MBA Section Review Snapshot: Practicing in the Pandemic -- Update from the Courts

Thursday, Oct. 8, 2020
Complex Commercial Litigation Section Review article
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Superior Court Business Litigation Session Judge Brian Davis

On Sept. 30, 2020, Massachusetts Bar Association Complex Commercial Litigation Section Council Chair Derek Domian and Vice Chair Jessica Kelly Zoomed in with Judge Brian Davis of the Superior Court Business Litigation Session for an update on how the civil courts are running almost seven months into the COVID-19 pandemic. Judge Davis advised on the status of court procedures, his best practice tips for Zoom hearings and other interactions with the court, and the future outlook for jury trials in civil cases.

Below is a summary of the question-and-answer session with Judge Davis on practicing in the pandemic. Judge Davis made clear that, while judges must take direction and guidance from the Supreme Judicial Court and the chief justices of their respective Trial Court departments, practices still vary to an extent among the various trial courts, and each judge may have unique procedures or rules for filings, scheduling, and conducting motions and other courtroom operations for his or her session. Judge Davis advises attorneys to check with the session clerk if there is any question about how the courtroom may be operating during COVID-19. Judge Davis also commended lawyers for their flexibility, creativity and cooperation as the profession adapts to a whole new way of practicing law and encourages the bar to make suggestions to the bench as to how changes to courtroom procedures and systems can help with this transition.

What is the status of the courts’ civil sessions? 

Effectively all civil sessions in the commonwealth are up and running, with most proceedings being conducted virtually. The District Court and Land Court have been running virtual jury-waived trials, with the Superior Court not far behind. Criminal cases will continue to receive priority for any in-person appearances. This will continue through 2020 and likely well into 2021. 

Judge Davis has found that civil court proceedings are running relatively smoothly and that almost all proceedings can be conducted virtually, except jury trials. Both the bench and the bar have been quick to adapt to Zoom proceedings, and even events like emergency and ex parte motions are handled virtually. Judge Davis credits the accommodation and patience of counsel for contributing to the success of this transition. 

While the SJC effectively extended all tracking order dates from the beginning of the pandemic until July 1, 2020, courts recognize how severely the pandemic has impacted the ability of attorneys to do their jobs and are open to requests to further enlarge discovery and other deadlines, where appropriate. Courts continue to address the backlog of cases that accumulated during the initial days of the pandemic, but are working hard to move cases along. With the exception of jury trials (addressed below), many sessions have little or no current backlog. Judge Davis expects discovery to proceed apace, with depositions having also made the relatively smooth transition to remote proceedings. 

In many ways, virtual proceedings are easier to schedule and more cost-efficient for attorneys and their clients because they eliminate the need to travel. Some virtual proceedings, such as Rule 16 conferences, may continue to be conducted virtually even after the pandemic has passed. 

That being said, Judge Davis believes that there is something lost when judges, attorneys and parties cannot interact in-person in a courtroom. He looks forward to the day when those interactions will become more commonplace. 

What are best practices for motion practice during the pandemic?

E-filing is slowly taking hold in the state courts. E-filing is now permitted or even required for selected case types in the Housing Court, the District Court, the Boston Municipal Court, the Probate and Family Court, and the Superior courts in Barnstable, Middlesex and Worcester counties. The Trial Court was working on implementing a statewide e-filing system pre-COVID and that work continues, but full implementation will still take some time. If you have a question about e-filing in a particular case, it is always advisable to check with the clerk’s office about the rules and procedures in that court.

Some judges may also request or require electronic filings for convenience of the judge and clerks, who are likely working remotely on certain days. Judge Davis and other Trial Court judges are using pre-trial orders requiring electronic copies of exhibits for virtual hearings or jury-waived trials. 

Once a hearing is scheduled on a motion, the session clerk will likely email counsel with the Zoom information. Some judges will schedule a normal motion session, where all cases are invited to join the Zoom at 2 p.m. If there are numerous cases being called for the motion session, counsel may be put in the virtual waiting room or may be asked by the court to turn off their audio and video capabilities until their case is called. Some judges are scheduling motions for specific times so that there is only case on the Zoom at a given time. 

It is important to treat virtual hearings as you would an in-person hearing, including how you dress. Be prepared and do not interrupt opposing counsel or the judge. Make sure you have a strong internet connection and are in a quiet place where you can minimize interruptions. All that being said, the courts recognize that many attorneys continue to work from home and that environment – especially in homes with children – cannot always be completely controlled. While not necessarily recommended, the appearance of a wandering 3-year-old during a virtual hearing is unlikely to result in sanctions. 

Judge Davis has not made a policy of deciding more motions on the papers, but may be more inclined to do so in appropriate proceedings. While resolving the backlog of motion hearings in some sessions is an ongoing task, the decision time after a hearing has not been dramatically affected by the move to virtual motion hearings. 

