Where a Lawyer Makes All the Difference – And Only One Side Has One: Adjartey and the Urgent Need for Court Reform and a Right to Counsel in Eviction CasesPosted: November 14, 2019
by Esme Caramello, Joel Feldman, and Geraldine Gruvis-Pizarro
Each week, more than 750 tenants across Massachusetts face eviction in the courts of the Commonwealth. While the vast majority of landlords bringing eviction cases have counsel—almost 80% in the state’s Housing Courts last year—fewer than 9% of people faced with losing their homes have a lawyer to represent them. See Housing Court Department, Fiscal Year 2019 Statistics (2019). This disparity in access to counsel would create an unjust power imbalance in any legal setting. In the context of eviction cases, with their tight timelines and complicated procedural rules, the advantage that represented landlords enjoy over their unrepresented tenants is even more troubling.
In the summer of 2019, the Supreme Judicial Court took up this systemic inequality in Adjartey v. Central Division of the Housing Court Department, 481 Mass. 830 (2019). In a striking opinion on behalf of a unanimous Court, Chief Justice Gants reached far beyond the individual claims of the parties to describe an onerous summary process system and the barriers that pro se litigants face in trying to navigate it. In its breadth and detail, the opinion illustrates how “the complexity and speed of summary process cases can present formidable challenges to individuals facing eviction, particularly where those individuals are not represented by an attorney.” Id. at 831.
The decision makes a compelling case. Summary process is procedurally complex to begin with, id. at 834, and this complexity is “exacerbated by the web of applicable statutes and rules.” Id. at 837. The Uniform Summary Process Rules are just one part of the procedural maze. Id. at 836-37. The Rules of Civil Procedure also apply, but only sometimes, as do an array of statutes and standing orders. As the Court observed, “[d]eciding when to apply which of these rules—and how to resolve inconsistencies among them—is [a] formidable challenge for an unrepresented litigant seeking to comply with fast-moving deadlines, especially when that litigant is also facing the stress of a potential eviction.” Id. at 837.
Further complicating the task of the pro se litigant, the Court noted, is the speed at which a summary process case proceeds. Id. Once a case is filed, it is scheduled to go to trial on the first court date, just ten days later. Upon receipt of the Summons and Complaint, a tenant must figure out that an “answer” is required, and file and “serve” it, within a week after the case is filed. If she does not properly assert a “jury demand” in that answer, she waives her Constitutional right to trial by a jury of her peers. The tenant also must understand what “discovery requests” are and make sure her landlord receives them within that same short week. Overall, the time from service of process to judgment and execution can be as little as 19 days. Two business days later, a constable can remove the tenant from her home. As the Adjartey Court observed, “[t]he swiftness of this process … leaves little room for error.” Id. at 837.
As noted above, beyond the inherent complexity and speed of summary process, the vast majority of tenants are attempting to figure out the process on their own. In the words of the Court, “summary process cases are complex, fast-moving, and generally litigated by landlords who are represented by attorneys and tenants who are not.” Id. at 834. Because “in most cases, … the landlord has an attorney who understands how to navigate the eviction process and the tenant does not,” the system is not just out of reach for tenants, but also out of balance. Id. at 838. This imbalance presented an injustice the Adjartey Court could not ignore.
In an “Appendix” following the Adjartey decision, the Court attempted to gather, in one place, all the procedural laws governing summary process cases. Doing so took 35 slip opinion pages. While the Adjartey Appendix might be a useful primer on summary process for a lawyer or experienced advocate, it looks different from the perspective of a low-income mother with limited English proficiency and severe anxiety facing eviction. For her, and for most unrepresented tenants, the Appendix primarily highlights what the rest of the Adjartey decision implies: the eviction system is too hard to understand and navigate without the assistance of a lawyer. And where landlords generally have this assistance and tenants do not, the Appendix is an indictment of a system that aspires but fails to offer equal justice to all.
In a study of summary process judgments listed on masscourts.org from 2007-2015 in three out of the then-five divisions of the Housing Court (Boston, Central and Western), the Access to Attorneys Committee of the Access to Justice Commission found that landlords won judgment a shocking 98% of the time. See Shannon Barnes et al., Final Report of the Access to Attorneys Committee of the Massachusetts Access to Justice Commission, 9 (May 2017). With Adjartey, the Supreme Judicial Court has shown us why.
Court Reform as a Necessary Step
Reforming the summary process system is an urgent need. To that end, the Trial Court has recently created a committee that has begun to work on simplifying court forms. Developing plain-language, accessible forms that the typical pro se litigant can understand and use is a necessary first step. But forms alone will not level the playing field in a process that is too complicated and too fast to navigate without counsel.
There are many simple changes that would make summary process more accessible for pro se litigants. At a recent meeting convened by the Trial Court’s summary process reform committee, for example, most tenant lawyers and landlord lawyers agreed that the first court date in an eviction case should not be a trial. Instead, it can be an opportunity for the parties to explore settlement through mediation, and for unrepresented litigants to learn more about the process and seek help from a volunteer lawyer. It also can be a time for tenants to prepare the answers, jury demands, and discovery requests that they may be learning about for the first time when they arrive at court. We are hopeful that the court will soon implement this popular and sensible reform.
A range of other simple reforms are outlined in detail in a December 2017 report that Massachusetts submitted to the Public Welfare Foundation after a yearlong examination of “Justice for All” in the Commonwealth led by a team of judges and practitioners that included Chief Justice Ralph Gants. See The Massachusetts Justice for All Project, Massachusetts Justice for All Strategic Action Plan, 34-56 (Dec. 22, 2017). From rethinking cellphone bans that exclude unsuspecting tenants (and their evidence) from courthouses—a step the Trial Court has recently agreed to take—to promoting flexible scheduling that enables low-wage workers to avoid missing work, the Justice for All report is full of small and big ideas that would make the system fairer. The authors of this article sit on a committee of the Access to Justice Commission tasked with pursuing the report’s recommendations, but a much broader effort is needed for real change to happen.
If Landlords Have Lawyers, Tenants Need Lawyers, Too
In an ideal world, our housing dispute resolution system would be simple enough for people to use on their own, and the systemic power imbalances created by dramatic disparities in representation would be eliminated. But in a system designed for lawyers where only one side has one, access to substantive justice is not and cannot be equal. Tenants need lawyers to make the system work fairly.
Existing fee-shifting statutes should entice private attorneys to represent tenants in many eviction cases, and a few lawyers around the state have built financially successful practices representing tenants, but for reasons the Access to Justice Commission is still studying, fee-shifting statutes are underutilized. “Lawyer for a day” programs are meaningful and certainly help. But the problems Adjartey describes cannot be solved by last-minute limited assistance representation, even with experts doing the work. Too much has transpired by the time the lawyer-for-a-day steps in, when answers and jury trials and discovery have been waived by the unsuspecting tenant and the opportunity to investigate or gather admissible evidence has passed. As a 2012 Boston Bar Association study showed, only vigorous full representation enables tenants to fairly litigate their claims. See Boston Bar Association Task Force on the Civil Right to Counsel, The Importance of Representation in Eviction Cases and Homelessness Prevention (Mar. 2012) (summarizing research by Harvard Professor James Greiner and Harvard College Fellow Cassandra Pattanayak showing dramatic differences in outcomes for tenants receiving full representation by experienced litigators as opposed to advice through lawyer-for-a-day program).
