2016 The Year in Preview: Section leaders foresee focus on amended rules, new laws

Issue January/February 2016

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