Enhancing Cost and Time Efficiencies in the Commonwealth's Courts
Through Effective Judicial and Attorney Practices

Report of the Work Group on Cost and Time
Efficiencies in the Massachusetts Courts


November 15, 2005


INTRODUCTION

          For a variety of reasons, many of the Commonwealth's judges are burdened by heavy caseloads and a lack of administrative support. At the same time, members of the bar, clients and the public are increasingly voicing concerns about the increased cost and time it takes for litigation to move through the courts. A number of reports and studies have issued in recent years recommending ways to improve the administration of justice in the Commonwealth through organizational and structural court reforms. The Report of the Visiting Committee on Management in the Courts (the “Monan Report”) and the December 2003 Report of the Boston Bar Association Committee on the Superior Court Circuit System are just two examples of these efforts.

          Wholesale reform of the Commonwealth's judicial system may eventually bring enhanced efficiencies to the administration of justice. However, such changes are unlikely to be immediate. In the interim, members of the Administration of Justice Section have discussed whether smaller scale inefficiencies in the state court system can be identified and remedied through relatively modest changes that can be implemented immediately. Accordingly, this informal Work Group was formed by the Administration of Justice Section in January 2004 for the purposes of identifying cost and time inefficiencies that currently exist in the handling of state court cases, and exploring whether more efficient attorney and judicial practices might reduce those inefficiencies.

          In bi-weekly meetings from late January 2004 through June 2004, the Work Group's participants -- William Abbott, Esq., Honorable Judith Fabricant, Julie A. Frohlich, Esq., C. Peter R. Gossels, Esq., Neil Moynihan, Jr., Esq., Andrew Rainer, Esq. and Cynthia A. Robinson, Esq. -- focused on various phases or major elements of civil cases in the Commonwealth's Superior and District Courts. Drawing on our collective experiences as well as informal communications with judges and attorneys, and anecdotal information, we:


 

1. Discussed whether inefficiencies currently exist in various phases of cases;

2. Discussed factors causing or contributing to the inefficiency; and

3. Developed recommendations to eliminate or reduce the inefficiencies through the adoption of a more efficient judicial practice and/or attorney practice.

          By way of obtaining additional background information, Work Group members considered expense and delay reduction studies and efforts undertaken in other courts, including the federal Expense and Delay and Reduction Act and the Expense and Delay Reduction Plan for the United States District Court for the District of Massachusetts. The Work Group concluded that the larger case loads of most state judges and the organizational structure of the Commonwealth's courts do not permit the wholesale adoption of the intensive case management program adopted by the federal courts. Nevertheless, the Work Group identified discrete practices within the federal system that could be implemented within the existing state court systems.

          The Work Group met again between January and April 2005 to discuss recommendations for improving efficiency in criminal cases. Participants in these meetings, in addition to the original Work Group members, included Assistant Attorney General Pamela Hunt, Chief Counsel of the Committee for Public Counsel Services William Leahy, former Superior Court Judge and current AOJ Co-Chair Patrick King, and attorneys Joseph Green and Robert Berger.

          In its discussions, the Work Group noted the recent revision of Mass. R. Crim. P. 13 and 14, governing pretrial discovery and discovery motions, as well as the promulgation of new time standards for criminal cases in the Superior Court, the District Court and the Boston Municipal Court. While acknowledging that it was too early to gauge the full impact of these new rules on efficiency in the courts, the Work Group believed that there was still value in making a discrete number of recommendations to improve efficiency on the criminal side of the docket. The Work Group also applauds the efforts being made by the Superior Court to identify possible practices to improve efficiency based on the needs of the dockets in the different counties of the Commonwealth, and expresses the hope that the experience gained in the different counties can eventually be shared so that, ultimately, effective improvements can be made throughout the system.

          The remainder of this report sets forth the Work Group's identification of commonly occurring inefficiencies in Superior Court, District Court and Boston Municipal Court cases, as well as recommendations to eliminate or reduce the same. In recommending a particular practice to attorneys or judges, the Group is not asserting that the recommended practice is the only efficient practice or even the “best” practice. Rather, the intent is to identify practices that can be used in the existing court system and may result in lower costs and/or fewer delays on a consistent basis over a wide variety of cases. Moreover, while this report focuses on cases in the Superior Courts, the District Courts and Boston Municipal Court, some of its recommendations can and should be considered for use in other trial courts.

 

RECOMMENDATIONS

I.PRETRIAL MATTERS

 

A. Consolidation of Related Civil Cases

 

1. Superior Court:

Issue – Time and/or cost efficiencies may be gained when related actions are assigned to the same session.

Recommendation - Currently, the Superior Court's Civil Action Cover Sheet asks plaintiff's counsel to identify actions pending in the court that are related to the newly filed action; however, in practice the newly filed action frequently is not automatically assigned to the same session as the previously filed “Related Action”. Newly filed actions that are identified on the Civil Action Cover Sheet as being related to a pending action should be assigned by the Civil Clerk's Office to the same session as the pending “Related Action” identified on the Civil Action Cover Sheet.

