by Hon. Robert B. Gordon and Hon. Debra A. Squires-Lee
Voice of the Judiciary
Commentators have written a good deal about the changes to Massachusetts Superior Court Rules 9A and 9C that went into effect on November 1, 2018. Rule 9A governs the process by which nearly all civil motions are filed in the Superior Court, and Rule 9C requires parties to confer prior to filing most of these motions. Together, Rules 9A and 9C promote judicial efficiency and streamline civil litigation. However, the two years since their amendment have witnessed continuing non-compliance with Rules 9A and 9C; and we, who have been Associate Justices on the Superior Court since 2013 and 2018 respectively, have noted some persistent areas of confusion within the bar. Below are some of the most frequent issues or questions we encounter, together with our answers.
- I called opposing counsel and left a message (or I sent an email to opposing counsel) and have not heard back. Does that satisfy Rule 9C’s conferral obligation? The Rule expressly requires that conferences shall be by “telephone or in person.” The reason is clear. Communicating by telephone or in person increases the likelihood that parties will narrow the “areas of disagreement to the fullest extent,” as required by the Rule. Further, the Rule requires “good faith” efforts. A single or even a series of emails does not suffice. Three or more unreturned calls should, however, and likely will prompt intervention by the Court in a Rule 16 Conference.
- I served my motion with a cover letter saying if you want to confer, let me know. Does that satisfy the conferral obligation? In addition to the requirement that conferral be by telephone or in person, Rule 9C requires that the parties confer “in advance of serving any motion under Mass. R. Civ. P. 8(a), 12 (except Rule 12(c) motions in administrative appeals), 26, 37, 41(b)(2) (first sentence) or 56.” (Emphasis added.) Practitioners should note that, following public comment, the Superior Court approved an amendment to the scope of Rule 9C such that Rule 9C would apply to all motions governed by Rule 9A. The court is awaiting approval from the Supreme Judicial Court on this amendment.
Requiring a conference prior to service of a motion saves resources, and improves the chance of either narrowing the issues presented in the motion or eliminating the need for the motion altogether. By contrast, once a lawyer has drafted and served a motion (and charged the client), that lawyer is more apt to dig in his or her heels and be less likely to make compromises. Further, if the parties confer only after service of a motion, but do not fully bridge the divide between their positions, they often simply file the originally served and opposed motion papers with the court without disclosing that they had reached compromises on some aspects of the motion. With the average caseload in each civil session in Suffolk County Superior Court on the order of 700 cases, judicial economy and efficiency suffer if judges are called upon to review and decide motions unnecessarily or rule on issues that are no longer in actual dispute.
Consequences: Failure to comply with Rule 9C’s conferral obligation should result in a denial of the motion without prejudice or, as some judges prefer, an obligatory conferral session in the hallway outside of the courtroom. Either result costs clients more than compliance with the Rule would have.
- I served a cross-motion (or a motion to strike) together with my opposition. When I get the opposition to my cross motion, may I serve a reply brief and require the moving party to include it in the 9A package? No. Although Rule 9A was amended to permit the moving party to serve simultaneously an opposition to the cross-motion or motion to strike and a reply to the non-moving party’s opposition to the original motion, “[n]o other reply or surreply submission shall be filed without leave of court, which will be granted only in exceptional circumstances.” Counsel should recall that, prior to the 2018 amendments to Rule 9A, reply briefs were not permitted as a matter of right and permission-seeking letters to the judge were required. Further, a motion seeking leave to file an additional reply or a surreply memorandum is filed separately from the 9A package.
One important practice tip to keep in mind: do not submit the draft reply (to the cross-motion or motion to strike) or surreply with the motion seeking leave. Practitioners may think that securing leave is more likely if the reply submission has already been prepared and is staring the judge in the face. However, this sort of presumptuous practice and the cluttering of the case file it produces may put off many judges who may deny the request on that basis. Practitioners who do this risk diminishing the likelihood that their request will be granted, and finding themselves in the unhappy position of not being able to bill clients for work that their non-compliance with the Rule rendered nugatory.
