by Anne Goldbach and Nathan Tamulis
We are attorneys for the Committee for Public Counsel Services (CPSC). As public defenders who specialize in forensics, we provide help and support to a multitude of criminal defense attorneys from all over the state. Public defenders and private court-appointed attorneys call, visit, or email us with forensics questions in almost any area you can think of where forensics plays a role in criminal cases.
Last August, on a beautiful late summer day, we traveled to Devens, Massachusetts to participate in the five week training of a very large class of new public defenders. Our regular work would be done in the early morning, during breaks, and in the evenings. The day was proceeding well, with sessions on criminal defender practice, the right to counsel, court structure, and client relations. Suddenly, the afternoon was disrupted by an important and startling announcement: Governor Patrick had ordered the immediate closing of the Department of Public Health (DPH) drug lab in Jamaica Plain! Email was pouring in, the story was all over the web, and reporters were clamoring to reach us. It was hard to imagine what sort of problems would justify shutting down the entire lab indefinitely.
We had been on alert about work coming from this drug lab since February, 2012 when we learned that a breach of protocol had occurred in June, 2011. We had already advised the defense bar that it would be unwise to accept at face value assertions made by the DPH and some prosecutors – that there had been only one minor breach of a clerical nature that hadn’t affected the accuracy or integrity of the drug analyses. In short order, we learned that Colonel Alben of the Massachusetts State Police had announced that a chemist involved in testing drugs for thousands of cases from 2003 to early 2012 had breached procedures in the handling of evidence. There was concern that people, many of them CPCS clients, were wrongly convicted on tainted evidence. We were eager to find out what the chemist had done, what other problems existed at that lab, and what the authorities knew that we didn’t yet know.
MELENDEZ-DIAZ & THE NAS REPORT
In the chaotic days that followed, we scrambled to learn more and to advise defense attorneys about how to proceed. In the midst of this, we realized that we were much better equipped to face the challenges of the drug lab scandal than we would have been just four years ago – thanks to a landmark Supreme Court decision and a comprehensive National Academies of Sciences (NAS) Report.
Until 2009, notarized certificates of drug analysis were sufficient to prove that a seized item was a controlled substance. That changed when the Supreme Court handed down the decision Melendez-Diaz v. Massachusetts, which held that pursuant to Crawford v. Washington, certificates of drug analysis were testimonial in nature and drug analysts were necessary witnesses for purposes of the Sixth Amendment. Thus, the Confrontation Clause of the 6th Amendment of the United States Constitution requires that defendants have the ability to confront and cross-examine drug analysts at trial.
This finding was complementary to another watershed moment in 2009 – the publication of the NAS Report, Strengthening Forensic Science in the United States: A Path Forward. The NAS Report made wide-ranging recommendations in important forensics applications. Justice Scalia quoted the NAS Report in Melendez-Diaz: “[f]orensic evidence is not uniquely immune from the risk of manipulation….. A forensic analyst responding to a request from a law enforcement official may feel pressure–or have an incentive–to alter the evidence in a manner favorable to the prosecution. Confrontation is one means of assuring accurate forensic analysis…”
Both Melendez-Diaz and the NAS Report advanced essential elements of our criminal justice system: transparency, accountability and scrutiny. Melendez-Diaz underscored an important principle: the Confrontation Clause protects more than the accused; it requires the system to demonstrate that it is an open and fair one, for every citizen can now see into the police car, into the laboratory, and into the courtroom. Now we had the ability to question previously inscrutable chemists on the stand, and the NAS Report provided guidance for framing and directing our questions. Now defense counsel was better equipped to fulfill the duty of scrutinizing forensic science in criminal cases to assure that it is fair and accurate.