New York City, San Francisco, Newark and Cleveland have all recently implemented a right to counsel for tenants in eviction cases. Massachusetts is poised to follow suit with several bills under consideration on Beacon Hill. The active support of the bar for these bills is crucial to bring balance, and legitimacy, to our summary process system. Adjartey is our call to action.
Esme Caramello is a Clinical Professor of Law at Harvard Law School and the Faculty Director of the Harvard Legal Aid Bureau. She is a Trustee of the Boston Bar Foundation and a member of its Grants Committee, as well as a member of the Massachusetts Access to Justice Commission and co-chair of its Housing Working Group.
Joel Feldman is a shareholder in the law firm of Heisler, Feldman & McCormick, P.C.. He serves on the Executive Committee of the Access to Justice Commission,and co-chairs the Commission’s Housing Working Group.
Geraldine Gruvis-Pizarro has been representing tenants in eviction cases for the past four years and is currently a staff attorney at Volunteer Lawyers Project (VLP) in the housing and family law units. She is also the VLP Chairperson at the statewide Language Access Coaliton. Attorney Gruvis represents VLP at the BBA Real Estate Public Service Committee working alongside private attorneys, the court and the Boston Bar Association to maintain high quality services to the public at the Eastern Division of the Housing Court in Boston.
by Jeffrey Fortgang, Ph.D.
When I joined the clinical staff of Lawyers Concerned for Lawyers over 20 years ago, I expected that the focal problem among our clients would be alcoholism and other addictions. After all, the genesis of LCL, before any funding or staff, was a group of lawyers in recovery who sought to help save the careers and lives of their alcoholic peers. And, make no mistake, problems with alcohol (and to a lesser extent, drugs) continue to abound.But the number one presenting complaint at LCL for years has been either anxiety, stress or depression, which often go together. Similar findings appeared in a large-scale survey of lawyers published in 2016, which also found that alcohol problems and depression often co-occur in the same lawyers. In this article I seek to provide an overview of depression as it appears in lawyers, some of the obstacles that can stand in the way of their getting appropriate help, and how these obstacles can be surmounted – drawing upon my clinical experience and a recent survey that I conducted.
Nature of Depression
Depression is among the more treatable mental health conditions. It develops as the result of multiple converging factors, including biological (affected by neurochemical phenomena), hereditary (particularly for bipolar depression), individual psychology and resiliency (e.g., self-esteem, degree of characteristic optimism, experience of healthy loving and supportive relationships), and environmental (both past, such as upbringing and trauma, and present, such as home and work environment). A depressed person may find temporary relief in alcohol or addictive drugs, but over time heavy or frequent use of such substances actually tends to worsen the depression.
More lasting improvement in mood may be derived from psychotherapy/counseling, antidepressant medication, or a combination of the two. Antidepressant medication does not lend itself to abuse, since its action is cumulative rather than immediate, but some trial and error may be involved in finding the most beneficial medication for the individual. Novel treatments—like the use of ketamine and procedures like transcranial magnetic stimulation—have not yet been fully examined.
There are also a number of lifestyle factors that can ameliorate and prevent depressions. These include exercise, meditation and relaxation, a balance between work and personal life, connections with community, and more. Unfortunately, the benefits of these factors are more difficult for a person in the midst of a depressive episode to grasp or pursue.
Obstacles to Getting Help
The legal profession, unfortunately but understandably, is imbued with a culture that tends both to contribute to the development of depression (under the “environment” category mentioned above) and to stand in the way of recognizing the problem and getting help for it. Much of the work of lawyers is inherently adversarial; in lawsuits or criminal trials, for example, there will be winners and losers, in about equal proportions. (Prominent psychologist Martin Seligman has discussed this issue in detail.) What’s more, attorneys may view other professional peers more as competitors than as comrades.
A skilled attorney possesses the ability to scan a document, argument, etc., for any errors or weaknesses – but this work mode, when transferred to life in general, is almost a prescription for how to lower one’s mood. Those who maintain better moods may be more likely to “see the glass as half-full,” and yet also recognize and accept their vulnerabilities. They allow themselves to express feelings in an authentic way to trusted others, and to ask for and accept help when needed. Lawyers, however, are acculturated to a role of problem-solver, in control; too many of them lose the distinction between professional role and true self. Having developed a professionally useful veneer of toughness, they may ignore their actual feelings and needs, in a counterproductive reach for self-sufficiency. And by design or practice, those practicing law are often less able to pursue the positive lifestyle choices that could serve as protective factors, often sacrificing the time necessary to pursue self-care, healthy relationships, or work-life balance to meet intense timing and workload demands while needing to appear both calm and competent.
These are generalization, of course, that certainly don’t apply to all lawyers and law students, and I have been encouraged by seemingly greater openness to these topics in new lawyers. But all too frequently clinicians at LCL are accustomed to encountering lawyers whose problems have been building for years, and who never sought any kind of assistance until they reached a point of major crisis.
Perspectives Gleaned from Survey
My LCL colleague Shawn Healy and I wrote a book about depression in lawyers, and I also conducted an anonymous survey of over 250 lawyers who identified themselves as having experienced clinical depression. The response rate seemed indicative of a pent-up wish to communicate about a problem that is widely prevalent among lawyers (at a rate that appears to be at least 3 times that of the general population) yet not often acknowledged. The anonymous nature of the survey seemed to provide a welcome means of sharing the experience of vulnerability in a profession in which that kind of openness might often be considered a liability.
Although most survey responders were over the age of thirty, the greatest number reported onset of depression during their twenties, an age that typically coincides with law school and the start of their careers. Other authors, in fact, have noted a surge in both depression and problem drinking during law school as the student is immersed in a demanding academic system and inducted into “lawyer culture.”
Among the depressive symptoms that those surveyed had first noticed were intense emotion (e.g., crying, despair), diminished energy and motivation, and a downcast perspective ranging from pessimism to hopelessness. In many cases, a sense of self-doubt and paralysis characterized the experience of depression. While a common phenomenon, it can lead to devastating consequences when important deadlines and correspondence are ignored (such as leaving mail from the Board of Bar Overseers unopened).
The lawyers represented in my survey tended not to confide in colleagues. Many of them pointed to shame, stigma, image, and fear of being viewed as “weak” as barriers to reaching out. Imbued in lawyer culture, a number of responders expressed the sense that slogging through a stressful work life, keeping much of their authentic selves very private, and viewing peers more as competitors than as supports were inherent aspects of professional life.
