BLS practice pointers from Hon. Kenneth W. Salinger

Issue November/December 2017 December 2017 By Michael J. Leard
Complex Commercial Litigation Section Review

The Honorable Kenneth W. Salinger is an associate justice of the Massachusetts Superior Court. Judge Salinger was nominated by then-Governor Deval Patrick, and sworn into office in September 2012. Prior to his appointment, Judge Salinger served as Assistant Attorney General and Appeals Coordinator for the Massachusetts Attorney General’s Office. From 1990 through 2006, Judge Salinger practiced at the Boston firm Palmer & Dodge. Judge Salinger is a graduate of Tufts University and Harvard Law School. He currently shares the BLS2 Session with Judge Janet L. Sanders. He spoke with ComCom Section member Michael J. Leard.

I. Contacting Chambers

Q. Do you permit counsel to communicate directly with you? If so, under what circumstances?
I prefer that counsel communicate with the session clerk. The session clerk may be contacted via telephone or email.

Q. Do you prefer, require or prohibit courtesy copies of pleadings, motions and memoranda to be sent directly to your chambers?
Typically, it is not necessary to provide me with courtesy copies. Where I believe a courtesy copy will be useful, the session clerk will contact counsel to request a copy.

Q. The Frequently Asked Questions section of the Business Litigation Session (BLS) website indicates that “in any motion (summary judgment, preliminary injunction, etc.) with a particularly voluminous record, counsel is encouraged to supply electronic copies” to the court. In such a case, should counsel email electronic copies to the session clerk?
As with courtesy copies in general, counsel should provide me with electronic copies only upon request.

As a general practice tip, I prefer that counsel include a table of contents for any longer legal memoranda, including those concerning motions to dismiss and motions for summary judgment. As a lawyer, I always thought it was good advocacy to include a table of contents in my briefing so that the judge had a summary of the salient points of my argument in one place. As a judge, the table of contents serves as a roadmap when preparing for oral argument or writing a decision. I encourage counsel in the BLS to incorporate tables of contents in their briefing.

II. BLS Procedural Orders & Formal Guidance

Q. In the BLS, judges sit for six-month sessions; however, judges have the discretion to retain control over a case where close oversight is required. Under what circumstances would you be inclined to retain control over a case after your six-month session?
In circumstances where I have spent a good deal of time deciphering arcane facts or areas of the law, I may be inclined, sua sponte, to retain control over a matter so as to avoid a duplication of efforts by my colleagues in the BLS.

Where counsel believe it appropriate for me to retain control, counsel should not hesitate to advise the court of their request. Counsel should confer with opposing counsel prior to submitting any request to the court.

Q. Do you require counsel to request such relief via motion?
Counsel must submit such a request in writing, by letter or motion. Again, I would encourage counsel to confer with one another regarding case management issues prior to submitting requests to the court.

Q. The BLS’s “Procedural Order Regarding Partial Dispositive Motions” requires the moving party to request a status conference in advance of filing a partial dispositive motion, at which, the “Court will decide … whether to permit such a motion.” What considerations do you take into account when deciding whether to permit the filing of a partial dispositive motion?
My approach to partial dispositive motions is similar to what I believe motivated the creation of the Procedural Order: to curtail the submission of partial dispositive motions that exhaust significant time and resources of the parties as well as the court, but do not materially focus or streamline the case. Where a partial dispositive motion is likely to materially limit the scope of discovery, increase the ability of the parties to engage in meaningful settlement discussions, or condense the length of trial, then it may be worth pursuing the motion. On the other hand, where a partial dispositive motion is unlikely to change the posture of case, the resources of the parties and the court may be better spent elsewhere. For example, partial motions to dismiss claims under M.G.L. c. 93A can often have a significant impact on how the parties approach settlement and, therefore, be worthwhile.

Q. The Frequently Asked Questions section of the BLS website indicates that “[s]oon after the pleadings are closed, every BLS case is called in for a Rule 16 conference.” Is there a particular period of time after the close of pleadings within which you typically set Rule 16 conferences?
I try to schedule the Rule 16 conference sooner rather than later, although I have no firm timeline within which to do so. If no Rule 16 conference has yet been scheduled and counsel believe that a conference would be useful, I would encourage counsel to contact the session clerk and request a conference.

Q. The standard Notice of Scheduled Appearance for BLS Rule 16 Litigation Control Conference requires counsel to bring a proposed tracking order to the conference. Do you require or prefer the parties to file a proposed tracking order in advance of the conference?
I always prefer to review a proposed tracking order in advance of the Rule 16 conference so that I may better engage with the parties at the conference. Typically, the proposed tracking order need not be filed more than a few hours in advance of the conference; however, should the proposed order address particularly complex issues, I would prefer the proposed order be filed further in advance of the conference.

Q. Do you have a required format to which the parties’ proposed tracking order must adhere?
While I do not have a required format for the proposed tracking order, from my perspective, the most important areas to include in the proposed order are: (1) the pre-trial schedule and (2) the scope of discovery. I would suggest that counsel include in the proposed order all relevant deadlines up to the final pre-trial conference.

The “right” schedule differs from case-to-case, and I would encourage counsel to attempt to negotiate reasonable deadlines in advance of the conference. The conference will provide an opportunity for counsel to address with me any disagreements with respect to the relevant deadlines and/or the scope of discovery.

Q. Do you have established guidelines for discovery of electronically-stored information (ESI)?
I do not have a standing order or guidelines for the discovery of ESI; however, my practice is to approach ESI-related issues practically. For example, I understand that there may be cases where the stakes are such that producing metadata will be critically important, and others where the costs of producing metadata would outweigh the amount in controversy. Given the costs of discovery, I encourage counsel to focus on the areas of discovery they believe will matter most in their initial discovery requests, and to request supplementation as needed.

