It happens all the time - last year's changes turn into this
year's challenges. When new laws get announced, new questions
inevitably follow. The same can be said of 2014, if lawyers'
predictions hold true.
Lawyers Journal asked many of our section leaders to address the
issues they see coming up next for lawyers in year ahead. According
to our responses, 2014 may be the year of the "e" - as in
e-discovery, the economy and the effects of a number of new rules
and regulations.
Great Expectations
ACCESS TO JUSTICE
Isabel Sara Raskin and Susan G. Anderson
Two significant trends will force changes in the practice of law
in Massachusetts: growing income inequality, and the aging of our
population. When the ratio of the average household income of the
richest 20 percent of households to the poorest 20 percent is
compared, Massachusetts ranks eighth in income inequality, with the
poorest losing income from the 1990s to the mid-2000s, the next
bracket gaining less than 10 percent and the top bracket gaining
three times that. Simultaneously, Massachusetts' population is
becoming older (by 2030, 25 percent will be 60 and older), which
will likely lock in these disparities for many people.
Those factors put obvious strains on programs that provide civil
and criminal legal services to the poorest. Additionally, though,
as the middle class is more and more stretched thin, the private
sector market for legal services is also strained. Firms that serve
this market - primarily small firms and solo practitioners - will
have to adapt to a new economic reality, and find new and creative
ways to provide personal, cost-effective legal services.
CIVIL LITIGATION
Holly M. Polglase
Discovery issues related to electronically stored information,
so-called "ESI," are likely to gather steam in the new year,
particularly in Massachusetts where amendments to the Rules of
Civil Procedure regarding e-discovery took effect on Jan. 1, 2014.
These amendments provide new requirements and guidance for state
court litigants and are modeled in part upon the existing federal
rules governing e-discovery. Courts, attorneys and clients will be
forced to grapple with a quickly changing litigation landscape as
the new rules become part of the practice; existing technologies,
such as predictive coding, potentially gain broader judicial
acceptance; and newer technologies emerge. In addition, there will
likely be a continuing focus on client data retention and
preservation policies regarding ESI. E-discovery will likely impact
us all in the coming year.
CRIMINAL LAW
Radha Natarajan and Adam J. Foss
This is going to be an exciting year for criminal justice
practitioners in Massachusetts. Here are just a few questions we
can expect to be answered by the Supreme Judicial Court in 2014.
(1) Is the law that expanded the jurisdiction of the Juvenile Court
to individuals who are 18 years old, rather than 17, retroactive to
cases that were pending when the law went into effect? (2) Are the
provisions of the "Three Strikes Law" that changed the amounts of
controlled substances necessary to qualify as trafficking
retroactive to cases pending when that law went into effect? (3)
Are current police and court procedures sufficient to prevent the
wrongful convictions of innocent individuals based on eyewitness
misidentifications? (4) Does the scheme for community parole
supervision for life violate the doctrine of Separation of Powers?
We look forward to hearing what the court has to say about these
important issues.
FAMILY LAW
Michael I. Flores and Jennifer R. Clapp
The one constant in the practice of family law is change. We
predict that family law practitioners will encounter at least the
following two changes in 2014:
1. As of Jan. 1, 2014, the Massachusetts Rules
of Domestic Relations Procedure changed to reflect the SJC's
amendments to the Rules of Civil Procedure. Primarily, the
procedural rule changes affect how family law practitioners request
and produce electronically stored information (ESI) as part of
contested cases. The new rules also clarify how attorneys and the
courts contend with the inadvertent disclosure of privileged
information as part of discovery.
2. There will be changes in how the courts
enforce the provisions of the Alimony Reform Act of 2011 as the
appellate courts issue decisions interpreting the act over the
course of 2014.
HEALTH LAW
J. Michael Scully
As we see and hear in the daily news reports, the areas of health
care and health law are constantly evolving and changing. The
commonwealth's implementation of federal health care reform will
continue to be a "hot" topic and continue to affect many areas of
health law. The expanded use of health care information technology,
including health care information exchanges, and its attendant
efficiencies, risks and potential problems, will also be an
important area for patients, providers and health law lawyers in
2014 and beyond.
