Last week, the Administration of Justice and Litigation Sections sponsored a special lunchtime discussion with the new Clerk of the Commonwealth, Francis V. Kenneally. Clerk Kenneally is new to this post, but not to the work it entails, having previously served as the third assistant and later first assistant Suffolk County Clerk. Prior to serving as an assistant clerk, he practiced law in Maryland and Washington, D.C. and worked as a solo general practitioner in Quincy at the Kenneally Law Offices. He also served as a court-appointed mediator in Quincy District Court.
He is still adjusting to his new role, noting the major difference between being a county court clerk and Clerk of the Commonwealth was the shift from a job that was “100% legal” to one that is “100% administrative.” Clerk Kenneally relishes his new responsibilities. While he enjoyed the role he played with county court cases, he is just as passionate about helping lawyers and managing the full court’s caseload – the crux of his new position.
To that end, Kenneally spoke about new initiatives and improvements the courts are implementing. In April, the trial and appellate courts began a pilot e-filing project, which has been years in the making. Although there is no definite time table, the system will be gradually carried out in the following phases:
- District Court in Worcester for civil cases
- Brighton Division of the Boston Municipal Court for civil cases
- Probate and Family Court in Essex for uncontested divorces
- Appeals Court panel cases
- SJC applications for direct and further appellate review
The system will be similar to the federal court PACER system, except that e-filed documents will be reviewed by the clerks before they appear on the docket. Participation in the pilot program will be voluntary and will require a nominal convenience fee in addition to any applicable filing fee.
Kenneally also spoke about the SJC’s pilot program on rebuttal time – permitting appellants to reserve no more than five minutes for rebuttal at the outset of oral arguments. The court implemented the pilot program for the February and March sittings of the full court. Kenneally researched all state rules and statutes and discovered that Massachusetts was the only state without rebuttal at oral argument. During the pilot he estimated that attorneys requested rebuttal time in 85 to 90 percent of cases, and he thought the court found it helpful but is uncertain whether rebuttal will become a permanent part of oral argument in the future.
After answering a number of audience questions, Clerk Kenneally gave some advice and provided practice tips which would be helpful to the lawyers and, in turn, assist the court in its review of matters scheduled for argument.
Include lower court decisions and relevant statutes in your addendum. Mass R.A.P. 16 requires the addendum to contain pertinent lower court findings or memoranda of decision and the relevant statutes, rules, and regulations. The Justices rely upon compliance with the rule when reviewing briefs in preparation for oral argument. Audience members were curious whether the addendum should include all the statutes cited in the brief, or most, or only the most important ones. Clerk Kenneally said to err on the side of over-inclusion, but noted that it was a judgment call for lawyers. He welcomed anyone with further questions to contact his office about specific cases for further guidance.
Keep briefs brief. The required page limit for briefs is 50 pages, but Kenneally has seen briefs over 70 pages. While he knows that at times a longer brief is necessary from the lawyer’s perspective, the rule states that a motion to exceed 50 pages will not be granted except for extraordinary reasons. Again, he explained, if lawyers have specific concerns with respect to their case, they are welcome to call him.
Submit amicus briefs early. Mass R.A.P. 17 permits the filing of amicus briefs either by leave of the appellate court or a single justice granted on motion or at the request of the appellate court. The court has often relaxed the rule’s prescribed time for filing amicus briefs to two weeks before the first day of sitting in which the case is scheduled for argument. Nonetheless, amicus briefs are often untimely filed despite the relaxed application of the rule and are at times received well within two weeks of the first day of the sitting. The earlier the court receives these amicus briefs, the more helpful they may be.
Clerk Kenneally ended by noting he is a firm believer in getting to work early, staying late, working on the weekend if needed, and even checking and responding to work email messages after court hours. He is determined to answer any attorney questions or concerns in a timely manner and encourages attorneys to reach out if they have something to ask or say. He even encouraged us to include his contact information here:
Fax: (617) 557-1145
Phone: (617) 557-1188
– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association