- The defendant is representing herself. Must I comply with Rule 9A and Rule 9C? Rule 9A and Rule 9C apply to pro se parties. Among other exceptions, Rule 9A does not apply to ex parte or emergency motions, or motions involving a self-represented incarcerated party. But both rules do apply to self-represented litigants who are not incarcerated, and counsel have a duty to confer with pro se parties under Rule 9C just as they do with opposing counsel.
- I served my Motion to Amend the Complaint to add new claims and new parties on the original defendants. Have I complied with Rule 9A? This is a common error. Rule 9A requires service on specifically named non-parties if “(a) the Motion seeks to add the non-party as a party to the case; (b) the Motion seeks an order or other relief against the non-party; [or] (c) the issues affect the personal information or other interests of the non-party.” This requirement means that any amendment seeking to add a party must be served on the proposed new party; any motion that may affect a specific non-party, for example a motion for a preliminary injunction seeking an order that may affect the non-party, must be served on that non-party; and a motion seeking to attach property or assets in the possession of a non-party, whether pre- or post-judgment, must be served on the non-party.
- I sent documents and affidavits to the plaintiff with my opposition to the motion for summary judgment, but the plaintiff did not include them in the joint appendix. Should I file the material separately? The moving party is obligated to submit a single joint appendix with the Rule 9A summary judgment package. The moving party must append all material provided by the non-moving party, whether or not the moving party thinks the material is relevant, to the moving party’s material and include such material in the joint appendix. Please read Rule 9A(b)(5)(v) carefully, and comply with it. Whether you are seeking or opposing summary judgment, you want the court to read the material you submitted and not spend time organizing, tabbing, indexing or hunting for documents. A single, indexed, tabbed, and complete joint appendix greatly improves the court’s ability to locate and review the evidence. If the moving party does not comply, we recommend that you serve and file a motion to strike the motion for summary judgment for failure to comply with Rule 9A. Make sure, however, that you have conferred per Rule 9C and attempted to persuade the moving party to file an amended Rule 9A package with an accurate joint appendix.
- The defendant did not comply with Rule 9A and filed an “emergency” motion, which is not an emergency. What should I do? We see faux “emergency” motions all the time. A true emergency motion is one that requires resolution before the ten (or thirteen, if served by mail) days necessary to comply with Rule 9A. For example, a tracking order deadline is about to expire. Having waited until the 11th hour to seek an extension of this or that deadline may cause you anxiety; but your inattention is not the court’s emergency. A true emergency is one that arises beyond your ability to control. (Think pandemic.) If opposing counsel files a motion as an emergency motion and you do not agree, call the assistant clerk in the session to which your case is assigned. Inform him or her that you do not believe the motion is an emergency, and intend to oppose it. The clerk will then alert the judge to the opposing party’s intention to oppose and the disagreement as to whether the motion presents a true emergency. In that event, the judge will typically wait to act on the motion until receipt of the opposition.
Consequences: “The court need not consider any motion or opposition that fails to comply with Rule 9A.” The court “may return non-compliant submissions to counsel with instructions for re-filing, and may impose other sanctions for flagrant violations of the Rule.” The “other sanctions” may include denial of the motion with prejudice, and requiring the payment of costs and fees by the non-compliant party.
When followed, Rules 9A and 9C promote judicial efficiency and economy, and allow for the timely resolution of civil motions. When parties fail to comply with those rules, they waste their own and their clients’ time and money.
Hon. Robert B. Gordon has been an Associate Justice of the Massachusetts Superior Court since February, 2013. Prior to joining the bench, Judge Gordon was a partner of Ropes & Gray, LLP.
Hon. Debra Squires-Lee was appointed to the Superior Court in 2018. Prior to her appointment, Judge Squires-Lee was a partner at the Boston law firm of Sherin and Lodgen where she specialized in business litigation and legal malpractice defense.
by Victoria Fuller
Superior Court Rule 9A was amended effective November 1, 2018. Although the Rule has been amended several times in the last few years, the most recent changes are big. Really big. Everything from cross-motions to summary judgment to basic formatting have been revised. Superior Court practitioners who fail to familiarize themselves with these changes risk having motions returned or denied.
