by Hon. Mitchell Kaplan (Ret.)
Voice of the Judiciary
I was asked to write a “View from the Bench” concerning my experiences and impressions in ruling on motions brought under Mass. R. Civ. P. 11(a) (Rule 11) and G. L. c. 231, § 6F (§ 6F) to sanction lawyers and/or parties for asserting frivolous claims or defenses. As I have now been retired from the Superior Court bench for a year and a half, this is a view from the bench as seen through my rear-view mirror. In reviewing my rulings on the motions for sanctions that came before me, it became clear that I often found them to be an aggressive litigation tactic rather than a well-supported request for this extraordinary relief, and rarely granted them.
I began by searching my data base of opinions that I authored from 2013 to 2020. In general, my criteria for saving an opinion were that the memorandum was at least a few pages in length and applied some law to facts. My search generated 17 opinions in which I ruled on motions brought under Rule 11 or § 6F: 15 denied sanctions and two awarded them. I am certain that I decided many more Rule 11 and § 6F motions with marginal orders or very brief written statements. Since I am quite certain that I never allowed a Rule 11 or § 6F motion without a substantive opinion, these are the only two sanction motions that I allowed. More about them in a moment.
One genre of Rule 11 motions which I nearly always denied without an opinion were the Rule 11 motions that were appended to a substantive motion or opposition. Examples are an opposition to a motion for summary judgment that both opposes the motion and requests Rule 11 sanctions for having served it, or, conversely, a motion to dismiss a complaint that joins with it a motion under Rule 11 to sanction the attorney who filed the complaint. I suspect that in most of these cases the Rule 11 pleading was really the moving lawyer’s attempt to signal me that the opposition’s position was so manifestly without any merit that I should simply reject it out of hand, rather than a genuine request for sanctions. Personally, I never received that signal in the intended manner. Rather, I considered these motions to be overly aggressive litigation tactics of no value to me. A Rule 11 motion constitutes an allegation that an attorney has willfully acted in bad faith in pursuing a course of action. It ought not be filed until the court has ruled on the underlying claim or motion; it should acknowledge the seriousness of the allegation; and it should be well supported in the moving papers.
I suspect that I am not the only judge who received a motion for Rule 11 sanctions filed in response to a Rule 11 motion; in other words, a demand for sanctions for having been served with a demand for sanctions. I found this an especially unimpressive round of pleadings by both parties.
Nearly all my written opinions on sanctions addressed § 6F. Perhaps this is because § 6F motions can be filed only after an order or a judgment has entered. Further, since § 6F expressly requires the court to hold a hearing and issue a “separate and distinct finding” that the offending claim or defense was “wholly insubstantial, frivolous and not advanced in good faith,” the moving party tends to more thoroughly support and brief its position. Although, as noted, I allowed only two of these motions for sanctions, a number of them required serious consideration. I believe that the bar that the moving party must clear to recover an award under § 6F is a very high one, and appropriately so. The movant must show both that all or substantially all of the claims or defenses asserted were frivolous and that they were not advanced in good faith—in other words that the party acted with an actual intention to harass or increase the costs of the litigation or some other similar bad motive.
In retrospect, I was always reluctant to impose Rule 11 or § 6F sanctions. I considered them far more serious than the more common discovery sanctions awarded under Mass. R. Civ. P. 37. Indeed, the SJC has suggested that conduct that violates Rule 11 is likely also a breach of the Rules of Professional Conduct. As I read my old opinions, I came across several decisions in which I denied the motion, but commented that it presented a close question; I guess that I felt some manner of admonition to the lawyer was warranted. In one case, I found the facts on which a claim was premised “far fetched” but not “impossible” and therefore not frivolous. In another, I found the legal argument which had expressly been rejected by another Superior Court judge highly unlikely to succeed but not yet decided by an appellate court, although I also suggested that not every pleading literally permitted by the rules is necessary to a fair and efficient resolution of disputed issues. In at least a few opinions, my decision to deny sanctions was clearly colored by the conduct of the moving party. When both parties had been overly aggressive, uncooperative, and contentious throughout the litigation, I was not disposed to order sanctions against either.
An issue that arose with some frequency was considerable delay in filing a sanctions motion. In two cases I was asked to award § 6F sanctions many months after judgments entered following jury waived trials—tried by another judge. In another, a sanctions motion was filed more than a year after I entered summary judgment on nearly all of plaintiff’s many claims. As noted above, § 6F expressly requires the court to make “a separate and distinct finding” that substantially all claims or defenses were frivolous and proffered in bad faith. In Powell v. Stevens, the Appeals Court explained that a §6F motion should be filed immediately after the relevant verdict, ruling, or order because “[a]t that moment, the total circumstance of the case are full and fresh in the mind of the judge.” I relied on Powell in several opinions. Frankly, considering how many cases a judge touches in a busy civil session each week, I thought it unfair, even cruel, to ask a judge to revisit a complex decision months after it issued. In affirming my last decision denying sanctions, the Appeals Court extended the Powell timeliness requirement to Rule 11 motions as well. von Schönau-Riedweg v. Continuu Energy Technologies, LLC.