I suggest that, in advance of the Rule 16 conference, counsel confer regarding any issues related to the discovery of ESI. In any event, issues with respect to the discovery of ESI should be resolved prior to production.

With respect to disputes over the costs of production, I proceed from the assumption that each party will bear its own costs. The party seeking to shift the cost allocation shall bear the burden of demonstrating why, under the circumstances of the case, a different allocation is more appropriate. I am more apt to grant relief where the moving party convinces me that it had proposed a more efficient way of dealing with the dispute, but the opposing party refused and instead is proceeding in a manner that is resulting in unnecessary costs.

III. Trial

Q. Massachusetts now permits attorney-conducted voir dire, upon request by counsel. The voir dire law provides that “the court may impose reasonable limitations upon the questions and the time allowed during such examination, including, but not limited to, requiring pre-approval of the questions.” Chapter 254 of the Acts of 2014, §2. Do you permit panel voir dire or individual voir dire? Under what circumstances?
At the outset, I should note that the majority of trials in the BLS are jury-waived.

Even before enactment of Massachusetts’ voir dire law, I had permitted, and continue to permit, attorney-involved individual voir dire, as I believe there are some questions which are more likely to elicit useful responses when posed by the judge, and others that are more likely to elicit such responses when posed by counsel.

My typical practice with respect to voir dire is as follows. Prior to the commencement of voir dire, I will advise counsel of the areas I intend to inquire. At this conference, counsel should request permission to explore any areas outside the scope of my questioning. I encourage counsel to raise unique voir dire questions during the final pre-trial conference. Absent prior permission, I limit counsels’ areas of inquiry to: (a) follow up questions on topics addressed during my questioning, and (b) any topics included in the written jury questionnaire.

I begin the voir dire process by posing questions to the venire as a panel and requesting that jurors respond by a show of hands. I then conduct additional individual voir dire at side bar of all prospective jurors, and ask extra follow-up questions of those who raised their hands. I will then permit counsel to pose follow-up questions to individual prospective jurors at side bar.

If I anticipate that examination will be particularly lengthy, I may clear the courtroom of the other prospective jurors and allow counsel to examine the prospective juror at the witness stand.

I have not yet conducted panel voir dire. On the rare occasions when I have received requests for panel voir dire, once I explained my typical voir dire practice, counsel withdrew their request.

That said, I am open to hearing requests for panel voir dire; however, in my experience individual voir dire is an efficient and effective way for determining whether a juror should be excused for cause or whether counsel may want to exercise a preemptory challenge.

Q. Do you require counsel to submit their voir dire questions to you in advance for approval?
I require counsel to submit the topic areas about which they seek to inquire at the Final Pre-Trial Conference. I typically do not limit counsel to particular wording for their questions because, frankly, I do not ask questions using the same wording every single time. There may be certain topic areas raised by counsel at the final pre-trial conference which I will suggest that I raise with the prospective jurors, at least initially.

Q. Do you impose time limits on counsel? If so, how much time do you permit?
In most cases, I have not needed to impose time limits on counsel. Generally, my impression is that counsel in the BLS understand the need to be efficient, and I understand that the time it takes to determine potential bias can vary for each prospective juror. In situations where I believe the process is lagging, I will first remind counsel of the need to be efficient. Should the process continue to drag, I will then impose time limits.

IV. Exhibits

Q. Do you require or prefer trial exhibits to be pre-marked?
To the extent that the parties agree that particular exhibits should be admitted, the exhibits should be pre-marked. Counsel are encouraged to raise any material disputes with respect to exhibits at the final pre-trial conference.

As a related practice point, less is more with respect to exhibits. Often, a large number of documents are admitted as exhibits; however, during closing arguments and/or post-trial briefing, counsel focus on only a fraction of the exhibits. There is no need to create a voluminous record of documents that will have no influence on the ultimate outcome.

Q. Is there a marking system you prefer?
Exhibits 1 through whatever. We don’t have “plaintiffs’ exhibits” and separately marked “defendants’ exhibits.”

Q. Do you have any practices or take any precautions before allowing a party to introduce confidential and/or proprietary documents of the opposing party?
At the motion practice stage, it is not uncommon for documents to be characterized as confidential. So long as an adequate showing is made consistent with the applicable impoundment procedure, I would not hesitate to impound a document.

In a public trial, it is the right of public to review the evidence. Public trial rights protect the rights of not only the parties, but also the public. It would be rather unusual to admit evidence at trial but have it kept hidden from the jury. Typically, legitimate concerns regarding disclosure can be solved through appropriate redaction.

V. Conclusion

Q. Any additional advice for business litigation practitioners who appear before you?
Don’t bury your lede. Some cases in the BLS can be factually and legally complicated, but the best lawyers find a way to sort through the complexity and distill the relevant facts and law to their essence. This concept applies equally at the motion stage as well as at trial. We have opening statements at trial for a reason. It is very difficult for the fact finder to absorb and make sense of days worth of evidence without context — which is what the opening should provide. Lawyers should do the same thing when arguing a motion to a judge; explain the essence of your clients’ position up front, and then explore more details as appropriate and as the judge permits. Providing a roadmap for the judge and jury is essential for effective advocacy.

This article previously appeared in the Summer 2017 edition of the ComCom Quarterly, the newsletter of the Complex Commercial Litigation Section.

Judicial interview conducted by Michael J. Leard, an attorney at Cetrulo LLP, whose practice focuses in the areas of commercial litigation, products liability and pharmaceutical litigation. Leard serves on the board of directors for the Massachusetts Bar Association’s Young Lawyers Division, and is a member of its Complex Commercial