This was to be an era of increased scrutiny of the drug labs, of their analysts, and their procedures, oversight, and documentation. This was to be an era of improved accuracy and reliability in forensic science. Both the NAS Report and Melendez-Diaz recognized that in a vacuum, test results from analytical machinery can seem impeccably objective and unimpeachable. But test results are only as good as the people who prepped the samples, maintained and calibrated the machinery, and utilized scientifically validated procedures to produce the results.
In the wake of the drug lab closure, we understood that the teachings of Melendez-Diaz and the NAS Report would be tremendously useful in fighting for our clients’ rights. Moreover, they would help us learn how a lab scandal of this magnitude could happen.
Guided by these two milestones, defense attorneys recognized the importance of educating themselves in detail about technical aspects of drug analysis. They sought the kind of discovery that would allow them to more closely scrutinize the basis of drug analysis and the people who conducted those analyses. They asked for the written procedures, the documentation of equipment calibrations, and the chain of custody which should follow drug samples from the moment of seizure, through the laboratory, and their return to police custody. They developed detailed cross-examination of the chemists who tested drugs in their clients’ cases.
As packages of discovery were turned over, a much clearer and astonishing picture of the lab started to emerge. There were no written testing procedures, no training records, insufficient documentation, insufficient Quality Control and Assurance, lax supervision, and management woes. The lab was unaccredited and unregulated by any third party organizations. Problems went unaddressed for years. One of these problems was Annie Dookhan.
Annie Dookhan was hired in November of 2003. She began testing in earnest in January of 2004 and quickly took the lead by far in number of samples tested. In 2004 and 2005 she performed three times the number of tests than her average co-worker, some of whom had years of experience. This remarkable level of performance continued through her entire eight year career at the lab. She became a mass spectroscopy chemist and also assumed responsibility for other tasks, including instrument maintenance and Quality Control and Assurance tasks. She carried on, unchecked, until the June 2011 discovery of a “small” breach that ultimately led to the unraveling of the entire laboratory. Some of the most alarming allegations thus far are that she falsified records and purposely contaminated drug samples.
GOING FROM SWIFT JUSTICE TO THE LONG HAUL
Months have passed, and the path to justice for our clients is shaping up to be a long march. The task of identifying the hundreds to thousands of clients who have been affected is ongoing. The drug lab scandal has affected so many people – those who are in custody awaiting trial, those who stand convicted on the basis of potentially tainted evidence and are serving sentences or are on probation and parole, and those who have completed their sentences. On the basis of these tainted cases, people have been held in custody by immigration, or lost their jobs, public housing, drivers’ licenses, or even lost custody of their children. The list goes on and on.
Courts are working to find ways to handle these cases. Motions to withdraw guilty pleas and motions for new trials have been heard and will be heard. In some cases, clients have obtained resolutions by way of pleas to lesser charges and more lenient sentences. Other cases are moving to the Appeals Court and the Supreme Judicial Court as the District Attorneys challenge the authority of specially assigned magistrates and the allowance of some motions. Calls from the defense bar for a unified, systemic solution have gone unanswered to date.
The NAS Report says “…. the quality of forensic practice in most disciplines varies greatly because of the absence of adequate training and continuing education, rigorous mandatory certification and accreditation programs, adherence to robust performance standards, and effective oversight. These shortcomings obviously pose a continuing and serious threat to the quality and credibility of forensic science practice.” These were all serious problems at the DPH Drug lab, issues that allowed misconduct to go uncorrected for years.
As put forth by Melendez-Diaz, the heart of our adversarial system is confrontation and inquiry. The defense bar will continue to ask questions of the analysts to see that justice is done for our clients. Armed with the NAS Report, and a new appreciation for how forensics should properly be viewed by the courts, we will continue to fulfill our role as zealous advocates. Proper advocacy by defense counsel is not only important to the rights of individual defendants but also essential to the proper functioning of our justice system. We will improve the system.
ANNE C. GOLDBACH is the Forensic Services Director for the Committee for Public Counsel Services. In this capacity, she acts as a resource on forensics issues and experts for public defenders and private counsel attorneys across the state.