2. District Court:

Recommendation - The District Courts do not have a form that allows a plaintiff to identify related actions at the time a new civil complaint is filed. However, District Court Standing Order 1-85, which is applicable to all Divisions, provides for consolidation of related civil cases pending in more than one Division. Accordingly, if an attorney reasonably believes related civil actions have been filed in separate Divisions and efficiencies may be gained by the consolidation of those actions in one Division, then the attorney should consider filing a motion to consolidate pursuant to the provisions of Standing Order 1-85.

B. Civil Case Management and Status Conferences

Issue – In 1988, District Court Standing Order 1-88, entitled “Civil Caseflow Management”, issued for the purpose of establishing procedures and principles to meet the time standards requirements for civil cases adopted by the Supreme Judicial Court. 1 In discussing the background and objectives of civil case management, District Court Standing Order 1-88 states in relevant part:

 

A. Background . Recent research on Superior Court civil filings confirms and underscores what is already known intuitively by those familiar with civil case management generally, namely, that most civil cases are resolved without trial. See Dispute Resolution in Massachusetts, Governor's Alternative Dispute Resolution Working Group, November 1986, wherein it is observed that, of 1,122 randomly selected civil cases disposed, 97% were disposed by some means short of trial and 50% were disposed within 15 months. The same report points out that ‘complex cases were the exception rather than the rule,' ‘few cases involved significant discovery activity, notices of deposition, motions requiring court action, or pretrial conferences,' and ‘most cases contained no discovery of any kind.' Although these observations pertain to Superior Court cases, experience suggests that the same or similar conclusions would be reached in the District Court.

B. Objective. Based on the above findings, the objective of an effective caseflow management system should be to dispose as promptly as possible of the vast majority of cases that are not destined for trial, and concentrate the court's resources on the processing and trial of the rest.

C. ‘Local Legal Culture'. It is well established that the pace of litigation is largely the product of the ‘local legal culture', the established expectations, practices and informal rules of behavior shared by judges and attorneys. Managing to Reduce Delay, National Center for State Courts, 1980. Courts can impact the problem of delay only to the extent that the local legal culture is changed….

D. Responsibility for Caseflow Management. The responsibility for effective caseflow management is shared by the bar and the court.…

F. Resources. There is a well recognized deficiency in the availability of judicial resources and support staff in the District Court. Most entries have increased dramatically over the [last] ten years ... However, the number of District Court judges necessary to efficiently handle the business of the court has not kept up with the increased case loads [and] [t]he number of support personnel has likewise not kept pace with the increase in business. The result of these deficiencies is that, for any policy of improved civil caseflow management to be accommodated by a very busy District Court system, it must be as self-executing as possible.

Many of the observations made in this 1988 Standing Order are equally applicable today in the Commonwealth's trial courts, including in Superior Court sessions, District Court Divisions and the Boston Municipal Court. While still true that a significant number of civil cases do not require extensive pre-trial case management, it is equally true that many courts handle large caseloads, often with inadequate resources, and should not be expected to single-handedly identify cases that might need or benefit from individualized case management. Attorneys share the responsibility of bringing these cases to the court's attention and fully participating in case management.

 

Recommendation

Rule 16 Conferences in General -

When one or more attorneys on a particular case reasonably and in good faith determines that the case requires or would benefit from the court's assistance on discovery and/or other pre-trial issues, counsel should request a conference pursuant to Mass. R. Civ. P. 16, which provides that a court may schedule a conference in a pending case to consider:

    1. The simplification of the issues;
    2. The necessity or desirability of amendments to the pleadings;
    3. The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
    4. The limitation of the number of expert witnesses;
    5. The admissibility of a preliminary reference of issues to a master;
    6. The possibility of settlement;
    7. Agreement as to damages; and
    8. Such other matters as may aid in the disposition of the action.

A request for a Rule 16 conference should include a jointly prepared agenda for the conference that briefly describes each item proposed for discussion at the conference. At the conference, counsel should be fully prepared to discuss with the court each item on the proposed agenda. Upon receipt of such a request, judges should schedule the conference for a date that takes into consideration the nature of the issues raised in the request, and at the conference address those issues, as well as any other issues as appropriate under the circumstances.

Initial Case Management Conferences in District Courts and the Boston Municipal Court – Effective August 31, 2004 , it is now mandatory that all District Courts and the Boston Municipal Court hold an initial case management conference in certain civil actions. In this regard, BMC/District Court Standing Order 1-04 has been promulgated “to establish case management procedures that will facilitate the prompt and efficient disposition of civil cases and reduce the expense and delay of civil litigation in the Boston Municipal Court Department and the District Court Department.” This new joint Standing Order applies to all tort and contract actions in which money damages are sought and which have been commenced in the Boston Municipal Court Department and the District Court Department on or after August 31, 2004 . For cases commenced before August 31, 2004 , the new Standing Order applies to “any procedure occurring on or after” that date. Cases governed by the remand/removal system pending on August 31, 2004 continue to be governed by Standing Order 1-88, except the motion practice and continuance provisions in the new Standing Order apply to these cases.

