Monthly Archives: November 2013

Legislative Update: Informal Session and the Judiciary Committee

Wednesday, November 20th, marked the end of formal sessions for the first half of the two-year 2013-2014 legislative session.  The Legislature will meet in informal session through December, meaning it will only consider non-controversial matters.  Formal legislative sessions will begin again in January.  Legislative rules provide that any matter pending before the House and Senate carries over into the second annual session.   That means any bill currently pending will continue to be an active bill through 2014. 

When bills are filed at the beginning of the session they are docketed by the respective Clerks’ offices and assigned to a committee according to subject matter.  Committee staff reviews the bills and develops a public hearing schedule.  In the case of the Judiciary Committee, this requires agreeing to hearing topics and categorizing bills in a meaningful and efficient manner. 

The Judiciary Committee is arguably the busiest non-budgetary committee as far as the number of legislative proposals that get assigned to it – 805 since January 2013.  Hearings are known to last well past midnight on some occasions.  Over the last eight months, the Judiciary Committee held seven public hearings covering the following categories of bills:

 

  1.  Constitutional issues
  2. Sex offender bills and bills that would change any statute of limitation
  3. Real estate and property issues
  4. Criminal bills, privacy and restraining orders  
  5. Motor vehicles and laws relative to operating under the influence
  6. Torts
  7. Court Administration

We won’t hear about any upcoming Judiciary hearings for some time.  In addition to the start of informal session, the current Senate Chair of the Judiciary Committee is simultaneously running for Congress.  With less than three weeks to go before that special election, time will tell when the Judiciary Committee hearings will resume after the new year. 

Right now, it’s unclear what will become of these bills, but we’re watching as always.  Stay tuned to find out what happens next.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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Harry Spence at the BBA Council: Infectious Optimism

This week, BBA President Paul Dacier and the BBA Council had the opportunity to meet with newly appointed Trial Court Administrator Harry Spence.  He was informative and enthusiastic about the trial court’s positive momentum. 

The court is improving on all levels.  From the macro-perspective, the court continues to cultivate its good relations with the other branches of government.  The last few years have resulted in stable budgets with modest increases.  This is due in large part to the tireless efforts of Chief Justice Roderick Ireland, who spends days at the legislature building relationships and the respect of lawmakers and key government leaders.  Spence believes that other branches of government have made a fundamental decision to give hands-off support to the courts, and that they won’t return to budget cuts and micromanagement. 

Spence is relishing his collaboration with new Chief Justice of the Trial Court, Paula Carey.  They are working hard to implement the steps and mission statement of the new Strategic Plan, to achieve “one mission with dignity and speed.”  The first changes will come in the areas of technology, specialty courts, and court service centers. 

Technology advances will change the way courts operate.  For example, the courts recently completed their online platform.  E-Filing will be available for a majority of criminal cases and a large amount of civil cases in the near future.  Smart phone apps will soon help streamline the court experience for attorneys.  In addition, the court is using other technological advances to overcome staff shortages such as upgrading the phone system in Boston Municipal Court to reduce calls to clerks’ offices and preserving documents digitally so they are infinitely smaller and easier to transport.

The court will also add and improve specialty courts.  These courts have proven effective at reducing incarceration and recidivism by increasing effective responses specially tailored to those suffering from problems such as addiction, homelessness, or veterans’ issues.  Despite initially being a leader in establishing specialty courts, the Commonwealth has lagged behind other states in their development.  Spence foresees a future where these courts work in collaboration with the Department of Mental Health, the Department of Public Health, and the Department of Veterans Services to maximize their impact.  They will be located in the areas most in need of their services and they will operate based on universal standards instilled through a mandatory certification and training process.  They will enhance efficiency by capitalizing on the expertise of clerks and judges, while at the same time sharing back room staffers to avoid the repetition of overhead expenses.  Furthermore, they will gather detailed data and undergo constant evaluation so their true value can be understood.

Finally, the court will implement service centers to help self-represented litigants.  This will take some strain off litigants and judges alike.  Pro se litigants can get the help they need to navigate the court system and judges will see better prepared parties.  Spence described visiting a Connecticut court with mandatory service centers where judges spoke of saving an estimated two to three hours daily thanks to this innovation.

