Let’s Put 9A Out to Pasture

Issue January/February 2023 January 2023 By Peter R. Chandler
Young Lawyers Division Section Review
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Peter R. Chandler

Superior Court Rule 9A has served its purpose and should be put out to pasture. As discussed below, there are a number of reasons for this. However, the strongest of these reasons is that it can easily be weaponized by the non-moving party. 9A’s inherent promotion of gamesmanship detracts from the pursuit of justice and should result in its demise.

At the outset, an additional set of rules to comply with, like the Superior Court Rules, is the last thing practicing attorneys need. We already have a very large set of rules called the Massachusetts Rules of Civil Procedure, which should be the one-stop shop for civil practice in Massachusetts. Adding an additional set of rules, in an entirely different publication (or website), is superfluous and confusing and simply encourages non-compliance. As it stands, in terms of motion practice, at least in the Superior Court, the Superior Court Rules are arguably more important than the Massachusetts Rules of Civil Procedure. This seems backward because it is backward.

9A creates a bunch of unnecessary work. Instead of a motion and maybe a memorandum of law, like other states, 9A hits a moving party with a laundry list of non-substantive to-dos. For instance, 9A mandates a handful of arguably unnecessary motion filings, like compliance affidavits, certificates of service, and a notice of filing listing all documents. Much of the aforementioned documents, it should be noted, could easily be combined into a few extra lines within a motion. Instead, if you fail to file one of those documents, your motion runs the risk of being rejected, because 9A values form over substance.

9A also shifts the onus of the entire motion filing onto the moving party, which prolongs the actual filing of a motion. Indeed, the moving party is responsible for serving his initial moving papers on the non-moving party, then collecting the non-moving party’s opposition, and filing the entire motion package. In other words, 9A forces the moving party to do the non-moving party’s work. And, if the non-moving party concedes the issue, no record of the dispute is recorded on the docket because no filing has been made. Again, this seems backward because it is backward.

Even ignoring these items, 9A’s framework inherently promotes gamesmanship. Learning the 9A labyrinth and how it can be weaponized against you is an important coming-of-age moment for practitioners. It is amid the confusing fog of the 9C conference and the mandated waiting period for motion filing that the traps for the unwary lie.

In addition to complying with the items previously discussed, a moving party typically must also comply with Superior Court Rule 9C. In short, the moving party and the non-moving party must confer, at a so-called 9C conference, prior to service of the moving papers. This area is ripe for abuse and encourages sharp practice.

Indeed, the 9C conference is where the fun begins. Suddenly, the once always-available attorney has become an elusive, hide-and-go-seek champion. There is zero incentive for the non-moving party to engage with the moving party. He knows why you are calling, and he is going to delay that 9C conference for as long as possible. Thus, as the moving party may find, they will occasionally be forced to get creative with the 9C conference ambush.

The 9C conference, while nice in theory, almost never results in the parties coming to an agreement, particularly for non-discovery-related motions. Instead, the 9C conference just adds unnecessary time, encourages delay tactics and usually ends with the service of moving papers anyway. It puts the parties in the exact same place they would have been without the conference, just at a much later date, and with even less time left on the clock.

Also, in that interim coordinating-a-conference period, when the non-moving party knows a motion is afoot, on occasion, whilst in hiding, the non-moving party will majestically transform into a moving party, eager to discuss each party’s respective motions at the 9C conference. The framework of 9A incentivizes the non-moving party to behave in this fashion. Thus, while you were diligently following the dictates of 9A (and 9C), running around seeking a conference, opposing counsel was warming up his keyboard to draft a separate motion, obfuscating all pertinent issues. Now, when all is said and done, two simultaneous, competing motions will have been filed, which would not have been the case, but for 9A.

Assuming you have survived this cat-and-mouse game unscathed, then you enter the motion service stage. Again, as the moving party, you have to file the full motion set, which includes the non-movant’s paperwork. This is where the gamesmanship really kicks into high gear. 

As the time to oppose dwindles further and further, a funny thing occasionally happens. The non-moving party decides, sua sponte, to take the wind out of the motion-sails by conveniently conceding the issue. Now, because of 9A, you have no record of filings delineating the parties’ respective conduct and, as the moving party, you have wasted a whole bunch of time and effort (e.g., coordinating the 9C conference, drafting the moving papers, doing research, etc.). You have, in essence, achieved a pyrrhic victory — you get what you want, after a substantial hassle, but the opposing party did no real work, made you do a lot of work and incurred no consequence. It leaves one to inquire: Who really won?

Putting this into perspective, creative attorneys, particularly those defending corporations looking to withhold the smoking gun, can get away with rampant discovery abuses, because 9A caters to this type of misbehavior. 9A creates a tremendous amount of inertia that must be overcome to file a simple motion. And, once the moving party has overcome all that inertia, the non-movant can simply concede the issue and encounter no recourse. Moreover, as nothing has been filed, it is as though it never even happened — because there is no record of it — and the bad behavior goes unnoticed and unchecked. And, because it was an effective strategy, this cycle will repeat itself in subsequent interactions, whether in this case or the next.

To recap, 9A is found in a separate set of rules, requires a variety of superfluous filings, shifts the onus of the entire motion filing onto the moving party and encourages the non-moving party to engage in sharp practice. If the idea behind civil practice rules is to level the playing field and promote the pursuit of justice, Superior Court Rule 9A fails on all counts. As such, the time has come to put 9A out to pasture.

Peter R. Chandler is a personal injury attorney at Sheff & Cook LLC in Boston. He currently serves on the Massachusetts Bar Association’s Young Lawyers Division Board, where he is chair of the Technology Committee. His practice is focused on professional liability, product liability, premises liability, catastrophic motor vehicle accidents, construction site accidents and wrongful death.