BMC/District Court Standing Order 1-04 states that “[u]pon the filing of an answer by any defendant, the court shall immediately give notice to all parties in the action of a Case Management Conference pursuant to Mass. R. Civ. P. 16 to be held on a date certain within four months of the date of filing of such answer, or sooner if directed by the judge or jointly requested by all parties. The Order further states that the purpose of the conference shall be to:

 

    1. discuss settlement progress and opportunities for settlement, and offer early intervention alternative dispute resolution;
    2. consider case management orders proposed by any party, or by the court, regarding limitation or sequencing of discovery events, disclosure or limitation of expert witnesses, motion briefing, and other matters that would reduce expense and delay of litigation, and enter appropriate orders;
    3. enter judgment for relief or dismissal, and schedule hearing for assessment of damages if necessary;
    4. assign a firm date for pretrial conference for all cases which are not yet ready for trial;
    5. assess the trial-readiness of cases; and
    6. assign a firm trial date for cases that are ready for trial.

 

Among other things, under item (2) above a judge may enter an "Order for Early Disclosure," requiring each party to automatically disclose documents and information relevant to damages, liability, witnesses and expert witnesses. To adequately prepare for these initial case management conferences, attorneys should carefully consider and discuss with the client(s) the case's settlement prospects, amenability of reference to alternative dispute resolution, and discovery needs. Attorneys also should consider whether to prepare and bring to the conference a proposed case management order that proposes a pretrial schedule, discovery limitations and/or sequencing, and automatic disclosures appropriate for the claims and defenses in the case.

C. Criminal Arraignments and Pretrial Hearings
 

(1)  Arraignments in Cases Where Indictment is Being Considered:

Issue – In cases that are arraigned in District Court, but which are being considered for indictment, courts sometimes set a date for a probable cause hearing that does not give the government sufficient time to determine whether the case will be indicted and to obtain the indictment. As a result, the date for the probable cause hearing frequently must be continued, sometimes several times, with the result that counsel and the defendant end up making repeated appearances for probable cause hearings that do not occur.

Recommendation – At arraignment, the court should set a reasonable time period for the government to determine whether the case will be indicted or remain in the District Court.

 

(2)  Provision of Discovery and Grand Jury Minutes:

Issue – Generally, the amount of discovery that needs to be provided in criminal cases pending before the District Courts is fairly small, and there is little reason to delay the setting of a pretrial hearing. One exception arises in cases where indictment is being considered (discussed above) and another exception arises in cases where lab certifications must be produced concerning the contents of seized controlled substances or other forensic reports are outstanding.

Recommendation – In these circumstances, the court should set a date for the pretrial hearing that takes account of the time needed to obtain the needed information. This will operate to reduce the number of needless court dates for counsel on both sides as well as for the court.

Similarly, in the Superior Court, the dates for pretrial hearings should be set to take account of the time needed to obtain the minutes of grand jury proceedings and for the Commonwealth to provide full discovery. Not much can be accomplished at a pretrial hearing if defense counsel does not have the grand jury minutes or other discovery. At the same time, the Court should consistently encourage the government to obtain the grand jury minutes and discovery as quickly as possible. Indeed, new Rule 14 of the Massachusetts Rules of Criminal Procedure specifically requires that discovery be provided before counsel confer to prepare the pretrial conference report, and the Superior Court time standards require that discovery be provided at least 7 days before the pretrial hearing held in court.  The Court should encourage compliance with these requirements in order to maximize the efficacy of the pretrial conference between counsel and the pretrial hearing held by the Court.

 

(3)  Pretrial Hearings in Criminal Cases in All Trial Courts:

Issue – Rule 11 of the Massachusetts Rules of Criminal Procedure has long required that counsel meet in a “pretrial conference” after the time of the arraignment and outside the presence of the court to prepare a pretrial conference report.  Counsel have often had this conference on the same day as the in-court pretrial hearing, although the courts have generally encouraged that it be done earlier (and the new Superior Court time standards specifically provide that the pretrial conference may only be held on the same day as the in-court pretrial hearing only if discovery is provided by the government at least 7 days before the pretrial hearing). The pretrial conference report typically contains the parties' proposed dates for completion of discovery, for the filing of pretrial motions, and any stipulations of the parties. The pretrial conference report has generally, but not always, been presented to the court for its approval at an in-court pretrial hearing, but the hearing has generally been very brief and non-substantive, and judges have not always reviewed and signed the pretrial conference report, which, pursuant to Rule 11(a)(2), has the force of a court order.