NATHAN A. TAMULIS is a Forensics Support Attorney with CPCS. He has many years of experience in the laboratory and uses that knowledge to assist defense attorneys with forensic issues.
by David A. Barry and William L. Boesch
In the midst of a law firm’s handling of a case, a client announces that he believes the firm may have mishandled the matter and that he has retained separate counsel to evaluate the firm’s work. The client insists that the firm continue to handle the matter because withdrawing now would be prejudicial. He says that if the case turns out badly, he will seek indemnity from the firm for his losses.
The lawyers involved in the case turn to their colleagues for advice. They talk and exchange e-mails with the firm’s managing partner, and with others in the firm who have experience in the subject-matter of the case and in professional-liability matters. The managing partner requests a detailed memorandum explaining how the case was handled and why the now-disputed decisions were made.
If a malpractice lawsuit follows, are these in-firm communications privileged against discovery? The ongoing fiduciary obligation of a firm to a current client, and the potential for conflict between the firm’s own interests and those of a client who threatens a malpractice claim, have prompted judges in a series of cases to hold that in-firm communications such as those described in the example above are not privileged, even if conducted with the express purpose of seeking and obtaining legal advice about the client’s threatened claim. E.g., In re Sunrise Securities Litigation, 130 F.R.D. 560 (E.D. Pa. 1989); Bank Brussels Lambert v. Credit Lyonnais (Suisse), S.A., 220 F.Supp.2d 283 (S.D.N.Y. 2002); Koen Book Distributors, Inc. v. Powell, Trachtman, Logan, Carrle, Bowman & Lombardo, P.C., 212 F.R.D. 283 (E.D. Pa. 2002).
This view, sometimes referred to as the “fiduciary exception” to the attorney-client privilege, was adopted by Judge Gorton of the District of Massachusetts in a 2007 ruling in Burns v. Hale & Dorr LLP, 242 F.R.D. 170, and by Judge Stearns in a brief 2011 decision in Cold Spring Harbor Laboratory v. Ropes & Gray LLP, 2011 WL 2884893.
The RFF Family Partnership Case
In a November 2012 decision, however, Massachusetts Superior Court Judge Thomas Billings joined what may now be a counter-trend in favor of recognizing a privilege for in-firm communications on current-client matters, at least under certain conditions. RFF Family Partnership, LP v. Burns & Levinson, LLP, 30 Mass. L. Rptr. 502 (Mass. Super. Ct. Nov. 20, 2012). See also, e.g., TattleTale Alarm Systems, Inc. v. Calfee, Halter & Griswold, LLP, 2011 WL 382627 (S.D. Ohio Feb. 3, 2011); Hunter, MacLean, Exley & Dunn, P.C. v. St. Simons Waterfront, LLC, 730 S.E.2d 608 (Ga. App. 2012).
Judge Billings’s decision produced an interlocutory appeal which the Supreme Judicial Court has taken for itself to decide (the case is SJC-11371) which as of this writing has been briefed and argued, and is under advisement. As we discuss below, Massachusetts lawyers will watch with interest to see whether the SJC uses this occasion to announce general rules on the subject of in-firm communications. Whether or not the Court does so, lawyers and firms may want to examine their procedures for responding to client disputes.
In RFF Family Partnership, the law firm handled a real estate loan foreclosure that produced a dispute over lienholder priority. The client retained a second lawyer, who sent a malpractice claim letter and draft complaint to the law firm, and demanded indemnification from any loss the client might suffer due to the firm’s alleged failure to detect, report and address the competing liens. The letter prompted an internal meeting at the firm between the lawyers involved in the matter and the firm’s managing partner.
When a malpractice suit was filed more than a year later, the firm took the position in discovery that the in-firm meeting was for the purpose of seeking the managing partner’s legal advice on how to respond to the potential malpractice claim. The plaintiff-client argued that even if this was so, the meeting occurred at a time when the law firm owed the client a fiduciary duty of disclosure as to facts material to the client’s interests, and that this fiduciary duty precluded the firm’s invocation of the attorney-client privilege.
