Ever since he became Chief Justice of the Supreme Judicial Court, Ralph Gants has been talking about reforming civil litigation. In his first State of the Judiciary address in late 2014, he laid out a plan to form working groups in various Trial Court departments that would examine creating a “menu of options” for cost effective civil litigation. Soon thereafter, we began fieldling calls from the various departments requesting the service of BBA members. We were pleased to place a number of interested individuals on these panels. They spent the next year meeting and discussing ways to improve practice in the courts, and now we are beginning to see the results.
Superior Court was the first to submit its working group’s draft proposal to the public comment process. The proposal consists of three parts:
- Menu of Options – provides a right to individual case management and tracking at the option of the parties and with approval of the Court. The parties would have the opportunity to agree to vary standard procedures in one or more ways, including the procedures that otherwise govern discovery, trial, and post-trial events. For example, the parties could agree to an early and firm trial date, with or without a jury, and with a variety of limits on the quantity and kind of evidence.
- Pilot Program for Early Case Management Conferences – would require an early case management conference in four case categories: real estate, construction, products liability, and employment discrimination. The proposed pilot program would provide an opportunity to assess the value of early case management conferences and the time required to conduct them. In each case included in the program, the Court would convene a conference with the judge and counsel within 90 days after service of process. Prior to the conference, the parties would be required to confer, to exchange written settlement proposals and responses, and to complete a standard form addressing case management. An amendment to Superior Court Standing Order 1-88 would establish procedures for the conferences, and provide the form for the parties to prepare and submit. In addition, to facilitate conducting the conference early in the life of the case, as provided in the proposed amendment to the standing order, the Superior Court would recommend that the Supreme Judicial Court amend Rule 4(j) of the Massachusetts Rules of Civil Procedure to reduce the time limit for service of process from the present 90 days to 30 days, or to provide for a more expeditious alternative similar to the process now used in federal court, where service is required only when a defendant fails to respond to notice by mail.
- New Rule on Expert Disclosure – as is already required by the court’s “Notice to Appear for Final Pre-Trial Conference” in Superior Court Standing Order 1-88, the new rule would require that unless the parties agree, or the court orders otherwise, each party shall set forth certain information in the final pre-trial conference memorandum relating to any expert that a party intends to call at trial.
The proposed Superior Court initiatives were reviewed by all BBA Sections. The Business and Commercial Litigation and Insurance and Tort Litigation Sections drafted comments that were reviewed and approved by BBA Council and submitted to the Court on March 16. Members of both Sections were generally supportive of the proposals and felt that proposal #2 had the most potential.
They also had some specific concerns. For example, on proposal #1, some members felt that it was unclear how the rules would work within the Superior Court’s judicial circuit system, in which judges rotate through courts, despite that fact that the proposal calls for increased judicial involvement. Members also voiced concerns about the implications of the non-binding judicial case assessments in which it was unclear whether the judge would just be giving their “off-the-cuff” thoughts about the case, how wedded they might be to those early opinions, whether there would be any uniform formal process, or whether procedural decisions would all be in the hands of the individual judge and attorneys.
Some members voiced concerns about the reduction of time to effect service of process from 90 days to 30 days contemplated in proposal #2, which would cut down on the time often used for case resolution. Finally some members felt that proposal #3 would not make a significant change in practice. To read the full comments, click here.
We look forward to keeping you updated when the Superior Court releases its final plan for more cost-effective civil litigation, and analyzing the implications for practice.
– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association