The new time standards for criminal cases in the Superior Court (Standing Order No. 2-86) and the new joint time standards for criminal cases in the District Courts and the Boston Municipal Court (Joint Standing Order No. 3-04) both contemplate that the court will hold an in-person pretrial hearing in every case. Standing Order No. 2-86 of the Superior Court provides in particular that:

 

Counsel who are going to try the case shall attend the pretrial conference and pretrial hearing and shall personally sign the conference report. In all cases the defendant shall be available for the pretrial hearing in the courthouse, and shall sign the completed conference report when necessary to waive constitutional rights or when the report contains stipulations as to material facts. The conference report shall be tendered to the first session judge for his examination and approval before the clerk accepts it for filing.

The first session judge shall personally meet with counsel and examine the proposed conference report so as to bring it into conformity with the spirit and language of Mass. R. Crim. P. 11. The judge shall determine the likelihood of trial, its length, and the issues in dispute. At this hearing the first session judge has the responsibility to foster plea negotiations within constitutional parameters. The first session judge may, in her discretion, send the case to any available criminal session for a pretrial hearing, and the judge sitting in the receiving session shall conduct the pretrial hearing.

At the pretrial hearing, the judge shall confirm the case track designation assigned at arraignment or designate a different track in accordance with Section III. In the event the parties are unable to resolve the case and seek further dates, the judge shall thereafter establish dates for the filing any disputed motions, hearing dates, a final pre-trial conference, and a trial date. In the event that such dates are scheduled in a session other than the first session, such dates shall be tentative until approved by the First Session Judge.

The Work Group has learned that, since the promulgation of these time standards, some of the trial courts have made a point of allocating judicial time to conducting pretrial hearings and have used these pretrial hearings, among other things, to dispose of large numbers of cases. Other courts have used the hearings to more systematically schedule the remaining proceedings in cases. Still other courts have felt that they do not have sufficient judicial resources to conduct substantive pretrial hearings.

Recommendation - To the maximum extent that judicial resources can be made available, courts should assign judges to conduct substantive pretrial hearings.

A judge presiding over a pretrial hearing should meet in person with counsel, should review the dates proposed by counsel for the completion of discovery and the filing of motions, should set dates for the hearing of motions, and should foster plea negotiations within constitutional parameters .

D. Motion Practice

 

1. Requirements to Confer Before Filing Motions:

Superior Court Rule 9C has, for many years, required attorneys seeking to file discovery motions in civil cases to confer with opposing counsel before filing the motion in order to narrow the areas of disagreement to the fullest extent possible. Likewise, Rule 11 of the Massachusetts Rules of Criminal Procedure has required counsel to confer about discovery and other pretrial matters and to report to the court on what matters are agreed and not agreed. Compliance with the former requirement has been regularly enforced by clerks and judges of the Superior Court; compliance with the latter requirement has been enforced in varying degrees, with the result that some defense counsel regularly file motions to compel discovery that the prosecutor has agreed to produce. There are now new requirements for conferring prior to filing discovery motions in the District Court and the Boston Municipal Court, and a number of points to be made about the efficacy of conferring prior to filing motions in all types of cases.

 

a. Conferences Prior to Filing Discovery Motions
in District Courts and Boston Municipal Court:

Since September 1, 2004 , BMC/District Court Standing Order 1-04 has required that, before filing any discovery motion, counsel shall “confer in good faith to narrow the areas of disagreement to the greatest possible extent”. Additionally, any motion to compel discovery must now include a certificate of counsel filed by the moving party certifying that he or she has conferred with opposing counsel as required by the Standing Order. To comply with the conference requirement, and in doing so greatly enhance the likelihood of narrowing or eliminating areas of dispute, counsel should do more than send a motion under cover of a letter that asks opposing counsel whether he/she will assent to the enclosed motion. Rather, attorneys should actually communicate and discuss the issues in dispute.

 

b. Superior Court Rule 9C Pre-Filing Conference Requirement:

Issue – Superior Court Rule 9C requires that attorneys confer in advance of filing any discovery motion under Mass. R. Civ. P. 37 in a good faith effort to narrow areas of disagreement to the fullest possible extent. The attorney for the moving party is responsible for initiating the conference. A practice of many attorneys is to serve a Rule 37 discovery motion pursuant to Superior Court Rule 9A and, in the same letter accompanying the motion, to request a Rule 9C conference to discuss the disputed issues raised in the motion. This practice does not meet the spirit of Rule 9C's conference requirement, even though the language of Rule 9C literally states that counsel “shall confer in advance of filing any motion” and, therefore, technically the current practice falls within the Rule's language. The spirit of the conference requirement in Rule 9C clearly is to have attorneys confer “in an effort to narrow areas of disagreement to the fullest extent possible” so that the issues they bring to the Court's attention are only the genuinely disputed issues that cannot be resolved without the Court's involvement.

