, and the reason for the limitation. Upon motion filed with thecomplaint, accompanied by a supporting affidavit, limitation of access may be granted ex parte.

(b) Review of Order. An order limiting access may be reviewed by the court at any time on itsown motion or upon the motion of any person.

10.04 Access to Court Files and Other Court Records under the Freedom of Information Act

(a) All persons are, unless otherwise expressly provided by law or excepted by Rule 10.03,entitled to full and complete information regarding the operation and affairs of the judicialsystem. Any elected or appointed official or other court employee charged with administeringthe judicial system shall promptly respond to any request filed pursuant to the West VirginiaFreedom of Information Act.

(b) Writings and documents relating to the conduct of the public's business, and which areprepared, owned or retained by a court, circuit clerk, or other court employee, are to beconsidered “public records.” Requests for such writings must be directed to, and responded toby, the particular court, circuit clerk, or other court employee who retains custody of theparticular public records sought.


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Writings relating to the conduct of the public's business, but which are prepared, owned andretained by individuals other than court officers or employees, such as private or independentcontractors, are not considered “public records.”

(c) The custodian of any court file or other public record shall furnish copies of therequested information or, in the alternative, furnish proper and reasonable opportunities for theinspection and examination of the court file or public record in his or her office during usualbusiness hours. Reasonable facilities for taking memoranda or abstracts from the court file orother public record shall be provided. If the court file or public record requested exists inmagnetic, electronic or computer form, when requested, the custodian of the records shallmake copies available in the format in which it is stored on magnetic or electronic media.

(d) Costs. The court, circuit clerk, or other court employee may charge a fee reasonablycalculated to cover the actual cost of reproducing or otherwise making available the publicrecords.

11. CAPTION AND FORMAT OF ORDERS

11.01 Captions

Every order shall carry captions setting forth: (1) the name of the court; (2) the number ofthe case; (3) on the line below the case-number line, the name of the assigned judge; (4) thestyle of the case; and (5) a heading that generally and concisely describes the nature orpurpose of the court's action.

11.02 Format

Every order shall designate the date of the proceeding and shall be double spaced. Inaddition, every order shall set out clearly and distinctly, in its last substantive paragraph, anyand all directives to the clerk; and the clerk shall make a notation in the margin as to whenthose directives have been completed.

12. FILING AND SERVICE BY FACSIMILE TRANSMISSION

Reporter's Note: TCR 12.01 - 12.06 apply in magistrate court as well as in circuit court.

12.01 Applicability

All courts within the state shall maintain a facsimile machine within the office of the clerk,shall accept the filing of pleadings and other documents, and may send documents byfacsimile transmission to the extent expressly provided for in these rules and not in conflict withstatutes or other court rules.

12.02 Definitions

(a) Courts. The term "courts" is defined as the supreme court of appeals, circuit courts, andmagistrate courts.

(b) Facsimile Transmission. The term "facsimile transmission" is defined as the transmissionof a document by a system that encodes the document into electronic signals, transmits theseelectronic signals over a telephone line, and reconstructs the signals to print a duplicate of theoriginal document at the receiving end.


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(c) Facsimile Transaction. The term "facsimile transaction" is defined as the facsimiletransmission of a document to or from a court.

(d) Service by Facsimile Transmission. The term "service by facsimile transmission" isdefined as transmission of a motion, notice, or other document to an attorney, attorney-in-fact,or a party under these rules.

(e) Facsimile Machine. The term "facsimile machine" is defined as a machine that can sendand receive on plain paper a facsimile transmission using the international standard forscanning, coding, and transmitting established for Group 3 machines by the ConsultativeCommittee of International Telegraphy and Telephone of the International TelecommunicationsUnion (CCITT), in regular resolution.

(f) Fax. The term "fax" is defined as a facsimile transmission as defined in TCR 12.02(b).

12.03 General Provisions

(a) Availability of Facsimile Services. Each circuit clerk shall have a facsimile machineavailable for court-related business during regular business hours and such additional hoursas may be established by the chief judge. Each magistrate clerk shall have a facsimilemachine available for court-related business twenty-four (24) hours per day, seven (7) days perweek.

(b) Form and Format. All documents conveyed via facsimile transmission must conform inform and format to existing standards established by applicable statutes or rules of court. Theyshould be received on, or the receiver shall make any necessary photocopies on, eight andone-half (8 1/2) by eleven (11) inch, twenty (20)-pound alkaline plain paper of archival quality,and satisfy all other requirements of these rules.

(c) Page Limitation. No facsimile transmission over twenty (20) pages in length (including thecover sheet) shall be accepted unless prior consent is given by the court or by the clerk of thecourt.

(d) Oversized Documents. Facsimile transmission of, or involving, any original documentlarger than eight and one-half (8 1/2) by eleven (11) inch is prohibited unless prior consent isgiven by the court or by the clerk of the court.

(e) Facsimile Cover Sheet. The sender must provide his or her or the entity's name, address,telephone number, facsimile number, the document(s) being transmitted by caption andmatter, and the number of pages (including the cover sheet), and must provide clear andconcise instructions as needed concerning processing.

(f) Signatures.

(1) Presumption of Authenticity. Any signature appearing on a facsimile copy of a courtpleading or other document shall be presumed to be authentic.

(2) Inspection of Originally Signed Document or Certified Copy. Upon demand by thereceiver, the sender of a fax shall make available to the receiver for inspection the originalphysically signed document or, if the court is the sender, a certified copy of the originalphysically signed document.

(g) Verification of Receipt. Court personnel shall verify, either orally or in writing, the receipt


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of documents filed by facsimile transmission upon proper inquiry by the sender.

(h) Filing Effective upon Receipt of Transmission. A facsimile copy of a pleading or otherdocument shall be deemed filed when it is received in its entirety on a clerk's facsimile machinewithout regard to the hours of operation of the clerk's office. Upon receiving a faxed filing, theclerk of the court shall note on the facsimile copy the filing date, in the same manner as withpleadings or other documents filed by mail or in person.

(i) Payment of Fees.

(1) Any required filing or other fee shall be paid by mail or in person following a facsimilefiling as follows: the required fee, accompanied by a copy of the facsimile filing cover sheet,shall be deposited with the court not later than seven (7) calendar days after the filing by fax.

(2) The clerk of the court may decline to process the pleading or other document untilreceipt of any required filing fee, and the court shall withhold the entry of judgment pendingreceipt of fees.

(3) If any required fee is not received by the court within seven (7) calendar days after thefiling by fax, the filing shall be voidable and no further notice need be given any party.

(j) Filing of Original. The filing of the original shall not be required, unless otherwise orderedby the court or directed by the clerk of the court.

(k) Retention of Original. If filing of the original is not required, the sender must retain theoriginal physically signed document in his or her possession or control.

(l) Photocopying Charges. The sender shall be responsible for any photocopying chargesassociated with the processing of any document filed by facsimile transmission.

(m) Transmission Error. If there is an error in any facsimile transmission, the clerk shall notaccept or note the document as filed until a corrected, acceptable document is received.

(n) Notice of Transmission Error; Risk of Use of Facsimile Transmission. If the receiverdiscovers or suspects a transmission error, the receiver shall notify the sender as soon aspossible. The sender bears any risk of using facsimile transmission to convey any document toa court. The potential receiver bears any risk of receiving any document by facsimiletransmission from a court.

(o) Nunc Pro Tunc Filing. If the attempted facsimile transmission is not accepted as filedwith the court because of a transmission error or other deficiency, the sending party may moveacceptance nunc pro tunc by filing a written motion with the court. The motion shall beaccompanied by the activity report or other documentation in order to verify the attemptedtransmission. The court, in the interest of justice, and upon the submission of appropriatedocumentation, may entertain the motion and hold a hearing in its discretion.

(p) Facsimile Receipt and Transmission; Fees. The clerk may send or receive facsimiletransmissions involving court-related business. With the exception of transmissions by or forparties authorized to receive the services of the court without cost, the clerk shall charge $2.00per page transmitted at the request of any person other than a judicial officer or employee.

12.04 Filing and Service of Documents in Civil Actions by Facsimile Transmission


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(a) Method of Filing. Except for mental hygiene applications or where otherwise prohibitedby law or court rule, a party may file any document in a civil action, other than a complaint orpetition, by facsimile transmission to any clerk's office having a facsimile machine. The clerkshall accept the document as filed if the filing and the document comply with these and otherapplicable rules and statutes.

(b) Service. Service of any document in a civil action, other than original process, may bemade by facsimile transmission subject to the provisions of these rules, other applicable rulesand statutes, and W.Va. R.Civ.P. 5 or Rule 8 of the Rules of Civil Procedure for MagistrateCourts.

(c) When Service Complete. Service by fax is complete upon receipt of the entire documentby the receiver's facsimile machine.

(d) Proof of Service. Where service is made by facsimile transmission, proof of service shallbe made by affidavit of the person making service or by certificate of an attorney. Attached tosuch affidavit or certificate shall be a copy of the sender's facsimile machine transmissionrecord.

12.05 Facsimile Transmission of Domestic Violence Petitions and Protective Orders

(a) Petitions.

(1) Verified petitions for protective orders may be filed by fax. If transmission is made to themagistrate court after regular business hours, the on-call magistrate shall be notified beforethe transmission occurs.

(2) In addition to the information required by TCR 12.03(e), the fax cover sheetaccompanying a domestic violence petition for a protective order shall include the telephonenumber where the petitioner may be reached.

(3) Any action taken by the judge or magistrate on a faxed petition shall be communicatedas soon as feasible to the petitioner by return fax or other method.

(b) Protective Orders.

(1) Temporary Orders. A temporary protective order may issue based solely on therepresentations contained in a verified petition properly filed by fax.

(2) Distribution to Law-Enforcement Agencies. Any temporary or final protective order issuedpursuant to the provisions of W.Va. Code �� 48-2A-1 et seq. may be faxed to appropriatelaw-enforcement agencies to satisfy the statutory requirements for transmission of suchdocuments by the court. The petition upon which a temporary order is issued shall be faxed tolaw-enforcement agencies with the temporary protective order.

(3) Service of Process. Any temporary or final protective order faxed to law-enforcementagencies shall be valid for their use in making personal service on the respondent named inthe order.

12.06 Facsimile Transactions in Criminal Matters

(a) Method of Filing. Except for complaints and search warrant applications, any documentin a criminal action may be filed by facsimile transmission to any clerk's office having a


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facsimile machine. The court shall accept the document as filed if the filing and the documentcomply with these and other applicable rules and statutes.

(b) Service. Service of any document in a criminal action may be made by facsimiletransmission subject to the provisions of these rules, other applicable rules and statutes, andW.Va. R.Crim.P. 49 for circuit courts or Rule 13 of the Rules of Criminal Procedure forMagistrate Courts.

(c) When Service Complete. Service by fax is complete upon receipt of the entire documentby the receiver's facsimile machine.

(d) Release from Custody. If bail fixed by a court is posted after a defendant is placed in thecustody of a jail or correctional facility, the court may effectuate the release of the defendant byfacsimile transmissions in the following manner.

(1) Both the criminal bail order admitting the defendant to bail and the release order arefaxed to the jail or correctional facility by the court.

(2) The jailer or correctional officer at the facility shall provide the defendant with the faxedbail order; the jailer or correctional officer shall then forthwith transmit a return of thecompleted release order by return fax to the issuing court.

(3) The issuing court confirms receipt of the completed release order from the jailer orcorrectional officer at the facility. The jailer or correctional officer at the facility shall not releasethe defendant until receipt of such confirmation.

(e) Commitment to Custody. The committing judge or magistrate may by fax authorize andnotify the jail or correctional facility of a criminal defendant's commitment to that jail orcorrectional facility in the following manner.

(1) The court faxes the commitment order to the jail or correctional facility.

(2) The jailer or correctional officer transmits forthwith by return fax verification of receipt ofthe order.

(3) Once the defendant is in the custody of the jail or correctional facility, the jailer orcorrectional officer shall forthwith by fax return the completed commitment order to thecommitting court.

(4) If the commitment is made by a court not having venue of the offense, the terms andconditions of bail and the commitment order shall be transmitted as expeditiously as feasible,by fax if possible, to the magistrate court or circuit court wherein the preliminary hearing or trialis to be held.

13. COURT LIBRARY

13.01 Generally

Library materials will not circulate, except for brief periods necessary to allow photocopyingat another courthouse location. Access will be open only during regular business hours.After-hours access may be on the basis of a key checkout, as established by the supervisingcircuit judge, with a prohibition on key duplication and/or distribution as to non-court persons.