The two cases in which I awarded sanctions involved egregious conduct. In one, I allowed a motion to dismiss a complaint with leave to amend to plead additional facts, but cautioned the plaintiff’s attorney that he should take care to be certain that he had a good faith basis to add the allegations. He amended, but clearly ignored the good faith basis part of my ruling. In the other case, the sanctions motion followed a trial that included a malicious prosecution claim in which a jury expressly found that the defendant had filed his complaint without a good faith basis for the facts alleged—a finding with which I fully concurred.
Perhaps, there were instances in which I might have resolved a close question in favor of an award of sanctions, but I don’t think any judge enjoys sanctioning an attorney. Certainly, sanctions should be reserved for truly egregious cases where the claims or defenses are “wholly insubstantial” and the lawyer or client has purposely acted in a malicious manner.
Mitchell Kaplan retired from the Superior Court in 2020. Prior to serving on the Superior Court, he was a partner at Choate, Hall & Stewart. He is presently working with JAMS as a mediator and arbitrator.
Voice of the Judiciary
When I retired at the end of July of 2014, my judicial service had spanned three court departments and thirty-seven years – thirteen years at the Boston Juvenile Court, seven years at the Appeals Court, and seventeen years at the Supreme Judicial Court, the last four as Chief Justice. A number of people asked me to reflect on my experiences and share what I learned during that time. As I thought about it, I decided that I wanted to give voice to my time as Chief Justice, since that represented such a unique experience.
It has been quite a journey. In my Boston Juvenile Court days, sitting in what was then called the “Old Courthouse,” my courtroom was so cold in the winter that I wore an overcoat and scarf under my robe, and the clerk had to wear gloves to punch the keys of her typewriter. I remember looking up from the ground floor of that building to the upper floors of the great hall, never thinking that one day I would be on those upper floors, in a beautifully rehabbed “John Adams Courthouse,” looking down to the space where I started out. For me, as the first person of color to serve on the oldest appellate court in the western hemisphere, to be appointed its Chief Justice was not only a great honor, but also a heavy responsibility.
It was one thing to serve as an associate justice, but quite another to serve as Chief Justice, and I did not go into it lightly. In fact, when Governor Deval Patrick first wanted to nominate me, I turned the offer down. I knew what the stakes would be for me personally, as a person of color.
Fortunately, Mo Cowan, the Governor’s Chief Legal Counsel and later his Chief of Staff, was a persistent advocate, and after many conversations over several weeks, I was persuaded to reconsider and to accept the nomination. As he pointed out to me, it was an historic opportunity, and there was no telling when another opportunity for a person of color to be Chief Justice would occur.
In spite of my reservations, I took the plunge. I have to say that I feared that any mistakes I made would not only reflect on me, but also would make it more difficult for other people of color to follow me. What would be the point of being the first, if there would never be a second? So, for me, doing a good job was critical. That was my goal every day. Looking back, I am pleased with how things worked out and proud of what we accomplished. But there were challenges.
When I started as Chief Justice, the Judiciary was in the midst of a hiring freeze that had gone on for more than two years. Morale was at an all-time low because employees were being asked to do their own work and then take on extra work as a result of vacancies that could not be filled.
On top of that, the Justices had recently received a report from Independent Counsel Paul Ware about hiring and promotion in the Probation Department. The report concluded that the Commissioner of Probation had engaged in corrupt hiring that favored politically connected candidates, and indictments followed. Commissioner John O’Brien and Deputy Commissioner Elizabeth Tavares were eventually convicted of mail fraud, racketeering, and conspiracy to engage in racketeering; and Deputy Commissioner William Burke was convicted of conspiracy to engage in racketeering.
At the time, the Governor proposed that the Probation Department be moved from the Judicial to the Executive Branch. On the day I was nominated to be Chief Justice, even before I was sworn in, I was asked by the media about my position on moving Probation to the Executive Branch. I had to respectfully disagree with the Governor before my first day as Chief Justice. As it turned out, the Governor did not give up on this idea, and made the same proposal the following year, which meant that I had to publicly disagree with him a second time. Currently, the Probation Department remains under the authority of the Judicial Branch.