This current attorney practice defeats the spirit of Rule 9C. It often results in some but not all of the issues raised in the served motion being rendered moot by the subsequent Rule 9C conference. Nevertheless, the moving attorney frequently does not revise the previously served motion to delete the moot issues. Instead, counsel files the same motion leaving it to the opposition and/or argument at a hearing on the motion to clarify what issues are still in contention. This practice can result in the opposing party having to spend time responding to moot arguments and the Court spending valuable time reading moot arguments and trying to determine which issues are still in contention.

Recommendation - Ideally, Superior Court Rule 9C should be revised to provide that the parties confer prior to the service of a Rule 37 discovery motion. Even absent such a formal revision to the rule, attorneys should: (1) engage in Rule 9C conferences before serving any discovery motions; and (2) after the conference, serve and file a motion that is directed only to the issues counsel could not resolve through the conference.

 

c. Conferences Prior to Filing Non-Discovery Motions:

Issue – The U.S. District Court in Massachusetts has a rule requiring attorneys to confer to narrow the areas of dispute and to certify that they have conferred prior to filing any kind of motion in a civil case. The Superior Court, the District Court, and the Boston Municipal Court have no rules or standing orders requiring that attorneys confer prior to filing non-discovery motions in civil cases. Similarly, attorneys in criminal cases do not always comply with the requirement of Rule 11 to confer in a pretrial conference prior to filing motions, despite the new language of Mass. R. Crim. P. 13 that discovery motions should be filed only if the requested discovery cannot be obtained by agreement prior to the pretrial hearing.

Recommendation - To avoid unnecessary costs and time spent briefing issues that are not in dispute, attorneys should confer prior to filing any motion in an effort to resolve or narrow the issues in dispute, and the courts should more vigorously enforce the requirements to confer.

 

2. Scheduling of Motions:

 

a. Schedule Different Types of Matters for Different Hours:

Issue – A common practice in many civil and criminal trial courts is to schedule all daily conferences and hearings on motions to be heard commencing at the same hour. With this practice, all attorneys on all motions and conferences show up at court at the exact same time and then wait for their cases to be called and heard. This practice frequently results in attorneys sitting in the courtroom, often for one or more hours, at great expense to their clients. This added cost is especially burdensome where an attorney has a relatively short motion argument or conference.

Recommendation - Instead of scheduling a variety of motions and conferences to be heard commencing at the same time, as a general matter and when appropriate under the circumstances, judges and clerks should consider scheduling different types of matters for different hours. For example, a judge might schedule status conferences and pre-trial conferences for 2:00 and motions at 3:00 .

 

b. Schedule Motions by Likely Length of Time for Argument:

Recommendation - Related to the recommendation above, clerks and judges in many courts make an effort to call short and simple motions and conferences to be heard first, holding the longer or more complicated motions and arguments that are likely to take more time to be heard last. With this scheduling method, attorneys needing only a few minutes to argue their motions or attend to case matters do not need to sit in the courtroom and wait through long arguments on complicated or lengthy motions. All judges should make efforts, as appropriate under the circumstances, to call motions and conferences in an order likely to get the shorter matters concluded first.

 

c.  Use of Certificates of Readiness:

Recommendation - In sessions where it is necessary to schedule a large number of short matters at the same time (even if longer matters are scheduled for different times), courts should consider the use of “certificates of readiness” through which all counsel present for a motion can advise the court when their motion is ready to be heard.  Through this device, counsel can take time to confer with opposing counsel outside the courtroom (with potentially beneficial results) without risking that their case will be called while they are out of the room.  The use of certificates of readiness also avoids the need for the clerk to call cases several times, only to have counsel report that they would benefit by having more time to confer.

 

d. Use of Email for Scheduling and Other Communications:

Many clerks now have access to email. It is a tool that can be used while a clerk is sitting in a courtroom to quietly and quickly communicate with counsel about scheduling and other matters. Email is often used outside the court system to effectively schedule meetings, and has an analogous effective use in the scheduling, and particularly in the rescheduling of motions. Clerks should be encouraged to use email to communicate with counsel about scheduling matters and other questions that can be answered without the need for a hearing. In addition, judges should consider the use of email, if available, to receive particularly time sensitive submissions or submissions on weekends or during the course of trial. Clerks and counsel need to be sure that any formal scheduling order and any brief or motions submitted by email also are formally filed in paper form and entered on the docket maintained by the Clerk's office, so as to ensure that there is a complete and public record of court proceedings.

 

3. Telephonic Hearings on Discovery Motions and
Contested Motions other than Dispositive Motions:

Issue – Attorneys commonly are paid for their time traveling to and from a courthouse for argument on a motion, as well as the time they spend inside the courthouse related to that argument. On many motions, there is an obvious need for attorneys to be physically present in the courtroom for oral argument. There are a number of motions, however, that may not need attorneys to be physically present in the courtroom in order for there to be an effective oral argument. For those motions, requiring that attorneys nevertheless attend oral argument at the courthouse adds to the costs of litigation for the parties. In addition, one of the purposes of the new time standards is to reduce the number of court events in each case, and to encourage the expeditious resolution of cases.