IMMIGRATION LAW
Michael D. Greenberg and Alan M. Pampanin
If there is one new issue that all immigration attorneys are
looking forward to in the next year it is the prospect of
comprehensive immigration reform. Last year we had the impact of
the end of DOMA and its effect on same-sex marriage issues in
immigration. There are certainly issues with detention and removal.
However, the big issue is whether we can achieve some legalization
for the millions of people here without status and some peace for
their families.
INDIVIDUAL RIGHTS & RESPONSIBILITIES
Michelle A. Keith and Richard W. Cole
The rise of 3D printing coupled with the growth in crowdsourcing
will make way for the beginning of a Digital Industrial Revolution
affecting consumer goods, medical and transportation industries.
While IP theft will rise, the ability of individual designers,
ordinary citizens and university researchers to extend the supply
chain through innovation will create new paradigms, especially for
STEM training and investment. Within the medical industry,
scientists have already modified 3D printers to "bioprint" tissues
and organs from stem cells. Within transportation, where weight is
gold, 3D printing of lighter weight or replacement engine parts
will allow on-site manufacturing. Control over both corporate and
personal data will spark greater government regulation, global
debate and a larger scale type of the "Occupy Wall Street"
movement.
JUDICIAL ADMINISTRATION
John J. Morrissey and Michael T. Maroney
The new amendments to Rules 16, 26, 34, 37 and 45 of the
Massachusetts Rules of Civil Procedure addressing discovery of
electronically stored information (ESI) will have a substantial
impact on the administration of justice in the commonwealth. The
amendments went into effect on Jan. 1, 2014, and the rules apply in
all courts and proceedings governed by the Massachusetts Rules of
Civil Procedure. Accordingly, attorneys will need to review the
rules and incorporate them into their practice.
Don Grady
One new trend in the legal landscape of our state and federal
court systems is the recent filing and assignment of mass tort
cases, involving trans-vaginal mesh (TVM) products, dialysis
products and contaminated pharmaceutical compounding products.
These three claims have spawned federal multi-district litigations:
two of the MDLs which have been locally assigned to federal
justices sitting in Boston. TVM state court actions against Boston
Scientific have been consolidated in a specially created civil
session in Middlesex Superior Court and have been assigned to Judge
Judith Fabricant. Superior Court Judge Maynard Kirpalani has been
assigned to Granuflo/Dialysis actions that have been filed against
Fresenius and its holdings in Middlesex Superior Court.
These cases involve rulings and procedures that vary greatly from
the standard tracking order process for the majority of civil
actions. Special procedural rules and orders have been instituted
in the specially assigned Middlesex sessions. Expanded
technological systems in the filing of court documents, pleadings
and motions has been instituted on a higher and more sophisticated
level within the Massachusetts Superior Court system for these mass
tort cases in comparison to other forms of civil actions.
Coordinated discovery efforts have been instituted in the
representation of the parties and between the federal and state
courts handling these issues. On the practice level, the handling
of these matters requires an in-depth knowledge of the procedural
rules and orders instituted by the courts and sessions to handle
this volume of work. Given Massachusetts' leading position within
the biotechnology/medical device and pharmaceutical industries,
this trend in filing mass tort actions in Massachusetts, on the
state and federal level, will continue to grow and expand.
JUVENILE & CHILD WELFARE
Marlies Spanjaard and Jessica Berry
On Aug. 6, 2012, Governor Deval L. Patrick signed House Bill 4332,
An Act Relative to Students' Access to Educational Services and
Exclusion from School as Chapter 222 of the Acts of 2012. The new
law adds procedural and reporting requirements for student
suspensions and expulsions. It will also require school districts
to provide students excluded from school for disciplinary reasons
with the opportunity to make academic progress. Currently, a
regular education student who is excluded from school does not have
the right to any educational services. The Department of Elementary
and Secondary Education will be issuing regulations to address the
new responsibilities of school districts under the new law, which
will take effect on July 1, 2014.