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14. VIDEOCONFERENCING

Rule 14.01. General Provisions

(a) Proceedings conducted by videoconferencing shall be conducted in the samemanner as if the parties had appeared in person, and the presiding judicial officer mayexercise all powers consistent with the proceeding. (b) Any document filed in a proceeding conducted by videoconferencing may betransmitted by electronic facsimile; signatures on a document transmitted by electronicfacsimile shall have the same force and effect as original signatures. (c) The presiding judicial officer shall begin all proceedings conducted byvideoconferencing by stating on the record identities of all counsel, parties, witnesses,and members of the media present in the courtroom and at the remote site. (d) Any system used for conducting proceedings by videoconferencing shall: (1) Enable the persons communicating to be able to simultaneously see and speak toone another; (2) Provide a live signal transmission that is secure from unauthorized acquisition;and (3) Comply with any other standards established by the Supreme Court of Appeals. Rule 14.02. Civil Proceedings in Circuit Courts

The court may utilize videoconferencing to conduct any evidentiary or non-evidentiary hearing, and may permit any witnesses to testify or be deposed byvideoconferencing.

Rule 14.03. Criminal Proceedings in Circuit Courts

(a) Pretrial Proceedings - The court may utilize videoconferencing to take a plea of notguilty at arraignment, to consider pretrial motions, to conduct pretrial statusconferences, to permit a witness to testify at a pretrial hearing, to take and preserve thetestimony of a prospective witness for use at trial, and to conduct any non-evidentiaryhearing. (b) Testimony of Child Witnesses - The court may use videoconferencing to obtain thetestimony of a child witness in accordance with West Virginia Code § 62-6B-1 to -4.

Rule 14.04. Proceedings in Magistrate Court

(a) Non-evidentiary Hearings - In civil and criminal cases, the court may conduct anynon-evidentiary hearing by videoconferencing. (b) Domestic Violence Proceedings - In proceedings pursuant to Article 27 of Chapter48 of the Code, the court may utilize videoconferencing to take testimony in ex parteproceedings relating to petitions for temporary orders. (c) Criminal Proceedings - The court may utilize videoconferencing to take a plea ofnot guilty, and to conduct pretrial status conferences.

Rule 14.05. Mental Hygiene Proceedings


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The presiding officer may utilize videoconferencing to conduct any evidentiary ornon-evidentiary hearing, and may permit any witness to testify or be deposed in thismanner.

15. ELECTRONIC FILING AND SERVICE

(Note: By Order entered October 9, 2008, TCR was approved, effective immediately.)

Rule 15.01. Application.

Trial Court Rule 15 governs electronic filing and service of documents and maintenanceof case-related information in the circuit courts of West Virginia in certain MassLitigation referred to the Mass Litigation Panel (“Panel”) under Trial Court Rule 26, andas further provided by Trial Court Rule 15.02(c). This rule does not preclude futureapplication of electronic filing and service in other types of actions.

Rule 15.02. General Provisions.

(a) The electronic filing and service of documents and the electronic receipt ofassociated case information in the circuit courts of West Virginia may be referred to ase-filing and service.

(b) E-filing and service shall not be used to initiate a civil action or to serve a new partywith an amended complaint or a third-party complaint.

(c) If the Panel determines it is appropriate for Mass Litigation or proceedings therein tobe subject to e-filing and service, the Panel Chair shall enter an order designating suchMass Litigation or proceedings therein for e-filing and service.

(d) Where requirements of the Rules of Civil Procedure are satisfied by e-filing andservice procedures, Trial Court Rule 15 shall specifically so state. All filings, whetherelectronic or paper, shall otherwise comply with the Rules of Civil Procedure and theTrial Court Rules.

(e) The process for e-filing and service shall utilize an e-filing and service providerdesignated by the Supreme Court of Appeals.

Rule 15.03. Authorization and Signature.(a) Each e-filed document shall be deemed to have been signed by the attorney, or by theparty not represented by an attorney who authorized the filing, and shall bear a facsimileor typographical signature of such person, e.g. "/s/ Adam Attorney." Each documente-filed by or on behalf of a party shall also include the address and telephone number ofthe attorney or unrepresented party filing such document. Attorneys shall also includetheir West Virginia State Bar Identification Number or a notation that the attorney hasbeen admitted pro hac vice.(b) No lawyer shall authorize anyone to e-file or serve on that lawyer's behalf, other thanan employee of his or her law firm or a service provider retained to assist in e-filing andservice. No person shall utilize, or allow another person to utilize, the password of


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another in connection with e-filing or service.(c) The e-filing of a document by a lawyer, or by another under the authorization of alawyer, shall constitute a signature of that lawyer under Rule 11(a) of the Rules of CivilProcedure.

Rule 15.04. Filing and Service.

(a) Except where otherwise provided, every e-filed document shall be e-served. Unlessotherwise ordered, the e-service of a document, in accordance with these rules, shall beconsidered service under Rule 5 of the Rules of Civil Procedure. Electronic service shallbe treated the same as service by mail for purposes of Rule 6(e) of the Rules of CivilProcedure.

(b) Parties who are granted a waiver under Trial Court Rule 15.06 shall be served inaccordance with Rule 5 of the Rules of Civil Procedure, or by utilizing the U.S. Mailfeature of the e-filing and service system.

(c) The Presiding Judge may direct the parties to provide a courtesy copy of filings tothe Presiding Judge in accordance with Trial Court Rule 6.03, either by U.S. Mail or byutilizing the Courtesy Copy via U.S. Mail feature of the e-filing and service system.

(d) For documents that have been e-filed, the electronic version of the documentconstitutes the official court record, and e-filed documents have the same force andeffect as documents filed by traditional means. Documents filed and served inaccordance with these rules are deemed to be in compliance with Trial Court Rule 10.01.

Rule 15.05. Orders and Civil Docket.

(a) Orders issued by the Presiding Judge shall bear a typographic signature and anofficial e-filing court stamp, and shall be e-filed and served. The date of the officiale-filing court stamp shall constitute the date of entry of the order.

(b) Parties who are granted a waiver under Trial Court Rule 15.06 shall be served inaccordance with Rule 5 of the Rules of Civil Procedure, or by utilizing the U.S. Mailfeature of the e-filing and service system.

(c) E-filed orders maintained as part of the online register of actions shall satisfy therequirements of Rule 77(d) of the Rules of Civil Procedure.

(d) An electronic register of actions, with associated documents and filing receipts, shallbe maintained as part of the e-filing and service system and shall constitute the civildocket and satisfy the requirements of Rule 79 of the Rules of Civil Procedure.

Rule 15.06. Waiver of E-filing and Service Requirements.

All parties who are unable to utilize e-filing and service may file a written motion with thePresiding Judge seeking a waiver of e-filing and service requirements, which motionmay be granted for good cause shown. All parties who have obtained such waiver shall


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file documents in accordance with Trial Court Rule 10.01, and serve documents inaccordance with Rule 5 of the Rules of Civil Procedure. Such documents shall beuploaded and made available within the e-filing and service system by the circuit clerk inthe circuit where the Mass Litigation subject to e-filing is pending.

Rule 15.07. Public Access.

The circuit clerk in the circuit where the Mass Litigation subject to e-filing is pendingshall make a Public Access Computer Terminal available to the general public to allowaccess to the Court’s electronic docket, pleadings and other documents that are notsealed or otherwise confidential. Copies made from the Court’s electronic records shallbe printed by the Clerk’s Office, and standard copying fees shall be charged.

Rule 15.08. Case Management Order.

Additional procedures specific to Mass Litigation or proceedings therein subject toe-filing and service may, in the discretion of the Presiding Judge, be set forth in a casemanagement order.

15.09. Registration and Fees.

The e-filing and service system requires parties to be registered participants to file andserve, receive service, access the register of actions, and use the system. Eachparticipant shall register with the e-filing and service provider, provide the informationnecessary to load a case and its parties into the e-filing and service system and pay thefees billed by the e-filing and service provider at rates approved by the Supreme Court ofAppeals.

15.10. Form of documents electronically filed.

(a) Each e-filed document shall be submitted in a file format that is acceptable to thee-filing and service provider. To the extent practicable, each e-filed document shall beformatted in accordance with Trial Court Rule 6.01 governing formatting of paperdocuments. A document may exceed page limitation rules to a maximum of twoadditional pages when the additional pages are attributed to the electronic conversion orfiling process. The e-filing and service system shall automatically convert all documentformats accepted by the e-filing and service provider to a PDF format.

(b) All e-filed documents relating to a single pleading or document submitted in thesame electronic transaction shall be "electronically stapled" using the "main" and"supporting" functionality of the e-filing and service system so multiple relateddocuments, such as a motion and proposed order, are linked logically together andidentified as a single transaction.

(c) All e-filed documents or pleadings directly relating to a previously e-filed document,or pleading shall be linked to the previously e-filed document or pleading, using the"linked document feature" in the e-filing and service system.


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(d) Proposed orders filed for the consideration of the Presiding Judge shall be filed in aRich Text Format document or “.rtf.”

(e) A document that is required to be executed by the parties or counsel, verified,acknowledged or made under oath shall be e-filed only as a scanned image. Any suchdocument that is to be attached to an e-filed document shall be scanned and e-filed andserved along with the underlying document.

15.11. Time of electronic filing and service.

(a) A document shall be considered filed with the Clerk once electronic transmission issuccessfully completed, as recorded in the e-filing and service system.

(b) An e-filed document is deemed served for purposes of Rule 5 of the Rules of CivilProcedure only upon selection of participants to be served and completed submissionof the electronic filing. If an individual or entity required to receive service is aparticipant in the e-filing and service system, then the person e-filing a document shallprovide e-service. The associated filing receipt shall list the participants selected andgive proof of date, time and method of service. If a party is unable to receive service ofan e-filed document electronically, the document shall be served in accordance withRule 5 of the Rules of Civil Procedure, or by utilizing the U.S. Mail feature of the e-filingand service system, and a copy of the certificate of service evidencing non-electronicservice shall be filed in the e-filing and service system.

(c) It is the responsibility of the participant to check his or her online inbox to viewe-filed and served documents. Courtesy e-mail notification of a filing shall not constituteservice.

15.12. Filing of sealed documents.

A motion to seal documents shall be e-filed and served. However, any documents thatare the subject of a motion to seal shall be filed with the court enclosed in sealedenvelopes to be opened as directed by the court pursuant to Rule 26(c)(8) of the Rules ofCivil Procedure, and a copy of the documents that are the subject of the motion to sealshall be provided to the Presiding Judge for review.

15.13. System or participant errors.

If a document cannot be e-filed with the circuit clerk or e-served due to: (a) an error intransmission of the document to the e-filing and service provider that was unknown tothe sending participant; or (b) a failure to process the e-filing when received by thee-filing and service provider; or (c) rejection by the Clerk; or (d) other technical problemsexperienced by the filer; the Court may, upon satisfactory proof, enter an orderpermitting the document to be filed or served nunc pro tunc to the date it was firstattempted to be e-filed and served.

15.14 . Obligation of participants to maintain proper delivery information.


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E-filing and service system participants shall notify the e-filing and service providerwithin 10 days of any change in firm name, delivery address, fax number or e-mailaddress. Participants who have set an e-mail notification preference are solelyresponsible for providing an accurate, up-to-date e-mail address and for ensuring thatthe e-mail account is properly configured to receive e-mail notifications for the e-filingand service system.

16. TIME STANDARDS

16.01 Purpose

Article III, Section 17 of the West Virginia Constitution provides, "justice shall beadministered without sale, denial or delay." Article III, Section 13 of the West VirginiaConstitution provides, "Trials of crimes ... shall be ... without unreasonable delay." Article VIII, Section 8 of the West Virginia Constitution further provides, "Under itsinherent rule-making power, which is hereby declared, the Supreme Court of Appealsshall, from time to time, prescribe, adopt, promulgate and amend rules prescribing . . .standards of conduct and performance for justices, judges, and magistrates, along withsanctions and penalties for any violation therof [.]"Rule 1 of the Rules of Civil Procedureprovides that they "shall be construed to secure the just, speedy, and inexpensivedetermination of every action." Rule 2 of the Rules of Criminal Procedure provides thatthey "shall be construed to secure simplicity in procedure, fairness in administration,and the elimination of unjustifiable expense and delay." Canon 3B(8) of the Code ofJudicial Conduct provides, "A judge shall dispose of all judicial matters promptly,efficiently, and fairly." Finally, Section 2.50 of the American Bar Association StandardsRelating to Court Delay Reduction provides, "the court, not the lawyers or litigants,should control the pace of litigation." Pursuant to these principles, the Supreme Courtof Appeals has determined that the expeditious processing and timely disposition ofcases by circuit courts are essential to the proper administration of justice. Accordingly,it directs circuit courts and their officers to comply with these rules, which provide timestandards for the processing of all cases except for those governed by statute or inwhich the circuit court finds, on the record, that extraordinary circumstances exist forexemption from these standards.

16.02 Implementation

(a) Criminal. The percentage of criminal cases that must be at or under the applicabletime standards as provided in these rules is eighty (80) percent.

(b) Civil. The percentage of civil cases that must be at or under the applicable timestandards as provided in these rules is seventy-five (75) percent.