Recommendation - Attorneys should request telephonic hearings when circumstances warrant. Subject, of course, to the rights of defendants in criminal cases, judges should consider hearing relatively simple discovery motions, motions for continuances, and non-dispositive motions in telephonic hearings in appropriate circumstances.

 

4. Motions to Suppress in Criminal Cases:

Issue - Because a motion to suppress is brought in many cases involving prosecution for the possession or distribution of narcotics, and these cases often cannot be resolved until a decision is rendered on the motions to suppress, some courts have allocated a specific time slot or session to hearings on motions to suppress. In at least one court, this is done by devoting a day to motions to suppress, which also serves to maximize the availability of police officer witnesses because several motions involving the same office witnesses can be brought at the same time.

Recommendation - To the extent practicable, a court should devote a specific time slot or session to the hearings of motions to suppress, and there should be an expectation that decisions on the motions will be made expeditiously.

 

5. Page Limits in Superior Court Civil Cases:

Issue - Superior Court Rule 9A(b)(4) contains a 20 page limit on briefs and requires that parties obtain leave in advance to file a brief exceeding 20 pages. This rule reflects the conventional wisdom born of experience that most motions can be effectively argued in 20 pages or less. However, many attorneys routinely serve and file briefs longer than 20 pages without obtaining advance approval from the court.

Recommendation - Counsel should be reminded about the 20 page limit in Superior Court Rule 9A(b)(4) and that rule's requirement that attorneys seek and obtain permission from the court in advance of filing a brief exceeding 20 pages.

 

E. Pretrial Conference and Memoranda

 

1. Attorney Preparations for and Participation
in Pretrial Conferences:

Final pretrial conferences are now required under the Time Standards for civil cases in the District Courts and the Boston Municipal Court and for criminal cases in the Superior Court, as they have been for some time in civil cases in the Superior Court.

Issue – Pretrial conferences serve extremely important purposes, including scheduling a trial date that is both firm and realistic for the case, establishing a reliable estimate of the likely length of the trial, and otherwise focusing the court and the parties on the practical elements for the trial. As concisely stated in District Court Standing Order 1-98 “[t]he purpose of the Pretrial Conference is to discuss settlement opportunities and to achieve settlement or, for cases which do not settle, to assign a firm trial date.” When lead attorneys put an appropriate amount of effort into preparations for a pretrial conference, that effort usually is positively reflected at the pretrial conference. Attorneys who are ready for trial and, as such, are aware of the strengths and weaknesses of their case, are in a better position to more effectively engage in settlement discussions at or immediately after the conference. Such attorneys are also better positioned to more accurately assess the likely length of trial and to schedule a firm trial date. Conversely, being unprepared for the pretrial conference, either because the case is not yet trial ready or the lead attorney is not fully prepared for the conference, can lead to delays in scheduling the trial, a re-scheduling of the pretrial conference, or the scheduling of a case for trial on a date when the case cannot possibly be ready, resulting in the need for a continuance at some point in the future.

Recommendation - Lead trial counsel should: (a) attend the pretrial conference; (b) take the content of the pretrial memorandum seriously; (c) be prepared for trial as of the date of the pretrial conference; and, (d) if the case is not ready for trial as of the date of the pretrial conference, then lead trial counsel should know exactly what remains to be done to get the case trial ready and be prepared to discuss at the pretrial conference a proposed schedule that will get the case trial ready. Counsel should attend the pretrial conference having checked with key witnesses, especially experts, regarding their schedules, so that counsel can propose and discuss trial dates confident in the knowledge that all key witnesses will be available on those dates.

 

(1)   Superior Court Requirements for Pre-Trial Memoranda:

Issue – Detailed final pretrial memoranda are now required in civil cases in the District Courts and the Boston Municipal Court and in criminal cases in the Superior Court, as they have been previously in civil cases in the Superior court. As suggested by the discussion above, an incomplete or poorly prepared pre-trial memoranda diminishes the prospects that the pre-trial conference will result in a settlement or a trial ready case with a firm trial date.

Recommendation - Counsel in civil cases pending in the Superior Court, District Court and the Boston Municipal Court should: (a) carefully read the requirements for pre-trial memorandum specified in the standard Notice to Appear for Final Pre-Trial Conference issued in Superior Courts ( see Appendix A to Standing Order 1-88 or Rule X of Standing Order 2-86 pertaining to criminal cases) or the Notice of Pretrial Conference issued in the applicable District Court Divisions or Boston Municipal Court sessions; (b) prepare a memorandum in accordance with all of the applicable Notices' requirements; and (c) jointly prepare as much of the pretrial memorandum as possible.