When I began as Chief Justice, the judiciary’s relationship with the Legislature was “cool,” to say the least, and our budget was significantly below what we needed just to stay afloat. We faced the likelihood of reducing court sessions, laying off employees, or a combination of those difficult options. To state the obvious, those were challenging times.
In my first Annual Address, which I gave in October of 2011, I indicated that I had three main objectives as head of the third branch of government: first, to build bridges with the courts’ constituents, including the Legislature; second, to make the court system more user-friendly and responsive to the public; and third, to educate the public, particularly our youth, about how the legal system operates.
From my first day as Chief, reaching out to the Legislature was a major priority. We organized two first-of-their-kind programs – an orientation program for new members of the Legislature, and a similar one for legislative staff. I visited regularly with Legislative Leadership, as well as the rank and file members of the House and Senate, sometimes spending several hours a week at the State House. We worked with the Speaker on the legislation creating the new position of the Court Administrator to bring professional management expertise to the Judicial Branch. The Justices also adopted the recommendations for transparency in hiring and promotion practices in the “Harshbarger” action plan. And I met regularly with the Governor and his staff to share information, exchange ideas, and to advocate for proper funding for the courts.
Through our efforts we were able to secure an adequate budget to fund the work of the court system, and we have been able to fill some of the critical positions. Our efforts also resulted in a pay raise for judges and clerks – the first in eight years. Based on my regular visits to courthouses across the Commonwealth to thank the staff for their work, I can see that morale of court staff has noticeably improved.
We also built bridges with the business community, meeting with the CEOs of the biggest businesses to discuss the court system, emphasizing the importance of the Business Litigation Session of the Superior Court. We described how it was in their best interests that courts have proper resources in order to ensure speedy and fair resolutions of their legal issues. We pointed out that it was also in their employees’ best interests to have a legal system that would provide speedy and fair resolution to their personal legal problems, because the sooner they were resolved, the more “present” the employees would be at work.
We enlisted support from the bar associations, to encourage their members to advocate for adequate funding for the judiciary and to share information on court initiatives. The Justices partner yearly with the Massachusetts Bar Association, the Boston Bar Association, and others, to “Walk to the Hill,” as part of Court Advocacy Day. Our collaboration with the Bar means a great deal to the members of the Judiciary.
We endeavored to make the courts more user-friendly as well as more transparent to the public. Recognizing that every day more than 42,000 people come to our courthouses (based on the FY2010 Annual Report on the Commonwealth of the Massachusetts Court System), and more and more self-represented litigants, we are attempting to demystify the legal process. Help desks or information kiosks were initiated in various courts to assist the public as they enter court houses. We also opened several courts for extended hours so that, in some cases, litigants could resolve their cases without having to miss a day of work.
Our Access to Justice Initiatives provide services and support to litigants without access to legal representation in civil cases, some of which concern the most basic necessities of life. And through specialty courts we are able to deal with substance abuse and drug and alcohol addiction, mental health, and veterans’ issues.
Another bridge we began to build was with our law schools. This year we held the first “Summit” with the deans of Massachusetts law schools. Our roundtable discussion covered many issues involving legal education in Massachusetts and ways to assist graduates to be more prepared for the “real world” of lawyering upon graduation.
I hope to continue to play a part in the lives of students, especially those at risk, even after I retire. This summer I again led the Judicial Youth Corps (JYC), the SJC’s program for high school students, as I have for the past twenty-four years. With the wonderful support of the Massachusetts Bar Association, we expanded the JYC to both Worcester (in 2009) and Springfield (in 2014). At this point we have more than 700 alums of the JYC. Some are now lawyers, teachers, business professionals, and we even have one judge.
One aspect of the JYC that I am especially proud of is the role that court employees play each year. Each of our students has a volunteer supervisor who works with the student the entire summer. They do not get a single extra penny for doing this, and they do it for just one reason – to help a kid. And many of the employees have volunteered each and every year for the past twenty-four years. Paul Liacos, a former Chief Justice of the SJC, was the visionary who founded the program back in 1990. I know he would be proud.
As I neared retirement in June of 2014, I was appointed Distinguished Professor of Criminology and Criminal Justice in the College of Social Sciences and Humanities at Northeastern University, where I have been an adjunct professor for the past thirty-six years. I joined the faculty full-time at the end of August. Among the courses I will be teaching is one that I am developing called, “The Third Branch of Government.” It will examine the interplay of the judiciary with the legislative and executive branches, as well as with external entities like business and the media.
One part of the course will be to look at the “theory” of how government is supposed to work. But another part will focus on the “reality” of government, and will look at how things actually work in the real world. And in that part of the course I hope to take my students on the road to see how government actually functions, from meeting with key players in all three branches, to observing the various processes of the branches unfold.