Judge Billings’s Decision
In his November decision, however, Judge Billings observed that the fiduciary exception was originally developed to address situations in which a trustee sought legal advice, at the expense of trust beneficiaries, to guide the administration of a trust. Here, by contrast, the lawyers obtained legal advice at the firm’s own expense and solely for the firm’s protection.
Further, Judge Billings did not see any inherent inconsistency between a lawyer’s ongoing duty to disclose facts affecting the client’s interests—a duty that exists regardless of the lawyer’s decision as to whom, if anyone, to consult—and the reasons for encouraging a lawyer faced with a malpractice claim to seek the advice of another lawyer about how to evaluate and respond to the claim. Judge Billings reasoned that unless facilitating such advice-seeking is somehow perceived as likely to result in the involved lawyer’s deciding to conceal something from the client that he has a duty to disclose, there is no good reason to deny protection to the advice-seeking communications. Indeed, he suggested, it may be in the interests of the client as well as the lawyer that the latter be free to explore issues freely with competent ethics or professional-liability counsel, without the cloud of potential future disclosure.
Thus, the judge upheld in principle the law firm’s invocation of the privilege as to the in-firm communications to the extent they sought or gave legal or ethical advice. However, he found the firm’s discovery responses inadequately detailed and ultimately held that the firm had partially waived the privilege.
The Outside-Counsel Option
If the SJC decides to explore the boundaries of the in-firm privilege in the RFF Family Partnership case, the Court might, of course, adopt the absolutist view exemplified by the two federal decisions cited above, and hold that a firm’s obligations to its client simply bar any potential in-firm privilege. In that event, it will become critical for a firm faced with a potential malpractice lawsuit by a current client to consult with a specialist lawyer outside the firm, and to ensure that the firm’s lawyers understand when such consultation should supplant internal communications among colleagues. Engaging an outside lawyer provides a basis for clearly distinguishing between actually seeking legal advice about the threatened claim and merely discussing the matter as part of the business of running the firm. And since the outside specialist clearly owes no direct or imputed duty to the client, a claim of privilege will not be in tension with such competing obligations.
Establishing an In-House Counsel Role
If the SJC were to uphold Judge Billings’s decision, there may still be many situations in which, for the reasons given above, consultation with outside counsel is the more sensible response to a malpractice threat from a client. But assuming this is not an option for a firm, either in general or in a particular matter, then it will be critically important (under a regime in which in-firm communications may be protected) that the role of the in-house advisor or advisors be clearly pre-established and defined. The firm’s goal should be to give itself a solid basis for arguing that any potential conflict of interests for the lawyers involved in representing the client alleging malpractice should not automatically be imputed to the in-house lawyer or lawyers from whom the involved lawyers seek advice. Rather, the in-house lawyer should be treated as the functional equivalent of an outside attorney for the firm, with whom confidential communications would undoubtedly be privileged.
Large firms may have the ability to create a full-time in-house counsel position and to appoint in that role a lawyer who has no involvement whatsoever in representing the firm’s clients. Smaller firms may be able to establish the role only on a part-time basis, but should do so with similar formality, so that when the in-house lawyer is consulted about the threat of a malpractice claim, it is clear in what capacity her advice is being sought. Choosing a lawyer with particular experience and expertise in professional-liability or ethics matters, and/or providing opportunities for the lawyer to seek special training on such issues, may help to distinguish the role. Referring to the position on the firm’s website will also help to establish it as a matter of record.
