Changes to court rules and amendments effective Jan. 1

Issue January 2013 January 2013 By Tara E. Lynch

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, 2013.

Amendment to Superior Court Rule 9A(b)(5)(ii)

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 Procedure

Also effective Jan. 1, 2013, are several amendments to the Massachusetts Rules of Civil Procedure 5(a), 54(c), and 55(b)(2).

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 sought.

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 Rules

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.

For links to the full text of the former and amended rules, including Reporter's Notes, attorneys should consult the Massachusetts Law Updates from the Massachusetts Trial Court Law Libraries.

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 Division.