LAW PRACTICE MANAGEMENT
Cynthia E. MacCausland and Damian J. Turco
The most impactful factors of 2014 will be the further increase in
the number of lawyers competing for the same business and a further
integration of technology into lawyers' and clients' respective
lives. How we communicate with clients, prospective clients,
colleagues, adversaries and others will evolve at an increasing
speed and our practices will need to adapt accordingly.
LABOR & EMPLOYMENT
Sheryl D. Eisenberg and John F. Tocci
There are a number of bills currently in the House and Senate, any
one of which, if passed, would likely lead to an uptick in
compliance activity and in litigation - among them, the
following:
• House Bill 1739, which would require employers
to provide paid sick leave to employees;
• House Bill 1774/S 865, which would, among
other things, amend the Massachusetts Maternity Leave Act to apply
to males and part-time employees; and
• Senate Bill 856, which would regulate the use
of non-competition/non-solicitation agreements.
PUBLIC LAW
Brian C. O'Donnell and David Hadas
Issues related to governmental transparency will continue to be
actively debated in 2014. In particular the Massachusetts
Legislature is expected to review multiple proposed amendments to
the Public Records Law, which may be well intended with regard to
shedding light on governmental operations, but also increase
demands on the resources of municipal and state agencies to respond
to records requests from citizens and the media. The transparency
debate will play out at a time of escalating contentiousness
between citizens and governmental bodies, posing enhanced
challenges and opportunities for public counsel working to maintain
governmental functions while encouraging civil discourse with
citizens. Local and state governmental bodies will also consider
whether limited financial resources necessitate the increased use
of public private partnerships for carrying out traditional
governmental functions in areas such as construction, education,
social welfare services, etc. Because 2014 is a statewide election
year we are certain to hear candidates addressing these topics with
a variety of proposals.
REAL ESTATE
Michael E. Katin and Andrea A. Hickey
Since many of the Probate registries have been in the process of
relocating Probate dockets off-site, title examiners have had great
difficulty accessing those records. The Probate registers have
become aware of this problem and are in the process of developing
some uniformity for access procedures. We are hopeful that this
will be resolved in 2014.
In 2013, the effects on foreclosures by the Ibanez and Eaton
cases, as well as the revisions of M.G.L. Ch. 244 by way of the
Prevention of Unlawful and Unnecessary Foreclosure Act, were making
their way into decisions in the courts of the commonwealth and the
U.S. Bankruptcy Court. The validity of foreclosures should still be
the basis for many of the decisions coming before the courts in
2014.
The Consumer Financial Protection Bureau (CFPB) promulgated its
"final" regulations that impact RESPA and the Truth in Lending Act
in November. Although these regulations are not scheduled to go
into effect until August 2015, we should be seeing many of the
changes being implemented in 2014. It appears that the CFPB will
incentivize this in light of its announcement of compliance
guidelines and other information to help the industry understand,
and implement the rules, which will be released over the "coming
months."
SOLE PRACTITIONER & SMALL FIRM
Scott D. Goldberg and Beth M. Padellaro
We predict a growing need, and continuing trend, of networking and
collaboration for sole practitioners and attorneys at small firms.
By the nature of their practices, these attorneys - who constitute
the majority of lawyers - benefit greatly from establishing
networks of colleagues who they can contact for assistance with
issues such as developing theories of a case, reviewing sample
pleadings, and referring potential clients to more experienced
attorneys and attorneys who concentrate in a specific area of law,
to name just a few. Additionally, this network of sole
practitioners and small firm lawyers furthers connections and
congeniality across the bar. The SPSF council is working toward
developing a network system where section members can better, and
more easily, assist one another.
YOUNG LAWYERS DIVISION
Brian Bialas and Courtney Shea
We think that the economy will continue to affect young lawyers in
2014. New lawyers will have a harder time finding their first jobs
than new lawyers did a decade ago, and all young lawyers will
struggle to find consistent streams of work, whether they practice
on their own or at a firm. That is why it is especially important
for young lawyers to participate in professional organizations like
the Massachusetts Bar Association to develop contacts, which can
lead to jobs and new business.