News from the courts

Issue January 2010

SJC amends Judicial Code of Conduct regarding public comments

The Supreme Judicial Court has adopted amendments to the Code of Judicial Conduct, effective Jan. 1, 2010, that govern the comments judges may make regarding cases.

As amended, Section 3B(9) continues to require that a judge abstain from public comment about a pending or impending proceeding in any Massachusetts court. The revised commentary states that "[t]he section's restrictions on judicial speech are essential to the maintenance of the independence, impartiality, and integrity of the judiciary." The commentary encourages judges to explain the basis for their decisions on the record, stating that "[b]y helping litigants to understand the basis for decisions in cases, the judge also promotes public understanding of judicial proceedings."

The SJC Guidance Regarding the Issuance of Explanatory Memoranda encourages judges to explain the basis for their decisions on the record at the time the decisions are made, including decisions concerning bail and sentencing. When the judge has not indicated at the time that he or she issues the underlying order that a written explanatory memorandum will be forthcoming, and such a memorandum has not been requested by a party or by an appellate single justice or court, the guidance provides factors that a judge should weigh before issuing an explanatory memorandum.

Section 3B(9) continues to permit a judge to explain for public information the procedures of the court, general legal principles or what may be learned from the public record in a case. By way of example, the commentary notes that a judge may explain to the media or general public the procedures and standards governing dangerousness hearings or requests for restraining orders.

Additionally, Section 3B(9) has been revised to expand the educational exemption concerning pending appellate cases and to permit a judge to make public comment concerning his or her conduct (defined to refer to the manner in which a judge behaves and not to the substance of a judge's rulings). Section 3B(9) and the guidance are available on the SJC's Web site at

In 2008, the justices appointed an Ad Hoc Advisory Committee to Study Section 3B(9) of the Code of Judicial Conduct, chaired by Superior Court Justice E. Susan Garsh. After reviewing the committee's report, separate statements of two members and public comments on the report, the justices invited further public comment. Following the conclusion of the public comment period in July 2009, the justices made some additional minor revisions to Section 3B(9) and the guidance.

Superior Court implements Discovery Pilot Project

Superior Court Chief Justice Barbara J. Rouse announced Dec. 1 that the Superior Court's Business Litigation Session (BLS) would implement a Discovery Pilot Project beginning Jan. 4, 2010.

The BLS Pilot Project was developed as a result of a joint effort of the BLS judges (currently Margaret R. Hinkle, Stephen E. Neel and Judith Fabricant) and the BLS Advisory Committee to address the increasing burden and cost of civil pre-trial discovery, particularly electronic discovery. The pilot project will be available on a volunteer basis for all new cases in the BLS and cases that have not previously had an initial case management conference.

The BLS Pilot Project incorporates some of the proposed principles in the March 2009 Final Report of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System. Stating that the civil justice system was "in serious need of repair," the final report proposed sweeping reforms of civil rules, discovery and case management. The BLS is now adopting some of these proposals.

For cases in the BLS Pilot Project, the concept of limited discovery proportionally tied to the magnitude of the claims at issue will be the guiding principle. To accomplish this objective, the BLS judges will determine, with the parties, the scope and timing of permitted pre-trial discovery. In making a proportionality assessment, the BLS judges and the parties will consider such factors as the needs of the case, the amount in controversy, the parties' resources and the complexity and importance of the issues at stake.

Each party participating in the BLS Pilot Project will be expected at the beginning of the case to produce "all reasonably available non-privileged, non-work product documents and things that may be used to support that party's claims, counterclaims or defenses." Thereafter, the parties and the BLS judges will consider such pre-trial discovery techniques as numerical and time limitations and limiting the persons from whom discovery can be sought.

The factors governing the scope of permitted electronic discovery will include "the nature and scope of the case, relevance, importance to the court's adjudication, expense and burdens." If the parties cannot agree, the BLS judges will conduct an electronic discovery hearing, to address the scope of allowable proportional electronic discovery and allocation of its cost.

Attorney Joan A. Lukey, president of the American College of Trial Lawyers and a member of the BLS Advisory Committee, strongly endorses the BLS Pilot Project. She said, "experienced trial lawyers have recognized for years that discovery has become the tail that wags the dog. I applaud the BLS for adopting the principle, as did the American College of Trial Lawyers, that discovery should be proportional to the particular case. This is critical to repairing a flawed process."

Rouse states that the pilot project will be in effect initially from January through December of 2010. Participants in the BLS Pilot Project will be asked to provide feedback so that data may be gathered and analyzed. Rouse states that the pilot project's efficacy will then be evaluated and refined for future use.