Summary Judgment Packages Get Leaner
The biggest change to Rule 9A affects summary judgment procedure. These changes are geared to slimming down filings and simplifying the issues before the Court. First, the Statement of Facts, as served, cannot exceed 20 pages, and cannot include several types of facts:
- Immaterial Background facts;
- Quotations from, or characterizations of, transactional documents (“except if admissible through percipient witnesses”); and
- Quotations from statutes, regulations or rules.
Parties may submit these types of material, without argument or commentary, in an addendum to the party’s memorandum.
Second, the rule limits the permissible scope of responses to the Statement of Facts by prohibiting some common responses that have complicated the Court’s ability to determine what facts are actually disputed in good faith. Opposing parties may state whether a fact is disputed, and if so, cite supporting record evidence. They may not, however:
- Deny a fact, or state that a fact is not supported by the cited materials, without a good faith basis;
- Comment on whether the fact is relevant or material. The opposing party may, however, state that the fact is admitted solely for purposes of summary judgment;
- Assert additional facts; or
- Include legal argument or advocacy concerning the sufficiency, relevance or materiality of the fact.
Third, opposing parties are no longer permitted to serve Statements of Additional Facts, except in support of a cross-motion for summary judgment. They may, however, include additional facts in their opposition with supporting record citations. The rule also directs the parties to cite both the joint appendix exhibit number and the corresponding paragraph in the Statement of Facts in their memoranda.
In addition, three types of summary judgment motions may now be denied by the Court on the papers:
- Multiple motions made by the same party, or a motion filed by a party sharing similar interests with a party who has already moved for summary judgment, which raises issues previously resolved by the Court;
- Motions for partial summary judgment that will save little to no trial time, will not simplify trial, or will not promote resolution of the case; and
- Motions where a genuine dispute of material fact is obvious.
Finally, the rule has updated sanctions for non-compliance with the summary judgment provisions. The court may not consider the motion or opposition, may return the submission to counsel with instructions for re-filing, or may impose other sanctions for flagrant violations.
Cross-Motions Are Integrated Into a Single Filing Package
The rule has now filled a procedural gap affecting cross-motions. For example, if a party serves a motion to compel, and the opposing party serves an opposition and a cross-motion for protective order: Under the old rule, the cross-motion was not required to be included in the same 9A package. As a consequence, the motion to compel could be filed and heard before briefing on the cross motion was complete.
Under the new rule, opposing parties serve cross-motions with their opposition to the original motion. The original moving party then serves the reply (if any) and opposition to the cross-motion. The original moving party files both motions and oppositions as part of the same 9A package.
Cross-motions for summary judgment generally follow the same process, but in addition, a Consolidated Statement of Facts is prepared.
Parties Must Now Confer on Dispositive Motions
The new Rules 9A and 9C extend meet and confer obligations to dispositive motions (with limited exceptions). Motions lacking a 9C certificate under the new rule, as under the old, will be denied without prejudice.
New Procedure for Requesting Leave
Parties must still seek leave to file additional briefing and pages, which will be granted only in “exceptional circumstances.”
Rule 9A(a)(6) also sets forth a new procedure for requesting leave. Letter requests are gone. Now, requests must be captioned as a pleading, not exceed one page, state the grounds for the relief sought, and include a certificate of service. The request is sent to the session clerk, captioned “ATTN: Session Judge.” If the Court grants a request for additional pages, this will apply to the opposing party’s memorandum as well, unless otherwise ordered. The permitted pleading must state the date on which leave was allowed. Note that a request for leave does not extend the date for filing the Rule 9A package, unless permitted by Court or by agreement of the parties.
Under the old rule, papers had to be typed in “no less than 12-point type.” Now, papers must be 12-point type – no more, no less. In addition, quotes and footnotes must also be 12-point type. An addendum that sets forth “verbatim and without argument, pertinent excerpts from key documents, statutes, regulations or the like” need not be included in counting permitted pages.
Finally, email addresses must be included in the signature block or the attorney must certify that he or she lacks one.
