The transformation of civil litigation

Issue July/August 2016 By Stacey L. Pietrowicz

Civil litigation in Massachusetts has recently undergone a transformation. Several longstanding initiatives and pilot programs resulted in formal rule changes and new legislation, and a number of new proposals are in the works. While the right to attorney-conducted voir dire and the amended ad damnum statute have been extensively discussed, other changes have received a smaller spotlight. The following is a snapshot of recent efforts by the bench and bar to improve the efficacy of our civil justice system.

In April 2015, Rule 45 of the Massachusetts Rules of Civil Procedure was altered to eliminate an ineffective, convoluted procedure for obtaining documents from a non-party in a civil case. What was previously done by noticing a live deposition and waiving the appearance requirement if and when a certified copy of the requested materials was received, was replaced by a streamlined rule allowing attorneys to serve "document only" subpoenas. The rule also allows attorneys to request electronic discovery to be produced in a certain format, and prohibits attorneys from abusing the process by imposing undue burden or expense on non-parties. While the day-to-day outcome is minimally different, the process clarifies the intentions of the parties and is more cost-effective.

In July 2015, the SJC adopted changes to the Massachusetts Rules of Professional Conduct. Clarification and guidance in the rules regarding limited representation will encourage attorneys to take on limited matters, providing broader access to the courts for would-be litigants. Other changes include additional language on obtaining informed consent from a client and when it is required, and parameters for engaging outside counsel to assist in a case. The changes are substantive and extensive. A before and after version is available online.

For those who practice in federal court, as of Dec. 1, 2015, the scope of civil discovery was narrowed from information "reasonably calculated to lead to admissible evidence," to information that is "relevant" to the claim or defense and "proportional to the needs of the case," the effects of which are still playing out. While there has been some discussion as to whether Massachusetts would adopt similar changes within Mass. R. Civ. P. 26, it is unclear whether any changes made to the Massachusetts rule will be as narrowing as the Federal rule.

Effective Jan. 1, 2016, the Superior Court amended a number of Rules and Standing Orders, and adopted four new rules. Now when filing a motion under Superior Court Rule 9A, the moving party is no longer required to get the court's permission to file a reply brief, a welcome change to many, but one that should not be abused. What was once Standing Order 1-09 dealing with written discovery in civil actions, has been repealed and replaced by Superior Court Rule 30A (with the former Rule 30A moving to Rule 9C(b)). The new Superior Court Rule 33 addresses the specific notice and filing requirements of parties requesting a continuation of trial.

While we acclimate to changes both big and small, several procedural concepts are in the vetting stages. One Superior Court initiative, posted for comment earlier this year, proposes a "Menu of Options" for individualized case management and tracking orders. The amendment to Superior Court Standing Order 1-88 would allow parties to stipulate to (or obtain a court order for) an individualized tracking order, provided that the proposed deadlines occur no later than the would-be deadlines for that case type. The suggested Superior Court Rule 20 would permit parties to stipulate to any number of altered procedures, including attendance at a non-binding judicial assessment of the case, immediate scheduling of a prompt and firm trial date, waiver of the summary judgment process or agreement to a reduced number of jurors, to name a few. Theoretically, the flexibility will foster early resolution and reduce expenses in less complex cases where parties can agree on the necessary and unnecessary facets of litigation. For example, in a motor vehicle personal injury case with clear liability but contested damages, the parties may stipulate to a shortened discovery period, an immediate trial date and a waiver of the summary judgment process, which would move the case along much faster than if it were placed on the typical fast track in Superior Court.

The second recently-announced initiative involves early case management for real estate, construction, products liability, and employment discrimination cases. For each of these case types, the court would convene a status conference with counsel within 90 days of service, (with the possibility of also shortening the period to make service of process). The parties would attend the conference having discussed an agenda, exchanged written settlement proposals and having submitted materials to the court. The procedure would fall under an amended Superior Court Standing Order 1-88, which would establish guidelines for the conferences and the court submissions. Once again, this proposal looks to streamline cases or otherwise keep them firmly on track.

A third proposition would set a concrete deadline for the exchange of expert disclosures, to occur no later than the final pretrial conference, within the joint memorandum. While parties sometimes defer disclosures until after the pretrial conference, under the new Superior Court rule the final pretrial conference would be the end of the line (subject, of course, to judicial discretion). No party could "reserve the right" to disclose an expert opinion after the conference, and would be prohibited from calling the expert to testify at trial, a significant repercussion for failing to make a timely disclosure.

Another noteworthy initiative arose amidst concerns raised last year when a proposal surfaced to increase the jurisdictional limit for Superior Court cases from $25,000 to $50,000. Since that time, the District Courts have added more dedicated civil sessions, so that fewer civil cases fall in priority behind criminal and domestic abuse cases. Once the District Court civil sessions are running the new sessions efficiently, the proposal to increase the procedural amount will be revisited, which will undoubtedly revive the push-back from those who want to see the benefits of attorney-conducted voir dire and other Superior Court procedures in the District Court.

Finally, the Superior Court recently established a working group consisting of judges, clerks, practitioners and members of medical organizations and insurers to address the problems plaguing the medical malpractice tribunal system. Those who handle malpractice actions have increasingly encountered delayed tribunals due to the difficulty of getting panel members. The delayed tribunals result in discovery disputes and prolong the case. The working group looks to generate proposals to resolve these issues, which may include rule changes, new legislation or tribunal alternatives. This is likely to be a growing topic of debate and discussion over the coming months.

Practitioners, clerks, judges and staff have put a tremendous amount of time and effort into replacing and revising inefficient and outdated rules and procedures, with the laudable goal of making litigation more cost-effective and less time-consuming. These recent changes, current initiatives and ongoing developments have the potential to truly relieve some of the burdens on our court system and to shorten to months a process that currently takes years, improving access to the civil justice system.