The Supreme Judicial Court amended Superior Court Rule 20 effective January 2017 and further amended it on March 1, 2018. Chances are, while being generally aware of Superior Court Rule 20, counsel do not appreciate the flexibility the new rule provides to case scheduling or understand the issues that can arise with it.
In general terms, Superior Court Rule 20 is intended to and does provide more flexibility related to individual scheduling for cases that, with agreement of counsel, can provide a more tailored approach to the litigation of each civil case. The Superior Court has provided a Superior Court Rule 20 motion form that takes counsel through many permutations of scheduling adjustments that counsel can agree to in order to streamline the case. The caveat is that the agreed deadlines scheduled cannot exceed the tracking order deadline for the case unless the tracking order for the case is amended (subpart 5). Counsel can be creative as long as it is within the confines of the existing track or the court agrees to the track amendment.
According to an article published by Hon. Douglas H. Wilkins in the Boston Bar Journal on Aug. 9, 2017, Superior Court Rule 20 impacts Standing Order 1-88 (tracking orders). The new Superior Court Rule 20, in addition to permitting a method to obtain tracking order flexibility, which can be achieved by agreement of the parties, was intended to “make the courts more responsive to user needs, less expensive, more efficient, less time-consuming and a superior forum for resolving disputes as compared to arbitration.” The article focuses on certain mechanical aspects of the rule that allow the parties and counsel more flexibility from the strictures of the tracking orders. The goal of most litigants is to move a case along and to keep the fees to a minimum while securing the best possible result. These competing concerns force prioritization of issues, such as volume of needed case development and cost. Unfortunately, a speedy, cost-effective resolution is not always possible.
In the article, Justice Wilkins mentions the functionality of subpart(2)(h), which offers a hybrid procedural alternative while still providing the ability to request a referral to arbitration or mediation, which is also part of the rule. He specifically discusses how the new Superior Court Rule 20(2)(h) might reduce the “potentially costly and time-consuming need for the parties to prepare detailed proposed findings of fact … the judge may need significant time to issue detailed findings … all the while, the judge is probably ready to decide the case at the close of the evidence.” The new Superior Court Rule 20(2)(h) states that the parties may, “if they wish,” agree to “waive detailed written findings,” unless the judge orders otherwise, “for good cause.” Presuming agreement by the court, the parties can agree upon a waiver of specific findings and rulings under Superior Court Rule 20(2)(h). Under subpart(2)(h), the judge can make findings, after a bench trial, that need only comply with the requirements of Superior Court Rule 20(8). (Of note, Superior Court Rule 20(8) expressly supersedes now-rescinded Standing Order 1-17, which was effective from Jan. 1, 2017 to March 1, 2018.). Superior Court Rule 20(8) lists the requirements of these “special jury verdicts,” and states that findings “shall, at a minimum, answer special questions on the elements of each claim, at a level of detail comparable to a special jury verdict form … unless the parties explicitly choose, or the judge expressly orders, findings in the form as provided by Rule 49(b).” Mass. Civ. Pro. Rule 49(b) is a general verdict accompanied by answers to interrogatories. See Superior Court Rule 20(8)(a). If the judge agrees, after a bench trial, the parties can waive the “detailed findings and rulings,” but the judge has to issue a finding that takes the form of a special jury verdict or a general verdict with special questions. Judge Wilkins equates this to a “special jury verdict” after a waiver of detailed findings of fact and rulings of law, which would ordinarily be required after a bench trial that is not conducted using the agreed waiver provisions of subpart(2)(h).
In this streamlined process provided by subpart(2)(h), the litigants may have issues not only with a bench trial, but also with such a waiver of “detailed findings and rulings.” The savings of a bench trial are evident. The real issues with a bench trial arise in the findings of fact and rulings of law for the losing side. The preparation of these detailed proposed findings and rulings can be complex, time-consuming, and costly from a client perspective. The impact of a waiver of detailed findings and rulings, in anything more than a very straightforward case (which might have been able to be disposed in summary judgment), may be a trap for the unwary. Although the judge may have been able to determine the outcome readily, the proposed findings and rulings are critical to the ability of the losing party to assert a successful appeal. If the parties waive the right to detailed findings of fact and rulings of law, have the parties preserved their objections to evidence or fact findings for a successful appeal? In the appellate court rulings, if a particular issue has not been raised or preserved for appeal, then the appeal on that issue fails.
