Access to Justice
Even as the economy recovers, growing economic inequality will
continue to put pressure on legal service programs, and,
increasingly, on private practices. With the middle class no longer
representing a majority of the population (Source: Fletcher,
Michael A., "Income inequality has squeezed the middle class out of
the majority," The Washington Post, Dec. 9), lawyers will
find serving that market more challenging. As a profession, we need
to make a strong case for the value we add.
- Susan G. Anderson, chair
Business Law
Areas where I think there will be interest include:
- Cybersecurity, including implementing and managing programs to
address cybersecurity threats and breaches of data privacy.
- Protection of personal information (the Massachusetts standards
are among the strictest in the U.S.).
- The state's independent contractor standards, which are the
strictest in the U.S.
- Proposed Massachusetts legislation to restrict noncompete
agreements.
- David A. Parke, vice chair
Civil Litigation
Although changes in the law are part of every attorney's
practice, Massachusetts civil litigation practice is undergoing
unusually rapid changes on several fronts. Litigators are getting
used to the availability of expanded jury voir dire,
including panel voir dire, and lawyers and courts will
continue to learn its uses and limits. Lawyers are adapting to
their ability to suggest specific damage amounts in personal injury
cases and other cases of general damages. Lawyers and courts will
also start grappling with the new amended Federal Rules of Civil
Procedure, and the corresponding proposed amendments to the
Massachusetts Rules of Civil Procedure.
- Scott M. Heidorn, chair
Complex Commercial Litigation
Sellers of goods and services will continue to expand their use
of arbitration provisions in online and retail purchase settings to
prevent the filing of potential class action claims and to avoid
high-exposure litigation forums, and we'll see more litigation over
the legality and enforceability of such provisions.
- Paul E. White, chair
The amendments to Rule 26 of the Federal Rules of Civil
Procedure to take proportionality and cost/benefit into account
will be a critical battleground over the next year as parties test
the parameters of the new rule. Will the amendments reduce costs of
discovery to litigants (as intended), or simply increase the volume
of discovery-related motion practice?
- Laurence A. Shoen, vice chair
Criminal Justice
There is, at this very time, an almost perfect storm of activity
and momentum from a variety of Massachusetts commissions,
committees and working groups concerning sentencing reform that, in
some form, appears to be almost inevitable in the coming year.
In an almost unprecedented historic moment, a number of recently
constituted groups are energetically poring over research and
studies to determine, based on evidence and science, what works in
order to accomplish two bottom-line goals: to lower the recidivism
rate of people who have previously violated the law and to lower
the overall crime rate.
What is most encouraging is the focus on research described as
"data-based" or "evidence-based." In other words, unlike in the
past when criminal justice policy was all too often based on
political considerations from both sides - whether it was the use
of unsubstantiated, bumper sticker-type slogans, such as "lock 'em
up" or "more jails, less crime," or rehabilitation programs that
proved ineffective - policy will be based simply on what works.
Over the past several decades, there have been a plethora of
studies that have slowly revealed the most effective methods of
increasing public safety. So, participants in these groups are
ostensibly locked like a laser not on preconceived notions, such as
more incarceration or less incarceration, but on just seriously
considering where the research leads.
There appears to be common ground from many spectrums of the
criminal justice community. Among these initiatives:
This fall, with Gov. Charlie Baker's encouragement, a 25-member
bipartisan working group consisting of the executive, legislative
and judicial branches of government, along with law enforcement,
parole, probation and legal services representatives, will partner,
in a data-driven approach, with the Council of State Government's
Justice Reinvestment Initiative. Baker, along with leaders from
both parties, is particularly interested in programs that have
worked to reduce the recidivism rate in other states that would
then, ultimately, lower the overall incarceration rate. The
analysis will be focused on cost-effective, community-based,
post-release supervision, the effect that mental health and
substance abuse services have on the recidivism rate,
prevention-oriented policing strategies, civilian workforce
reintegration programs, prisoner reentry and whether the
incarceration and recidivism rates could be decreased through early
release programs while continuing to emphasize public safety and
justice for victims of violent crime.
After years of dormancy, the 15-member Massachusetts Sentencing
Commission has vigorously reconvened under the leadership of
Superior Court Judge Jack Lu, charged with bringing a "critical and
data-based lens to the commonwealth's sentencing practices." It
also has consulted with experts on smart-on-crime methods and is
also reviewing every aspect of sentencing in the commonwealth, from
whether or not mandatory sentencing is effective, to sentencing
guidelines, to every other sentencing issue.
Supreme Judicial Court Chief Justice Ralph D. Gants, who has
been vocal in his citing of data pointing to the ineffectiveness of
mandatory minimum sentencing to increase public safety, has
similarly set up Sentencing Working Groups comprised of judges,
probation officers, defense attorneys and prosecutors to recommend
protocols in the various courts of Massachusetts that will
incorporate best practices in a variety of areas to ensure
individualized evidence-based sentences, whether for probation or
incarceration, designed to ensure success in lowering the re-arrest
rate.