Further Issues and Options
It may be useful, if it can be done gracefully, to refer to the in-house counsel role in a firm’s standard engagement letter, and to explain that lawyers in the firm may from time to time seek internal legal or ethical advice on a confidential basis. The in-house lawyer should have a designated matter number for recording her time spent on consultations and investigations, and no such activity should be recorded or billed by anyone to the client’s matter. Likewise, e-mail and other documents should, when created, clearly signal that they relate to the internal consultation or investigation rather than to the client’s matter itself, and strict segregation between the files should be maintained.
Mere creation of an in-house counsel position will not prevent practical difficulties; they are inevitable. For example, in the part-time arrangement likely to be suitable to smaller firms, since the in-house lawyer cannot be consulted as such where she herself is involved in representing the client alleging malpractice, one or more backup lawyers may need to be designated for such contingencies. And judgments will still have to be made as to when a particular issue leaves the realm of everyday conversation between colleagues, and graduates to the actual seeking of legal advice from in-house counsel.
Finally, whether consultation about a potential malpractice claim occurs within a firm or with outside counsel, the lawyer or lawyers involved in the ongoing representation of the client have an ongoing duty—one not altered by the fact of the consultation, or by whether or not it may ultimately be deemed privileged—to provide the client with information known by the involved lawyers that affects the client’s interests. The involved lawyers must also fairly assess and communicate with the client about whether and how they can continue with the representation given the threatened malpractice claim. Here again, this obligation is unaffected by whether or with whom the involved lawyers have consulted about the potential claim.
Yet despite these complications, and while Massachusetts lawyers will watch with interest to see whether the SJC uses the RFF Family Partnership case to provide guidance on this topic, it seems likely that attention to the concepts and formalities described in this article will continue to be important in ensuring that a lawyer threatened with a malpractice claim has an opportunity to seek advice about the threat, and to do so on a confidential and protected basis.
David A. Barry is a partner at Sugarman, Rogers, Barshak & Cohen, P.C., where he focuses his practice on complex litigation, including the defense of professional and products-liability cases. William L. Boesch is also a partner at Sugarman, Rogers. He represents lawyers and other professionals in malpractice cases and other matters, and litigates insurance and intellectual-property disputes.
Massachusetts courts continue to face difficult challenges. Hampered by extended backlogs, severe budget cuts, and prolonged hiring freezes, our hard working judges and dedicated court staff struggle every day to efficiently manage and provide a high quality of justice in thousands of legitimate cases involving important financial, personal and societal issues. Their efforts are additionally burdened by vexatious litigants who seem to regard the courts as their own personal complaint departments. This Article discusses the problem and calls upon judicial, legislative and bar leaders to put their heads together in an attempt to devise both fair and practical solutions to the problem.
What is vexatious litigation and why is it a problem in Massachusetts?
Defining vexatious litigation is difficult because litigants’ motives – whether in filing lawsuits to harass or control another party, litigating claims that are not legally recognized, or manipulating the system for personal gain – are quite diverse. Some common threads among vexatious litigants, however, are clear: their filings are often numerous, their claims largely without merit, and they impose enormous burdens on the court system and those required to respond to their claims.
In a recent article on “frequent fliers” of the court system, Massachusetts Lawyers Weekly newspaper reported that it had identified more than 450 complaints, appeals or other requests for relief filed in Massachusetts courts over the past three decades that were traceable back to just six litigants. In one notorious series of cases, a plaintiff filed at least one hundred and fifty separate lawsuits, resulting in more than ninety appeals, against his former girlfriend after their relationship ended. Ironically, a restraining order against that particular plaintiff failed to prevent him from using the judicial system to continue harassing the woman in question. The plaintiff’s repetitive and groundless actions have also been admonished by the Supreme Judicial Court, which presided over five of the plaintiff’s appeals for extraordinary relief in a single day. See Watson v. A Justice of the Boston Div. of the House Court Dep’t, 458 Mass. 1025 (2011).
