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A New Normal: Guidance for Practitioners in Suffolk Superior Civil Sessions Post-Pandemic

Issue January/February 2024 February 2024 By AiVi Nguyen
Complex Commercial Litigation Section Review
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AiVi Nguyen

The COVID pandemic and the e-filing system have changed how civil litigators interact with the Suffolk County Superior Court on the day-to-day administration of cases in many ways. On Nov. 16, 2023, the court hosted a Bench-Bar Conference to discuss this new normal. Held live in the Jury Assembly Room of Suffolk Superior Court (and via Zoom), the conference allowed the bar to hear the bench’s perspectives on these changes. Chief Justice Heidi Brieger gave opening remarks that reiterated “yes to Zoom” and introduced a panel from the bench consisting of Justices Robert Gordon and Jackie Cowin, Regional Administrative Justice Rosemary Connolly and Acting Civil Clerk John Powers as moderators/panelists. 

Below are some takeaways from the issues discussed at the conference. 

To E-File Or Not To E-File

While you can still file motion papers by snail mail or hand delivery, most attorneys are filing papers electronically. E-filing is convenient, efficient and green. However, not everything should be e-filed. Powers provided the following guidance:

Do not e-file emergency motions papers. Expect that the judge will want to hear from you, so file the papers in person and wait to be heard. 

E-file 9A packages. Submit all the papers related to your motion in one envelope. Within the envelope, include your brief as a file and all exhibits to your brief as a separate file. Do not separate each individual exhibit into its own file. Do not deliver courtesy hard copies to the court unless you are asked to do it. When you are asked to deliver a courtesy copy to the court, clearly mark it as a courtesy one to avoid it being docketed twice.

Getting Through The Docket Backlog Is Everyone’s Problem

The court and the bar pivoted as much as possible during the pandemic to keep cases moving, but the court is still left with a very large backlog. Practitioners can help the court get through the backlog simply by being efficient with the court’s time. Below are some examples. 

With respect to 9A motions, the 9C conference requirement should not be treated as perfunctory. The purpose of the 9C conference is to narrow issues down to only those in dispute to present to the court. Revise your papers to include just the outstanding issues before filing the 9A package. Submit proposed orders with your papers, regardless of whether you are the moving party or the opposing party. 

When it comes to the trial schedule, do not assume that your trial is the only one the court has booked. The court is double-booking trials (sometimes triple-booking), working under the assumption that cases will settle and trying to avoid a settlement in one case resulting in wasted trial days. There is a risk that no cases scheduled for the same day settle and one of them must be rescheduled. Your case may be the one rescheduled. Manage expectations about that. The system works best if you report settlements to the court as soon as possible so the court can confirm to the attorneys in the other trial booked that the court will move forward as scheduled.  

Expect the final pretrial conference to be substantive. Work with opposing counsel to agree on as much as possible in advance of the conference. Be prepared to argue your motions in limine. Be prepared to answer all questions from the judge about the merits of your claims and/or defenses as well as the logistics of how you will present your case at trial, including things like scheduling accommodations for witnesses, how exhibits will be presented to jurors (chalks, jury books, etc.), what technology you plan to use and whether the court’s technology can support it. (In Suffolk Superior, if you plan to rely on Wi-Fi, plan to bring your own connectivity boosters.)

Beginning in January 2024, the court will revert to the 12-person jury as the default (moving away from the six-person jury implemented during the pandemic). Be thoughtful and nimble about the number of jurors you seek to empanel. Most judges have seen no significant difference in verdicts coming from six-person juries as compared to those coming from 12-person juries. 

The Court Clerks Are The Keys 

One thing that has not changed is that the session clerks are invaluable resources for practitioners. Instead of guessing or spinning your wheels when you are unclear on a logistical or administrative issue on a case, reach out to the session clerk. While the judges move from session to session, the session clerks remain static. It is the session clerk who should know all the particularities of your case, so keep them informed. 

In recent years, attorneys have been able to communicate more and more with session clerks by email. This is a privilege. Powers encouraged attorneys to feel free to email session clerks but cautioned that the communications should include all other counsel and be restricted to logistical matters, i.e., do not copy the clerk on your bickering emails with opposing counsel. 

The Court Wants to See More Junior Attorneys

Perhaps the most important message from the judges is the same one that practitioners have been hearing across all the courts in the commonwealth in the last few years — let less experienced attorneys argue motions. With e-filing and many “routine” hearings held remotely now, there are fewer opportunities for junior attorneys to learn how to be a lawyer in a courtroom. It may be that part of helping a junior attorney develop these skills is letting them argue substantive motions without much prior experience. The judges made clear that they do not look negatively upon a senior attorney supplementing a junior attorney’s argument at a hearing. 

This message personally resonated with me quite a bit. I have been practicing since 2009, and as a junior associate, I had much more interaction with the Clerk’s Office and more opportunities to be in the courtroom than associates do now. Motions for special process server and short orders of notice had to be hand-filed by an attorney, resulting in opportunities to build relationships with the clerks organically. Status conferences were held in person, so I had the benefit of watching other lawyers present to the court while waiting for my case to be called. Needless to say, I took special note of the judges’ advice on this front. 

AiVi Nguyen is a litigation partner at Bowditch & Dewey LLP, focusing on complex commercial disputes and employment litigation. She is a lifelong resident of Worcester and is dedicated to the growth and success of central Massachusetts. She currently serves as the chairwoman for the Board of Directors of the Kennedy Community Health Center and is a past chairwoman of the United Way of Central Massachusetts.