Surmounting Obstacles to Getting Help
Not all those who took the survey reported they were able to access effective treatment or experience improvement. Of those who did, many first turned to family members before finding and receiving the greatest benefit from professional mental health providers. In describing what helped them get past obstacles to acknowledging their depression and getting help, many pointed to getting a push from professional peers who, in some cases, were willing to share their own similar struggles and how they had gotten back on track. But such attempts to help can admittedly be awkward and perhaps especially complicated among lawyers. One survey respondent wrote, “Our system is one of confrontation rather than truth finding, which tends to make weakness a tool for winning rather than a cause for alarm for the health of a colleague.” On the other hand, I’ve received numerous calls over the years from lawyers and judges who are sincerely concerned about other attorneys. When they can find a way to persuade a colleague to come in, talk with me or one of the other clinicians, and put together a constructive plan, the long-term impact of their action can be invaluable.
Once an attorney recognizes he or she may have a problem, it is still challenging to ask for help. Delay and avoidance are very understandable, but often allow problems to mushroom to crisis proportions. Finding a provider who accepts the right health insurance plan is another obstacle. Lawyers Concerned for Lawyers can be one very useful resource.
LCL, funded through a small portion of your annual professional license fee, offers a range of services too varied to catalog here (see our website, www.LCLMA.org), provided by both law practice advisers and clinical staff. Clinicians meet with lawyers (and their family members) upon request to assess problems, offer brief counseling when indicated, and make referrals to outside clinical professionals for longer-duration services as needed. Referrals are made mindful of both individual needs and health insurance plan acceptance. As with any licensed mental health practitioner, our relationship with clients is confidential, and LCL is exempt from any requirement to report lapses in professional conduct. LCL also coordinates discussion and support groups, either in person or online, for those dealing with particular stresses.
Whether through LCL or another avenue toward appropriate treatment of depression, as one of the responders to my survey wrote, “There is no down side to treating this illness; you will feel better and you will be a better family member, friend and lawyer.”
Dr. Fortgang, licensed in psychology and alcohol/drug counseling, has been on Lawyers Concerned for Lawyers staff for 20 years and in private practice (Newton, Boston).
by Tejal Mehta
You may have a great boss. You may have a lucrative job. You may work at a law firm or a public agency, with job security and benefits. You may have all of the above. But haven’t you ever wondered how great life would be if you could call your own shots? Your. Own. Firm.
Of course it is daunting. You will ask yourself, “What will be my niche?” “How will I find clients?” “What if my clients become unhappy and sue me?” “Will a home office do?” “Who will buy my paperclips?”
Relax and take a deep breath. Thanks to countless new websites, online products and phone applications, hanging out a shingle is easier, safer, and even more rewarding than was possible even a few years ago. If you are even considering taking the leap, read on.
One lesson learned the hard way by many new solo practitioners is that you don’t want to start off by spending too much money. Because you will be on your own, you will probably have a few lean months in the beginning. Your necessary expenses will include marketing, malpractice insurance, bar dues, a post office box, office supplies, travel and parking. Create a startup business operating budget of $5,000-$10,000 for your first year, and stick to it.
Your Business Plan
You will already have thought about this, in the course of deciding to go solo. But while you are working through your startup list, keep thinking critically about your niche. What do you like to do? What are you good at? And where do you want to practice? If you want to practice criminal defense and be in court regularly, perhaps apply to be a bar advocate. Starting up a civil practice may be a little more challenging, but that is where marketing comes in.
Your Marketing Plan
Network, network, network. A professional support system is crucial. Start by drawing upon the colleagues and connections you already have. Join the local bar association of the geographic area where you plan to practice, and attend events as regularly as you can. Call your colleagues from your prior firm or from law school, and let them know they can send you cases and you will give them a portion as a referral fee. You will start building your practice and your reputation.
As you continue to network, you will likely meet attorneys who are willing to send you their overflow cases. Do not be afraid to ask for this, and for general advice. Before I launched my solo practice, I scheduled a dinner meeting with a solo practitioner colleague who walked me through his startup, informed me how he handled his billing and taxes, and provided me sample fee agreements and boilerplate motions for court.
Join the Massachusetts Bar Association or the Boston Bar Association and attend events or section meetings. The Massachusetts Bar Association has a valuable “Lawyer Referral Service” through which you can receive case referrals for your legal specialty.
Is there a legal topic you know well enough to teach to others? Write a letter to the MCLE programming coordinators and explain that you would like to volunteer your time, by chairing a panel or speaking as a panelist, on that particular topic. This will make you more visible in the legal community.
Websites such as Avvo.com are gaining popularity among attorneys. You can create a basic profile, with your photo, for free. They also have services to make you highly visible online and help you stand out in your desired geographic area and practice niche. This can be more of an investment, so do your research on these sites before diving in. Another widely used networking tool is LinkedIn.com, which allows you to create an online profile for free and connect with lawyers and other professionals who are on this platform.
Do you have a Facebook account? Make your Facebook page your business page! Use your logo and bio, provide details of your expertise, and broadcast your new venture to the network you have already established. It is free advertising, and even if it brings in one new client it will be worthwhile in your first six months. Keep it professional and you can use it along with your business website to reach out to Facebook users. I would suggest using it in addition to, not in lieu of, your business website, as the audience you connect with on Facebook may be different from the audience you would reach through a customary website.
The Nuts and Bolts of Your Actual Startup – In Order
Plan your start date for 30 to 60 days out. Then set the wheels in motion.
Contact information. Set up a free Google voice number or use a similar service, as your work line on your existing phone. Use caution when giving out your personal cell phone number. Clients will call you at all hours of the day and night. Also set up a work email – a professional name on a gmail account will work. Courthouses still send and receive faxes, so it may be worthwhile to set up an efax on your computer at some point.
Firm name. This is a personal choice. You can be creative, or just use your last name, e.g., Smith Law Offices.
Office/Post Office Box. Having a physical office can be expensive and is not really necessary in the beginning. Wait and see what your needs are. You will need a space where you can meet clients, so in the meantime, you can meet them in a courthouse conference space or in public establishments such as coffee houses or the library. To keep your relationships professional, do not meet clients at your home or theirs. Also, you can ask a colleague to lend you a conference room and pay them for that day. Or, you could pay to have use of a virtual office and conference space, on an as-needed basis. You can list it on your business cards and thus have a mailing address at a professional building. If you do not initially rent an office or use a virtual office, you will still need a mailing address. Rent a post office box in a convenient location. The small or medium sized post office boxes offered should suffice, and will cost about $100-$160 annually.
Bank Account. Go to the bank of your choice. Take your checkbook. There will be a minimum balance requirement, likely at least $1,500, to set up the business account. Inform the bank you need a small business checking account and an Iolta account with a low minimum balance and no fees. The bank will need your firm name. If you have not incorporated, then you can call your firm a “dba” (“doing business as”), e.g., John Smith dba Smith Law Offices.