E. Miscellaneous Pretrial Issues

 

1. Use of Proposed Orders:

Issue – Reduced staff levels and increased caseloads in clerks' offices and judges' chambers may delay the typing and entry on the docket of decisions and orders, as well as the mailing of notice of the same.

Recommendation - Counsel should attach proposed orders to motions and oppositions where appropriate. The proposed order should use appropriate neutral language and avoid advocacy. The papers to which the order is attached should make clear that the order is a proposed order, however, the caption on the order itself should not include the word “Proposed”. Additionally, when a decision is pending, counsel should periodically call the clerk's office to check whether the decision has issued.

 

II.TRIAL MATTERS

A. Recommended Practices for Efficiently Scheduling Trials

 

1. Superior Court:

Efficient trial scheduling practices in the Superior Court tend to have several common features: (1) in each week, a single case is identified as the one with priority for trial, and others are scheduled for trial in the same week in the event the priority case does not go to trial; (2) the case given priority is chosen based on its age, expected length, witness difficulties, statutory priorities, and similar factors; (3) the other non-priority cases are of the type that can be rescheduled more easily; and (4) all cases are brought in for a status conference shortly before their scheduled trials, which ensures that everyone knows where they stand at a time close enough to the scheduled trial date such that the information is reasonably reliable.

There are any number of trial scheduling practices and variations on the same that incorporate these features. The following are two different examples of trial scheduling methods being used in Superior Court civil sessions for efficiently scheduling trials.

Method One:

 

a. Clearly designate one case as the First Case Out on the trial list. Give notice of this First Case Out designation to all counsel on that case. Ensure that all counsel of cases on the same trial list other than the First Case Out are notified that their case is not the First Case Out.

b. During the week prior to the trial date, hold status conferences for all cases on the trial list to discuss the latest information on the status of the trial list and the likely date each trial will begin.

c. Advise counsel on cases other than the First Case Out to keep in touch with the clerk regarding the status of their cases.

 

Method Two:

 

a.  Categorize each case as “A”, “B”, or “C”, based on trial length and substantial witness issues: “A” is long trials that will take more than a week or those with very substantial witness issues; “B” is trial that will last a week or so, or with lesser witness issues; and a “C” trial is expected to take two or three days, with no particular witness issues.

b.  Schedule A cases one at a time, with no overlap with any other A case. Schedule B cases one at a time, with no overlap with other B cases but with overlap with one A case. Schedule several C cases throughout.

c.  Lastly, reserve some time -- a couple of weeks -- at the end of the session rotation for cases that did not get reached for trial as scheduled earlier in the rotation. Those cases then get scheduled into and heard during the reserved period at the end of the rotation.

 

          2. District Court:

          On average, District Court trials are shorter than Superior Court trials with many taking one day or less to complete. This means more trials can be reached on a daily and weekly basis than in Superior Court, which also necessitates scheduling more trials for the same day and each week to ensure a sufficient number of trials to fill each trial day in the particular Division. To ensure that most trials are reached on or about the originally scheduled trial date, much like the practices in Superior Court, efficient scheduling practices in District Courts should: (1) identify one or, depending on their expected length, two cases to be designated as the priority cases for a particular trial day; and (2) fill in the schedule for the remainder of that particular trial day with that number of non-priority cases likely to be actually heard and completed considering the judicial resources available that day.

          3. Related steps to enhance efficiencies in scheduling trials:

 

a. “Smart Calendaring”:

          When deciding what mix of cases to schedule for trial within the same general time frame, judges are encouraged to use “smart calendaring” practices, which take into consideration the settlement prospects of each case and mix together an appropriate blend of cases ranging from those least likely to settle to those most likely to settle.

 

b. Reassignment of Cases Between Sessions:

          In larger counties that have multiple sessions, reassignment of cases ready for trial to another session can minimize the number of cases not reached.

 

          4. Continuances of Trial Dates:

 

a. Content of Motions to Continue:

Issue - A significant benefit of following pre-trial conference and trial scheduling practices that establish firm trial dates is that each trial is likely to commence on or near the originally assigned trial date. However, the efficiencies achieved through use of these practices may be lost if trial dates are frequently moved after they have been set on the trial calendar. As such, there is considerable benefit to all participants in the courts in trying to maintain the trial calendar by thoroughly reviewing any request to re-schedule a trial date even if all parties to the case in question agree upon a new date.

Recommendation – In the Superior Court, there are no rules or standing orders specifying the content of motions for continuance of trials. However, an efficient practice for attorneys to follow when filing an uncontested or joint motion for a continuance in Superior Court is to provide the Court with the following information:

 

(1). Estimated length of trial;

(2). A statement that all discovery is completed and the case is ready for trial, provided, however, that if the case is not ready for trial then state in detail what remains to be done to get the case ready for trial and when the remaining task(s) are scheduled to be completed;

(3). List of several alternative dates that counsel have discussed and agreed to on which counsel and all witnesses are available for trial;

(4). A statement whether settlement discussions have occurred and, if so, the status of settlement discussions as well as an assessment of whether further settlement discussions are possible;

(5). If a purpose for the continuance is to allow an opportunity for a mediation, then provide the date for the mediation and name of the mediator or prospective mediator; and

(6). The number of previous continuances granted, if any.