I hope to show my students what my experiences as Chief Justice have helped me to understand, which is that even though the three branches of government are “separate, independent and co-equal,” they are also all interdependent and connected with each other. For the third branch of government to perform its function properly, it must have the support and assistance of the other two branches of government. And without the support of the other two branches, the third branch will almost certainly be unable to provide the services that the public needs and expects in a timely, efficient, and fair way.
And with that, I will close. As I do, it bears repeating that my serving as Chief Justice these past four years has been the highest honor and privilege. But I did not do it alone. What made leading this Branch possible for me, from my very first day as Chief, was the tremendous support I received from my colleagues and staff. I am grateful to everyone who has helped me along the way. It has meant so much to me. I extend my best wishes to all in future years. All the best!!
Chief Justice Roderick L. Ireland serves as a Distinguished Professor of Criminology and Criminal Justice at Northeastern University. He served as Chief Justice of the Supreme Judicial Court of Massachusetts from 2010 to 2014. He received his B.A., 1966, from Lincoln University, Pennsylvania; his J.D., 1969, from Columbia Law School; an L.L.M. degree, 1975, from Harvard Law School; and his Ph.D., 1998, Northeastern University.
Voice of the Judiciary
I sat down with Judge Rya Zobel on a sunny afternoon in August to talk to her about her first 35 years on the bench. The impetus for the interview was the fact that she had recently taken senior status. With her usual dynamism, however, the judge informed me that she has not reduced her caseload despite the change in status. So this was not a pre-retirement interview, but rather an opportunity to ask her to look back and share some of her thoughts about her court, the cases that have come before her, and (once a clerk, always a clerk) for her advice.
What was your path onto the bench?
Good luck. I became a law clerk right after law school and remained one for ten years because there were no law firm jobs for women at that time. Being a law clerk was a good job for me because I was able to spend time with my young children. I then went to Hill & Barlow, and later to Goodwin Proctor, where I became the first woman partner. There were four vacancies on the court in 1978, and it was clear that one of the slots would go to a woman. Someone sent me an application for the court, and I filled it out. I happened to be in the right place at the right time.
It was exciting to be the first woman on this court, albeit less so to be the only one for fifteen years. I had experienced a similar first when elected to partnership at Goodwin Proctor, and later when I became the Director of the Federal Judicial Center. I came to realize how important my firsts were to the women in this profession and, for that matter, to the men.
What are the significant changes you have seen since you went on the bench? Has the nature of the cases changed? How about the lawyering?
The nature of the cases being filed has changed over time. When I was a law clerk, the criminal side of the docket had a large number of Dyer Act cases [interstate auto theft], which we don’t see anymore. We also don’t see the bookie cases that we used to see. The nature of the sex offense cases has also changed. We used to have Mann Act cases; now we are flooded with child pornography cases. We used to have only a few drug cases; now we have piles of them – and they have huge sentencing consequences. We also have a lot of felon-in-possession cases, which come from state or local law enforcement authorities because of the long federal sentences. We don’t see many antitrust cases anymore. But we see a fair number of qui tam actions, often against pharmaceutical companies.
E-discovery is a huge change. There are millions of email communications to be dealt with. Nothing is ever deleted, and so the volume of material is huge. I think lawyers are panicked about overlooking an email that could turn out to be the smoking gun. As a result, discovery requires an awful lot of lawyer time and expense on the part of the client. There are also many disputes about how to sample the emails, the protocols to be used, and whose emails are to be searched. In some areas of the law, such as patent litigation, computers have changed not just discovery, but the substantive law. I have a case now, for example, where the lawyers rely on a theory that the amount of lost advertising is the measure of damages. One of the questions is how to define discovery in order to probe that theory.
Do you feel your court has changed and, if so, how?
The court is changing now after having been stable for many years. Within the last year, Judge Wolf, Judge Tauro, and I have gone senior; and before us, Judge Ponsor took senior status. So we’ve had four vacancies – and the new judges are younger, and come from a range of backgrounds. They already are making their own mark. For example, Denise Casper arranged a session for the existing judges to answer questions for the new judges – something we had never done before.
Also, I was the only woman on the court and now there are four. I never felt discriminated against by my colleagues, and I feel that all my colleagues have always respected my views. But having more women colleagues is certainly a wonderful change.
You’ve taken senior status around the same time as Judge Tauro, and the two of you shared a lobby back in the old courthouse in Post Office Square. I remember that you always chatted with each other as you went on or off the bench. It all felt very cozy and collegial. What are some of your recollections of Judge Tauro?