Do you need to incorporate your business? Not immediately. Many attorneys do it, but not all. The key question to answer is, what assets do you want to protect? The purpose of incorporating is to shield your business from liability in the event of a lawsuit. If you have very little to protect, you may not need to incorporate right away. It costs approximately $500 to $1000 to incorporate with the Secretary of State. You can defer that cost at the onset of your new practice. You may also seek to obtain a higher liability insurance policy initially, while deciding whether to incorporate.
Malpractice Insurance. Massachusetts Lawyers Weekly contains liability insurance recommendations. Or, you can ask a colleague for a recommendation. Do not be afraid to shop around. You should purchase a minimum of $100k/$300k coverage. A basic policy should cost approximately $600 for your first year. It will rise after that.
Business cards. Look at colleagues’ cards for ideas. Create a simple design – logo optional – and limit the text. Use an easily legible font. A business card that is handsome and easily readable is an asset – one that is too busy or uses type too small to read is useless. You can find economical printing options at Staples or Costco. You can print 500 cards for as little as $15.
Letterhead. Again, look at your colleagues’ letterhead for ideas. You can easily tailor yours and print it from your own computer.
Website. The vast majority of potential clients look for their attorneys online, or, if they have been referred to an attorney, they Google that attorney to see what they can learn about him or her. Get a professional headshot. Or, take a friend to a law library, stand in front of the reporters, and have the friend take your photo. Then create a website and post your photo on it. A site such as WordPress will construct a basic website for $100. As time goes on, you may want to make it more expansive, with client testimonials, information about cases you have handled, and even a blog. Some of my colleagues use professional website companies that engineer the site to put them at the top of the list in online search engines. I nearly fell over when I found these services cost upwards of $15,000 per year. This type of cost can be deferred until later.
Essential items. You will need a computer, printer, office supplies, and a datebook or online calendar to keep track of appointments and payment dates. You will need access to a scanner and a fax machine, either in your home or at a place such as Staples. You may also wish to purchase a credit card reader from a service such as Lawpay, in the future. Make sure to save all of your receipts for tax time.
The Rest Is History
Starting your own law practice takes guts, and the beginning may be a bit rocky. But if you set up your firm with care, have a vision of your practice, and plug away at networking, you will begin to enjoy success. Before you know it, your name will be out there and new attorneys will be asking you for advice on how to launch. Good luck!
Note: this article reflects the author’s personal opinions and experiences, and is not to be construed as an endorsement of any specific services or companies set forth herein. If you have any specific questions relating to starting your own practice, please feel free to email the author at firstname.lastname@example.org.
Tejal Mehta, a trial attorney, has worked at civil litigation firms and the Middlesex District Attorney’s Office, and now operates a thriving solo practice. She is a former member of the Boston Bar Association.
We live in a specialized world, one in which access to information is so overwhelming that there literally is “an app for that” to satisfy even the most specific and narrow of needs.
Yet, until recently, the legal profession’s response to the increasingly tailored needs of our clients has been to give them all the tried and true traditions of the law. Got a dispute? Let’s file a lawsuit with the courts and travel down the litigation road. Got a complex, sophisticated business dispute? Let’s go to arbitration with an arbitrator who is experienced in business disputes. Don’t want to risk a jury deciding your case and spend thousands of more dollars on a trial? Let’s go to mediation. Because…this is how we do it. This is how we’ve been doing it for decades.
The information revolution has moved too quickly and our clients have become too savvy to be content with the legal profession’s limited amount of choices or one size fits all approach. There is a time and a place for litigation, for arbitration, and for late in the dispute process mediation. But most of the time, our clients need an approach to resolving their disputes that is tailored to their needs, specific circumstances, and unique situations. Today’s lawyers and neutrals can best serve our clients by being responsive to the specificity of their needs and interests. That includes not only resolving a dispute but also how we go about resolving it.
New England Patriots coach Bill Belichick often talks about playing “situational football.” In other words, the game plan is designed differently for each game and depends on the situation each opposing team presents. The Patriots will never use the same game plan against the Broncos as they used for the Jets just because it worked. The Patriots win because they understand that a great result begins with a carefully designed and tailored approach.
Every dispute is different. Every client has a different bandwidth of factors which need to be considered. These may include how quickly the client needs to resolve the matter; how much can be spent on it; how important are the relationships of those involved; how much control does the client want to have over the process and the result; how risk averse is he/she; how important is confidentiality; what kind of expertise is needed; what are the important interests that are behind a stated position; and how productively can the parties work together in a non-adversarial setting, with or without a human go-between.
If the field of dispute resolution (DR) is going to be relevant, it has to be agile and responsive to the situation that is presented to us. No longer can litigation be the default and a couple of other processes be “alternatives.” In fact, no one process can be the default position and be presented to clients as the Cadillac of dispute resolution processes. It is time for the “A” (alternative) to be dropped from “ADR” (alternative dispute resolution), something that the Massachusetts Bar Association has just formally recognized in changing its former ADR Committee to its new DR Section. No process is an alternative; rather, every process is an alternative, and there are alternatives within the alternatives.
Within these DR processes, there is an explosion of variations and new roles emerging. For example, distinctions are often made between “facilitative” style mediation and “evaluative” mediation. In the latter, the mediator is called upon to help the parties assess how strong or weak their respective positions are, and to provide insight on the potential damages. A new trend emerging, called Planned Early Negotiation (PEN), draws a distinction between mediation which is done instead of litigation, or very early on in the litigation process, and that which is done later, often on the eve of trial. When done early, there may be some kind of information exchange so that the parties, lawyers and the mediator have enough factual information for well-informed and productive negotiations. Conciliation is another DR process with a much shorter time frame – often an hour or two –- and has often been referred to as “mediation on steroids.” Conciliation largely focuses on the advantages of reaching a negotiated agreement as compared with the pitfalls of the alternative of going to trial.
New approaches have been developing even in the well-established field of arbitration. Arbitration has increasingly become a more complicated process and often includes many elements of litigation. As a result, many parties are opting for more streamlined models of arbitration with limits on discovery and motion practice Some even use a more simplified version like “baseball arbitration,” in which the parties submit their respective written proposals for a settlement to the arbitrator, who then chooses the one he/she believes to be more appropriate and reasonable. And within baseball arbitration, there is both the version just described, known as “daytime” baseball arbitration, and “nighttime” baseball arbitration, in which the parties submitted proposals are not disclosed to the arbitrator until after the arbitrator renders a decision. The proposal that is closest to the arbitrator’s decision is then chosen to be the final resolution. In other cases, arbitrators may visit the site that is at the heart of a dispute and may limit or expand the degree of information exchange, the scope of submissions and the nature of a hearing.
Collaborative law, a structured negotiation process, grew out of the need to remove or minimize the adversarial elements of litigation. Collaborative law is a PEN process designed to intentionally pursue resolution by agreement through the collaboration of lawyers, clients and experts. It is similar to the more established role of settlement counsel. Lawyers that are hired as settlement counsel have the singular and limited purpose of negotiating with the other side on behalf of the client, as distinct from litigation counsel. A dispute would then proceed on two tracks; settlement counsel would be focused on pursuing settlement negotiations only, while litigation counsel would be handling the litigation aspects of the dispute.
