The Massachusetts Bar Association's View From the Bench series
recently traveled to the Montvale Plaza in Stoneham, where seven
Superior Court justices provided a balanced, informative and
exceedingly helpful view of what civil litigators can, and should,
be doing to move their cases toward a speedier and more efficient
resolution. The panel, which included Hon. Robert A. Cornetta, Hon.
Dennis J. Curran, Hon. Shannon Frison, Hon. Bruce R. Henry, Hon.
Maynard M. Kirpalani, Hon. Peter B. Krupp and Hon. Kenneth W.
Salinger, imparted invaluable knowledge, lessons and practice tips
to the more than 100 attorneys in attendance.
The judges spoke about the origins of Standing Order 1-88 and
encouraged attorneys to think about whether the tracking order
requirements of Standing Order 1-88 should be modified in
particular cases. Over the last 25-plus years, the Superior Court
has become familiar with the advantages and limitations of the
Standing Order 1-88 tracking order and the panel of judges offered
advice regarding how to take advantage of the standing order's
beneficial components and how to seek assistance from the court
when the limitations of Standing Order 1-88 interfere with the
efficient conduction of litigation. One possible option is to file
a motion to change the tracking order, but take heed if you have
moved on several prior occasions to extend the tracking order
The judges also spoke about the benefits and under-utilization of
Rule 16 conferences. The Rules of Civil Procedure offer this
effective tool to facilitate case management and, often times, a
Rule 16 conference can be scheduled with a simple telephone call to
the courtroom clerk. Anything from scheduling requests to discovery
issues often are ripe for discussion during a Rule 16 conference
and judges will routinely use a Rule 16 conference to encourage the
parties to start thinking early in the litigation process about an
efficient path to resolution (i.e., settlement).
Speaking of settlement, the judges pointed out the fantastic
mediation resources provided to litigants by the Superior Court,
free of charge, namely by James F. McCormack, Hon. Paul A. Chernoff
(ret.) and Hon. Thayer Freemont Smith (ret.). Judge Curran
identified certain types of cases that generally are good
candidates for early ADR: negligence/personal injury and sale of
goods or services actions.
Throughout the View From the Bench seminar, members of the audience
contributed helpful questions and valuable practice points from the
litigators' perspectives. Included in this audience feedback was
the point that many attorneys regularly volunteer to provide free
mediation service to litigants who sign up through the court.
Unfortunately, these attorneys are often underutilized and remain
ready, willing and able to assist parties who cannot afford private
mediators with settlement discussions.
Not surprisingly, the distinguished panelists generally were not in
favor of initiating motion practice to resolve discovery disputes.
As expected, the judges would prefer that counsel work out their
differences on their own, without the need for judicial
intervention. Surprising to some, however, was a consensus among
the judges that when parties do file motions concerning discovery
disputes, they often noticeably lack the specificity the court
would like to see with regard to a requested remedy. In other
words, the court may agree that a discovery violation has taken
place, but if the moving party can elaborate, with specificity,
what relief they would like the court to grant, and why such
motions may prove more successful in the future. The take-home
point: be concrete. Include a draft order with your discovery
motion and narrowly tailor your requested relief to the issue at
hand and the authority of the court to remedy the alleged discovery
Finally, there was some lively debate among the panel regarding the
utility of the judicial rotation system that relocates Superior
Court judges to a different session every 90 days. Opinions ranged
from expressions of difficulty regarding the logistics of
relocating every 90 days to the enjoyment of moving between civil
and criminal sessions and from one county to another.
The distinguished justices graciously extended their participation
in the 90-minute seminar to attend the social reception with the
audience members that followed the panel discussion. Clearly, many
of the attorneys in attendance found this unique opportunity to
converse directly with our Superior Court justices an exhilarating
and welcomed treat. The room stayed full right to the end and the
audience members left raving about the success of this most recent
View From the Bench seminar.
Michael Hayden is a member of the Judicial Administration
Section Council. His law practice concentrates in the areas of
professional liability, product liability and liquor liability/dram
shop law. He has served as a faculty member of the MCLE Taking
Depositions workshop since 2008.