On January 1, 2016, a number of amendments to the Superior Court Rules went into effect. These amendments, which were approved by the Supreme Judicial Court, adopted new Rules 19, 30A, 31 and 33; amended Rules 7, 9A, 9C, 13, 17, 22, 29 and 30A; incorporated Standing Orders 1-06, 1-07 and 1-09 into new Rules; and deferred action on proposed new Rule 17A. This article highlights many of the significant amendments to the Rules. Readers are advised to review the Superior Court Rules in full to ensure that they are fully informed of all of the changes that affect their practices.
Rule 9A: Civil Motions. A noteworthy amendment to Rule 9A, at 9A(a)(3), modifies the procedure related to reply memoranda. Litigants are no longer required to seek leave of court to file a five-page reply. To file a longer reply, which is “strongly disfavored,” a party must seek leave of court in the manner outlined in the revised Rule 9A(a)(3); and under the unchanged portion of Rule 9A(a)(5), any longer reply memoranda “shall not exceed 10 pages.” Sur-replies continue to be “strongly disfavored,” and leave to file them must be sought from the court. The Rule 9A amendment does not expand the circumstances in which reply memoranda are permitted, which remains “[w]here the opposition raises matters that were not and could not reasonably have been addressed in the moving party’s initial memorandum” and the reply is “limited to addressing such matters.” Furthermore, it does not alter the requirement in Rule 9A(b)(2) that the full Rule 9A package be filed within ten days of receipt of the opposition.
Rule 13: Hospital Records. Amended Rule 13 now requires that applications for orders for hospital records comply with Rule 9A if they are opposed. While previously a request could be filed after seven days notice to the opposing party, under the amended Rule 13 a party seeking an order for hospital records must now serve the adverse party with the request at least thirteen days before the order is needed, to allow for the possibility that the request will be opposed and that such opposition will be served by mail.
Rule 17: Recording Devices. Revised Rule 17 now requires recordings and transmissions of court proceedings to comply with Supreme Judicial Court Rule 1:19 (Electronic Access to Court), which prohibits photographs, recordings and transmissions in any courtroom, hearing room, office, chambers or lobby of a judge or magistrate without prior authorization of the judge or magistrate. The amendment to Rule 17 also eliminates the requirement that any court order authorizing the recording or reproduction of the proceedings be issued upon the condition that no such recordation may be used to impeach, discredit or otherwise affect the authenticity or accuracy of the record or the official transcript.
Rule 22: Money Paid Into Court. Rule 22 has been amended to increase the threshold at which money paid into Court must be deposited into an interest-bearing account from $500 to $5,000. The revised Rule 22 also contains a new, second paragraph which provides that, when money paid into court is unclaimed for 30 days “after the claim(s) of every party to the funds has been eliminated by default or court order,” the clerk is directed to schedule an assessment hearing after which the session judge may enter final judgment escheating the funds to the Commonwealth. However, judgment to this effect may not enter any sooner than three years after the funds are paid into Court. This amendment is consistent with M.G.L. c. 200A § 6, which provides that money paid into court is considered abandoned after three years or as soon after three years as all claims made for those funds have been disallowed or settled by the court.
Rule 29: Cover Sheet; Statement as to Damages. Rule 29(5) previously required Superior Court judges to transfer cases to the District Court if it appeared from the statement of damages in the civil action cover sheet that there was no reasonable likelihood that recovery would exceed the Superior Court threshold. It also permitted – but did not require – judges to transfer such cases if it appeared from any pre-trial event that the threshold would not be met. Amended Rule 29(5) is consistent with M.G.L. c. 212 §3A(b), and now limits the basis for such a determination to the statement of damages in the civil action cover sheet, as opposed to any information developed at a pre-trial proceeding. It also permits the parties to make written submissions and be heard at a hearing on the issue. Finally, Rule 29 no longer compels the transfer of such cases to the District Court; instead, it permits (but does not require) judges to dismiss such cases without prejudice.
Former Rule 30A/[New] Rule 9C(b). The provisions of former Rule 30A (Motions for Discovery Orders) have been renumbered without change as new Rule 9C(b) (the title of Rule 9C remains Settlement of Discovery Disputes).
[New] Rules 30A, 31 and 33. Three former Standing Orders were incorporated into the Rules. The verbatim texts of Standing Orders 1-06 (Continuances of Trial), 1-07 (Consolidation of [Civil] Superior Court Cases) and 1-09 (Written Discovery) were incorporated into the Superior Court Rules as new Rules 33, 31 and 30A, respectively, and those Standing Orders were repealed. This amendment streamlines the rules that govern Superior Court procedure as more of the procedures governing practice before the Superior Court can now be found in the same location, although lawyers should still check the Standing Orders.
The Rules in their Proposed form and the Supreme Judicial Court’s approval, may be viewed on the Judicial Branch’s website.
Heather V. Baer is a partner at Sally & Fitch LLP, where she focuses her practice on the representation of corporations and individuals in the areas of civil litigation, employment law and criminal defense, including white collar matters and government investigations.
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.