Vexatious litigants also frequently turn their fire on judges, clerks, other court personnel and opposing counsel when cases are not resolved in their favor. For example, one such litigant brought over three hundred complaints in several states against public officials, various courts and judges due to events arising out of a series of traffic violations. See Azubuko v. McCabe, No. 1:108-CV-226, 2008 U.S. Dist. LEXIS 91798, at *1 (D. Mass. Oct. 27, 2008). Such conduct imposes inappropriate personal burdens on court personnel, diverts resources and time away from legitimate disputes, and subverts the purpose and basic functioning of our justice system. As the United States Supreme Court has noted in several per curiam decisions, “[t]he goal of fairly dispensing justice . . . is compromised when the Court is forced to devote its limited resources to the processing of repetitious and frivolous requests.” See In re Sindram, 498 U.S. 177, 179-80 (1989), In re Whitaker, 513 U.S. 1, 2 (1994), Whitaker v. Superior Court of California, 514 U.S. 208, 1447 (1995).
The Massachusetts courts and the Board of Bar Overseers have an array of weapons at their disposal that, for the most part, effectively deters lawyers from filing repeated, baseless lawsuits. The problem of vexatious litigation, however, does not appear to be primarily lawyer-driven. Instead, the vast majority of vexatious litigants are self-represented individuals, who need not be concerned about the spectre of Rule 11 sanctions or a complaint to the BBO. Even in federal court, where pro se plaintiffs are subject to Rule 11 sanctions, many vexatious litigants are judgment-proof, thereby blunting both the deterrent and punitive effects of monetary sanctions.
How Have Courts and Legislators Dealt with Vexatious Litigants?
Research suggests that Massachusetts courts and judges have inherent authority, rooted in common law, to take a variety of steps to curtail vexatious litigants. For example, a judge has inherent authority to dismiss a suit that is frivolous or designed to harass, or as necessary to prevent a fraud on the court. See, e.g., Munshani v. Signal Lake Venture Fund II, LP, 60 Mass.App.Ct. 714 (2004).
Another tool judges have at their disposal is the use of an injunction prohibiting a vexatious litigant from filing any new suit in a particular court. Although reasonably effective in curtailing vexatious litigation, injunctions are problematic in two respects. First, pre-filing bans curtail an individual’s constitutional right of access to the courts, so they should be used only when truly necessary and ordinarily should contain an exception allowing for the filing of a particular matter with prior judicial approval. Second, a determined plaintiff can often avoid the effect of an injunction by simply filing suit in a different forum. For example, one of the most prolific vexatious litigants in the Commonwealth avoided pre-filing bans in both Suffolk Superior Court and the United States District Court in Massachusetts by filing suits in courts stretching from New Jersey to Georgia. See Azubuko v. Boston Public Schools, 2006 WL 1373161 (D.N.J. 2006); Azubuko v. Berkshire Mut. Ins., 2003 U.S. Dist. LEXIS 26768 (N.D. Ga. Oct. 22, 2003). Unfortunately, Massachusetts does not currently have an effective administrative system in place to track problematic plaintiffs and enforce bans across its various divisions.
At least six states have enacted legislation to address the problem of vexatious litigants – California, Hawaii, Texas, Florida, Ohio, and Connecticut. These statutes include remedies ranging from a bond requirement to cover defendant’s costs (not unlike the bond requirement in G.L. c. 231, s. 60B, the medical malpractice statute), to pre-filing orders barring vexatious litigants from filing additional suits without prior leave of court.
One challenge in drafting legislation is defining precisely what constitutes a vexatious litigant. In California, for example, a litigant is “vexatious” if he meets any one of a number of tests, including repeatedly re-litigating a claim after a final, adverse judgment; repeatedly filing unmeritorious motions; or bringing at least five suits (other than small claims suits) in the prior seven years that have been resolved against him or permitted to remain pending at least two years without justification. Cal. Civ. Proc. Code § 391(b). In Ohio, by contrast, a litigant is vexatious if she “persistently engages in vexatious conduct in a civil action,” regardless of whether or not she initiated the suit. Vexatious conduct, in turn, is defined as behavior that either harasses another party, is unwarranted under existing law, or is designed to delay. Ohio Rev. Code Ann. § 2323.52(A)(2).