The question, then, is whether the purpose of Superior Court Rule 20(2)(h) is to make the court process competitive with arbitration. Justice Wilkins indicates that the purpose is to “make the courts more responsive to user needs, less expensive, more efficient, less time-consuming and a superior forum for resolving disputes as compared to arbitration.” Without commenting on the caseload of the courts (which has only been exacerbated for the civil docket with the recent prolonged suspension of all but emergency civil matters), to what degree is Superior Court Rule 20(2)(h) trying to convert a court proceeding into an arbitration? Were this to be the goal, then the questions about a truncated or streamlined proceeding (in terms of the use of a waiver of detailed findings and rulings), which may or may not be in the control of the parties, may make the selection of such a process envisioned by subpart(2)(h) fraught with peril. What is the client giving up in terms of rights and procedure to achieve a more “speedy” and “cost-effective” result?
Back to the question of what happens if the loser wants to appeal. How does the waiver of detailed findings and rulings impact issues on appeal? Does expediency in the bench trial process and the waiver of detailed findings and rulings lead to a waiver of rights on appeal, a less than optimal record on appeal, a more costly appeal preparation, or a problematic record? If it is comparable to arbitration, is the record the same? Are the same rules on appeal that pertain to an arbitration intended to apply? In the absence of “detailed findings and rulings,” are the issues on appeal adequately preserved? Is the record adequate or available to address the evidentiary issues on appeal? Is the appeal limited to those issues that would be reviewable in an arbitration, or is the appeal the same as is available after a trial?
If the subpart(2)(h) process is comparable to arbitration and appellate rights, the real issues are: How does counsel advise the client, and how does counsel explain how this procedure is different from “arbitration” or better than arbitration? Arbitration has become a known quantity in the last 30 years. There are many providers, including the American Arbitration Association, where there are dispute-specific rules and decision types that the parties can request or agree to. The criticism of arbitration is that it is becoming more rule-driven and more like litigation in terms of discovery, formality and findings. Then what benefits does a Superior Court Rule 20(2)(h) bench trial with a party-agreed waiver of detailed findings provide? In arbitration, the parties have the choice of the arbitrator(s), full disclosure of conflicts of interest, and specialized training of the arbitrator in a subject matter area, if requested. The control over selection of arbitrator, as the decision-maker, provides at least some informational context. With this control comes a cost of the arbitrator and the proceeding. In court, the judge is assigned by session and rotated by and to circuits. The background is only what is known through the proceeding or the experience we or others have with the judge. The trade-off is cost versus knowledge and the rights and procedures associated with each process.
Clients can be reluctant to use arbitration unless already bound by contractual language. In advising the client to utilize the Superior Court Rule 20(2)(h) process, counsel needs to be able to adequately differentiate this new process from arbitration and provide the risk and cost-benefit analysis to the client, such that the client knows what is at stake in the event of an adverse outcome. Superior Court Rule 20(2)(h) was intended to make the process more cost-effective and suited to an expedited resolution of the dispute.
Superior Court Rule 20 provides a path to needed flexibility in case handling, which will only become more critical, as we all have to meet the challenges of the backlog of civil cases that has built up over the past few months. If counsel can reach agreement on streamlining scheduling, discovery and/or the use of mediation or arbitration, all of which are encouraged by the rule change, the clients would be better served. With regard to subpart(2)(h), at present, there are just as many concerns about the functionality of this process as there were upon adoption. Superior Court Rule 20(2)(h) may present litigants with another option for a cost-effective process. Until some of the details are known, the risks may outweigh the benefits on the use of the subpart(2)(h) process.
The flexibility of Superior Court Rule 20 promotes and recognizes that the litigation process has to be more nimble to meet the needs of the parties. The courts need to preserve flexibility to remain an effective process for more modest, less complex cases in which the litigants rely upon the courts for their “day in court.” This challenge to meet the needs of civil litigants will only become more exacerbated with the backlog of cases. With Superior Court Rule 20, counsel have the tools to meet this challenge. Rosemary Macero is a member of the Massachusetts Bar Association’s Civil Litigation Section. She is a civil trial attorney who is also an arbitrator with the American Arbitration Association and the Better Business Bureau.