Service on Non-Parties Now Required In Limited Circumstances
Unless excused by court order, or where ex parte relief is authorized by statute or rule, the new rule requires service on non-parties under three circumstances:
- the motion seeks to add the non-party as a party to the case;
- the motion seeks an order or other relief against the non-party; or
- the motion addresses issues which affect the personal information or other interests of the non-party.
Electronic Service Now Permitted
Many practitioners will rejoice that email service is now permitted. The parties must agree in writing, and parties must include “served via email” on their filings for the clerk to accept scanned signatures. That said, parties filing papers signed under the penalties of perjury, such as affidavits, and all required 9A certifications, must bear original signatures.
Motions Exempt from Rule 9A
Finally, the new Rule 9A adds two categories of motions as exempt: motions governed by e-filing rules, and review of decisions of administrative agencies.
The new rule also seeks to prevent parties from trying to skirt Rule 9A by declaring a motion an “emergency.” Now, parties filing emergency motions must certify that they have made a good faith effort to confer with all parties, and must state whether any party assents to or opposes the motion.
Though extensive, these changes should streamline and improve Superior Court motion practice. Prudent practitioners will ensure that they, and other attorneys in their firm or organization, familiarize themselves, and comply, with the new rule.
R. Victoria Fuller is an attorney in the Boston office of White and Williams LLP. Her practice focuses on insurance law, employment law, and general commercial litigation.
Voice of the Judiciary
Before I was appointed a judge, if someone had asked me to list the most interesting things that a trial judge does, I doubt that I would have included chatting with jurors after they have rendered their verdict. However, over the last seven years I have found those post-verdict conversations to be enlightening, reaffirming, and frequently entertaining.
In each county, Superior Court judges are assigned on a rotating basis, each week, to welcome the day’s pool of prospective jurors, as required by law. See G.L. c. 234A, § 65. Depending on the county in which you are sitting, your turn comes up every couple months. Judges take different approaches in their greetings. Part of my approach is try to convince my audience, some of whom are usually skeptical, that most people find jury service an interesting and rewarding experience. I go on to say that when we (judges) speak to jurors who have been seated on juries after they have returned their verdicts, we find that sometimes they have made new friends, they have learned something more about our criminal or civil justice system, and they always feel that they have made an important contribution to their community. I say this to encourage our potential jurors to serve, and also because I believe it is true.
While I have had the good fortune to speak to a great many juries over the past seven years, these are just personal observations and, therefore, only anecdotal. After I receive a verdict (or declare a mistrial) and formally thank the jurors for their service, I always tell the jurors in open court that I would like to thank them in a less formal setting in the jury room. I make it clear that this isn’t an order and they are free to go, but if they have time I hope they will stay a few moments. I don’t think that any juror has ever left before my court officer escorted me to the jury room. While some juries are polite, but clearly anxious to disperse and go on about their business, the majority of juries have questions they want to ask, suggestions they want to offer, or generally want to chat about their experience. I think that juries that have “bonded” during their service are more likely to linger.
After explaining that I do not want to know anything about what jurors said to one another or the course of their deliberations, which I hope they will hold confidential (although having returned their verdict they are freed from any legal obligations not to speak to others), I ask if any juror has any question, comment or observations. Sometimes that prompts a number of jurors to speak up and sometimes I have to prod with a few questions of my own before a conversation ensues. Here are some general observations.
Jurors take their responsibilities very seriously–they truly understand that they have been the judges of the facts of the case. Obviously, the subject matter of cases varies. Some cases are clearly more difficult to decide; some are more emotional; and in some the consequences of the verdict are clearly enormous. Frequently, jurors are physically exhausted at the end of their deliberations. It is not uncommon to find jurors in tears or fighting them back. I suspect sometimes that may be because a juror has been convinced to change his or her view of the evidence or a fact. Sometimes, it is because they have had to make an emotionally difficult decision.
