Effective Jan. 1, 2013, there are several amendments to the
Superior Court Rules, Massachusetts Rules of Civil Procedure, and
Supreme Court Rules, as well as the addition of Rule 30B to the
Superior Court Rules. The following provides a brief overview of
the new rule and amendments.
Changes to the Superior Court Rules
New Superior Court Rule 30B
New Superior Court Rule 30B, titled "Certification of Expert
Disclosures," provides, in relevant part: "In addition to the
signature of the party, every disclosure called for by Mass. R.
Civ. P. 26(b)(4)(A)(i) … shall be signed by the expert so disclosed
With this new rule, interrogatories propounded pursuant to
Massachusetts Rule of Civil Procedure 26(b)(4)(A)(i) - seeking
information regarding experts - will now need to be signed, or
"certified," by the identified expert.
On its face, the new rule is silent as to what effect, if any,
it will have upon cases pending during the rule change. Attorneys
may consider supplementing previously answered interrogatories with
an expert signature to ensure compliance with new Rule 30B. At a
minimum, attorneys should be mindful of this change with regard to
interrogatories propounded after or due on or after Jan. 1,
Amendment to Superior Court Rule
Effective Jan. 1, 2013, there is a minor revision to Superior
Court Rule 9A(b)(5)(ii) regarding summary judgment oppositions.
Under the old Rule 9A(b)(5)(ii), an opposing party was required
to "reprint the moving party's statement of material facts and …
set forth a response to each directly below the appropriate
numbered paragraph." Under the new Rule 9A(b)(5)(ii), an opposing
party has the same obligation, but must amplify their response by
"including, if the response relies on opposing evidence, page or
paragraph references" to supporting "evidentiary documents."
Changes to the Massachusetts Rules of Civil
Also effective Jan. 1, 2013, are several amendments to the
Massachusetts Rules of Civil Procedure 5(a), 54(c), and
This group of amendments was enacted in response to the Supreme
Judicial Court's decision in Hermanson v. Szafarowicz, 457
Mass. 39 (2010). That case dealt with the conflict between M.G.L.
c. 231, §13B, which limits a plaintiff's ability to demand a
specific monetary judgment in a complaint, and Rule 54(c), which
provides that a default judgment shall not exceed the amount prayed
for in the demand for judgment. The court in Hermanson
found that there was an irreconcilable difference between the
statute and the rule, and found that the statute applied.
Under the old Rule 54(c), a default judgment could not be
"different in kind from or exceed in amount that prayed
for in the demand for judgment." (Emphasis added.)
Amended Rule 54(c) revises that language to eliminate a direct
conflict with M.G.L. c. 231, § 13B. The amended rule provides that
"[a] judgment by default shall not be different in kind from that
prayed for in the demand for judgment. If only damages that are a
sum certain or a sum which can by computation be made certain are
demanded, a judgment by default shall not exceed the amount
demanded." The final clause of Rule 54(c) remains unchanged.
Amended Rule 55(b)(2) also relates to motions for default
judgment. Under the former rule, if the party against whom default
is sought had appeared in the action, written notice of the
application for judgment needed to be served upon that party at
least seven days prior to the hearing on such application.
Under the rule as amended, a potentially defaulting party is
afforded more protection. The relevant new language provides that
"[t]he court shall not conduct a hearing unless the party entitled
to judgment by default has provided notice to all other parties."
This appears to apply regardless of whether such party has appeared
in the action. The rule goes on to provide that such notice shall
"include a statement setting forth the nature and type of all
damages requested and the amount of any damages that are a sum
certain or a sum which can by computation be made certain." The
amended rule further provides that such notice should be sent by
first-class mail at least 14 days prior to the date of the hearing
to the last known address of the party against which default is
Former Rule 5(a) provided, in part, that no service need be made
on any party in default. To maintain consistency with the
modifications noted above, the amended Rule 5(a) adds the language
"except as otherwise provided in Rule 55(b)(2) with regard to
notice of hearing on the amount of damages."
Changes to the Supreme Judicial Court
Lastly, there are two changes to the Supreme Judicial Court
Rules, both effective Jan. 1, 2013, and both contained within the
Massachusetts Rules of Professional Conduct.
Massachusetts Rule of Professional Conduct 1.5(b) formerly
provided that the scope of representation and information regarding
fees and expenses shall be communicated to the client, "preferably
in writing." The amendment to the rule now requires that such
information "shall" be communicated in writing within a reasonable
time of commencing the representation. The exception for lawyers
who charge a "regularly represented client on the same basis or
rate" remains intact under the amendment.
Massachusetts Rule of Professional Conduct 6.5 has been amended
to reflect that an attorney providing short-term limited legal
services to a client under a program sponsored by a non-profit
organization or court is not subject to Massachusetts Rule of
Professional Conduct 1.5(b), discussed above.
Tara E. Lynch is an associate at
Hassett & Donnelly, PC in Worcester, where her practice focuses
on liability defense litigation. She received her J.D., magna cum
laude, from Syracuse University. Admitted in Massachusetts and New
York, she is an active member of the Massachusetts Bar Association,
where she serves on the Board of Directors of the Young Lawyers