(c) Reporting. The Administrative Director of Courts shall issue, on a semi-annualbasis, a report indicating the degree of compliance with these rules by the circuit courts.For those circuit courts not in compliance, the chief judge shall file with theAdministrative Director of Courts within sixty (60) days of receipt of the report by theAdministrative Director a report indicating the reasons for such noncompliance.Following receipt of the report, the Administrative Director shall take such remedial


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measures, with the approval of the Chief Justice of the Supreme Court of Appeals,including the recall of senior status judges, the reassignment of judges from othercircuit courts, or the implementation of case management procedures, as are necessaryto bring the circuit court into compliance with these rules.

16.03 Definitions

(a) Purpose. The definitions set forth in this rule are for the purpose of measuringcompliance with the time standards set forth in these rules.

(b) Filing. "Filing" is defined as the date of formal registration of a case andassignment of a case number by the clerk of court.

(c) Submission. "Submission" is defined as the later of the date of argument or thefiling of the final reply brief, unless otherwise ordered by the court.

(d) Ruling. "Ruling" is defined as the date of the oral or written pronouncement of adecision by the court.

(e) Final Judgment. "Final judgment" is defined as the date of the entry by the circuitclerk of a final order, decree or other document that terminates or otherwise disposes ofthe case.

(f) Other Civil Cases. "Other civil cases" shall mean civil cases which do not involve amoney judgment, generally require only one hearing and are generally commenced bythe filing of a petition.

16.04 Time Standards for Criminal Cases

(a) Applicability. These rules are not intended to supersede any constitutional orstatutory speedy trial provisions.

(b) Pretrial Motions. An order shall be entered which sets forth a ruling on pretrialmotions which require a hearing or ruling within two months of submission or on thedate of the trial, whichever is earlier.

(c) Felony Prosecutions. A sentencing order shall be entered in felony prosecutionswithin eight (8) months of the date of the indictment or information.

(d) Misdemeanor Prosecutions. A sentencing order shall be entered in misdemeanorprosecutions within eight (8) months from the date of indictment or information, the dateof arrest, or the date of service of summons.

(e) Post-trial Motions. An order shall be entered on post-trial motions within onemonth of submission.

16.05 Time Standards for Civil Cases


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(Note: By Order entered October 9, 2008, TCR 16.05(a) was amended, effectiveimmediately.)

(a) Applicability. This rule governs general civil cases and does not apply to domesticrelations, juvenile delinquency, abuse and neglect, mental hygiene, guardianship orconservatorship, cases referred to the Mass Llitigation panel pursuant to Rule 26,extraordinary writs, appeal, declaratory judgment, and equity proceedings.

(b) Pretrial Motions. An order shall be entered which sets forth a ruling on pretrialmotions which require a hearing or ruling within two months of submission or on thedate of trial, whichever is earlier.

(c) General Civil Cases. Final judgment shall be entered in general civil cases withineighteen (18) months of the filing of the complaint.

(d) Other Civil Cases. Final judgment shall be entered in other civil cases within six (6)months of the filing of the case.

(e) Post-trial Motions. An order shall be entered on post-trial motions within twomonths of submission.

(f) Civil Case Management. In order to conform with the time standards relating to civilcases, circuit courts shall comply with the provisions of W.Va. R.Civ.P. 16(b), and may, intheir discretion, dismiss cases for lack of service as provided in W.Va. R.Civ.P. 4(k) andfor inactivity as provided in W.Va. R.Civ.P. 41(b).

16.06 Domestic Relations Proceedings

(a) Applicability. The time standards set forth in this rule are not intended tosupersede, but to supplement, statutory provisions applicable to domestic relationsproceedings.

(b) Pretrial Motions. An order shall be entered on pretrial motions which require ahearing or ruling within one month of submission.

(c) Divorce, Annulment, and Separate Maintenance Proceedings. A final decree shallbe entered in divorce, annulment, and separate maintenance proceedings within six (6)months of the filing of the complaint.

(d) Miscellaneous Domestic Relations Proceedings. A final decree shall be entered inmiscellaneous domestic relations proceedings, including adoptions, paternity, andURESA actions, within nine (9) months of the filing of the petition.

(e) Post-hearing Motions. An order shall be entered on post-hearing motions withinone month of submission.

16.07 Juvenile Delinquency Proceedings

(a) Applicability. The time standards set forth in this rule are not intended tosupersede, but to supplement, statutory provisions applicable to juvenile delinquency


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proceedings.

(b) Pre-adjudicatory Motions. An order shall be entered on pre-adjudicatory motionswithin one week of hearing on the motion.

(c) Preliminary Hearing. Unless the child is in detention or the hearing is continued forgood cause to a date certain, the preliminary hearing shall be held within two (2) weeksof the filing of the petition.

(d) Arraignment. If an arraignment is held, it shall be conducted within two (2) weeksof the preliminary hearing.

(e) Adjudicatory Hearing. Unless an improvement period is granted or the hearing iscontinued for good cause to a date certain, the adjudicatory hearing shall be conductedwithin two (2) months of the preliminary hearing if a jury trial is demanded or within onemonth if a jury trial is waived. If an improvement period is granted, but revoked prior toits expiration, the adjudicatory hearing shall be conducted within one month ofrevocation.

(f) Disposition. The dispositional order shall be entered within two (2) months of theadjudicatory hearing. If a child is in detention, the dispositional hearing shall beconducted within one month from the date the child is placed in detention.

(g) Placement. If a child is in detention, an appropriate placement order shall beentered within two (2) weeks of the dispositional hearing.

(h) Modification. An order shall be entered on a motion to modify within one month ofthe filing of the motion.

(i) Reporting Standard. The reporting standard from the filing of the petition todisposition in delinquency cases shall be eight (8) months. The reporting standardfrom the filing of the petition to disposition in status offender cases shall be six (6)months.

16.08 Abuse and Neglect Proceedings

(a) Applicable Standards. The specific time standards applicable to abuse and neglectproceedings are those contained in W.Va. Code �� 49-6-1 et seq. and in the Rules ofProcedure for Child Abuse and Neglect Proceedings.

(b) Reporting Standard. The reporting standard from the filing of the petition to theentry of an order of disposition, pursuant to W.Va. Code � 49-6-5(a), shall be twelve (12)months.

16.09 Mental Hygiene Proceedings

(a) Applicability. The time standards set forth in this rule are not intended tosupersede, but to supplement, statutory provisions applicable to mental hygieneproceedings.


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(b) Findings and Recommendations. Findings of fact and a recommended order shallbe entered within two (2) weeks from the filing of an application for final commitment.

(c) Final Order. The final order shall be entered within one week of the recommendedorder.

(d) Reporting Standard. The reporting standard from the filing of the petition todisposition shall be three (3) months.

16.10 Guardianship and Conservatorship Proceedings

(a) Applicability. The time standards set forth in this rule are not intended tosupersede, but to supplement, statutory provisions applicable to guardianship andconservatorship proceedings.

(b) Findings and Recommendations. Findings of fact and recommendations by amental hygiene commissioner shall be submitted to the assigned circuit judge withinseven (7) days of the hearing on any petition filed pursuant to W.Va. Code �� 44A-2-1 etseq.

(c) Findings, Conclusions, and Final Order. The assigned circuit judge shall issuefindings of fact, conclusions of law, and a final order pursuant to W.Va. Code �44A-2-13, within seven (7) days of receiving the submission by the mental hygienecommissioner or, if the judge conducts a hearing, within seven (7) days of the hearing.

(d) Post-appointment Hearings and Rulings. Hearings on post-appointment petitionsor motions shall be held within sixty (60) days of the filing of such petitions or motions.Findings of fact and recommendations by a mental hygiene commissioner shall besubmitted to the assigned circuit judge within seven (7) days of the hearing. Theassigned circuit judge shall issue findings of fact, conclusions of law, and the orderruling on the petition or motion within seven (7) days of receiving the submission of themental hygiene commissioner or, if the judge conducts a hearing, within seven (7) daysof the hearing.

(e) Reporting Standard. The reporting standard from the filing of a petition pursuantto W.Va. Code �� 44A-2-1 et seq. to the disposition pursuant to W.Va. Code � 44A-2-13shall be three (3) months.

16.11 Petitions and Appeals

(a) Petitions for Modification of Magistrate Sentence. An order shall be entered on amotion to modify a magistrate sentence pursuant to W.Va. Code �� 62-11A-1, 62-11B-1et seq., or 62-12-4, within two (2) months of the filing of the motion.

(b) Magistrate Court Appeals. A final judgment in civil cases or a sentencing order incriminal cases shall be entered within six (6) months of receipt of the magistrate courtfile by the clerk of the circuit court, except that, pursuant to W.Va. Code �� 50-5-12(c)(6)and 50-5-13(c)(6), a final judgment in cases tried before a jury shall be entered withinninety (90) days after the appeal is regularly placed on the docket of the circuit court.


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(c) Administrative Appeals. Unless otherwise provided by statute, a final judgment inan appeal from an administrative agency shall be entered within six (6) months of thefiling of the appeal.

16.12 Extraordinary, Declaratory Judgment, and Equitable Proceedings

A final judgment or decree shall be entered in extraordinary, declaratory judgment,and equitable proceedings within one month of submission.

16.13 Duties of Court Officers

(a) Circuit Clerks. Every circuit clerk shall keep such records and make monthlyreports on the status of cases in their respective courts as required by the AdministrativeDirector of the Supreme Court of Appeals. Every circuit clerk shall also periodicallyinform the circuit court on the status of cases which may be dismissed pursuant toW.Va. R.Civ.P. 4(k) and 41(b).

(b) Judicial Officers. It shall be the duty of circuit judges and family law masters toeffectuate expeditious movement and timely disposition of all cases assigned to them. Itshall further be the duty of such judicial officers to control their dockets and to controlcontinuances by means of strict application of the Rules of Civil Procedure, Rules ofCriminal Procedure, and statutory time frame provisions governing continuances.

17. DISQUALIFICATION AND TEMPORARY ASSIGNMENT OF JUDGES

17.01. Motions for Disqualification.

Upon a proper disqualification motion, as set forth in this rule, a judge shall bedisqualified from a proceeding only where the judge's impartiality might reasonably bequestioned in accordance with the principles established in Canon 3(E)(1) of the Code ofJudicial Conduct.

(a) In any proceeding, any party may file a written motion for disqualification of ajudge within thirty (30) days after discovering the ground for disqualification. Themotion shall be addressed to the judge whose disqualification is sought and be filedwith the circuit clerk at least seven (7) days in advance of any date set for a non-trialproceeding in the case or at least twenty-one (21) days in advance of any trial date set inthe case and shall: (1) State the facts and reasons for disqualification, including the specificprovision of Canon 3(E)(1) of the Code of Judicial Conduct asserted to be applicable; (2) Be accompanied by a verified certificate of counsel of record orunrepresented party that they have read the motion; that after reasonable inquiry, to thebest of their knowledge, information, and belief, it is well grounded in fact and iswarranted by either existing law or a good faith argument for the extension,modification, or reversal of existing law; that there is evidence sufficient to supportdisqualification; and that it is not interposed for any improper purpose, such as toharass or to cause unnecessary delay or needless increase in the cost of litigation; and (3) Be submitted by copy directly to the judge, and served upon counsel ofrecord or unrepresented party.


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(b) Upon the judge's receipt of a copy of such motion, regardless of whether the judgefinds good cause and agrees to the disqualification motion or not, the judge shall: (1) proceed no further in the matter; (2) transmit forthwith to the Chief Justice a copy of the motion and certificate,together with a letter stating the judge's response to the motion and the reasonstherefor, including such matters and considerations as the judge may deem relevant;and (3) make a copy of the letter part of the record and file same in the office of thecircuit clerk with copies to counsel of record and any unrepresented party.

(c) Upon receipt of a disqualification or recusal motion pursuant to subdivision (b) ofthis rule, the Chief Justice shall enter an order within fourteen (14) days providing forthe judge to either remain on the case or be removed, in which case the Chief Justiceshall appoint another judge to hear the matter. (d) If the information is insufficient to permit the Chief Justice to make a ruling, theChief Justice may direct that the judge conduct a hearing on matters relating to thedisqualification motion and then proceed pursuant to this rule. (e) In the event a disqualification motion is filed with the circuit clerk and writtennotice thereof is submitted to the judge less than seven (7) days in advance of the dateset for a non-trial proceeding, or less than twenty-one (21) days in advance of the dateset by order for trial, the judge may either grant or deny the disqualification motion asfollows:

(1) If the judge grants the motion for disqualification, the judge shall proceedno further in the matter and shall forthwith transmit the motion and reason for the rulingto the Chief Justice in accordance with subdivision (b)(2) of this rule, and the ChiefJustice shall consider the matter in accordance with this rule.

(2) If the judge denies the motion for disqualification the judge shall allow themoving party to make a record on the disqualification issue and: (a) in a non-trial proceeding when the date set by order for trial is notwithin 21 days of the filing of the motion for disqualification, the judge may conduct thenon-trial proceeding, and shall transmit the disqualification motion, the record, andreason for the ruling on the disqualification issue to the Chief Justice in accordancewith subdivision (b)(2) of this rule and the Chief Justice shall consider the matter inaccordance with this rule; or

(b) if a trial date is set by order within 21 days of the filing of thedisqualification motion, the judge is not required to transmit the motion or record on thedisqualification issue to the Chief Justice, but the issue may be addressed on appeal. 17.02. Voluntary Recusal by a Judge.