I believe that jurors take very seriously their oath to apply my instructions to the facts as they find them. Personally, I don’t think that I have ever witnessed jury nullification. To the contrary, I have had jurors in tears in a personal injury case because they had found for the defendant, even though the plaintiff was very sympathetic or had suffered a debilitating injury. They had concluded that the defendant just was not negligent. On a number of occasions in criminal cases, it has been clear that the jurors thought that the defendant was probably guilty of the crime, but the prosecution had not proven guilt beyond a reasonable doubt. Conversely, jurors have found defendants guilty, but expressed concern over the potential length of the sentence.
Frequently, jurors ask me if there was any additional evidence that had been excluded from trial. More often this comes up in criminal cases, but sometimes in civil cases as well. I don’t have the sense that the jurors are angry that evidence was not presented, they just wish that they had more material on which to base their decisions. I think that collectively juries are very good at figuring out where the missing pieces are in the chain of evidence or events.
A recurring comment is that jurors do not want the lawyers to repeat the same point, over and over. Innumerable times juries have told me that they got it the first time, certainly the second time, and by the fifth time they really didn’t want to hear about it again. Indeed, some juries find the repetition condescending not convincing. Often juries will point out that the trial bogged down over “stuff” that was not relevant to their decision making. It was as if the lawyer was afraid to leave something out. I think that jurors appreciate charts and graphs that make data understandable, although they will do their best to sort through materials themselves if they have to. In one case in which critical evidence was on a surveillance video, a technologically savvy juror displayed the video frame by frame during deliberations. Juries tell me that they try to get past which lawyer they liked the best, but obviously they appreciate lawyers who make their job easier.
I think that even in an informal setting there is a tendency for jurors to tell judges what they think the judge would like to hear. Nonetheless, when I ask, jurors overwhelming tell me that their jury service has been a rewarding experience and they would like to do it again—but not too soon (especially when the trial takes more than a week).
I truly believe that if lawyers, or the public, were flies on the wall when judges chatted with jurors after a trial, it would make them believe what I believe, that while jury trials may not be the perfect way to resolve disputed issues of fact, they are the best way so far devised.
Mitchell Kaplan is a justice of the Superior Court and currently sits on the Business Litigation Session of the court. He was previously a partner at Choate, Hall, & Stewart and served as a law clerk to Hon. Joseph L. Tauro, USDC.
Voice of the Judiciary
In 2009, the Superior Court celebrated “150 Years of the Rule of Law,” on the occasion of the 150th anniversary of the Court’s founding in 1859. We held educational programs, historic reenactments, and a symposium; we posted exhibits that continue to enliven jury assembly rooms and public spaces; and we published a book of essays reflecting on the experiences of some fifty members of the Court. We undertook these observances in recognition of our proud history of providing justice in the broad range of matters that come before us.
Today, while we remain fully committed to our original mission, we recognize that to serve effectively under current and future conditions, we must change. Change is everywhere around us, and we can be no exception.
The Trial Court Strategic Plan, adopted in 2013, describes a vision for a court system fitting the needs and circumstances of the 21st century, providing fair and expeditious resolution of all types of disputes, in safe and dignified settings, and making full use of technology and of a committed and well-trained workforce. The Strategic Plan sets nine goals to reach that vision, three of which warrant particular attention in the Superior Court: (1) to preserve and enhance the quality of judicial decision-making; (2) to deliver justice with effectiveness, efficiency, and consistency; and (3) to improve access.
Quality judicial decision-making is the most essential feature of any court. The Superior Court has a long history of quality, including in the most serious and challenging cases. That is part of why so many outstanding lawyers regularly seek appointment to the Superior Court.
The judges of the Superior Court, with support from the Trial Court Judicial Institute, provide an invaluable resource for each other in enhancing quality. We operate a comprehensive set of professional development programs for colleagues at all levels of experience, including a structured orientation and mentoring program for new judges, as well as formal and informal educational programs for all.
We are now placing particular emphasis on peer observation, in which judges observe each other in the courtroom and give confidential feedback. As of this writing, 65 of the 78 sitting judges of the Superior Court have arranged pairings for on-going observation. This reflects a significant cultural shift from the days when judges considered it rude to enter each other’s courtrooms. To facilitate this program, lawyers must also make a cultural shift: when you see a judge in the audience section of a courtroom, do not wonder whether the judge on the bench is in some sort of trouble; rather, recognize that two judicial colleagues are demonstrating their commitment to continuous improvement by engaging in peer observation.