Whether based on the number of lawsuits filed or the litigant’s motives or conduct any fixed, statutory definition of “vexatious litigant” is bound to be both over as well as under inclusive when it comes to real world litigants. Perhaps this problem can be overcome by leaving the issue of whether a particular litigant is or is not vexatious to be determined by an appropriate judicial officer on a case by case basis, applying a set of pre-determined but somewhat flexible statutory factors.
What more can and should Massachusetts do to address the problem?
Courts, legislators and commentators from around the country have not agreed on the most effective means of curtailing vexatious litigation. But nearly all agree that the problem is real and continuing and, especially in difficult economic times, poses a genuine threat to the administration of justice and a cost to society. I urge members of the judiciary, our state legislators, and the leaders of the organized bar to convene a task force or other group to further study the problem and formulate recommendations for how we might best address the problem in Massachusetts.
Richard M. Zielinski is a Director in the Litigation group of Goulston & Storrs, P.C. He is also a past member of the Massachusetts Board of Bar Overseers, the Boston Bar Association Council, and a Fellow and past State Chair of the American College of Trial Lawyers (ACTL). Richard wishes to thank Alana Van der Mude and Keerthi Sugumaran, associates at Goulston & Storrs, for their valuable assistance in researching and drafting this Article.
By Judge Rudolph Kass (ret.)
Shortly after taking my seat as an associate justice of the Appeals Court, I received a notice of deposition. The subject concerned the competence of a testatrix whose will signing I had witnessed while still in practice. In doubt how a judge should behave in those circumstances, I consulted the then Chief Justice, Allan M. Hale, a bottomless source of pragmatic wisdom. His instructions were: “Go answer the questions and don’t make any rulings.”
I recalled that episode, which involved a degree of behavior modification, when asked by an editor of this journal what, if anything, I had to impart about my translation from appellate judge to mediator and arbitrator. That role change occurred after I reached the constitutionally mandated retirement age for judges.
An appellate judge comes upon a controversy when it has already gone to an advanced state of development: the parties and their counsel have not resolved their differences – if they have even tried; the case has gone to trial; a jury or judge has found the facts; and one side has won. The record is fixed. Except for the rare instance when a losing party challenges the findings of fact (generally a Sisyphean task), the appellate judge engages in analysis to refine the questions in the case and applies the fruits of legal research, life, and professional experience to produce an opinion of what the law is and, by its application, to decide who wins the case. In that effort, the appellate judge has the comfort of collaboration – and sometimes loyal opposition – of the other judges on the court.
The mediator enters upon a dispute in its nascent stage. With rare exceptions, the case has not been tried, and the appellate judge turned mediator is re-introduced to the certainty paradox that characterizes a trial: that the only certainty about a trial is the uncertainty of the result. At the mediation stage facts are still unsettled. This permits the parties enthusiastically to demonize one another – and they generally do.
Mediation theory holds that the role of the mediator is to help the parties size up their vital interests so that those parties reach an accord. Chances are, however, that when counsel for the parties choose a former judge to be their mediator, they want that mediator to voice some judgment about the strength of the parties’ legal positions. There may be a time for that but one quickly learns that at the beginning of the process, the ex-judge mediator, like the judge-deponent, better not make any rulings. The atmosphere is more favorable to settlement if one side may plausibly argue the world is flat and the other that the world is round. Mediation is a search for the mutually unsatisfactory but acceptable resolution – unsatisfactory in the sense that each party will walk from the mediation with less than that to which it thinks itself entitled but can accept upon reflective assessment of the risk of losing the case, the legal expenses even if victorious, and the disruptive wear and tear that litigation imposes. This is not to say that mediation is unprincipled. The relative claims and defenses are grounded in law and those considerations weigh heavily in resolution of the controversy. The legal answer is not the sole answer. In a particular context it may not be a constructive answer and it is wise, as Professor Austin W. Scott was wont to observe when teaching the law of trusts, to rise above principle: for example, when parties reasonably anticipate a course of mutually beneficial commercial relations ahead of them.