In the absence of a disqualification motion having been filed, except as provided byRule 17.03 below, a judge seeking voluntary recusal shall so inform the parties and shallproceed pursuant to the applicable provisions of TCR 17.01(b), provided, that in lieu of a


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motion and certificate, the judge shall transmit to the Chief Justice a letter stating thereasons why the judge is requesting recusal, with reference to the relevant section(s) ofthe Code of Judicial Conduct and the Chief Justice shall rule pursuant to TCR 17.01(c) orTCR 17.01(d).

17.03. Applicability.

The preceding provisions of this rule do not apply to the assignment or reassignmentof cases within a multi-judge circuit previous to the filing of a motion fordisqualification.

17.04. Time.

Computation of any time period prescribed or allowed by this rule shall be governedby W.Va. R.Civ.P. 6.

17.05. Challenge to Disqualification Rulings.

All rulings and orders relating to the recusal or disqualification of a judge shall beconsidered interlocutory in nature and not subject to direct or immediate appeal. Thisrule shall not, however, prohibit any party from seeking or using redress available bywrit of prohibition or any other appropriate extraordinary writ.

17.06. Unavailability under W.Va. Code § 51-2-1(a).

(a) The unavailability of the sitting judge in a single-judge circuit shall be a ground forinvoking the concurrent jurisdiction of the Kanawha County Circuit Court only uponnotification to and verification through the Supreme Court Administrative Office andaffirmative referral by the Chief Justice.

(b) Upon verification of the unavailability of the sitting judge in a single-judge circuit,the Chief Justice shall forthwith, by order: (1) Refer the requesting party and the needed proceeding to the KanawhaCounty Circuit Court; or (2) Refer the requesting party and the needed proceeding to the different judgealready assigned, if any, to the single-judge circuit involved; or (3) Assign a different judge to the single-judge circuit involved to conduct theneeded proceeding; or (4) Direct that the requesting party await the return of the sitting judge in thesingle-judge circuit involved.

(c) The judges of the Kanawha County Circuit Court are prohibited from entertainingor acting on any matters pursuant to W. Va. Code § 51-2-1(a) without verification ofreferral by the Chief Justice.

(d) No motion for the disqualification of the sitting judge in a single-judge circuit shallbe referred to the Kanawha County Circuit Court.

(e) Cases in which matters are referred to the Kanawha County Circuit Court pursuantto TCR 17.06(b)(1) remain cases of the original county of venue within the single-judge


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circuit involved, and the original county of venue is the proper initial forum for anysubsequent proceedings in such cases.

(f) The clerk of the Kanawha County Circuit Court shall forthwith transmit to the circuitclerk of the original county of venue a certified or attested copy of every document filedor entered in matters referred to the Kanawha County Circuit Court pursuant to TCR17.06(b)(1).

17.07. Sanctions.

If a motion is signed in violation of TCR 17.01, the Chief Justice or the judge whosedisqualification was sought, upon motion or sua sponte, may refer the matter to theappropriate disciplinary authority or may impose upon the person who signed it, anunrepresented party, or both, an appropriate sanction, which may include an order topay to the other party or parties the amount of reasonable expenses incurred because ofthe filing of the motion, including reasonable attorney fees.

18. RESERVED

19. RESERVED

CHAPTER 2: CIVIL MATTERS

20. EXTENSION OF ANSWER DATE

20.01 Generally

Unless otherwise ordered, the time to answer or otherwise respond to a complaintmay be extended by stipulation. The stipulation shall constitute an appearance by anydefendant who is a party to it. An extension by stipulation will not affect other deadlinesestablished by the West Virginia Rules of Civil Procedure, these Trial Court Rules, or thecourt.


Rule 21.01. Application Generally.

This Rule applies to all eligible guardian ad litem appointments in circuit court, familycourt and magistrate court. This rule does not apply to guardians ad litem appointed inabuse and neglect proceedings.

Rule 21.02. Appointments Generally.

A guardian ad litem shall be selected independently of any nomination by the parties orcounsel.

Appointed guardians ad litem may (a) serve on a voluntary basis without compensation,(b) be paid by a litigant or a litigant-parent of an infant for whom the appointment ismade if the litigant or litigant-parent is not an indigent person, or (c) be paid by theSupreme Court of Appeals as provided in rule 21.05.


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Rule 21.03. Duties Generally.

A guardian ad litem shall make a full and independent investigation of the facts involvedin the proceeding and make recommendations to the court by testimony or in writing,unless otherwise ordered by the court.

Rule 21.04. Definitions.

For purposes of this Rule, the following definitions shall apply:

(a)"Indigent person" person who qualifies for a waiver of fees pursuant to the provisionsof W. Va. Code � 59-2-1.

(b) "Infant" person under the age of eighteen (18) years.

(c) "Incarcerated person" any person who is being held against the person�s will in anyfacility operated under the authority of any governmental authority in the United States.

(d) "Incompetent person" any person who is admitted to a mental health facility or hasbeen found by the court to be incompetent.

Rule 21.05. Eligibility for a Supreme Court-Paid Guardian Ad Litem.

To be eligible for Supreme Court payment, an attorney must serve as the appointedguardian ad litem, and the person for whom the guardian is appointed must be:

(a) an infant-party who is indigent;

(b) an infant of a party who is indigent or parties who are indigent, provided however, ifboth parents are parties to the action, both parents must be indigent;

(c) an incarcerated person who is indigent; or

(d) an incompetent person who is indigent;

provided however, in a domestic relations case the cost of a guardian ad litem for a partyor an infant of the parties may be ordered to be paid by a non-indigent party.

The appointment shall end automatically when a person for whom a guardian ad litemhas been appointed either (a) is no longer indigent, or is an infant of a party or partieswho are no longer indigent, (b) reaches the age of eighteen (18) years, (c) is no longer anincarcerated person, (d) is released from a mental health facility, or (e) is found by thecourt to have regained competency. The guardian ad litem shall notify the appointingcourt when an appointment has been automatically terminated.

Rule 21.06. Compensation for a Supreme Court-Paid Guardian Ad Litem

Payment shall be made from Supreme Court funds.

Supreme Court-paid guardians ad litem shall be compensated at $45 per hour forout-of-court services, and $65 per hour for in-court services.


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The total compensation paid to a guardian ad litem appointed pursuant to the provisionsof this rule shall not exceed $1,200 ("One Thousand Two Hundred") per appointment asof July 1, 2007. The Court will not reimburse the cost of office expenses including butnot limited to copying costs, postage, long distance telephone calls and/or fees chargedfor invoice preparation. Mileage will be reimbursed at the standard rate per mile asapproved by the Supreme Court. The total compensation paid to a guardian ad litemappointed on behalf of a child for services provided between July 1, 2001 throughOctober 7, 2004 shall not exceed $500 ("Five Hundred Dollars").

Requests for payment shall be made on forms provided by the Administrative Director ofthe Court. Requests for payment shall be reviewed and approved by order of theappointing court prior to submission to the Administrative Director of the Court forpayment.

The Administrative Director of the Court shall have the authority to approve and paycompensation in excess of the amounts stated above in exceptional cases and for goodcause shown. Requests for excess compensation shall be made by the appointing judgeand sent to the Administrative Director of the Court.

As circumstances may warrant, the court in its discretion may at any time during theproceedings tax the costs of the appointment of a guardian ad litem to the parties andrequire that any compensation previously paid from court funds be refunded to theAdministrative Director of the Court.

Amended by order entered and effective November 7, 2007.

22. MOTIONS PRACTICE, CIVIL

22.01 Motions, Responses, and Supporting Memoranda

All motions and responses shall be concise; shall state the relief requested precisely;shall be filed in accordance with the time frames set forth in W.Va. R.Civ.P. 6(d); and maybe accompanied by a supporting memorandum of not more than twenty (20) pages inlength, double- spaced, and by copies of depositions (or pertinent portions thereof),admissions, documents, affidavits, and other such materials upon which the motionrelies. The court for good cause shown may allow a supporting memorandum to exceedtwenty (20) pages. In addition to filing and serving on opposing counsel andunrepresented parties, counsel shall deliver to the assigned judge copies of eachmotion, response, supporting memorandum, and supporting documents or materials.

22.02 Motions to Dismiss

Motions to dismiss may be given priority status, provided they are designatedprominently as a motion to dismiss and filed as a separate motion.

22.03 Hearings on Motions

The court may require or permit hearings on motions, and, with permission of thepresiding judicial officer, the hearings may be by telephone. Whenever the court enters


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an order denying or granting a motion without a hearing, all parties shall be forthwithnotified by the court of such order.

22.04 Action on Motions

All motions shall be decided expeditiously to facilitate compliance with the deadlinesestablished by the scheduling order. Any motion requiring immediate disposition shallbe called to the attention of the court by the party filing such motion. Failure of the courtto rule expeditiously on a dispositive motion may be good cause for modification of ascheduling order.

22.05 Effect of Failure to Appear at Oral Argument or Hearing

If any of the parties fail to appear at an oral argument or hearing, without priorshowing of good cause for non-appearance, the court may proceed to hear and rule onthe motion.

23. TRIAL, CIVIL

23.01 Non-Jury Matters

Evidence with respect to issues not triable of right by a jury should be heard by thecourt if practicable. If not practicable, any such issue may be heard by the court ondepositions, or the evidence may be taken before a commissioner appointed by thecourt. A commissioner shall have power to rule upon the admissibility of evidence, withthe further right at any time to obtain a summary ruling from the court, or from the judgethereof, upon any question relating thereto. A commissioner shall promptly make suchreport as the court may require as to such issues, and the court shall enter suchjudgment thereon as it may deem proper.

The evidence taken before the court on such issues shall, unless waived by theparties, be taken down by the official reporter of the court or, when there is reference toa commissioner, by such official reporter or by any other competent reporter agreed toby the parties in interest or designated by the commissioner, and the evidence or suchpart or parts thereof as may be required shall in all such cases be promptly transcribedby the reporter as provided for in respect to other matters; and like reporting charges forsuch actions shall be made, as in other actions, collected and accounted for.

The entire record as thus made up shall be available to any party on petition forappeal.

23.02 Cases to be Tried by a Jury: Proposed Jury Instructions; Proposed Verdict Form

Unless otherwise ordered by the presiding judicial officer, not less than three (3)business days prior to the trial date, counsel shall, in jury cases, submit to the courtproposed jury instructions with supporting statutory and case authority, specialinterrogatories, and a verdict form. Counsel shall exchange copies of the proposedinstructions, special interrogatories and verdict form prior to their submission to thecourt. Submissions pursuant to this rule shall not be filed and made a part of the record,unless ordered by the judicial officer.


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23.03 Voir Dire

(a) The attorneys conducting the case shall be permitted to ask voir dire questions ofthe prospective jury panel members unless the presiding judicial officer finds that thereare justifiable reasons to deny such attorney voir dire. The attorneys shall advise thejudicial officer of the subject matter of the voir dire questions at such time prior to theactual questioning of the prospective jury panel as the judicial officer may designate.The judicial officer may allow individual voir dire by the attorneys upon a showing ofgood cause or where questioning such juror in open court in the presence of the otherjury panel members would be prejudicial or cause undue embarrassment to theprospective juror.

(b) If attorney-conducted voir dire is not permitted, the attorneys conducting the casemay request that the judicial officer ask specific additional or supplemental voir direquestions of the prospective jury members.

(c) Attorneys may lodge objections to the exercise of judicial discretion in limiting voirdire or to prospective questions at any time prior to and during the examination ofprospective jury members. Objections shall be made on the record.

23.04 Opening Statements and Closing Arguments

(a) Opening Statements. At the commencement of the trial in a civil action, the partyupon whom rests the burden of proof may state, without argument, its claim and theevidence expected to support it. The adverse party may then state, without argument, itsdefense and the evidence expected to sustain it. If the trial is to the jury, unless the courtdirects otherwise the opening statements shall be made immediately after the jury isimpaneled. If the trial is to the court, the opening statements shall be made immediatelyafter the case is called for trial. For good cause shown, the court, on request by theadverse party, may defer the opening statement for the adverse party until the time forcommencing presentation of that adverse party's direct evidence. Opening statementsshall be subject to time limitations imposed by the court. In actions involving severalparties and unusual procedures, the court, after conferring with the parties to the action,shall direct the order and time of the opening statements in a manner appearing just andproper.

(b) Closing Arguments. The right to open and close the arguments shall belong to theparty who has the burden of proof, without regard to whether the defendant offersevidence. Where each of the parties has the burden of proof on one or more issues, thejudicial officer shall determine the order of arguments. In actions involving severalparties and unusual procedures, the court, after conferring with attorneys for the parties,shall determine the order of arguments in a manner appearing just and proper.Arguments shall be subject to time limitations imposed by the judicial officer, giving dueconsideration to the length of the trial, the number of witnesses and exhibits, thecomplexity of issues, and the nature of the case. No more than two (2) attorneys on eachside shall argue the case, without leave of the court.