Also tasked with similar goals is the Massachusetts Special
Commission to Study the Commonwealth's Criminal Justice System,
currently chaired by the Secretary of the Executive Office of
Public Safety and Security Daniel Bennett. It was given rather
somewhat broader marching orders several years ago to take a top to
bottom data-driven analysis of much of the Massachusetts criminal
justice system, including sentencing, to see what better practices
are available - pretrial, while incarcerated or serving probation,
and prisoner reentry and post-release supervision - to reduce the
recidivism rate and therefore the crime rate.
In the year 2016, practitioners may very well begin to see
dramatically new sentencing laws and procedures based not on what
is politically popular, but rather wherever the research and
studies point to and lead as the most proven effective methods to
enhance public safety.
- Peter Elikann, vice chair
Family Law
The Family Law Section Council (FLSC) anticipates a very busy
2016 for family law practitioners. There is a tremendous focus on
Senate Bill 834, entitled "An Act Relative to Child-Centered Family
Law." SB834 was filed in 2015 as the byproduct of a working group
created by former Governor Deval L. Patrick. SB834 has been
controversial within the family law bar and, if passed, will have a
far-reaching impact. Another critical issue that will impact all
family law practitioners is the promulgation of a Standing Order
governing the appointment of parent coordinators. Once approved,
this Standing Order will provide clarity about the necessary
qualifications, training and fee structure for parent coordinators.
The FLSC is also focusing on the changes taking place through the
courts with regard to Alternative Dispute Resolution (ADR).
Specifically the FLSC will review the impact of mandatory referrals
for litigants to undergo ADR screening.
- Lloyd D. Godson, vice chair
Health Law
For 2016, I project greater progress in value-driven and
cost-effective measures that are designed to promote efficiency and
quality in the health care industry. Based on the commonwealth's
leadership role in responding to drug pricing, major developments
in the pharmaceutical sector will continue to dominate health law.
I anticipate, for example, that our members will monitor the
commonwealth's Health Policy Commission's findings, pursuant to
Senate Bill 1048, "An Act to Promote Transparency and Cost Control
of Pharmaceutical Drug Prices," which would require the
commonwealth's pharmaceutical industry to report cost and pricing
data and allow the state to set caps on charges. Those
practitioners who assist elderly or disabled clients should expect
movement on Medicaid and Medicare Part D's value-based prescription
pricing. Finally, health law attorneys will be watching for new
licensure procedures concerning biosimilars under the Affordable
Care Act's amendments to the Public Health Service Act.
- Lorianne M. Sainsbury-Wong, chair
Judicial Administration
The changes to the Federal Rules of Civil Procedure went into
effect on Dec. 1, 2015. Three of the most significant changes:
Scope of discovery has changed from "reasonably calculated to
lead to the discovery of admissible evidence" to "proportional to
the needs of the case," considering the importance of the issues,
the amount in controversy, resources of the party, importance of
the discovery to the issues, and whether burden or expense of
discovery outweighs its likely benefit. (F.R.C.P. 26(b)(1))
Objections to Rule 34 document requests must be made with
specificity. They also must identify any documents that are being
withheld. If the responding party states that it "will" produce
copies of documents or of electronically stored information, it
must either do so within the time stated in the request or another
reasonable time. (F.R.C.P. 34)
Uniform standards for imposing sanctions for failing to preserve
ESI (electronically stored information) were written into the rule.
If a party had a duty to preserve ESI but failed to take reasonable
steps to do so, and the ESI cannot be restored or replaced through
additional discovery, upon a finding of prejudice to requesting
party the court can only order measures no greater than necessary
to cure the prejudice. But if this was done intentionally, the
court may default or dismiss that party, or instruct the jury that
it may or must presume the information was unfavorable to the
party. (F.R.C.P. 37(e))
- Thomas M. Bond, vice chair
Juvenile & Child Welfare
Last year in Guardianship of V.V., 470 Mass. 590
(2015), the Supreme Judical Court (SJC) held that an indigent
parent whose child is the subject of a private guardianship
petition has a right to court appointed counsel. This year we
expect a follow-up decision from the SJC further clarifying the
right to counsel in private guardianship matters. We expected that
right to counsel for parents would include petitions to remove a
guardian and might also include contact visitation.
The governor's proposed legislation on opioids, if implemented,
we anticipate will increase the filings of petitions under C. 123,
§ 35 for juveniles. This will create a difficult situation given
the dearth of substance abuse resources available for
adolescents.
