MBA hosts Firm, Fair Trial Date Initiative Forum

Issue April 2008 By Kate O’Toole

Superior Court Chief Justice Barbara J. Rouse urged attorneys at the March 20 Firm, Fair Trial Date Initiative Town Hall, “Don’t be reticent” when it comes to requesting face time with judges or speaking out about securing a desirable trial date. The Massachusetts Bar Association, with the help of Suffolk University Law School, hosted a town hall-style meeting between representatives of the bench and bar to encourage discussion about the 2005 Firm, Fair Trial Date Initiative.

Four dozen people attended the event, which was also available as a live webcast at

Judges track progress

The program opened with a presentation by Rouse about how the initiative came to fruition. According to Rouse, continuances have been reduced from 70 percent to 50 percent statewide, 60 percent of cases are tried on the first or second trial date, and the overall civil caseload has been reduced more than 15 percent.

Far-off trial dates, pre-trial concerns

After the judges spoke, MBA President David W. White Jr. introduced the panel portion of the program by first asking a simple question to the panelists: “Is it working?”

At the core of many attorneys’ frustrations was how far ahead a trial is scheduled — and the various problems that result from that — as well as consistency in applying the Firm, Fair guidelines across the counties and sessions.

Panelist Susan M. Donnelly Murphy, a Boston defense attorney concentrating on professional malpractice and insurance litigation, discussed the difficulty of coordinating schedules nine months, a year, or even a year-and-a-half in the future.

“Quite frankly, I’d like to think that at a pre-trial conference nine or 10 months before the trial, I am seriously considering whether this case is going to trial,” she explained, “But, I must confess that doesn’t usually happen. It gets put on the back burner until I’m writing jury instructions and realizing that this is not a case that should go to trial.”

She suggested requesting a “final, final” pre-trial conference two to three weeks before a case is scheduled to go to trial, and noted that she has been awarded that conference with “increasing frequency” from the bench.

Panelist and plaintiff personal injury attorney Elizabeth N. Mulvey shared Murphy’s concerns for distant trial dates. She added a suggestion to “rename the pre-trial conference a year ahead a ‘scheduling conference’ and make the ‘pre-trial’ conference two weeks before trial” in order to limit confusion and guarantee a beneficial conference just prior to the trial date.

Program chair and Boston plaintiff attorney Jeffrey N. Catalano agreed with his fellow panelists and expressed additional concern for his clients involved in medical malpractice cases, who, in some cases, might not even survive if the case does not go to trial for 18 months.

An audience member supplemented Catalano’s point and explained why one of his current clients — an injured construction worker — can’t afford to wait more than a year for a trial. “He’s out of work and maxed out all of his credit cards,” the attorney explained. “He needs his trial.”

MBA Secretary and Peabody attorney Robert L. Holloway Jr., who focuses his practice on business and commercial litigation, provided a slightly different perspective than the other attorneys. He said that the Firm, Fair initiative has generally worked well, with a high percentage of cases being reached “maybe not on the exact day, but within a close enough time tolerance that we can keep our witnesses.”

However, he also sympathized with his peers when it came to scheduling difficulties. “I may have more control over experts because my business and commercial clients have more control over them, but it’s still a problem when you have folks coming in from out of state.”

Panelists also commented about issues unrelated to the distance of trial dates. For example, Murphy noted “a serious lack of uniformity” when it comes to the presence of judges at pre-trial conferences. When the meeting is only with a clerk, she said that she is unable to use the pre-trial conference to sort out issues about evidence, potential for settlement and expert witnesses.
Mulvey pointed out the importance of the days of the week in setting a trial date: “You can pick a jury a whole lot faster on Wednesday or Thursday than on Monday.”

Neel agreed with Murphy about the importance of resolving evidentiary and witness issues at the pre-trial conference, and Rouse advised attorneys to affirmatively request their conference with a judge.
As for Mulvey’s concern about jury selection and trial dates, Rouse urged her, “Influence the judge’s choice of date. Speak up, tell the judge that you would prefer to have a date toward the end of the week because you think it increases the likelihood of going to trial and causes fewer problems with the jury pool.”

Attorneys and judges discuss solutions

In response to the attorneys’ comments about far-off trial dates, Neel pointed out that long trials — such as medical malpractice, product liability and construction cases — are a particular challenge for the courts. “I suspect we are setting those long cases further out than we would have under the old system, but under the old system, those cases would have had two or three or four trial dates before they actually tried.”

He reiterated that by scheduling fewer cases, the court has a greater ability to shift cases between sessions. “Frankly, the escape valve may be to try to find a home for those cases not necessarily in the session they’re assigned to. But it’s a problem, and there’s no perfect solution to that.”
Mulvey suggested a strategy that she has previously employed several times to achieve a trial date much sooner. She prefaced her suggestion by noting that in most cases, there is one attorney for the plaintiff, and often three or four for the defense.

“Not uncommonly, there will be a date, maybe six months out, that everyone can agree with except for one counsel,” she explained. If all parties agree, the judge can schedule a trial date within a few months, when most of the counsel are available. If the trial dates comes, and one attorney still has a scheduling conflict, the case will not be reached, but the attorney will not be penalized. However, more often than not, the conflict settles or disappears, and the case is reached. “I’ve had cases actually get tried in four to six months using that informal workaround, and I think that it may be worth trying on a broader basis,” Mulvey said.

Rouse added that she hoped that a larger pool of attorneys, especially on the defense side, was trying cases. She noted that plaintiffs generally want the trial because they are paid on contingency, while defendants are usually on the clock and their clients want to be represented by particular attorneys. “It’s a dilemma for judges.”

Murphy responded that the defense bar needs time to replenish the roster of attorneys, pointing out that she “wasn’t trying wrongful death cases five years out of law school,” and that it takes time to integrate more attorneys into the courts.

Panelists emphasize bench-bar communication

All three representatives from the bench encouraged the attorneys to always be forthright in their requests, implying that executing the Firm, Fair Initiative is not a one-way street.

Mulvey agreed, and wrapped up her comments with a reminder to attorneys of their role as advocates for their clients when it comes to scheduling reasonable trial dates and achieving their goals in conferences. Holloway added that “communication is key” for all parties involved.

The MBA and the courts strive to maintain an exchange of ideas between the bench and the bar. On May 29, the MBA, along with the Massachusetts Trial Courts, the Court Management Advisory Board, Plymouth County Bar Association, Barnstable Bar Association and Bristol County Bar Association will sponsor an “Open Dialogue on Court Practices” at Brockton District Court at 4:30 p.m.

The event will provide a statewide opportunity for dialogue among judges, lawyers and court personnel on court practices and procedures. Look for more information about this event in upcoming editions of Lawyers Journal.