Judges offer secrets to moving civil cases quickly

Issue November 2014 By Michael Hayden

The Massachusetts Bar Association's View From the Bench series recently traveled to the Montvale Plaza in Stoneham, where seven Superior Court justices provided a balanced, informative and exceedingly helpful view of what civil litigators can, and should, be doing to move their cases toward a speedier and more efficient resolution. The panel, which included Hon. Robert A. Cornetta, Hon. Dennis J. Curran, Hon. Shannon Frison, Hon. Bruce R. Henry, Hon. Maynard M. Kirpalani, Hon. Peter B. Krupp and Hon. Kenneth W. Salinger, imparted invaluable knowledge, lessons and practice tips to the more than 100 attorneys in attendance.

The judges spoke about the origins of Standing Order 1-88 and encouraged attorneys to think about whether the tracking order requirements of Standing Order 1-88 should be modified in particular cases. Over the last 25-plus years, the Superior Court has become familiar with the advantages and limitations of the Standing Order 1-88 tracking order and the panel of judges offered advice regarding how to take advantage of the standing order's beneficial components and how to seek assistance from the court when the limitations of Standing Order 1-88 interfere with the efficient conduction of litigation. One possible option is to file a motion to change the tracking order, but take heed if you have moved on several prior occasions to extend the tracking order deadlines.

The judges also spoke about the benefits and under-utilization of Rule 16 conferences. The Rules of Civil Procedure offer this effective tool to facilitate case management and, often times, a Rule 16 conference can be scheduled with a simple telephone call to the courtroom clerk. Anything from scheduling requests to discovery issues often are ripe for discussion during a Rule 16 conference and judges will routinely use a Rule 16 conference to encourage the parties to start thinking early in the litigation process about an efficient path to resolution (i.e., settlement).

Speaking of settlement, the judges pointed out the fantastic mediation resources provided to litigants by the Superior Court, free of charge, namely by James F. McCormack, Hon. Paul A. Chernoff (ret.) and Hon. Thayer Freemont Smith (ret.). Judge Curran identified certain types of cases that generally are good candidates for early ADR: negligence/personal injury and sale of goods or services actions.

Throughout the View From the Bench seminar, members of the audience contributed helpful questions and valuable practice points from the litigators' perspectives. Included in this audience feedback was the point that many attorneys regularly volunteer to provide free mediation service to litigants who sign up through the court. Unfortunately, these attorneys are often underutilized and remain ready, willing and able to assist parties who cannot afford private mediators with settlement discussions.

Not surprisingly, the distinguished panelists generally were not in favor of initiating motion practice to resolve discovery disputes. As expected, the judges would prefer that counsel work out their differences on their own, without the need for judicial intervention. Surprising to some, however, was a consensus among the judges that when parties do file motions concerning discovery disputes, they often noticeably lack the specificity the court would like to see with regard to a requested remedy. In other words, the court may agree that a discovery violation has taken place, but if the moving party can elaborate, with specificity, what relief they would like the court to grant, and why such motions may prove more successful in the future. The take-home point: be concrete. Include a draft order with your discovery motion and narrowly tailor your requested relief to the issue at hand and the authority of the court to remedy the alleged discovery violation.

Finally, there was some lively debate among the panel regarding the utility of the judicial rotation system that relocates Superior Court judges to a different session every 90 days. Opinions ranged from expressions of difficulty regarding the logistics of relocating every 90 days to the enjoyment of moving between civil and criminal sessions and from one county to another.

The distinguished justices graciously extended their participation in the 90-minute seminar to attend the social reception with the audience members that followed the panel discussion. Clearly, many of the attorneys in attendance found this unique opportunity to converse directly with our Superior Court justices an exhilarating and welcomed treat. The room stayed full right to the end and the audience members left raving about the success of this most recent View From the Bench seminar.

Michael Hayden is a member of the Judicial Administration Section Council. His law practice concentrates in the areas of professional liability, product liability and liquor liability/dram shop law. He has served as a faculty member of the MCLE Taking Depositions workshop since 2008.