Similar to the role of settlement counsel, the focused legal representation of clients by collaborative lawyers is limited to the collaborative process, where achieving the desired resolution is the lawyer’s only role. Collaborative law requires the open and voluntary exchange of all relevant information as a basic tenet. As such, “discovery” is both streamlined and profound. Collaborative lawyers and their clients may utilize neutral facilitators, case evaluators, or other neutral experts to provide parties with the expertise needed on the relevant factual and legal issues when there is a colorable claim and a valid defense. By its very nature, collaborative law is responsive to the circumstances of the dispute, allowing for flexibility and creativity in crafting solutions. That very nature allows collaborative lawyers to use variations while remaining consistent with the process’s basic protocols and principles.
Hybrids like “med-arb” or collaborative law with a baseball arbitration style closure option are also emerging, each with a different adaptation of process. What is clear is that there is no longer just one model of any of these processes. They will be called upon to be responsive to the situation each dispute presents.
These changes will require lawyers and neutrals to make more detailed assessments of each situation and the parties involved. Based on that assessment, we can then make a recommendation as to choosing and sometimes designing the right approach. This can present somewhat of a dilemma. Many lawyers and neutrals have a preferred DR process, one that we are more comfortable with, have the most experience in or in which we have been trained. Just like a surgeon excels at surgery and that is what the surgeon wants to do, litigators want to litigate; arbitrators want to arbitrate; mediators want to mediate; collaborative lawyers want to use collaborative law; and so on. So when the client comes into our office, there’s a natural bias, as well as a financial incentive, toward wanting to lead the client to what we do.
But if we are true to doing a thorough assessment of the client, his/her situation and all the factors of the dispute that is presented to us, and are going to make a good recommendation about the approach for this unique situation, we may have to refer the person to some other process and someone else that is the right fit for that client.
In the same way that a lawyer specializing in one area of practice would not try to represent the client in an area outside of his/her practice, a lawyer whose focus is settlement counsel or collaborative counsel is probably not the right lawyer for litigation, and vice versa. As there are specialties in areas of practice, today there are specialties in types of process. The training and expertise for a litigator is different than that of a settlement counselor, just as the process of collaborative law is different from arbitration. In her groundbreaking book, The New Lawyer: How Settlement is Transforming the Practice of Law, Law Professor Julie Macfarlane eloquently dissects the differences between adversarial advocacy and the newly emerging “conflict resolution advocacy.”
There is a role and a place for every kind of process on the DR spectrum, from litigation and arbitration on one end to preventive contract drafting and proactive ombudsman work on the other end. As the needs and demands of our clients get more specific and more sophisticated, those of us who represent our clients either as litigation, settlement or collaborative counsel, as well as those of us who serve as DR neutrals, must be responsive. The times call on us to be flexible and agile, to be ready and able to design approaches according to the needs and the situations presented to us. As legal counsel and neutrals, it is up to us to guide parties in the right direction in order to help them achieve their best outcomes.
Michael A. Zeytoonian, the founding member of Dispute Resolution Counsel, LLC is a lawyer and mediator whose practice areas include employment, business, consumer protection, special education law and homeowner-contractor disputes. Michael writes, lectures frequently on collaborative law, mediation and dispute resolution (DR) and has trained lawyers and presented on Collaborative Law throughout the United States, Canada, Ireland and The Netherlands. He is co-author of Collaborative Law: Practice and Procedures (MCLE, Boston 2014).
by Hon. John T. Lu and Kevin Riley
“Empower the Sentencing Commission to revisit the state’s approach to sentencing and sanctions”, this was one of several key criminal justice policy recommendations proposed by the Massachusetts Criminal Justice Coalition in 2013. At the urging of criminal justice leaders, the Massachusetts Sentencing Commission, originally codified in Massachusetts G.L. c.211E, was re-established in 2014 and met for the first time that October to consider the performance of our sentencing system. Nearly nineteen years after the publication of the first “Report to the General Court” in 1996, once again the members and staff of the Massachusetts Sentencing Commission eagerly embrace the opportunity to reposition the Commonwealth at the forefront of criminal justice policy development.
The current sentencing guidelines are used by many judges on a voluntary basis. The guidelines are in the form of a grid where the seriousness of the offense and the criminal history of the defendant are systematically considered in making a sentencing recommendation.
Comprised of three judges, three prosecutors, and three defense attorneys, along with the Secretary of the Executive Office of Public Safety and Security, a representative of the Massachusetts Sheriffs’ Association, the Commissioner of the Department of Correction, a designee of the Parole Board, the Commissioner of Probation, and a designee of the Victim Witness Assistance Board, the Commission represents a diverse cross-section of subject-matter experts, including:
• Hon. John T. Lu (Chair): Associate Justice, Superior Court;
• Daniel Bennett, Esq: Secretary, Executive Office of Public Safety and Security;
• Michael J. Callahan, Esq: Executive Director, Massachusetts Parole Board;
• Edward J. Dolan: Commissioner, Massachusetts Probation Service;
• Mary Alice Doyle, Esq: Deputy First Assistant DA, Essex County DAs Office;
• Peter L. Ettenberg, Esq: Defense Attorney (MACDL);
• Hon. Kenneth J. Fiandaca: Associate Justice, Boston Municipal Court;
• Pamela Friedman, MSW: Chief, Victim Witness Unit Norfolk County DAs Office;
• Brian S. Glenny, Esq: First Assistant DA, Cape & Islands DAs Office;
• Hon. Mary Elizabeth Heffernan: First Justice, Newton District Court;
• Carol Higgins O’Brien: Commissioner, Massachusetts Department of Correction;
• Dean A. Mazzone, Esq: Senior Trial Counsel, Criminal Bureau Attorney General’s
• John S. Redden, Esq: Attorney-in-Charge, Brockton Superior Court Trial Unit (CPCS);
• Martin Rosenthal, Esq: Defense Attorney (MACDL); and,
• Steven W. Tompkins: Sheriff, Suffolk County.
Commission members, appointed in accordance with Massachusetts G.L. c. 211E, serve on a voluntary basis and are generally appointed for six-year terms; no voting member may serve more than two full terms. The enabling legislation envisions the Massachusetts Sentencing Commission as an ongoing entity that supports, monitors and assesses the implementation of sentencing initiatives throughout the Commonwealth. Under the statute the Commission and its staff seek to:
• Analyze the impact of existing and proposed sentencing policies and practices on criminal justice resources using computer simulation models;
• Provide training and support to court practitioners on the use of sentencing guidelines;
• Recommend the appropriate placement of newly-created crimes on the sentencing guidelines grid;
• Conduct research on sentencing and other criminal justice issues to help guide the formulation of policies and legislation;
• Collaborate with criminal justice agencies on system-oriented research initiatives; and,
• Serve as a clearinghouse for information on sentencing.