In Commonwealth v. Okoro, 471 Mass. 51 (2015), the SJC
extended the same procedural protections provided to juveniles
convicted of first degree murder at parole hearings in
Diatchenko v. District Attorney for the Suffolk District
(II), 471 Mass. 12 ( 2015) to juveniles convicted of second degree
murder - including the right to counsel. This year, these
post-Okoro second-degree cases will wind their way to the
parole board, and we anticipate that there may be some further
litigation to ensure that the parole board is following the
mandates of Diatechenko/Okoro.
Last year saw an increase in filings in care and protection
cases. We anticipate this trend to continue and the demand for
attorneys in the care and protection cases to continue to rise, as
well. While we hope next year will bring improved court efficiency
to deal with this increased demand, we predict that there will
continue to be struggles to ensure attorneys are not wasting
valuable time waiting for cases to be called.
- Holly T. Smith, chair
Labor & Employment
I think the increase in the minimum wage, coupled with the
upcoming increase in the earnings threshold for Fair Labor
Standards Act exemption, will affect workers and employers. We also
may begin to see some litigation around the sick leave law that
went into effect in 2015 (ditto the parental leave act).
- Margaret H. Paget, vice chair
Law Practice Management
Technology continues to become more integrated into our practice
and will be the major catalyst for practice evolution into the
foreseeable future. Today we have greater access to information,
and software programs are more affordable and capable than ever.
Today's clients expect efficiency and affordability, and in 2016 we
will see technology and coordinated shared resource workplaces,
such as law school-sponsored incubators, result in more newly
minted lawyers providing affordable legal services to moderate and
lower-income individuals and families.
- Damian J. Turco, chair
Public Law
In my view, a potential change to the Public Records Law - long
discussed and now appearing to gain traction at the Legislature -
is likely to impact attorneys in the Public Law Section Council and
their clients, and, frankly, any attorneys dealing with the
government (either as a client or an advocate for a client).
Previous criticisms of the law included, but were not limited to:
the costs imposed upon records custodians and upon requesters for
responding to a request; the time for records custodians to
respond; the lack of penalties for delayed or incomplete responses
from records custodians; and modernizing the law, which has been
largely left intact since its enactment in the 1970s. It is likely
that the amended law will address some, if not all, of these
criticisms. While the law, if amended, is unlikely to satisfy all
sides of the issue, it is likely to lead to further administrative
and judicial litigation in this era of transparency in the
government.
- Brandon H. Moss, chair
Real Estate Law
In the alphabet soup of statutory acronyms, compliance with
"TRID" and "WISP" must be the focus of residential real estate
attorneys.
The Truth in Lending Act (TILA) and the Real Estate Settlement
Procedures Act have been merged in the new requirement for
Integrated Mortgage Disclosures under the Dodd-Frank Act (TRID).
Lenders may use a third party, i.e. attorney/settlement agent, to
prepare the Closing Disclosure under TRID.
Moreover, residential real estate closing attorneys have an
opportunity (some would say responsibility) to educate real estate
agents and lender clients of their respective requirements under
TRID.
Massachusetts Written Information Security Plan requires
practitioners to develop and implement a comprehensive Written
Information Security Program (WISP) to create safeguards for the
protection of personal information of residents, including our
employees and clients.
Protection of our clients as consumers of financial products and
as individuals with privacy rights is of utmost concern in our
practices.
- Melanie Hagopian, vice chair
Taxation Law
Lack of IRS funding and service will continue to adversely
impact the way we do business with the IRS on behalf of clients,
particularly with limited IRS resources being deployed to address
identity theft, cybersecurity and other important issues that
affect the security of taxpayer information and our filing system.
However, offshore asset disclosure is an area of increased
enforcement. Exercising due diligence in this area while steering
clients away from severe civil and criminal penalties will be an
increasing priority in 2016. Anticipated changes in the
Massachusetts public records law may make it easier to obtain
required state-level information.
- Marc C. Lovell, section council member
Workers' Compensation
The Workers' Compensation Section is anticipating that the
Judicial Survey will be completed, analyzed and disseminated in
early 2016, providing feedback on the judges before whom we
practice. Additionally, we are awaiting public hearings on the
regulations that have been reviewed in the Rules and Regulations
Committee that met during fall 2015. Once the public hearings have
taken place, it is anticipated that the revised rules will go into
effect in 2016. The new year also should see public hearings on the
Sec. 36 bill that has been proposed by the Massachusetts Bar
Association. While the Senate has passed a different version of the
bill, the section is hopeful that revisions of Sec. 36
disfigurement and scarring will pass both sides of the Legislature
and be enacted in 2016.
- Deborah G. Kohl, chair
Young Lawyers Division
In 2016, I expect that the student loan crisis will continue to
gain attention. I expect that the dischargeability of student loans
will continue to be debated. Regardless of the result, as the
federal government discusses policy changes that will affect the
future of student loans, new lawyers will find themselves with
increased options for student loan repayment and negotiation.
- Melissa A. Conner, chair