The courts are rolling out new computers and other technology that will assist judges, clerks and staff in conducting remote proceedings, but that, too, will take time. The email system that the Trial Court currently utilizes generally cannot accept large file attachments (those bigger than 7 megabytes), so other methods of delivering electronic files should be considered, such as ShareFile and Dropbox. Some judges may also allow password-protected thumb drives to be submitted by counsel, but courts are generally discouraging their use because of security concerns (e.g., thumb drives carrying a computer virus). Counsel is also urged to use particular caution when electronically sharing documents that contain confidential or sensitive information. 

More information on conducting remote proceedings in the courts is available online. More information on best practices for Zoom hearings is available here.

How are courts handling emergency motions? 

Courts are conducting civil ex parte and emergency hearings per the usual course, except that the hearings are over Zoom. Counsel should file papers as they normally would and contact the session clerk about scheduling a hearing. Each week, a judge is assigned to handle emergency civil matters, so it is possible to get a same-day hearing in appropriate circumstances.

Are courts conducting evidentiary hearings over Zoom?

Yes they are. Many courts are conducting evidentiary hearings and jury-waived trials over Zoom. Judge Davis is part of a newly created Trial Court Virtual Evidence Committee, which is examining best practices for handling evidence during virtual hearings and trials. In addition, the Virtual Evidence Committee is analyzing the courts’ technology needs going forward in the new normal. Judge Davis pointed out that the new Mass. Guide to Evidence Section 1119, adopted in August 2020, is worth reviewing prior to participating in a virtual hearing. Section 1119 provides, in part, that judges cannot refuse to consider digital evidence simply because it is contained on a personal electronic device.

Judge Davis believes that the best practice for introducing exhibits for evidentiary hearings is for counsel to identify all exhibits (both agreed-upon and contested) ahead of time, then make sure each party, each witness and the judge have a hard copy of the exhibits with them during the Zoom proceedings. Counsel should pre-mark agreed-upon exhibits with numbers and disputed exhibits with letters. Counsel can then ask the witness to confirm verbally that he or she is looking at the correct document. The submission and use of exhibits at trial are covered by Judge Davis’ pre-trial order. Counsel can expect such pre-trial orders to detail exactly how Zoom can — and cannot — be used during the conduct of trials. For example, instead of standing, counsel making objections are instructed to raise a “virtual hand” on Zoom. 

Some litigants choose to use the “screen share” capability on Zoom or to put links to exhibits in the chat room, especially for impeachment purposes (e.g., counsel does not want the witness to see a document prior to showing it to him or her). For non-impeachment evidence, however, it is better practice for counsel to have hard copies distributed to all parties to the proceeding ahead of time. 

Keep in mind that Zoom hearings must, whenever possible, be recorded on the courts’ FTR system, not on Zoom. Therefore, absent special permission, there is no video recording of the Zoom hearing. 

When will trials resume?

The answer is, it depends. 

The Land Court and the District Court have been conducting virtual, jury-waived trials for several months. The Superior Court is also starting to ramp up jury-waived trials. Judge Davis currently has five scheduled in BLS-1 before the end of 2020. Litigants should make sure they are aware of and follow court- and judge-specific pre-trial orders for virtual bench trials, which should help guide counsel and parties on how to prepare for and conduct the proceedings.

On Sept. 17, 2020, the Supreme Judicial Court issued an updated order concerning the gradual resumption of jury trials. Phase 1 will include a limited number of in-person jury trials that will be in a select number of locations, with only one trial at a time conducted in each location. Civil juries will be limited to six jurors, and counsel will have a limited number of peremptory challenges. Potential jurors will be excused if they are at high risk for a severe COVID-19 infection. Although some civil trials may take place, most jury trials conducted during Phase 1 will be focused on criminal cases. It is anticipated that Phase 2, which would involve a wider resumption of jury trials, will begin in February 2021, depending on the SJC’s assessment of the results of Phase 1 and the then-current COVID-19 transmission rate. 

It is unclear when civil jury trials will resume in significant numbers and how they will look once they do resume. Smaller juries and fewer peremptory challenges are changes that may remain in place for some time. Judge Davis has seen more civil litigants requesting jury-waived trials in an effort to move their cases along. Not all litigants, however, wish to proceed jury-waived. As a result, the BLS currently is scheduling jury trials in 2021, with the caution that they may not happen on schedule due to the future state of the pandemic.

What are the options for virtual ADR?

Alternative dispute resolution is alive and well in Massachusetts. Mediations are happening at least as much as, if not more than, before COVID. More litigants may be turning to ADR in the future given the uncertainty of civil jury trials. 

Judge Davis recommends that counsel review Superior Court Rule 20 on individual case management and tracking, which offers some low-cost and creative ways litigants may try to resolve their cases in Superior Court, or at least move them toward resolution more quickly. One example is the opportunity for a judge (from a different session) to give a non-binding assessment of the case. 

Concluding thoughts

Almost all court business for civil proceedings can be conducted virtually, except for jury trials. The courts are working hard to catch up from the shutdown and continue to move cases along. The courts are grateful to litigants and the bar for their continued patience and flexibility as they navigate the pandemic with skeleton staffs and remote proceedings. If you are wondering about the status of a case or waiting for something to be scheduled, do not hesitate to reach out to the session clerks for an update or guidance. 

Look for an updated version of this article in the MBA's November/December 2020 Section Review.