Since the Commission’s initial meeting in October 2014, members and staff have convened on a monthly basis to discuss a wide scope of proposed sentencing changes, initiatives, and policies. The Commission’s commitment to data-driven decision making and evidence-based practices is furthered by the appointment of University of Massachusetts Lowell Professor James Byrne, an authority on evidence-based sentencing practices, to the position of outside technical advisor and the Commission’s access to the expertise of staff and faculty at the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School. On November 18, 2015 the Commission held a public hearing to solicit public commentary on sentencing matters. Further, in addition to strongly considering valuable public input on sentencing, the Commission has called upon the expertise of the following nationally recognized leaders to help guide the work of the Commission:
• Michael Coelho: Deputy Commissioner of Programs at the Massachusetts Probation Service, Coelho addressed the Commission on the Pew Results First Initiative, a cost- benefit approach to guiding policy and budgetary decisions throughout the Massachusetts criminal justice system.
• Professor Mark Kleiman: Then a Professor of Public Policy at the Luskin School of Public Affairs, UCLA at Berkeley, Professor Kleiman engaged Commission members in discussion of the HOPE model of probation supervision and best practices in the sentencing of drug offenders.
• Professor Kevin Reitz: Professor of Law at the University of Minnesota Law School, Professor Reitz provided a national perspective on the work of other sentencing commissions and how Massachusetts can incorporate nationally recognized best practices into our sentencing guidelines model.
• Professor Richard Frase: Co-Director of the Robina Institute of Criminal Law and Criminal Justice, Professor Frase provided valuable insight on developing a safety-valve provision offering qualified offenders relief from mandatory minimum sentences.
• Commissioner Edward Davis (ret.): Former Boston Police Commissioner Davis presented Commission members with a law enforcement perspective on sentencing and best practices for promoting successful post-incarceration reintegration for offenders.
• District Attorney Daniel Conley: Suffolk County District Attorney Conley provided Commission members with a prosecutorial perspective on sentencing and crime control.
• Judge Nancy Gertner (ret.): A former Federal Judge, Gertner presented Commission members with her experience and perspectives in working with the federal sentencing guidelines.
In addition to participating in full Commission meetings, Commission members also serve on sub- committees. Detailed below is a brief synopsis of each sub-committee and the responsibilities and work they are engaged in:
• Community-Based Sanctions Sub-Committee: Focusing on innovative solutions to incentivize compliance with community-based sanctions, restructuring of supervision fees, community relations through outreach initiatives, and considering the implications of “zero-based” conditions of probation where every condition must be justified.
• Guidelines and Legislation Sub-Committee: Focusing on the development of a comprehensive sentencing guidelines model, one supported by data and grounded in research. Sub-committee members are actively debating and considering improvements designed to strengthen statutory criminal justice provisions.
• Outreach and Training Sub-Committee: Responsible for the coordination of public hearings as well as making recommendations to improve the web presence of the Commission. Further, sub-committee members are also responsible for the development of training resources and for providing technical support to guidelines users at the local court level.
• Research and Data Sub-Committee: Responsible for the review and approval of all research related requests, including the development of information sharing protocols. Sub-committee members also serve as a review board to monitor any mutually agreeable external research projects the Commission engages in. Further, sub-committee members may analyze sentencing data to monitor developing trends and rates of compliance and departure from recommended sentencing ranges.
The Massachusetts criminal justice system is engaged in many initiatives that share the mission of, and parallel the work of the Commission. The Council of State Government’s Justice Reinvestment Initiative and the best practices in sentencing committees within the Trial Court are two such initiatives.
The Council of State Government’s Justice Reinvestment Initiative in Massachusetts is a significant cost-savings. Experts from the Justice Reinvestment Initiative will present these findings to a bipartisan task force that will debate and present these recommendations to the legislature. The cost-savings generated through these recommendations can then be reinvested in front-end programs designed to reduce recidivism. Currently, 24 states and 17 local jurisdictions throughout the United States participate in the Justice Reinvestment Initiative.
Led by Chief Justice Ralph Gants, working groups on best practices in sentencing are active in each court department with significant criminal jurisdiction. Committee members, which include judges, probation officers, prosecutors, defense attorneys and police chiefs, are tasked with the development and implementation of sentencing best practices specific to each of these court departments. It is the intent of these committees to develop a set of sentencing best practices to serve as a judicial decision making support tool, guiding judges in crafting individualized sentences that are consistent with best practices whenever possible.
Moving forward, the Sentencing Commission is developing data-driven policy recommendations and remains committed to collaborating with nationally recognized experts from the academic and legal communities. Given the diverse backgrounds of Commission members, significant differences of opinion on how to best improve sentencing in Massachusetts are unavoidable, and despite this, many Commission members are encouraged by a shared vision. This common vision is one that does not compromise public safety and scarce correctional resources, and seeks to reduce prison populations when consistent with public safety, to reduce recidivism, to enhance the utilization of intermediate sanctions, and to support an economically sustainable correctional model. The Commission extends its sincere gratitude to the many local champions and nationally recognized leaders who have whole-heartedly endorsed and supported our mission as we work to bring evidence-based practices to sentencing policy in Massachusetts.
John Lu is a Superior Court justice and chair of the Massachusetts Sentencing Commission as well as an Adjunct Professor of Law at Boston University. He is the lead Superior Court judge for a Bureau of Justice Assistance-funded Demonstration Field Experiment of HOPE probation principles, a randomized control trial of supervision of high-risk probationers. Lu’s professional interests include criminal justice and sentencing innovation, leadership and management, and teaching.
Kevin Riley is a research analyst at the Massachusetts Sentencing Commission. A graduate of the University of Massachusetts Lowell, Riley’s professional interests include statistical analysis, geographic information systems (GIS) and economically efficient alternatives to justice system
We have seen the marketing. According to a recent report by a top consulting firm, the Internet of Things will have an annual economic impact of between $4 trillion and $11 trillion by 2025. Another firm has announced that there will be 50 billion internet-connected devices globally by 2020. And companies already have rebranded in grand fashion, declaring the arrival of “Smart Homes,” “Smart Cities,” the “Smart Planet,” the “Industrial Internet” (the contribution of the author’s company), and even the “Internet of Everything.” We also have seen the reality of Fitbits that record our activity and suggest changes to our exercise and sleep patterns, cars that accept remote software updates, and airplane engines that communicate maintenance issues from the tarmac. For all of this potential, and even greater claimed potential, our shared late-night admission is that none of us has a well-defined picture what, precisely, the Internet of Things is or does.
This combination of wide promise and shared confusion is not a trivial matter. Companies are setting long-term strategy based upon Jetsons-like glimmers of the future; consumer expectations and fears are being set in an environment of rapidly-evolving offerings and — most critically for attorneys providing advice to clients considering investments in this area — legislators and regulators are being asked to set legal and enforcement frameworks without a clear picture of the future product landscape or whether products still in their infancy will create anticipated harm. In order to advise properly in this area, and to avoid regulatory frameworks getting far ahead of actual product development, it is important that lawyers appreciate the scope of Internet of Things technology and the policy implications of internet-connected goods and the data they create and use.