The opening argument of plaintiff before the jury shall be a fair statement of plaintiff's


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case and shall consume at least one-half of the entire time allotted to plaintiff's counselfor argument. In the event that one-half of the allotted time is not used, one-half shallnevertheless be charged by the court to plaintiff's opening argument.

After plaintiff's opening argument, counsel for defendant may elect to argue the caseor may decline. If counsel for defendant declines to present argument, the case will besubmitted without further argument by plaintiff or defendant.

Counsel may refer to the instructions to juries in their argument, but may not argueagainst the correctness of any instruction. The court in its discretion may reread one ormore of the instructions. Counsel may not comment upon any evidence ruled out, normisquote the evidence, nor make statements of fact dehors the record, nor contendbefore the jury for any theory of the case that has been overruled. Counsel shall not beinterrupted in argument by opposing counsel, except as may be necessary to bring tothe court's attention objection to any statement to the jury made by opposing counseland to obtain a ruling on such objection. No portion of a lawbook shall be read to thejury by counsel.

23.05 Stipulations

Unless otherwise ordered, stipulations must be in writing, signed by the partiesmaking them or their counsel, and promptly filed with the clerk.

24. PREPARATION AND SUBMISSION OF ORDERS

24.01 Generally

Unless otherwise directed by the presiding judicial officer, all orders shall besubmitted to the judicial officer promptly, but no later than eleven (11) days after havingbeen directed to do so by the court. When counsel responsible for the preparation andpresentation of an order unreasonably delays or withholds its presentation, the ordermay then be prepared and entered by the judicial officer.

(b) Except for good cause or unless otherwise determined by the judicial officer, noorder may be presented for entry unless it bears the signature of all counsel andunrepresented parties.

(c) Although it is preferred that orders be entered in accordance with subsection (b),unless the judicial officer otherwise directs, counsel responsible for the preparation andpresentation of an order may submit the original of the proposed order to the judicialofficer within eleven (11) days, with a copy to opposing counsel along with a notice tonote objections and exceptions to the order within five (5) days after receipt of theproposed order or such lesser time as the judicial officer directs. Opposing counselshall notify the presiding judicial officer, in writing, of his or her approval of or objectionto the order or any portion thereof. In the event this subsection is utilized, the judicialofficer shall consider the order for entry upon approval by all counsel, or after five (5)days from its receipt, if no objection is received by the judicial officer.

(d) In the event counsel has any objections regarding the wording or content of a


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proposed order, counsel shall have the affirmative duty of contacting the preparerthereof before contacting the judicial officer in an effort to seek a resolution of theconflict. If the conflict cannot be resolved in this manner, counsel having an objectionshall promptly submit a proposed order to the judicial officer and opposing counsel asset forth in subsection (c) along with a letter to the judicial officer, indicating the reasonfor the change(s). Within five (5) days following receipt of objections and the responsiveproposed order, all counsel shall file a response to the second proposed order. If thejudicial officer determines that a hearing is necessary to resolve the conflict, counselobjecting to the order shall be responsible for promptly scheduling the same. Objecting,proposing modifications, or agreeing to the form of a proposed order shall not affect aparty's rights to appeal the substance of the order.

25. MEDIATION

25.01 Scope

These rules shall govern mediation of civil cases in the circuit courts, includingappeals and administrative appeals, but excluding domestic relations matters.

25.02 Mediation Defined

Mediation is an informal, non-adversarial process whereby a neutral third person, themediator, assists parties to a dispute to resolve by agreement some or all of thedifferences between them. In mediation, decision-making authority remains with theparties; the mediator has no authority to render a judgment on any issue of the dispute.The role of the mediator is to encourage and assist the parties to reach their ownmutually acceptable settlement by facilitating communication, helping to clarify issuesand interests, identifying what additional information should be collected or exchanged,fostering joint problem-solving, exploring settlement alternatives, and other similarmeans. The procedures for mediation are extremely flexible, and may be tailored to fitthe needs of the parties to a particular dispute.

25.03 Selection of Cases for Mediation

Pursuant to these rules and W.Va. R.Civ.P. 16, a court may, on its own motion, uponmotion of any party, or by stipulation of the parties, refer a case to mediation. Uponentry of an order referring a case to mediation, the parties shall have fifteen (15) dayswithin which to file a written objection, specifying the grounds. The court shall promptlyconsider any such objection, and may modify its original order for good cause shown. Acase ordered for mediation shall remain on the court docket and the trial calendar.

25.04 Listing of Mediators

The West Virginia State Bar shall maintain and make available to circuit courts,interested parties, and the public a listing of persons willing and qualified to serve asmediators in the circuit courts. The State Bar shall establish minimum qualifications fortraining and experience, application procedures and fees, and other appropriaterequirements for persons interested in being listed. The listing shall identify thosepersons who are willing to serve as mediators on a volunteer basis (i.e., without


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compensation). The listing shall be open to all persons who meet the qualifications andcomplete the application required by the State Bar.

25.05 Selection of Mediator

Within fifteen (15) days after entry of an order or stipulation referring a case tomediation, the parties, upon approval of the court, may choose their own mediator, whomay or may not be a person listed on the State Bar listing. In the absence of suchagreement, the court shall designate the mediator from the State Bar listing, either byrotation or by some other neutral administrative procedure established by administrativeorder of the chief judge of the circuit court.

25.06 Compensation of Mediator

If the parties by their own agreement choose a mediator who requires compensation,then the parties shall by written agreement determine how the mediator will becompensated. If the court designates the mediator, then it shall whenever possible selecta mediator who is willing to serve without compensation. If it has established a budgetapproved by the Supreme Court of Appeals for this purpose, the court may reimburse avolunteer mediator for reasonable and necessary expenses, according to Supreme Courtof Appeals travel regulations. If a volunteer mediator is not available, then the court shallinquire of the parties whether they are willing to pay the fees of a mediator. If so, theneither the parties by stipulation or the court shall select the mediator, and the parties bywritten agreement shall determine how the mediator will be compensated.

25.07 Mediator Disqualification

A mediator shall be subject to Canon 3 of the Code of Judicial Conduct regardingdisqualification for partiality or conflict of interest. Any party may move the court todisqualify a mediator for good cause. In the event a mediator is disqualified, the partiesor the court shall select a replacement in accordance with TCR 25.05 and 25.06.

25.08 Provision of Preliminary Information to the Mediator

The court may require the parties to provide pertinent information to the mediatorprior to the first mediation session. Such information may include, but is not limited to:(1) copies of pleadings, transcripts, or other litigation-related documents or (2) aconfidential statement summarizing a party's position on the issues, status of settlementdiscussions, and what relief would constitute an acceptable settlement.

25.09 Time Frames for Conduct of Mediation

Unless otherwise agreed by the parties and the mediator or ordered by the court, thefirst mediation session shall be conducted within sixty (60) days after appointment of themediator. Mediation shall be completed within forty-five (45) days after the firstmediation session, unless extended by agreement of the parties and the mediator or byorder of the court. The mediator is empowered to set the date and time of all mediationsessions, upon reasonable notice to the parties.

25.10 Appearances; Sanctions


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The following persons, if furnished reasonable notice, are required to appear at anymediation session scheduled by the mediator, unless excused by the mediator or thecourt: (1) each party or the party's representative having full authority to settle withoutfurther consultation; (2) each party's counsel of record; and (3) a representative withsettlement authority of the insurance carrier for any insured party. If a party or itsrepresentative, counsel, or insurance carrier fails to appear at a duly noticed mediationsession without good cause, the court upon motion may impose sanctions, including anaward of reasonable mediator and attorney fees and other costs, against the responsibleparty.

25.11 Participation

No party may be compelled by these rules, the court, or the mediator to settle a caseinvoluntarily or against the party's own judgment or interest. All parties involved inmediation, however, and their respective representatives, counsel, and insurancecarriers shall be prepared to negotiate openly and knowledgeably about the case in amutual effort to reach a fair and reasonable settlement.

25.12 Confidentiality of Mediation Process

Mediation shall be regarded as confidential settlement negotiations, subject to W.Va.R.Evid. 408. A mediator shall maintain and preserve the confidentiality of all mediationproceedings and records. Confidentiality as to opposing parties within a mediationsession shall be maintained in a manner agreed upon by the parties and mediator. Forexample, all information may be kept confidential unless disclosure is specificallyauthorized by the party, or, all information may be shared unless specifically prohibitedby the party. A mediator may not be subpoenaed or called to testify or otherwise besubject to process requiring disclosure of confidential information in any proceedingrelating to or arising out of the dispute mediated. History. Amended by order effective March 8,2004.

25.13 Immunity

A person acting as mediator under these rules shall have immunity in the samemanner and to the same extent as a circuit judge.

25.14 Enforceability of Settlement Agreement

If the parties reach a settlement and execute a written agreement, the agreement isenforceable in the same manner as any other written contract.

25.15 Report of Mediator

Within ten (10) days after mediation is completed or terminated, the mediator shallreport to the court the outcome of the mediation. With the consent of the parties, themediator may identify any pending motions, discovery, or issues which, if resolved,would facilitate the possibility of settlement.

25.16 Statistical Information


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The Supreme Court of Appeals shall determine the need and method for statisticalreporting on disputes referred for mediation under these rules. The circuit courts,mediators, parties, and counsel shall cooperate with requests for information under thisrule.

26. MASS LITIGATION

(Note: By Order entered October 9, 2008, TCR 26 was amended, effective immediately.)(Note: By Order entered April 15, 2010, TCR 26.08 was amended, effective immediately.)

Rule 26.01. Mass Litigation - Preamble.

There is hereby adopted a process for efficiently managing and resolving mass litigationwhich includes the establishment of a Mass Litigation Panel.

Rule 26.02. Mass Litigation Panel.

The Mass Litigation Panel "Panel" consists of seven (7) active or senior status circuitcourt judges who shall be appointed by the Chief Justice, with the approval of theSupreme Court of Appeals. Each appointment is for a term of three (3) years, with two (2)judges to be appointed each year; provided however, that beginning in 2009 and in everythird year thereafter, three (3) judges shall be appointed. There is no prohibition againstserving successive terms. The Chief Justice shall annually designate a Panel member toserve as its Chair to preside over the activities of the Panel and to report to the SupremeCourt of Appeals.

(Note: By Order entered June 30, 2009, TCR 26.02 was amended, effective immediately.)

Rule 26.03. Application.

These rules apply to and govern all actions in the circuit courts referred and transferredby the Chief Justice as Mass Litigation to the Panel. These rules shall not be construedto limit the jurisdiction of the circuit courts, as established by law, or as creating anynew cause of action.

Rule 26.04. Definitions.

For purposes of this Rule, the following definitions apply:

(a) "Mass Litigation" — Two (2) or more civil actions pending in one or more circuitcourts:

(1) involving common questions of law or fact in mass accidents or single catastrophicevents in which a number of people are injured; or

(2) involving common questions of law or fact in "personal injury mass torts" implicatingnumerous claimants in connection with widely available or mass-marketed products andtheir manufacture, design, use, implantation, ingestion, or exposure; or


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(3) involving common questions of law or fact in "property damage mass torts"implicating numerous claimants in connection with claims for replacement or repair ofallegedly defective products, including those in which claimants seek compensation forthe failure of the product to perform as intended with resulting damage to the productitself or other property, with or without personal injury overtones; or

(4) involving common questions of law or fact in "economic loss" cases implicatingnumerous claimants asserting defect claims similar to those in property damagecircumstances which are in the nature of consumer fraud or warranty actions on a grandscale including allegations of the existence of a defect without actual product failure orinjury; or

(5) involving common questions of law or fact regarding harm or injury allegedly causedto numerous claimants by multiple defendants as a result of alleged nuisances or similarproperty damage causes of action.

(b) "Liaison Counsel"— Attorneys designated by the Presiding Judge and charged withessentially administrative matters, including communications between the court andother plaintiff or defense counsel; receiving and distributing notices, orders, motions,and briefs for the group; convening meetings of counsel; advising other counsel andunrepresented parties of developments; and otherwise assisting in the coordination ofactivities and positions.

(c) "Lead Counsel"— Attorneys designated by the Presiding Judge and charged withformulating and presenting positions on substantive and procedural issues during thelitigation by initiating and organizing discovery requests and responses; conducting theprincipal examination of deponents; employing experts; arranging for support services;serving as the principal attorneys at trial for their respective plaintiff or defense group orsubgroups; and organizing and coordinating the work of the other attorneys on theirrespective plaintiff or defense trial team.

(d) "Certificate of Service List" — The document prepared by Liaison Counsel from theNotices of Appearance and information from self-represented parties and certified by thePresiding Judge as the official contact list of counsel and self-represented parties forservice or other notice.

(e) "Notice of Appearance" — The document all counsel shall file and serve containingthe name and address of the party or parties each counsel represents, the name andaddress of the attorney, the name of the attorney s law firm, the attorney s West VirginiaState Bar Identification Number, if applicable, or pro hac vice admission status,telephone number, fax number, and electronic mail address.