          In the District Courts and Boston Municipal Court, trial continuances are “disfavored”. BMC/District Court Standing Order 1-04 expressly states that “[c]ontinuances of Case Management Conferences, Pretrial Conferences and trials shall be disfavored because of the advance notice to, and the participation of counsel in, the scheduling of these events. Continuances of these events will be allowed for good cause only, and any continuance shall be to a date and event certain. No action shall be ‘continued generally' or taken off the schedule for any reason.” In the District Courts and Boston Municipal Court, requests for continuances must be by written motion that includes a list of any days within the next 30 days that counsel for any party is unavailable for the continued event and is supported by an affidavit of counsel, all of which counsel must mail a copy of the continuance request to his or her client(s). Id. at VII.B. While the BMC/District Court Standing Order does not otherwise prescribe the form of the motion, in order to establish good cause required for granting a continuance and otherwise to ensure that the case is assigned a new trial date that will be firm, counsel should include in the motion the information listed above.

 

 

b. Hearings on Uncontested or Joint Motions to Continue:

Issue – As discussed above, carefully managing the trial calendar achieves greater efficiencies for all participants in the court system over the long run by bringing certainty and predictability to the trial schedule. However, these long term efficiencies can place time and cost burdens on parties in the short term if each and every uncontested and joint motion to continue always is the subject of a hearing in the courtroom.

Recommendation - If attorneys file a motion to continue that contains the breadth and depth of information described above, and there are no other circumstances warranting a hearing, then the court should consider acting on the motion without a hearing. In those courts in which a hearing is required under an existing standing order, the judge should consider conducting the hearing telephonically if appropriate under the circumstances.

 

III. MISCELLANEOUS MATTERS

A. Temporary Restraining Orders, Preliminary Injunctions

Issue - Attorneys often appear in Court seeking a TRO, attachment or other preliminary relief on an ex parte basis without giving any advance notice to opposing counsel, the adverse party or an affected third party. Clearly, there are circumstances where the absence of advance notice is appropriate or unavoidable. Nevertheless, there are many instances where advance notice to the other side is appropriate; however, moving counsel shows up in court without having given such notice. When this occurs, Courts frequently instruct the moving party's attorney to call the opposing counsel or adverse party, and to wait in the courthouse for that attorney or party to arrive.

Recommendation – In every instance in which an attorney plans to seek preliminary relief on an expedited or even an ex parte basis, the attorney should carefully consider calling the opposing counsel, if known, or the affected parties to give them some advance notice.

B. Settlement/ADR

Issue – The majority of civil lawsuits settle at some stage of the proceedings. Many attorneys frequently encounter clients who want to settle but who also believe that raising the topic of settlement or making the first settlement overture will be perceived by the adverse party and opposing counsel as a sign of weakness or a lack of confidence in their case. Accordingly, many lawsuits last longer than necessary with fees and costs mounting for the parties and scarce resources of the courts being consumed.

Recommendation - Superior Court Standing Order 1-88, App. A, Paragraph 8 of Notice to Appear for Pre-Trial Conference, requires that counsel confer prior to a pre-trial conference to discuss settlement possibilities. As discussed above, while District Court Standing Orders do not specifically require that counsel engage in settlement discussions before the pre-trial conference, the new BMC/District Court Standing Order 1-04 makes it clear that settlement will be discussed at the pretrial conference. Attorneys are encouraged to take these settlement discussion obligations seriously and to engage in good faith settlement discussions prior to the pretrial conference, if not sooner than that, in the lawsuit. At the pretrial conference, the judge should inquire whether counsel have conferred and, further, as appropriate under the circumstances of the particular case, the judge should inquire into settlement possibilities and discuss with counsel the Supreme Judicial Court's Uniform Rules on Dispute Resolution and Court-Connected Dispute Resolution as well as available bar association mediation programs, etc.

 

C.  Reinstitution of Bench-Bar-Clerk Conferences

Recommendation - For many years, there was practice in several of the Superior Courts to convene regular meetings of judges, counsel, and clerks to talk about practices that were and were not working within each court, and to provide a more casual setting for exchanges among judges, counsel and clerks not related to the resolution of particular cases.  The conscious reinstitution of these conferences not only in the Superior Courts, but in the District Courts as well, also would likely lead to the enhancement of cost and time efficiencies, particularly as judges, attorneys and clerks learn to function under the new time standards and recently promulgated rules.

 

Footnotes

1 Effective August 31, 2004 , District Court Standing Order 1-88 was superceded by Joint Standing Order No. 1-04 of the Boston Municipal Court Department and the District Court Department (“BMC/District Court Standing Order 1-04”).