So what is the Internet of Things? Simply put, the Internet of Things, or IoT, is a set of devices that connect to and send or receive data via the internet, but not necessarily the devices people most often think of as being connected to the internet. In the consumer world, IoT includes smart meters that measure home energy use, refrigerators that can report back on maintenance needs or whether the owner needs more eggs, and monitors that can record blood sugar results and communicate via Bluetooth to a connected insulin pump. It also increasingly includes cars that sense other cars in close proximity and record and report on driver speed, location and music listening choices. And in the industrial space, offerings include an array of sensors and networks that measure and manage the safety and efficiency of oil fields or the direction, speed and service life of wind turbines and airplane engines; X-ray and CT machines with remote dose monitoring; and badge-based radio-frequency identification systems that analyze whether medical providers are washing their hands in the clinical setting and the resulting impact on infection rates. This definition generally does not include computers, tablets and other computing devices, although — with smartphone apps advancing to the point of measuring movement and heart rate and reading bar codes to compare prices at local retailers — one could argue that the iPhone and Android phone are the Swiss Army Knives of personal internet-based data collection and use. In turn, IoT devices generate large sets of sensor-based data, or Big Data, which can be aggregated and analyzed to generate observations concerning the world around us and to improve products and services in healthcare, energy, transportation and consumer industries.
These developments have not been lost on government. The White House has commissioned two major studies on the potential of Big Data. The Federal Trade Commission held a full-day workshop to discuss IoT in the home, in transportation and in healthcare, and FTC staff subsequently issued a comprehensive report discussing benefits and risks of IoT. Branches of the European Commission are encouraging companies to establish European research and development footholds for internet-based devices. The European Commission noted the development of internet-based devices and the prospect of a Digital Single Market as inspirations for the anticipated replacement of the European Data Privacy Directive. And European Data Protection Commissioners have boldly asserted their authority, declaring that in light of the risk presented by sensor-based devices, “big data derived from the internet of things . . . should be regarded and treated as personal data” under European data privacy law. Unfortunately, the Commissioners did not distinguish industrial uses such as wind turbines and oil wells from consumer goods that actively collect personal information.
The FTC report above summarizes many of the practical and policy challenges presented by emerging IoT technologies and the views of advocates for industry and consumers. Security is, for many, the most compelling issue. Internet-connected devices must collect data accurately; those data sets need to be communicated securely to data centers; and devices and back-end computing systems need to be protected against hackers, both to protect the data collected from devices and to protect the networks and devices against hijacking. Recent stories of rogue engineers using laptops to break into parked cars and controlling car brakes remotely, and the dystopian nightmare of a hacked pacemaker on the TV drama Homeland, have not helped mitigate these concerns. This risk is compounded by the prospect of “big data warehouses” that can store and analyze zettabytes of data in support of technological breakthroughs.
Separately, there is the question of notice and consent for the collection and use of IoT data. As the FTC staff report notes, it is significantly easier to provide notice about a company’s data practices on a computer screen than on a piece of medical equipment or in a friend’s car that already is collecting and reporting a wide array of data. This problem is compounded in industrial settings, for example, where passenger weight is analyzed to optimize airplane engine function, or where data sets from and surrounding an MRI machine are communicated to the hospital network to read the scan and to the device manufacturer to facilitate maintenance and product improvement.
Other questions abound. Will data from an internet-connected device be used for unanticipated purposes, such as devising large consumer medical or credit reports, without the consumer having the ability to know what is being done or how to correct or delete data? Will providers use data to discriminate improperly, or will better use of data create a more level playing field, facilitating new services at lower prices for a wider swath of consumers? And are some issues already addressed by current regulatory frameworks like HIPAA or the Fair Credit Reporting Act, related standards like the Payment Card Industry security rules, or extensive regulatory frameworks governing security and data use for government contractors, transportation providers and energy providers?
In turn, certain baselines have emerged. First, “security by design” and “privacy by design,” the practices of building security and privacy protections into the development lifecycle of goods and networks, are essential. These requirements become even more compelling in light of the recent decision of the Third Circuit in FTC v. Wyndham Corporation Worldwide, holding, among other things, that the FTC has authority to bring claims alleging “unfairness” for a company’s purported failure to properly secure networks and data. Second, companies collecting data from IoT devices must carefully consider how much data they need and whether it can be de-identified to minimize privacy risk, whether the data will be aggregated with other data, and whether consumer choice is needed to make specific use of the resulting data set. And in light of privacy and national security laws around the world — including recent data localization and national security laws in Russia and China — companies will need to evaluate where data is transferred globally and where to locate the associated databases and possibly even global computing, service and engineering staff.
Much of the promise and peril of the Internet of Things and Big Data are in the future. Google and Dexcom, a maker of blood sugar monitoring devices, recently announced an initiative to make a dime-sized, cloud-based disposable monitor that would communicate the real-time glucose values of diabetes patients directly to parents and medical providers. No date has been announced, although recent advances in remote monitoring suggest hope. And the journal Internet of Things Finland recently published an article announcing the proof-of-concept for a “wearable sensor vest with integrated wireless charging that . . . provides information about the location and well-being of children, based on received signal strength indication (RSSI), global positioning system (GPS), accelerometer and temperature sensors.”
Thus far, rule-making has focused on security standards for connected devices and related computing networks. The FDA has issued detailed security guidance for connected devices and systems, and the Department of Defense has issued security standards for contractors that include an expansive definition of government data subject to coverage under the U.S. Department of Commerce’s NIST 800-171 standard for protecting sensitive federal information. However, there has not been a push in the U.S. for comprehensive legislation governing internet-connected goods and services. As the FTC staff report explained: “[t]his industry is in its relatively early stages. Staff does not believe that the privacy and security risks, though real, need to be addressed through IoT-specific legislation at this time. Staff agrees with those commentators who stated that there is great potential for innovation in this area, and that legislation aimed specifically at IoT at this stage would be premature.”
The marketplace for internet-connected goods and services surely will continue to expand, and the product and service landscape will advance rapidly. Whether we will see more than $10 trillion dollars of annual economic impact has yet to be determined. In this fast-moving environment, companies considering investment in the Internet of Things and Big Data and the attorneys who advise them would be well served to monitor the evolving regulatory and legislative landscape.
Peter Lefkowitz is Chief Counsel for Privacy & Data Protection, and Chief Privacy Officer, at General Electric. Mr. Lefkowitz previously served on the Boston Bar Journal’s Board of Editors.
The right to be indicted by a grand jury in cases of capital and serious offenses is guaranteed under the Fifth Amendment to the U.S. Constitution and Article 12 of the Massachusetts Declaration of Rights. Grand jury proceedings have been the focus of national attention this past year. Yet few people across this country understand how a grand jury functions. Further, grand juries vary from state to state in make-up, jurisdiction, and procedure. Here in Massachusetts, grand jury practice strives to maintain the integrity and character of this essential component of our criminal justice system.