(f) "Notice of Withdrawal" — The document all counsel shall file and serve on all parties,after complying with Trial Court Rule 4.03(b), if counsel no longer represents a party orparties, or after a party is dismissed.

(g) "Presiding Judge" — One or more members of the Panel assigned by order of thePanel Chair, with the advice and consent of the Panel, to preside in Mass Litigation orproceedings therein referred by the Chief Justice to the Panel. "Presiding Judge" also


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includes an active or senior status circuit court judge or judges recommended by thePanel and assigned by the Chief Justice to assist the Panel in resolving Mass Litigationor proceedings therein.

(h) "Lead Judge"— The judge appointed by order of the Panel Chair, with the advice andconsent of the Panel, to lead in Mass Litigation in which more than one Presiding Judgeis assigned.

Rule 26.05. Panel Duties.

The Panel shall:

(a) develop and implement case management and trial methodologies to fairly andexpeditiously resolve Mass Litigation referred to the Panel by the Chief Justice;

(b) preside in Mass Litigation or proceedings therein referred by the Chief Justice;

(c) request the assignment by the Chief Justice of additional active or senior statuscircuit court judges to assist the Panel in resolving Mass Litigation or proceedingstherein as needed, and provide assistance and guidance to such judges when assigned;

(d) recommend for adoption by the Supreme Court of Appeals rules for conducting thebusiness of the Panel as needed;

(e) report periodically to the Chief Justice concerning the Panel's activities;

(f) take such action as is reasonably necessary and incidental to the powers andresponsibilities conferred by this rule or by the specific directive of the Chief Justice;and

(g) develop and implement plans for central organization, including, but not limited tostaffing, record keeping, and other assistance for the management of Mass Litigation,the transfer and storage of Mass Litigation court files to the appropriate circuit, theimplementation of appropriate technology, and the adoption of necessary rules andprocedures.

Rule 26.06. Motion to Refer Actions as Mass Litigation.

(a)(1) Any party, judge, or the Administrative Director of the Courts may seek a referral ofactions as Mass Litigation to the Panel by filing a Motion to Refer to the Mass LitigationPanel in any circuit court in which an action is pending. The motion shall identify thenature of the actions sought to be referred, the number of plaintiffs, the number ofdefendants, the number of actions pending, the basis for the request, a listing of theparticular actions in all the circuits for which a referral is being requested, and, if known,whether additional related actions may be filed in the future.

(2) The motion may be filed within six (6) months after the filing date of the action;provided, however, that a judge or the Administrative Director of the Courts may file the


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motion at any time, if it is determined the litigation qualifies as Mass Litigation that maybe resolved more expeditiously by referral to the Panel.

(3) The motion shall be served on all the parties, including those parties not representedby counsel, all judges in actions which are the subject of the motion, and the Panel sMass Litigation Manager. Any party shall have twenty (20) days after the motion is filedto file a reply memorandum stating its position and opposition, if any. Any affectedjudge may file a reply memorandum within twenty (20) days thereafter.

(b) The filing of a Motion to Refer to the Mass Litigation Panel shall not operate as a stayof the civil action(s).

(c)(1) After the response periods have expired, the judge of the circuit court in which theMotion to Refer to the Mass Litigation Panel was filed shall direct the clerk of the circuitcourt to transmit to the Clerk of the Supreme Court of Appeals for filing a copy of themotion and all reply memoranda for review by the Chief Justice. Upon review of themotion and reply memoranda, the Chief Justice may act directly upon the motion or maydirect the Panel to conduct a hearing and make recommendations concerningcoordinated or consolidated proceedings under this rule.

(2) If the Chief Justice directs, a Panel member or members shall hold a hearing toreceive evidence and entertain arguments by the parties or any judge, and shall submitfindings of fact and a recommendation to the Chief Justice.

(3) The Chief Justice, whether acting directly upon the motion or upon therecommendation of the Panel member or members, shall enter an order either grantingor denying the motion, or providing modified relief. The order shall be filed with theClerk of the Supreme Court of Appeals who shall send a copy of the order to the PanelChair and to the clerk(s) of the circuit court(s) where the actions are pending for serviceon all parties.

(d) Nothing contained in this rule affects the authority of a circuit court judge to actindependently under the provisions of W. Va. R.Civ.P. 42.

Rule 26.07. Assignment of Presiding Judge in Mass Litigation.

(a) An order from the Chief Justice granting a Motion to Refer to the Mass LitigationPanel is a transfer of Mass Litigation to the Panel. Upon receipt of the order, the PanelChair shall, with the advice and consent of the Panel, by order assign a Presiding Judge.If more than one Presiding Judge is assigned, the Panel Chair shall, with the advice andconsent of the Panel, by order appoint a Lead Judge, and in such event, to the extentpossible, require appropriate measures to be adopted to insure uniformity of decisions,including the requirement for all pre-trial dispositive motions to be decided by a majorityof the Presiding Judges assigned to preside in the Mass Litigation or proceedingstherein.

(b) If the Panel requests the assignment of additional active or senior status circuit courtjudges to assist in resolving Mass Litigation or proceedings therein, the request and


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recommendation shall be filed with the Clerk of the Supreme Court of Appeals and sentto the Chief Justice. The order of assignment by the Chief Justice shall be filed with theClerk and sent by the Clerk to the Panel Chair and to the clerk of the circuit court wherethe Mass Litigation is pending for service on all parties.

(c) The Panel Chair may act on any properly filed motions until the Mass Litigation isassigned to a Presiding Judge.

Rule 26.08. Powers of Presiding Judge.

(a) The Presiding Judge is authorized to preside in any circuit in which Mass Litigationor proceedings therein are pending, or in which Mass Litigation or proceedings thereinare transferred for purposes consistent with the Panel's case management and trialmethodologies.

(b) With the advice and consent of the Panel, the Presiding Judge is authorized toconsolidate and/or transfer Mass Litigation or proceedings therein from one circuit toone or more other circuits to facilitate the Panel s case management and trialmethodologies and to order the transfer of court files to the appropriate circuit.

(c) In the absence of an agreement of the parties, the Presiding Judge is authorized toappoint Liaison Counsel and/or Lead Counsel and, after consultation with all counsel, todetermine the method and manner of compensation for Liaison Counsel and/or LeadCounsel.

(d) The Presiding Judge is authorized to adopt a case management order that specifiesthe use of a Certificate of Service List, Notice of Appearance and/or Notice of Withdrawaland, after considering the due process rights of the parties, to adopt any proceduresdeemed appropriate to fairly and efficiently manage and resolve Mass Litigation.

(e) The Presiding Judge shall have the sole authority to supervise the jury selectionprocess, to disqualify a prospective juror from jury service, and to excuse jurors fromjuror service in Mass Litigation to which the Presiding Judge has been assigned, allpursuant to W.Va. Code � 52-1-1 et seq.

Rule 26.09. Motion to Join in Existing Mass Litigation.

(a)(1) This procedure applies if the initial order by the Chief Justice granting a Motion toRefer to the Mass Litigation Panel authorizes the Panel to transfer and join with theexisting Mass Litigation any similar or related actions subsequently filed in any circuitcourt.

(2) A Motion to Join in Existing Mass Litigation shall be filed with the clerk of the circuitcourt(s) where the action(s) sought to be transferred are pending and with the clerk ofthe circuit court where the existing Mass Litigation is pending. The motion shall setforth the identity and nature of the action(s) sought to be transferred, the number ofplaintiffs, the number of defendants, the number of actions pending, the basis for therequest, a listing of the particular actions in all the circuits for which a transfer is


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requested, and, if known, whether additional related actions may be filed in the future.The motion shall be served on all parties, including those not represented by counsel,and sent to all judges in the action(s) sought to be transferred and to the PresidingJudge in the existing Mass Litigation sought to be joined.

(3) The Presiding Judge in the existing Mass Litigation shall, with the advice andconsent of the Panel, grant or refuse the motion by written order. The order shall be filedwith the clerk of the circuit court where the existing Mass Litigation is pending, andshall be sent to the Panel Chair, and to the clerk(s) of the circuit court(s) where theaction(s) sought to be transferred are pending for service on all parties.

(b) If the initial order by the Chief Justice granting a Motion to Refer to the MassLitigation Panel does not authorize the Panel to transfer and join with the existing MassLitigation any subsequently filed actions, the procedure under Rule 26.06 shall befollowed.

Rule 26.10. Class Actions.

If any Mass Litigation transferred to the Panel is later certified as a class action by anycourt pursuant to Rule 23, W. Va. R.Civ.P., the Panel may request the Chief Justice totransfer the Mass Litigation from the Panel to the appropriate circuit court.

Rule 26.11. Official Reporter.

In each Mass Litigation proceeding, the Presiding Judge shall determine and designatethe official court reporter to transcribe proceedings. No other transcriber or transcriptionshall be permitted without consent of the Presiding Judge.

Rule 26.12. Scope; Conflicts.

If these Rules conflict with other rules or statutes, these rules shall apply; otherwise allapplicable Rules apply.

27. PUBLIC FUNDING FOR EXPERT ASSISTANCE IN CHILD ABUSE OR NEGLECTCASES

27.01. Motion and Appointment

Upon motion by a party or upon its own motion, the court may appoint an expert toperform a medical or psychological evaluation and may require such expert to testify,pursuant to West Virginia Code � 49-6-4.

27.02. Compensation of Experts

The court shall by order establish in advance the reasonable fees and expenses to bepaid to an expert. Payment shall be as follows: Upon completion of services by anexpert, the court shall, by order, direct the State Department of Health and HumanResources to pay for the expert's evaluation, report writing, consultation, or other


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preparation; and the court shall, by order, direct payment by the Supreme Court'sAdministrative Office for the expert's fee and expenses entailed in appearing to testify asa witness.

28. Reasonable Efforts and Contrary to the Welfare Findings in Juvenile Cases

28.01. After any juvenile delinquency or abuse and neglect proceeding has been initiatedor transferred to circuit court, any party may contest the making or refusal to make“reasonable effort” and “contrary to the welfare” findings required by Title IV-E of theSocial Security Act, by any magistrate court, juvenile referee or circuit court at the initialstages of such proceeding.”

29. RESERVED

CHAPTER 3: CRIMINAL MATTERS

30. CONDITIONS OF RELEASE

30.01 Hearing on Motion for Reconsideration of Conditions of Release

All motions seeking a reconsideration of the conditions of release, including theamount of bail, shall be heard by the presiding judicial officer in accordance with W.Va.R.Crim.P. 46(h)(1).

30.02 Scheduling of Hearings

Hearings will be scheduled consistent with giving notice to any victim as required byW.Va. Code � 61-11A-8 and in conformance with W.Va. R.Crim.P. 46(h).

30.03 Effect of Having Been Released Previous to Indictment

If the defendant has been released on bond or on some other release conditionsbefore grand jury indictment, these same release conditions shall continue after a grandjury indictment on the same charges or any charges arising out of the same events,unless altered or amended by order of the presiding judicial officer after hearing.

31. BONDING AGENTS AND BAIL BONDS


31.01 Generally

A defendant in a criminal case may be admitted to bail in the following ways:

(a) Bail may be posted by the defendant or some other person depositing cash withthe circuit clerk or magistrate court clerk; or

(b) Bail may be posted by a recognizance issued pursuant to West Virginia Code ��62-1C- 2(b) and 62-1C-4. A recognizance shall be issued in conformance with thefollowing:


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(1) The defendant shall sign the recognizance, and it shall also by signed by one ormore adult persons owning real property in this State. The judicial officer may alsorequire that justification of surety be provided. When bail is secured by real property:

(A) The circuit clerk or magistrate court clerk shall complete and file a “notice of BondEncumbrance,” which notice shall substantially comply with the format of Appendix A tothese Trial Court Rules, and shall deliver the same to the clerk of the county commissionof the county where the subject real estate is located for recordation in the appropriatelien index; and

(B) Upon the circuit or magistrate court's release of the bond on the property servingas surety, the clerk shall file promptly a “Release of the Notice of Bond Encumbrance”with the office of the clerk of the county commission for appropriate recordation. Saidrelease shall substantially comply with the format of Appendix B to these Trial CourtRules. Or

(2) The defendant shall sign the recognizance, and the amount of bail shall be securedby a surety company authorized to do business in this State; or

(c) Bail may be secured in such other form as the judicial officer may determine,including, but not limited to:

(1) Releasing the defendant upon his or her own recognizance pursuant to WestVirginia Code � 62-1C-1a; or

(2) In the discretion of the judicial officer, the defendant shall sign the recognizance,with or without surety, and remit a fee of 10% of the bail amount to the circuit clerk ormagistrate court clerk. The fee shall be refunded if the defendant meets the conditions ofthe recognizance. If the defendant does not meet the conditions of the recognizance, thefee shall be remitted to the State Auditor, in the same manner as a bond forfeituredefault.

(d) No attorney shall sign as surety on any bond in any criminal case.