Spence described an ambitious present and bright future for Massachusetts courts.  We at the BBA look forward to these advances and are confident the trial court can make it happen thanks to their new leadership team, strategic plan, and cooperation with other branches of government.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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The Human Element: Challenges of Quantifying Judicial Productivity

Advanced performance metrics have made their way from academia to the mainstream, and are now used constantly in measuring everything from business productivity to athletic performance.  But this single-minded focus on “the numbers” may sometimes lead us astray.  On Friday, November 8th, the BBA’s Administration of Justice section co-sponsored the New England Law Review’s annual fall symposium entitled “Benchmarks: Evaluating Measurements of Judicial Productivity.”  The event was based around the work of Judge William Young of the United States District Court for the District of Massachusetts and New England Law professor Jordan Singer, who theorized that “bench presence,” meaning the number of hours a trial judge spends adjudicating issues in the court room, is the most important statistic in measuring a trial court’s overall productivity (read their works here and here).  

The afternoon “practitioner panel” featured Sara Shanahan, partner at Sherin & Lodgen and co-chair of BBA’s Administration of Justice Section; Jonathan Albano, managing partner at Bingham McCutchen’s Boston office and member of the BBA’s Amicus Committee; Honorable Paula Carey, Chief Justice of the Trial Court; and Robert Farrell, Clerk of the Court for the District of Massachusetts, who shared their ideas on judicial productivity.

From the start, it was clear that practitioners are less concerned with judicial efficiency metrics and more interested in the fair, measured, and generally efficient administration of justice they have come to expect from Massachusetts courts.  Mr. Albano explained that when he argues a case, he wants the judge to worry about only one thing – the case, not his statistics.  He likened judicial productivity studies to billable hours in the practice of law and saber-metrics in baseball.  They take the fun out of it and have the potential for negative impacts. 

Chief Justice Carey said that internally, the courts do see value in metrics.  She explained the work the court is doing to gather and use data.  Under its new strategic plan, the trial court is focused on “One Mission: Justice with Dignity & Speed.” 

In the midst of revamping its judicial evaluations program, the court is examining the process, evaluating the questions, and reaching out to the bar for input.  Chief Justice Carey emphasized that evaluations are confidential and important to the court.  She noted that in addition to bench presence, participating in scholarly public events and issuing clear, professional, and timely written opinions are important.

In sum, metrics are only useful when understood within a greater context – they can’t measure everything and at the end of the day, even judges are human.  We are lucky that in Massachusetts, we have some of the best judges in the country.  They are devoted to justice and interested in metrics as a performance enhancement tool.  As members of the bar we can help by giving specific, useful, and reasoned feedback to the courts through their judicial evaluation process.  From judges, to lawyers, to the public, we all play a role in assuring that the courts continue to meet the high standards of justice Massachusetts needs.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Having an Impact: Lessons From the BBA Leadership Retreat

In late October, the BBA held its annual leadership retreat and we were delighted with the results.  The weekend began with a panel discussion entitled “Having an Impact: The Constitution, the Daily Mechanics of Government, and You.”  It featured four panelists discussing the Massachusetts Constitution, perceptions versus realities in the operation of our state government related to judicial funding, and brainstorming ways lawyers can make a difference by working within this system.

BBA President Paul Dacier, who is known to carry around a copy of the state constitution, served as a spirited moderator.  Navjeet K. Bal, former Commissioner of Revenue and current member of Nixon Peabody’s Public Finance Group, brought her extensive budgeting knowledge and the perspective of the executive branch.  We learned about the judicial branch’s perspective from retired Judge John C. Cratsley, who served 33 years on the bench including as Regional Administrative Judge in Suffolk and Norfolk Counties.  Robert J. McCarron, Vice President for State Relations and General Counsel for the Association of Independent Colleges and Universities in Massachusetts and former Director of Legal Affairs for the Massachusetts House Committee on Ways and Means, brought the perspective of the legislative branch.  New England Law Boston Professor, Lawrence Friedman, rounded out the panel with his expertise on the state and federal constitutions.

The panelists revealed the inner workings of the budget process in Massachusetts – the massive pieces of the pie consumed by health care and education, the zero-sum-game position of the parties involved, and the importance for funds-seekers to build relationships with government leaders and give comprehensive reporting on their plans and achievements.  The conversation touched on the constitution, the structure and process of government, the role of politics, and the human elements inherent in the Commonwealth’s budgeting process.

In the afternoon, the BBA leaders split into four discussion groups to reflect on the morning panel, explore the issues of court funding and consider their own potential for involvement in the government budgeting process.  It was eye-opening to observe the idea-making process at work.  On Sunday morning, the groups came together to reflect and share their experiences.  We are still sifting through all of the thoughts and ideas and hope to emerge with some innovative solutions and new approaches for ways to advocate for adequate court funding.

While there will never be a quick-fix for improving judicial funding, the BBA’s leaders are committed to securing sufficient funding for the Commonwealth’s judiciary.  One thing is for sure, it begins with engagement in the political process and relationship-building with our legislators.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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