The grand jury occupies a unique and historic place in our jurisprudence. See Jones v. Robbins, 8 Gray 329, 342-50 (1857); Commonwealth v. Riley, 73 Mass. App. Ct. 721, 726 (2009). Comprised of citizens who sit independently and in secret, “the grand jury have the dual function of determining whether there is probable cause to believe a crime has been committed and of protecting citizens against unfounded criminal prosecutions.” Lataille v. District Ct. of E. Hampden, 366 Mass. 525, 532 (1974). Probable cause is reasonable grounds to believe that a crime has been committed by a certain person. “[A]t the very least the grand jury must hear sufficient evidence to establish the identity of the accused and probable cause to arrest him.” Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) (citations omitted).
In Massachusetts, the grand jury is comprised of twenty-three citizens. A Superior Court judge, usually assisted by an Assistant District Attorney, empanels a grand jury every three months. In Suffolk County the jury sits four days per week for the entire three months. Though some employers pay for all jury service, most will pay only the required first three days of service after which the State will pay fifty dollars per day. Using individual voir dire, the judge inquires of each potential juror on the issues of hardship and impartiality. Finding fair and impartial grand jurors who can commit to this three month schedule under these financial conditions is difficult, and empanelment usually takes two days. Once twenty-three jurors are chosen, the court will administer the Grand Jury Oath, G.L. c.277, §5. The Judge follows with the traditional instruction explaining briefly the duties and responsibilities of grand jurors, and then remands them to the care of the prosecutor to begin their work.
The District Attorney oversees the presentation of cases to the grand jury. The prosecutor’s unique access to the police and the victims and witnesses of crimes provides a practical avenue to presenting cases in grand jury. The grand jury meets in secret. The witnesses and evidence that come before it are not disclosed to anyone during the pendency of any investigation. In fact, jurors are forever bound by the secrecy requirement. The grand jury serves both a screening and an investigative function. The grand jury will hear cases for which an arrest has been made to determine whether an indictment should issue, and will also conduct complex investigations into alleged crimes for which no arrest has been made. Standard cases range from simple gun and drug possessions to physical assaults and robberies, from sexual assaults and child abuse to shootings and homicides. A case cannot proceed to Superior Court for trial unless a grand jury has returned indictments.
Typically, the Assistant District Attorney will present evidence through the testimony of sworn witnesses, supplemented with physical evidence. All evidence is obtained through grand jury subpoenas. Physical evidence can take many forms: photographs, surveillance video, recorded statements, drug and gun certificates, medical and other business records. All witnesses summoned before the grand jury are entitled to be represented by an attorney. Witnesses who refuse to testify or otherwise assert a privilege will appear with counsel before a judge for a hearing on that issue. If the judge determines that the witness has a valid claim of privilege, the judge will excuse the witness from testifying. Only the grand jurors, the prosecutor, the witness, and a stenographer, lawyer or interpreter are allowed to be present during testimony. All testimony of witnesses is recorded and transcribed into grand jury minutes and these are later provided as part of a discovery package to an indicted defendant.
The evidence required for a grand jury to indict is “considerably less exacting” than the evidence required for a petit jury to find guilt at trial. Commonwealth v. Walczak, 463 Mass. 808, 817 (2012). See also Riley, 73 Mass. App. Ct. at 726. The rules of evidence are relaxed during grand jury presentations. Leading questions are allowed, and hearsay is permissible. Grand jurors have the opportunity to question witnesses. In furtherance of their duties, grand jurors may request the Court to order witnesses or potential targets to provide DNA samples, fingerprints, or even participate in lineup procedures. This evidence assists the jurors in making the ultimate finding of probable cause, and may exculpate or inculpate a potential target. Grand jury practice has developed over time to now afford the grand jurors a fuller and more complete review of the evidence. While once a single police officer may have been sufficient to establish probable cause, the current practice is for grand jurors to hear most of the percipient witnesses and to receive corroborative evidence, and such exculpatory evidence as is available.
The other major role of the Assistant District Attorney is to serve as a legal advisor to the grand jury. See Walczak, 463 Mass. at 823-24, 840-41. Traditionally prosecutors instruct on and explain the law whenever appropriate, necessary, or requested by the grand jurors. Id. The Court, however, does not require instruction unless specifically requested by the grand jury. Commonwealth v. Noble, 429 Mass. 44, 48 (1999). Recently, the Court carved out an exception to this longstanding rule. In cases where the prosecutor seeks to charge a juvenile defendant with murder and where, apart from any claim of lack of criminal responsibility, there exists substantial evidence of mitigating circumstances or defenses — e.g. that the defendant acted in the heat of passion based on reasonable provocation or sudden combat — the prosecutor must instruct the jury on the elements of murder and the legal significance of this evidence on the record. Walczak, 463 Mass. at 809. In Suffolk County, as a case comes before the grand jury for the first time, the prosecutor will define the elements of the potential crimes and applicable legal concepts using standard jury instructions and case law. Once a jury has been instructed on a specific charge or concept, they will receive subsequent instructions as requested or needed. Before voting any charge, the grand jury has received all applicable instructions of law.
At the conclusion of the evidence, the prosecutor will ask the grand jury to vote on a charge or charges. The jurors deliberate in secret, and the prosecutor is not present. For each crime, the jurors must determine if there is probable cause to charge a certain defendant. If the Commonwealth presents sufficient evidence to meet the standard of probable cause, it is the duty of the juror to vote in favor of a true bill or indictment. In order to true bill a charge, twelve or more grand jurors must vote to support the indictment. If fewer than twelve jurors vote to support a charge, the result is a No Bill, that is, no indictment. Although twenty-three members make up a whole grand jury, a minimum of thirteen need be present to have a quorum. In all cases at least twelve jurors must vote to return a true bill or indictment. The foreperson signs the indictments on behalf of the grand jury and returns these indictments to the Court.
Ultimately, the Court oversees and reviews the grand jury process. At any time, the jurors may request instructions from a judge. For the most part, the legal requirements and responsibilities placed on prosecutors in grand jury have been simple and straightforward. In order to sustain an indictment, the evidence presented to the grand jury must establish probable cause. McCarthy, 385 Mass. at 163. The prosecutor also has a duty to uphold the integrity of the grand jury process and provide significant exculpatory or other mitigating evidence that would influence the grand jury’s decision to indict. Commonwealth v O’Dell, 392 Mass. 445, 451 (1984); Commonwealth v. Mayfield, 398 Mass. 615, 621 (1986). Upon meeting these requirements, an indictment will survive most challenges.
The public would be impressed with the commitment demonstrated by the members of the grand jury. From the moment they take their oath to the end of the three months of service, the jurors work hard to be fair and impartial, fulfilling their solemn responsibility to properly charge individuals with crimes and to uphold their obligation to serve and protect the citizens of this Commonwealth.
Linda Poulos is an Assistant District Attorney with the Suffolk County District Attorney’s Office. She has been the grand jury coordinator for the last 15 years.