(e) Persons authorized to engage in the bonding business in criminal cases in theState of West Virginia on the effective date of House Bill 4148, passed March 13, 2004,shall continue to engage in the business under the local rules and orders under whichsuch person qualified pursuant to the existing provisions of W. Va. Code � 51-10-8. Theauthority to continue in the bonding business shall continue until such time as the WestVirginia Supreme Court of Appeals adopts rules pursuant to the amendments made toW. Va. Code � 51-10-8 by House Bill 4148. Persons intending to make a new applicationfor such qualification shall be entitled to proceed to do so under rules and orderspromulgated prior to September 1, 2004 providing therefore, until such time as the WestVirginia Supreme Court of Appeals adopts rules pursuant to the amendments made toW. Va. Code � 51-10-8 by House Bill 4148."

32. DISCOVERY AND INSPECTION IN THE CIRCUIT COURTS

32.01 Generally


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The purposes of this rule are to expedite the transfer of discoverable materialcontemplated by the West Virginia Rules of Criminal Procedure between opposingparties in criminal cases in circuit court and to ensure that pretrial discovery motions tothe circuit court are filed only when the discovery procedures outlined herein have failedto result in the exchange of all legitimately discoverable material.

It is the intent of this rule to encourage complete and open discovery consistent withapplicable statutes, case law, and rules of court at the earliest practicable time. Nothingin this rule should be construed as a limitation on the court's authority to orderadditional discovery.

32.02 Mandatory Discovery

(a) Exculpatory Evidence. In all criminal cases, the attorney for the State shall advisethe attorney for the defendant and provide evidence favorable to the defendant on theissue of the defendant's guilt or punishment without regard to materiality, within thescope of Brady v. Maryland, 373 U.S. 83 (1963), including the existence and substance ofany payments, promises of immunity, leniency, preferential treatment, or otherinducements made to prospective witnesses, within the scope of United States v. Giglio,405 U.S. 150 (1972).

(b) Entrapment Defenses and the Discovery of Other Crimes, Wrongs, or ActsAdmissible Pursuant to W.Va. R.Evid 404(b). In all criminal cases, the attorney for theState shall advise the defendant of its intention to introduce evidence in its case-in-chiefat trial pursuant to W.Va. R.Evid. 404(b). In addition to the requirements of Rule 404(b), if,during the discovery conference or thereafter, the attorney for the defendant advises theattorney for the State that the defense is one of entrapment and provides a synopsis ofthe evidence of that defense, the attorney for the State shall, within five (5) days or two(2) weeks prior to trial, whichever is later, disclose a synopsis of any other crimes,wrongs, or acts about which the State has information and which is relevant to saiddefense and intended for use by the State in its case in chief or in rebuttal.

32.03 Discovery Conference

At every arraignment at which the defendant enters a plea of not guilty or at any othertime set by the court, the attorney for the defendant shall notify the court and theattorney for the State, on the record or thereafter in writing, whether discovery by thedefendant is requested. If discovery is requested, within fourteen (14) days the attorneyfor the defendant and the attorney for the State shall confer in order to comply withW.Va. R.Crim.P. 16, and make available to the opposing party the items in their custodyor control or which by due diligence may become known to them. This conference shallbe in person. If, however, it is impractical to meet in person, the conference may beconducted via telephone.

The State's right to request discovery from a defendant is triggered only if thedefendant initially seeks discovery, and is confined to the particular area in which thedefendant has sought discovery. Additionally, the State must have complied with thedefendant's initial request before it can request discovery.


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(a) Discovery from the State. Unless otherwise limited by the defendant, upon requestby counsel for the defendant and at the discovery conference, the attorney for the Stateshall comply with the State's obligations under W.Va. R.Crim.P. 16, including, but notlimited to, the following:

(1) permit defendant's attorney to inspect and copy or photograph any relevant writtenor recorded statements or confessions made by the defendant, or copies thereof, withinthe possession, custody, or control of the government;

(2) with respect to oral statements made by the defendant whether before or afterarrest in response to interrogation by any person then known to the defendant to be aState or government agent:

(A) provide that portion of any written record containing the substance of any suchrelevant oral statement made by the defendant; and

(B) provide the substance of any other such relevant oral statement made by thedefendant which the State intends to offer in evidence at the trial;

(3) furnish to the defendant's attorney a copy of his or her prior criminal record asprovided for in W.Va. R. Crim. P. 16(a)(B);

(4) permit the defendant's attorney to inspect and copy documents and tangibleobjects as provided for in W.Va. R. Crim. P. 16(a)(1)(C);

(5) permit the defendant's attorney to inspect and copy or photograph any results orreports of examinations and tests as provided for in W.Va. R. Crim. P. 16(a)(1)(D);

(6) permit defendant's attorney to inspect and copy or photograph any photographsused in any photograph lineup, show up, photo spread, or any other identificationproceedings or, if no such photographs can be produced, the attorney for the state shallnotify the defendant's attorney whether any such identification proceeding has takenplace and the results thereof;

(7) permit defendant's attorney to inspect and copy or photograph any searchwarrants and supporting affidavits which resulted in the seizure of evidence which isintended for use by the State as evidence in its case in chief at trial or which wasobtained from, or belongs to, the defendant;

(8) inform the defendant's attorney whether any physical evidence intended to beoffered in the State's case in chief, that was in the possession of or belongs to thedefendant, was seized by the State without a warrant;

(9) advise whether the defendant was a subject of any electronic eavesdrop, wiretap,or any other interception of wire or oral communications, as defined by W.Va. Code ��62-1D-1 et seq., during the course of the investigation of the case;

(10) provide the defendant's attorney with a list of the names and addresses of allState witnesses, together with any record of prior convictions of any such witnesses asprovided for in W.Va. R. Crim. P. 16(a)(1)(F);


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(11) disclose to the defendant's attorney all information relating to expert witnessesfor the State as provided for in W.Va. R. Crim. P. 16(a)(1)(E);

(12) permit the attorney for the defendant and any expert selected by the defense toinspect any vehicle, vessel, or aircraft that was allegedly utilized in the commission ofany offenses charged if said vehicle, vessel or aircraft is in the custody of any Stateauthority; and

(13) provide to the attorney for the defendant any copies of latent fingerprints, orprints of any type, that have been identified by a State expert as those of the defendant.

(b) Discovery from Defendant. Upon request by the State and within ten (10) days afterthe State has provided the discovery requested by the defense, unless otherwisedirected by the court, the defendant's attorney shall:

(1) permit the attorney for the State to inspect and copy documents and tangibleobjects as provided for in W.Va. R. Crim. P. 16(b)(1)(A);

(2) permit the attorney for the State to inspect and copy or photograph any results orreports of examinations and tests as provided for in W.Va. R. Crim. P. 16(b)(1)(B);

(3) inform the attorney for the State, in writing, if requested, notice of any alibi defenseand other information pertaining thereto as provided for in W.Va. R. Crim.P. 12.1;

(4) provide the attorney for the State, in writing, with notice of any insanity defenseand other information pertaining thereto as provided for in W.Va. R. Crim. P. 12.1;

(5) provide the attorney for the State a list of the names and addresses of thewitnesses whom the defense intends to call as provided for in W.Va. R. Cri. P. 16(b)(1)(D);and

(6) disclose to the attorney for the State all information relating to expert witnesses forthe defendant as provided for in W.Va. R. Crim. P. 16(b)(1)(C).

32.04 Items Not Subject to Disclosure

(a) Except as expressly provided by these rules, these rules do not authorize thediscovery or inspection of reports, memoranda, or other internal official documentsmade by the attorney for the State or other State officials in connection with theinvestigation or prosecution of the case, or of statements made by State witnesses, or byprospective State witnesses, except as provided in Rule 26.2.

(b) Except as to scientific or medical reports, this rule does not authorize thediscovery or inspection of reports, memoranda, or other internal defense documentsmade by the defendant, or the defendant's attorneys or agents, in connection with theinvestigation or defense of the case, or of statements made by the defendant, or by thestate or defense witnesses, or by prospective State or defense witnesses, to thedefendant, the defendant's agent or attorneys, except as provided in Rule 26.2.

32.05 Continuing Duty to Disclose


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If, prior to or during trial, any party discovers additional evidence or materialpreviously requested or ordered, which is subject to discovery or inspection under thisrule, such party shall promptly notify the other party or that other party's attorney or thecourt of the existence of the additional evidence or material as provided for in W.Va. R.Crim. P. 16(c).

32.06 Regulation of Discovery

(a) Upon a sufficient showing, the court may at any time order that the discovery orinspection be denied, restricted or deferred, or make such other order as is appropriate.Upon motion by a party, the court may permit the party to make such showing, in wholeor in part, in the form of a written statement to be inspected by the judge alone. If thecourt enters an order granting relief following such an ex parte showing, the entire textof the party's statement shall be sealed and preserved in the records of the court to bemade available to the appellate court in the event of an appeal.

(b) If at any time during the course of the proceedings it is brought to the attention ofthe court that a party has failed to comply with this rule, the court may order such partyto permit the discovery or inspection, grant a continuance, or prohibit the party fromintroducing evidence not disclosed, or it may enter such other order as it deems justunder the circumstances. The court may specify the time, place and manner of makingthe discovery and inspection and may prescribe such terms and conditions as are just.

32.07 Statement of Witnesses

Statements of witnesses, including material covered by W.Va. R.Crim.P. 26.2, are to beexchanged:

(a) during the time of trial as provided by W.Va. R.Crim.P. 26.2 or

(b) at any time if the parties agree or the court so orders for good cause shown.

Production of statements of witnesses at a hearing on a motion to suppress evidencewill be governed by W.Va. R.Crim.P 12(i).

The attorney for the State shall anticipate the need for and arrange for thetranscription of the grand jury testimony of all witnesses who will testify in the State'scase in chief, if subject to W.Va. R.Crim.P. 26.2. The State and, where applicable, thedefendant shall make such materials and statements available to the other partysufficiently in advance as to avoid any delays and interruptions at trial.

32.08 Exchange of Exhibit Lists

No later than seven (7) days before trial, the parties shall exchange a list of exhibitswhich they intend to introduce during the presentation of their respective cases in chief.To the extent possible, copies of exhibits shall also be provided to the opposing side, ifcopies have not previously been provided.

32.09 Additional Motions for Discovery


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Except as provided in TCR 32.02, no attorney shall file a discovery motion without firstconferring with opposing counsel, and no motion will be considered by the court unlessit is accompanied by a certification of such conference and a statement of the movingparty's good faith efforts to resolve the subject matter of the motion by agreement withopposing counsel. No additional discovery motions shall be filed for information ormaterial within the scope of this rule unless it is a motion to compel, a motion forprotective order, or a motion for an order modifying discovery.

Unless the judicial officer otherwise directs, in lieu of filing the TCR 32.02 material,proof of service on the party to whom the material is directed shall be made bycertification of counsel responsible for the case, which certification shall include thename and case number of the case to which it relates, be filed with the clerk of thecircuit court, and meet the following minimum requirements for identifying the specificmaterial, provided:

(a) The attorney for the State shall certify that material within the possession orcontrol of the State required by this rule has been provided and identify the categoriesof material by specific reference to TCR 32.01 and its subparts and TCR 32.02, 32.03,32.04, 32.05, 32.06, 32.07, 32.08, and 32.09, setting out the number of pages of material soprovided as to each said rule.

(b) The attorney for the defendant shall have the same duty as the attorney for theState to certify that material within the possession or control of defendant or his or hercounsel required by this rule has been so provided and identify the categories ofmaterial by specific references to the applicable rule.

33. ARTICLES OF EVIDENCE

33.01 State's Evidence

If evidence is to be made available by the State for copying or inspection, the attorneyfor the State shall be responsible for making said evidence available to counsel for thedefendant.

34. DEPOSITIONS

34.01 Authorization for Deposition

A motion to authorize a deposition pursuant to W.Va. R.Crim.P. 15 shall, in addition toany other requirements of the Rules of Criminal Procedure, show that counsel for themoving party has personally requested a stipulated order from opposing counsel, whichrequest was refused.

34.02 Incarcerated Defendants

When the defendant is incarcerated in jail and does not waive the right to appear, thedeposition of a witness shall be noticed and held either at the jail or within thecourthouse, or other arrangements shall be made to ensure that the defendant ispresent.


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35. PUBLIC FUNDING FOR EXPERT ASSISTANCE

35.01 Motion

(a) Who May File. With respect to expert witnesses appointed or approved by thecourt in accordance with W.Va. R.Crim.P. 28(a) or W.Va. R.Evid. 706(a), the attorney forthe State or the attorney for a defendant found indigent or who claims to be withoutsufficient means to employ an expert necessary for the defense may file a motionrequesting the court's advance approval, which is required, for funds to obtain suchassistance.

(b) Grounds of Motion. The motion shall state the reasons why the assistance isnecessary for an adequate presentation of the case or defense. It may be supported byaffidavit.

35.02 Service of Motion

Except as provided in TCR 35.03, the motion shall be served upon counsel for theopposing party.