Effective, efficient, and consistent delivery of justice also requires change.
The Superior Court has long appreciated the value of timeliness; we have had time standards for civil cases since 1988, and for criminal cases since 2004, and we have systematically monitored compliance with time standards statewide for more than ten years. Our initiative over the last decade to achieve firm trial dates produced strong results; it is now a rare event in the Superior Court that a case ready for trial is not reached.
These efforts have moved in the right direction, but are not enough; the needs of litigants today dictate a more innovative and targeted approach. In response to the initiative Chief Justice Gants announced last fall, our working group on civil litigation alternatives, which includes lawyers in various practice areas as well as judges, is working on devising a set of options to be available to lawyers and litigants to streamline the route to cost-efficient outcomes.
Efficiency and effectiveness require that we identify and adopt consistent best practices throughout the Court, so that lawyers and litigants know what to expect when they come into the Superior Court, in any county or session. Technology will assist us in this effort. By the end of September of this year, the entire Court will have completed conversion to the MassCourts case management system. MassCourts will improve processes directly, as well as facilitate data collection. Standard form notices and orders will issue automatically upon certain docket entries and the scheduling of certain events, and eventually will be transmitted to counsel electronically. Selected filings and court decisions will be scanned into the record, and will eventually be available for electronic access. The Attorney Portal will give lawyers access to docket entries, as well as to their own schedules of court events. Electronic filing will take longer to implement, but it is on the horizon.
Judicial assignments affect consistency of practices and rulings. As Chief Justice, I have the responsibility to make assignments based on the overall needs of the Court and the public, balancing the benefits and the costs of rotation. I have been conducting an on-going open discussion on this topic with judges, clerks, and lawyers over the past several months, and will continue the discussion, so as to inform the assignment process for next year and beyond.
Along with quality and efficiency, we need to improve access. The Superior Court has fewer self-represented litigants than other courts, but we have some, and the changes we make to demystify court processes will improve access for lawyers and their clients as well, without any sacrifice in quality. Changes planned or in progress include posting forms and instructions on our website; posting clear signs and schedules of events; providing information desks; and making civil dockets and appropriate case materials available to the public on-line.
We are also working to increase access to Alternative Dispute Resolution, utilizing the services of two public-spirited retired judges who have generously agreed to volunteer their time without charge: retired Judge Paul Chernoff conducts mediations in Middlesex County, and retired Judge John Cratsley provides ADR services in Suffolk County for litigants who would be unable to purchase such services in the private market. We are also working with county bar associations to strengthen long-standing conciliation programs.
To make the changes that are necessary to meet the needs of today’s litigants, we need the support and participation of the bar, both in advocating for adequate funding, and in providing views and expertise. I welcome input from the bar on any of the topics mentioned here, or any other topic that might advance our efforts to provide timely justice to the public.
Judith Fabricant has been Chief Justice of the Superior Court since December 1, 2014, having served as Associate Justice of the Superior Court starting in 1996. Before her appointment to the bench, she was Chief of the Government Bureau in the Office of the Attorney General of Massachusetts; an assistant district attorney for Essex County, Massachusetts, and Wake County, North Carolina; an associate with Hill & Barlow of Boston; and a law clerk to Judge Levin H. Campbell of the United States Court of Appeals.
Voice of the Judiciary
*The following judges have served in the BLS since its inception: Allan van Gestel; Margot Botsford; Ralph Gants; Nonnie Burnes; Susan Garsh; Margaret Hinkle; Judith Fabricant; Stephen Neel; Christine Roach; Janet Sanders; Peter Lauriat; Thomas Billings; and Mitchell Kaplan
The Business Litigation Session of the Superior Court received its charter in 1999, and although Judge Allen van Gestel did not preside over the first BLS hearing until 2000, those of us currently charged with the care and maintenance of the BLS believe it to be celebrating its fifteenth birthday. On November 18, 2014, the New England Law Foundation and Boston Bar Association were kind enough to give the BLS a birthday party at the Boston College Club. The celebration included a panel discussion moderated by Paul Dacier, executive vice president and general counsel of EMC Corporation and past president of the BBA. The panelists including six sitting or retired judges, all of whom served at one point as the administrative judge of the BLS and whose service on the BLS collectively spanned the fifteen years that it has been in existence: Judges Allen van Gestel, Margaret Hinkle, Judith Fabricant, Janet Sanders, and now Chief Justice of the Supreme Judicial Court, Ralph Gants. Judge van Gestel was warmly recognized as the “father” of the BLS. Chief Justice Rouse was applauded for her steadfast support for the BLS during her entire tenure as Chief of the Superior Court. The room was full of well-wishers, and, I think it fair to say, a good time was had by all.