We had a very good relationship and I greatly admired how he ran his courtroom, and his smarts. When I first arrived at the court, Joe wanted to be helpful, which took the form of offering me advice. He was very experienced and I was very inexperienced, and so I wasn’t in the least offended . . . and there were times I actually took his advice [said with a smile].
I also admired Joe’s superb political instincts, by which I mean his ability to figure out how to solve problems involving personality issues as they arose in the courtroom. That skill can also be seen in what Joe did for our court. Joe is by nature a leader, and he made the court what it is today. When he became Chief, he was inclusive and really brought the court together. He strengthened the judges’ monthly meetings and instituted the liaison judge system in which each of us is assigned a particular area of responsibility. I, for example, am the court reporter liaison judge; other judges are responsible for the Bankruptcy Court, education, the jury, the U.S. Attorney’s Office, the Rules, the Criminal Justice Act, and immigration and naturalization. Joe started this system, and it has been incredibly effective for the organization.
When you have a court where judges have individual caseloads and operate as chiefs of their own domain, it is important for each judge to recognize that the court is an institution and cannot work as a bunch of individual chiefs. It is a big task to bring the court together. Not every court succeeds, and some are riven with disagreement. My court does not have those problems — the discussions during our meetings may at times be difficult, but they are never contentious and decisions are often reached by consensus. Joe laid the foundation for this culture. He was the person who arranged, for example, for us all to go each other’s swearings-in and other ceremonies. And subsequent chiefs have followed his lead. He did the institution a huge favor, and I am most grateful to him for that.
What do you see as the big challenges for your new colleagues?
Many of the new judges need to learn about sentencing — not only about the Guidelines, but also about themselves and how to view sentencing. It takes time, and it takes experience. They need to learn how to run a courtroom — gently but firmly, with respect for everyone in the courtroom. They need to learn to be concise, and how to hold their own counsel.
What advice would you give a new judge?
None. To some extent, you just have to do it.
What advice would you give a young lawyer?
Guard your reputation. Once gone, it is very hard to resurrect it. Lawyers may not understand that judges remember the lawyers who appear before them, and that we talk about them among ourselves.
What are some of your most memorable moments on the bench?
I remember a moment in Polaroid v. Kodak, when Edwin Land [co-founder of Polaroid] was on the stand. The lawyer asked him a question involving the science at issue in the case. Land leaned back and said, “That’s not the right question. This is the question you want to ask.” His response was very revealing to me because I had been very concerned about getting the science right. And then I realized that I did not need to be a scientist or necessarily to get the science right. Instead, I needed only to accept the science as it was presented by the lawyers. My job was simply to decide the case, not the science. And this understanding has made patent cases easier for me ever since.
I also remember a pair of cases that demonstrated to me the limits of a judge’s power. The first case involved a school bus driver strike in Boston. On a Friday afternoon (which, for some reason, is the time requests for injunctions are often filed), I issued an injunction ordering the drivers to return to work. They refused to obey. On Monday morning, the city sought to have the order enforced, and I held the drivers in contempt. Ironically, the marshals brought a bunch of school buses to the courthouse in order to take the striking drivers to jail. As they were taken off, other drivers were protesting outside the courthouse. It was mess, and I spent the next week desperately trying to get the case back on track and to help reach a settlement. I came to realize that, although I had the power to issue the injunction, I should not have done so.
A few months later, there was a wildcat strike against Greyhound and the drivers were throwing stones at the buses. The company sought an injunction. Instead of issuing one, I spoke directly to the union representatives who were in the courtroom. I told them that, although I knew it would be difficult, they needed to keep their members from destroying property and that they needed to talk to Greyhound management. I also told them to call me if they had any problems. Greyhound management was furious that I didn’t issue an injunction. But I was correct; a week later the case settled.
These two cases taught me an important lesson about the limits of a judge’s power.
Would you encourage someone today to become a judge?
Yes. Why? Because I think, as Judge Wyzanski said, being a United States District Judge is the best job in the law. It is infinitely variable and you learn constantly. Where else are you taught the provenance of a painting in the Museum of Fine Arts, how the internet runs, how cameras are made, how a small city runs itself, or how a river is affected by something that happens upstream? It is remarkable how much a judge can learn — and it is all for free.
Judge Rya W. Zobel was appointed to the United States District Court for the District Court of Massachusetts by President Carter in 1979. She served as the Director of the Federal Judicial Center from 1995 – 1999.
Judge Gabrielle R. Wolohojian is an Associate Justice of the Massachusetts Appeals Court. After graduation from law school, she served as a law clerk to Judge Rya Zobel of the United States District Court for the District of Massachusetts.