In appellate presentations there is a premium on candor on the part of counsel. Judges will give more weight to arguments from lawyers who are playing straight with the court. In mediation there is theater and posturing as parties make offers and counter offers that they do not seriously expect will be accepted. For the translated judge this takes some getting used to and calls upon the patience reserve. One develops a sense when the dance step converts to real negotiation.
In the comparative calm of the appellate process, the emotional state of the combatants is not a factor. The mediator, by contrast, sees emotion – often it is anger – on display and it is very much a factor that the mediator must strive to understand. The mediator’s response is that anger, however justified, is corrosive and obstructs arriving at a solution to the problem that produced the controversy in the first instance. It is fair to ask when confronted with anger and its twin, an immovable position, what did the party come to mediate? Was it not to solve a problem by a method other than a shoot out?
As the mediation reaches the climactic stage, the ex-judge begins to resume aspects of her/his former role. While still not a decision maker, the mediator becomes more directive, appraises legal positions more definitively, describes worst case scenarios and what the mediator thinks are a party’s vital interests. To the extent that parties are stuck in fixed positions, the mediator may suggest elements of a resolution other than an exchange of money. What does the former judge miss at this juncture? Not sitting one foot higher than everybody else in the room.
The former judge is likely to be conscious of the duty of the trial judge managing the case, if it has reached a judge, to keep the case from stalling or moving sideways. It would be presumptuous for a mediator to suggest how a trial judge should manage scheduling issues but if the parties appear to be getting close to settlement, it may be permissible for the mediator, with the consent of the parties, to so report to the trial judge. That said, the confidentiality statute, G.L. c. 233, §23C, which governs mediation, imposes circumspection on any communication between a mediator and a judge. The window in the wall that separates the mediation room from the courtroom is very small.
Occasionally parties come to mediation after entry of judgment in a trial and with the case on the path to appeal. The circumstances for a mediated settlement are now more difficult because one party has tasted blood and the other is behind the 8-ball. Yet, if the stakes are large, the winning party has an incentive to scale down its recovery in return for certainty; the losing party has an incentive to reduce the dimensions of its loss.
The Court of Appeals for the 1st Circuit screens cases in which mediation may be productive and invites the parties to mediate with a retired judge. Some years ago the Massachusetts Appeals Court experimented with a similar program. The number of cases that settled did not warrant the expense of maintaining the needed space and personnel. Instead, the court consigned cases which might have been candidates for mediation to the tender mercies of a summary disposition panel.
When listening to argument before the Appeals Court, was I ever tempted to inquire whether the parties would like to take a last shot at mediation? Hardly ever. There are cases involving family business disputes, domestic relations issues, neighbor against neighbor quarrels (e.g. about overloading a common driveway easement) where I would think it likely that a victory for one side will only further poison relations between the contending parties. But there they are. The lawyers have briefed the case, they rise to argue. Sometimes parties just need an authoritative decision. A court’s decision is a better way than dueling.
After receiving the LL.B. from Harvard Law School in 1956, Rudolph Kass broke into the practice of law with Jerome L. Rappaport and from 1961, practiced with Brown, Rudnick, Freed & Gesmer, of which he became a partner. In 1978, Governor Dukakis nominated Kass to the Appeals Court, on which Kass served from 1979 through 2003. Following his retirement from the court, he has embarked on a third career as a mediator and sometime arbitrator under the banner of The Mediation Group (www.themediationgroup.org) and REBA Dispute Resolution (www.reba.net), as well as doing other law related odd jobs, such as acting as a master.