SJC amends Judicial Code of Conduct regarding public
The Supreme Judicial Court has adopted amendments to the Code of
Judicial Conduct, effective Jan. 1, 2010, that govern the comments
judges may make regarding cases.
As amended, Section 3B(9) continues to require that a judge
abstain from public comment about a pending or impending proceeding
in any Massachusetts court. The revised commentary states that
"[t]he section's restrictions on judicial speech are essential to
the maintenance of the independence, impartiality, and integrity of
the judiciary." The commentary encourages judges to explain the
basis for their decisions on the record, stating that "[b]y helping
litigants to understand the basis for decisions in cases, the judge
also promotes public understanding of judicial proceedings."
The SJC Guidance Regarding the Issuance of Explanatory Memoranda
encourages judges to explain the basis for their decisions on the
record at the time the decisions are made, including decisions
concerning bail and sentencing. When the judge has not indicated at
the time that he or she issues the underlying order that a written
explanatory memorandum will be forthcoming, and such a memorandum
has not been requested by a party or by an appellate single justice
or court, the guidance provides factors that a judge should weigh
before issuing an explanatory memorandum.
Section 3B(9) continues to permit a judge to explain for public
information the procedures of the court, general legal principles
or what may be learned from the public record in a case. By way of
example, the commentary notes that a judge may explain to the media
or general public the procedures and standards governing
dangerousness hearings or requests for restraining orders.
Additionally, Section 3B(9) has been revised to expand the
educational exemption concerning pending appellate cases and to
permit a judge to make public comment concerning his or her conduct
(defined to refer to the manner in which a judge behaves and not to
the substance of a judge's rulings). Section 3B(9) and the guidance
are available on the SJC's Web site at www.mass.gov/sjc
In 2008, the justices appointed an Ad Hoc Advisory Committee to
Study Section 3B(9) of the Code of Judicial Conduct, chaired by
Superior Court Justice E. Susan Garsh. After reviewing the
committee's report, separate statements of two members and public
comments on the report, the justices invited further public
comment. Following the conclusion of the public comment period in
July 2009, the justices made some additional minor revisions to
Section 3B(9) and the guidance.
Superior Court implements Discovery Pilot
Superior Court Chief Justice Barbara J. Rouse announced Dec. 1
that the Superior Court's Business Litigation Session (BLS) would
implement a Discovery Pilot Project beginning Jan. 4, 2010.
The BLS Pilot Project was developed as a result of a joint
effort of the BLS judges (currently Margaret R. Hinkle, Stephen E.
Neel and Judith Fabricant) and the BLS Advisory Committee to
address the increasing burden and cost of civil pre-trial
discovery, particularly electronic discovery. The pilot project
will be available on a volunteer basis for all new cases in the BLS
and cases that have not previously had an initial case management
The BLS Pilot Project incorporates some of the proposed
principles in the March 2009 Final Report of the American College
of Trial Lawyers Task Force on Discovery and the Institute for the
Advancement of the American Legal System. Stating that the civil
justice system was "in serious need of repair," the final report
proposed sweeping reforms of civil rules, discovery and case
management. The BLS is now adopting some of these proposals.
For cases in the BLS Pilot Project, the concept of limited
discovery proportionally tied to the magnitude of the claims at
issue will be the guiding principle. To accomplish this objective,
the BLS judges will determine, with the parties, the scope and
timing of permitted pre-trial discovery. In making a
proportionality assessment, the BLS judges and the parties will
consider such factors as the needs of the case, the amount in
controversy, the parties' resources and the complexity and
importance of the issues at stake.
Each party participating in the BLS Pilot Project will be
expected at the beginning of the case to produce "all reasonably
available non-privileged, non-work product documents and things
that may be used to support that party's claims, counterclaims or
defenses." Thereafter, the parties and the BLS judges will consider
such pre-trial discovery techniques as numerical and time
limitations and limiting the persons from whom discovery can be
The factors governing the scope of permitted electronic
discovery will include "the nature and scope of the case,
relevance, importance to the court's adjudication, expense and
burdens." If the parties cannot agree, the BLS judges will conduct
an electronic discovery hearing, to address the scope of allowable
proportional electronic discovery and allocation of its cost.
Attorney Joan A. Lukey, president of the American College of
Trial Lawyers and a member of the BLS Advisory Committee, strongly
endorses the BLS Pilot Project. She said, "experienced trial
lawyers have recognized for years that discovery has become the
tail that wags the dog. I applaud the BLS for adopting the
principle, as did the American College of Trial Lawyers, that
discovery should be proportional to the particular case. This is
critical to repairing a flawed process."
Rouse states that the pilot project will be in effect initially
from January through December of 2010. Participants in the BLS
Pilot Project will be asked to provide feedback so that data may be
gathered and analyzed. Rouse states that the pilot project's
efficacy will then be evaluated and refined for future use.