A fifteenth birthday is also a good occasion to reflect on how well the BLS has met the needs for which it was created. I am able to consider this question from two different courtroom vantage points: the well and the bench. I was appointed to the Superior Court in 2009; prior to that I represented clients in many BLS cases during the first nine years of its life. For the past two years I have presided in BLS-1, sharing the session with Judge Tom Billings. I should point out that these observations are my reflections and not those of any other BLS judges or an institutional report.
In the late 1990’s, I was among the lawyers advocating for the creation of a dedicated session for business cases. The Delaware Chancery Court had, of course, long since become the court of record for interpreting business law and defining the relationships between corporations and their boards and shareholders. Other states were then beginning to establish specialized courts or sessions for business cases. At that time, whether it was fact or self-interested perception, some attorneys who handled business cases believed that those cases did not receive the attention that they required in the very busy time standards sessions. There was also a concern that attorneys with options to file their cases in other states, federal court or private arbitrations were going to other forums, with the result that Massachusetts appellate courts did not have the opportunity to write on many of the developing issues in business law. Other attorneys with different practices rightfully argued that many other kinds of cases, such as medical malpractice, products liability and employment disputes, presented equally complex issues. Whatever the merits of those differing positions, the BLS was established in 1999 and heard its first motions in 2000, and a second BLS session was added in January 2002.
Is the BLS achieving its mission? Given my present assignment as a BLS judge, it is apparent that I am no longer an unbiased observer, but I believe that it is. We can start with an objective measure: as of July 1, 2014, the BLS had disposed of 3,698 cases since inception. A review of the currently pending cases is illustrative of the types of cases the BLS handles, which are very much broader than what I might think of as classic “business” disputes. As could be expected, there are a number of cases involving corporate governance, both securities class actions as well as disputes between stakeholders in closely held companies and partnerships; there are also several professional malpractice claims including legal, accounting and engineering services; there are a substantial number of consumer class actions involving products and services; there are a number of trade secret cases, often presented in the context of covenants not to compete, and other intellectual property cases arising in the context of breach of contract claims; there are a number of insurance coverage disputes, and, of course, a broad variety of commercial contract disputes. As always, there are cases arising out of some government action or program. At present, the licensing of medical marijuana dispensaries has generated many BLS cases, and the Attorney General’s proposed settlement with Partners is receiving much media attention.
Regardless of the subject matter of any particular case, I think that the BLS is at its best when it assists the parties in managing the complex case with multiple moving parts and often multiple parties. Blessed with a smaller case load than the time standards sessions, every case begins with a Rule 16 conference scheduled as soon as issues are joined. All BLS judges encourage the parties to consider participating in what we used to call the Pilot Project, but now refer to as the Discovery Project, in which the parties expressly agree on the scope and methods of discovery. However, we work with the attorneys in every case to tailor a pretrial schedule and discovery plan to the needs of the case. We will want to know if there will be contentious issues because of the volume of electronically stored data. Does it make sense to sequence discovery? Does it make sense to tee-up resolution of a particular claim or defense that might dispose of the case, or perhaps facilitate settlement, before discovery proceeds on other issues? Because we have the time to work closely with counsel and to understand the issues presented by a case, we are able to resolve many discovery disputes expeditiously and sometimes without the need for formal motion practice.