35.03 Ex Parte Motion

An ex parte motion shall state with particularity the reasons why it should not beserved on the attorney for the opposing party. It shall be presented to the clerk of court,who shall present it to the court. It shall be sealed and shall not be docketed, unless soordered by the court.

35.04 Judicial Determination of Whether to Proceed Ex Parte

The court shall determine whether the motion demonstrates good cause to proceed exparte. If the court finds good cause, it shall then decide the merits of the motion, givethe attorney for the opposing party such notice of its order as it deems proper and orderthe appropriate docket entry. If the court does not find good cause to proceed ex parte, itshall order the motion docketed and served.

35.05 Compensation of Experts

The court shall by order establish and approve in advance the reasonable fees andexpenses to be paid to an expert. Except as to evaluations pursuant to W.Va. Code � �27-6A-1(a)-(e) and 62-12-2(e), the expense of which the court shall, by order, directpayment by the State Department of Health and Human Resources, payment shall be asfollows:

(a) Expert Requested by the State. Upon completion of services by such expert, thecounty prosecuting attorney's office shall pay for the expert's evaluation, report-writing,consultation, or other preparation. The court shall, by order, direct payment by theSupreme Court's Administrative Office for the expert's fee and expenses entailed inappearing to testify as a witness.

(b) Expert Requested by an Indigent Defendant. Upon completion of services by such


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expert, the court shall, by order, direct payment by Public Defender Services pursuant toW.Va. Code, Chapter 29.

(c) Expert Appointed by the Court on Its Own Motion for the Court's Assistance. Uponcompletion of services by such expert, the court shall, by order, direct payment by theSupreme Court's Administrative Office.

36. MOTIONS PRACTICE, CRIMINAL

36.01 Motions, Responses, and Supporting Memoranda

All motions and responses shall be concise; shall state the relief requested precisely;and may be accompanied by a supporting memorandum of not more than twenty (20)pages in length, double-spaced, and by copies of documents, affidavits, and other suchmaterials upon which the motion relies. The court for good cause shown may allow asupporting memorandum to exceed twenty (20) pages. In addition to filing and servingon opposing counsel, counsel shall deliver to the assigned judge copies of eachmotion, response, supporting memorandum, and supporting documents or materials.

36.02 Motions for an Extension of Time

Extensions of time in criminal actions will be granted only if the party seeking theextension files a motion and affidavit demonstrating good cause. Extensions of time byagreement of the parties are not valid in criminal cases.

36.03 Time for Filing Motions

Unless a different time is fixed by statute or the West Virginia Rules of CriminalProcedure, motions must be filed within the time period ordered by the court.

36.04 Time for Filing Responses and Replies

(a) Response. Unless otherwise ordered, a response and any opposing memorandummust be filed within eleven (11) days of service of any motion, except a motion for anextension of time. A memorandum opposing a motion for an extension of time must befiled within five (5) days of service of the motion.

(b) Reply. Except as to motions for an extension of time, a party may choose to file areply memorandum. A reply memorandum must be limited to matters newly raised in theopposing memorandum. If a party chooses to file a reply, the memorandum must be filedwithin eleven (11) days of service of the opposing memorandum, unless otherwiseordered by the court.

36.05 Limitation on Memoranda

Memoranda pertaining to motions are limited to a supporting memorandum, anopposing memorandum, and a reply memorandum. Supporting and opposingmemoranda must not exceed twenty (20) pages without leave of court. Reply memorandamust not exceed ten (10) pages without leave of court.


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37. SPEEDY TRIAL

37.01 Authority

The West Virginia Constitution, the West Virginia Rules of Criminal Procedure, and theapplicable West Virginia statutes govern all rights to a speedy trial.

37.02 Motion for Speedy Trial

All demands for speedy trial, unless otherwise stated in open court, shall be made inwriting as a separate document, containing proper case caption and case number,signed and dated by counsel. A copy of the demand shall be timely served on theattorney for the State and shall be filed with the clerk of court, together with proof ofservice.

38. CONTINUANCES

38.01 Procedure for Obtaining Continuance

Cases may not be continued by agreement or stipulation and may be continued onlyby leave of court. After a case has been set for trial it will not be continued except forgood cause which shall be brought to the attention of the court as soon as practicablebefore the date of the trial.


39.01 Appointment

For good cause and upon the court's own motion or that of a party, the court mayappoint an attorney as guardian ad litem for a witness or an alleged victim. The Courtshall select any guardian ad litem independently of any nomination by the State or bythe defendant.

39.02 Duties

A guardian ad litem shall have such standing and such duties in representing the bestinterests of a witness or an alleged victim as the court directs of record.

39.03 Compensation

(a) Rule 21.06 of these Rules shall govern compensation for Supreme Court-paidguardians ad litem."

40. PRETRIAL CONFERENCE

40.01 Authority

In accordance with this rule and W.Va. R.Crim.P. 17.1, the court may require a pretrialconference in criminal cases.


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40.02 Purpose

The purposes of a pretrial conference shall include, but not be limited to:

(a) to determine whether the parties intend to proceed to trial or to enter a plea to theoriginal charge, a lesser charge, or an added charge;

(b) to determine whether pretrial motions have been completed;

(c) to stipulate which witnesses may be called at trial and which witnesses may bewaived, if any;

(d) to determine the number of trial days required; and

(e) to determine when the case will be ready for trial and disclose any schedulingproblems.

40.03 Attendance and Participation at the Pretrial Conference

The defendant and his or her attorney, as well as the attorney for the State, shallattend the pretrial conference.

41. CHANGES TO PLEA

41.01 Notice of Change of Plea Hearing

When a change of plea has been negotiated by the parties to a criminal case, counselwill advise the court promptly. The court will set a change of plea date at the earliestpossible time. For speedy trial purposes, absent a finding by the court of extraordinarycircumstances, the parties to any plea agreement shall be deemed to have stipulated to atolling of the speedy trial time.

42. TRIAL, CRIMINAL

42.01 Presentation of Statement of Facts and Potential Witnesses

Prior to jury selection, unless otherwise ordered, the prosecutor and counsel for thedefense shall each prepare and present to the court and to opposing counsel astatement of facts for the case being tried, which shall include the names of potentialwitnesses each may call during trial, including the place of residence or the municipalentity, if any, in which they live.

42.02 Presentation of Jury Instructions

Each counsel shall prepare jury instructions, indicating citations and authorities, andif the court directs, verdict forms and special interrogatories, and present them to thepresiding judicial officer and serve them on opposing counsel not less than three (3)business days before the day set for trial or at such other times as the presiding judicialofficer may order.

42.03 Voir Dire


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(a) The attorneys conducting the case shall be permitted to ask voir dire questions ofthe prospective jury panel members unless the presiding judicial officer finds that thereare justifiable reasons to deny such attorney voir dire. The attorneys shall advise thejudicial officer of the subject matter of the voir dire questions at such time prior to theactual questioning of the prospective jury panel as the judicial officer may designate.The judicial officer may allow individual voir dire by the attorneys upon a showing ofgood cause or where questioning such juror in open court in the presence of the otherjury panel members would be prejudicial or cause undue embarrassment to theprospective juror.

(b) If attorney-conducted voir dire is not permitted, the attorneys conducting the casemay request that the judicial officer ask specific additional or supplemental voir direquestions of the prospective jury members.

(c) Attorneys may lodge objections to the exercise of judicial discretion in limiting voirdire or to prospective questions at any time prior to and during the examination ofprospective jury members. Objections shall be made on the record.

42.04 Opening Statements and Closing Arguments

(a) Opening Statements. At the commencement of trial in a criminal action, the Stateand the defendant may make non-argumentative opening statements as to their theoriesof the case and the manner in which they expect to offer their evidence. If the trial is to ajury, unless the court directs otherwise the opening statements shall be madeimmediately after the jury is impaneled. If the trial is to the court, the opening statementsshall be made immediately after the case is called for trial. The court, on request by thedefendant, may defer the opening statement for a defendant until the time forcommencing presentation of that defendant's direct evidence. Opening statements shallbe subject to time limitations imposed by the court. If the action involves more than onedefendant, the court after conferring with the parties to the action, shall determine theorder and time of the opening statements.

(b) Closing Arguments. Counsel may refer to the instructions to juries in theirargument, but may not argue against the correctness of any instruction. The court in itsdiscretion may reread one or more of the instructions. Counsel may not comment uponany evidence ruled out, nor misquote the evidence, nor make statements of fact dehorsthe record, nor contend before the jury for any theory of the case that has beenoverruled. Counsel shall not be interrupted in argument by opposing counsel, except asmay be necessary to bring to the court's attention objection to any statement to the jurymade by opposing counsel and to obtain a ruling on such objection. No portion of alawbook shall be read to the jury by counsel.

The time of argument in any case may be determined and regulated by the court, butthe convenience of counsel will be consulted. No more than two attorneys on each sideshall argue the case, without leave of the court.

42.05 Stipulations

Unless otherwise ordered, stipulations must be in writing, signed by the parties


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making them or their counsel, and promptly filed with the clerk.

43. PRESENTENCE INVESTIGATION AND REPORT

43.01 Investigation, Report, and Objections

(a) In all cases where a presentence investigation report is prepared pursuant to W.Va.R.Crim.P. 32 and W.Va. Code � 62-12-7 or where the report is otherwise ordered by thecourt, the probation officer shall disclose the presentence investigation report to thedefendant and to counsel for the defendant and to the attorney for the State not lessthan ten (10) calendar days prior to sentencing. Within five (5) calendar days thereafter,the parties by counsel shall communicate to the probation officer any objections theymay have as to material information, any fact that was either not included or was statederroneously, or as to the law, or sentencing alternatives and classifications. Thecommunication shall be in writing with a copy served upon opposing counsel or anunrepresented defendant contemporaneously with service upon the probation officer.

(b) After receiving objections, the probation officer may conduct further investigationand make revisions to the presentence report that may be necessary. The officer mayrequire counsel to meet with the officer to discuss unresolved factual and legal issues.Not less than three (3) calendar days prior to sentencing, the probation officer shallsubmit the presentence report to the sentencing judge. The report shall be accompaniedby an addendum setting forth objections that have not been resolved, together with theofficer's comments and recommendations. The probation officer shall certify that thecontents of the report, including revisions and the addendum, have been disclosed tothe defendant and to counsel for the defendant and the State, and that the addendumfairly states any remaining objections.

(c) With the exception of an objection under subsection (a) that has not beenresolved, the presentence investigation report may be accepted by the court as accurate.For good cause, however, the court may allow additional objections to be raised at anytime before the imposition of sentence. In resolving disputed issues of fact, the courtmay consider relevant information without regard to its admissibility under the rules ofevidence, provided it otherwise has sufficient indicia of reliability.

43.02 Disclosure

(a) The time requirements of this rule may be modified by the court for good cause,except that the ten (10)-day period in TCR 44.01(a) may not be reduced to a period of lessthan five (5) days prior to sentencing without the consent of the defendant.

(b) Nothing in this rule requires the disclosure of any portions of the presentencereport that may not be disclosed under W.Va. R.Cr.P. 32. Subject to the limitations inW.Va. R.Cr.P. 32(c)(3)(A) and (B), upon request of counsel, the probation officer shallprovide to counsel all underlying public record information pertaining to the defendantthat was gathered by documents obtained and used in the preparation of thepresentence report.

(c) The presentence report shall be deemed to have been disclosed (1) when a copy of


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the report is physically delivered to counsel or (2) three (3) days after a copy of thereport is mailed to counsel. When the defendant is unrepresented or is represented bystandby counsel, delivery or mailing shall be made to the defendant.

44. PETITION FOR DISCLOSURE OF PRESENTENCE OR PROBATION RECORDS

44.01 Generally

(a) Except as provided in TCR 43.02, no confidential records of the court maintainedby the probation office, including presentence and probation supervision records, shallbe producible except by written petition to the court particularizing the need for specificinformation.

(b) When a demand for disclosure of presentence and probation records is made byway of subpoena or other judicial process to a probation officer, the probation officermay petition in writing seeking instructions from the court regarding a response to thesubpoena.

(c) No disclosure shall be made except upon order of the court.

APPENDIX A

NOTICE OF BOND ENCUMBRANCE

NOTICE OF BOND ENCUMBRANCE

Take notice that the following person has encumbered the hereinafter describedproperty upon a surety bond before the Circuit Court/Magistrate Court of County, WestVirginia. The same constitutes a lien upon said property.

Surety on bond:

Description of property:(Include reference to Deed Book and Page Number, acreage, lot number, etc.)

Defendant:

Case Number(s):

Amount of surety provided: $

Given under my hand this day of , 19 .

Clerk of the Circuit/Magistrate Court of County

APPENDIX B

RELEASE OF NOTICE OF BOND ENCUMBRANCE


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RELEASE OF NOTICE OF BOND ENCUMBRANCE

The Notice of Bond Encumbrance dated and recorded in the Office of the Clerk of theCounty Commission of County, West Virginia, in Book No. , at Page is herebyRELEASED.

The conditions of the bond secured thereby having been fully satisfied.

Clerk of the Circuit/Magistrate Court of County

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