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.