I attended a conference of business law judges from across the country last year. There was a panel addressing issues arising out of electronic discovery. (I think every conference has a panel like that now.) The lawyers on the panel both emphasized that in their experience the biggest factor in the expeditious resolution of a data driven litigation is the trial judge’s willingness to be involved in discussions concerning the scope and timing of electronic discovery from the outset of the case. Beginning well before my service on the BLS, the BLS judges have been ahead of the curve on this aspect of case management. At the fifteenth anniversary event, several of the judges on the panel described mammoth cases over which they presided some years ago in which they conducted multiple hearings and worked with counsel to adopt discovery plans in which the process was broken down to manageable bites (or bytes).
We do not have as many jury trials in the BLS as are tried in the time standards sessions. From my perspective as a BLS judge that has benefits and detriments. I like jury trials; however, having unscheduled time many mornings helps in preparing adequately for afternoon motions and delivering written opinions in a timely manner. All of the BLS judges try to provide written, and hopefully reasoned, opinions explaining our rulings. We send them all to the Social Law Library so that attorneys appearing in the BLS can have a sense of where a particular judge stands on certain kinds of issues and cases.
When the cases do try, they will typically take three to four weeks. In a time standards session it is difficult to devote a month to a single case, but the BLS does that regularly; and, as was true when I was trying BLS cases, when a case is scheduled for trial in the BLS, even for a lengthy trial, it is a hard date. You can use it to reserve hotel rooms for your out-of-state witnesses. And, we will give you a timely trial, regardless of its anticipated length.
Another benefit of having unscheduled time is the ability to fill it with matters needing immediate attention. A great many of the cases accepted in the BLS include requests for preliminary injunctive relief. Indeed, for a lot of those cases the definitive ruling will be the grant or denial of a preliminary injunction. I am coming to believe that in many of those cases at least a brief evidentiary hearing promptly scheduled can help me better understand the case and be more confident in my decision. I am increasingly offering the parties the opportunity to present or cross-examine key witnesses, particularly experts, at preliminary hearings.
In the years that I have been a judge, I have learned to be judicious in telling jokes or war stories from the bench because the lawyers always laugh, in the first instance, and look interested, in the second, regardless of whether the joke is funny or the story boring. Nonetheless, I conclude with a couple stories from my years of practice in the BLS. My hope is that I, and the other current custodians of the BLS sessions, are doing the job as well as the judges who presided in the early years of the BLS: the giants on whose shoulders we stand.
When I was in practice, I remember on a number of occasions explaining to clients with general counsel offices in other states that we should file our case in the BLS, even though we had diversity jurisdiction and could file in federal court. There were only two BLS sessions, the judges were both really smart and hardworking, it didn’t matter who we drew, and if we had to try the case they would give us a prompt trial date. I no longer have clients (which I must admit is a nice part of my job), so I don’t have that conversation any more, but I hope there are lawyers who practice in the BLS still having it with their clients.
Sometimes, the BLS works too efficiently. At our fifteen year celebration, the panelists were seated in front of a large window that looked out on the roof-tops of International Place. As I listened to Judge van Gestel speak, I was reminded of a jury waived case I tried before him a decade or so ago involving that building. I represented one of the two partners in the partnership that owned the building. They had a dispute about their respective rights under the partnership agreement and that led to a trial that took a week. A few days after it ended, I left for a short vacation. It never occurred to me that Judge van Gestel would render a decision in less than a week, but he did, many pages, and my side didn’t do well. While the young lawyers who had helped me try the case were debating whether to call me on vacation with the unhappy news, my client’s general counsel, who had already heard about the decision from the gloating, victorious partner, called me. He was not happy about the decision, but more than unhappy that he hadn’t first heard about it from me.
I try hard to work quickly and never keep matters under advisement for lengthy periods, but I can’t say that I am as efficient as Judge van Gestel was—maybe sometimes that is a good thing. In any event, I trust that the bar and the business community believe that the BLS session is continuing to meet the important needs for which it was formed fifteen years ago.
Mitchell Kaplan is a justice of the Superior Court and currently sits on the Business Litigation Session of the court. He was previously a partner at Choate, Hall, & Stewart and served as a law clerk to Hon. Joseph L. Tauro, USDC.