| BBA News release |
FOR
IMMEDIATE RELEASE
December 22, 2003 |
|
SUPERIOR COURT CIRCUIT SYSTEM
RIPE FOR REFORM
So Says Boston Bar Association Task Force
In a report released today, the Boston
Bar Association (BBA) urged the Massachusetts Superior Court to
make significant changes in a system in which judges rotate from
courthouse to courthouse – frequently to the detriment of
the litigant whose single case may be heard by as many as nine
different judges, with each judge needing to take time to familiarize
himself or herself with the case. The report reflects nearly 8
months of study by the BBA Task Force on the Superior Court Circuit
System, co-chaired by Deborah Birnbach of Testa, Hurwitz &
Thibeault and Robert Frank of Choate, Hall & Stewart, and
follows up on a finding in the Monan Report that the hardest working
and most efficient judges carry an undue burden in a system where
judges frequently hear only parts of an ongoing case, and cases
frequently have to be rescheduled to accommodate judicial changeovers.
“Imagine a law firm where every
month, the lawyers change offices and exchange cases, regardless
of whether the cases are completed or not,” said Frank.
“The inefficiency of such a scheme would be mind-boggling,
but that is what the Superior Court Circuit System is like.”
The report calls for the Superior Court
to establish a pilot program in six sessions of the Court: four
civil and two criminal sessions. One judge should be assigned
to each of those sessions for a two-year period and should be
fully responsible for the management of the cases in that session
during that period. (The efficacy of the pilot program could then
be compared with “control group” sessions.)
“Fear of failure should not prevent
experimentation,” said Birnbach. “Although it may
have made sense for judges to ‘ride the circuit’ during
the 19th century when case volume was lighter, the circuit system
is now a model of inefficiency and wasted time.”
According to the report, the harmful
byproducts of the Circuit System include lost time at the beginning
and end of each rotation, the need for multiple judges to educate
themselves about a single case (particularly those cases requiring
significant attention during the pretrial stage), inconsistent
case management and approaches to discovery, delays in pretrial
rulings and difficulty in obtaining reliable trial dates.
In addition to calling for the pilot
program, the Task Force also recommends:
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Assignments should be based on
the needs of the overall system rather than primarily on seniority.
The Chief Justice and the Regional Administrative Justices (RAJ)
should be free to make assignments based on criteria that take
into account the system’s needs, such as a judge’s
abilities and skills, administrative and subject matter experience,
judicial preferences, needs of the sessions, availability and
geographic circumstances.
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A system of judicial districts
should be created, each with its own RAJ, which would replace
the present county-based system. Judges should rotate only within
a single district. As presently configured, the RAJ’s
role in the managerial structure is limited. A RAJ cannot exercise
managerial control over a specific group of judges because judges
move in and out of the jurisdiction of that RAJ, often on a
monthly basis. To provide a structure for assisting the Chief
Justice in setting goals, and of measuring performance against
those goals, each RAJ should have management responsibilities
for one judicial district and for the group of judges assigned
to that district. Individual judges should rotate only within
the same district. While the Task Force has suggested that administrative
sub-groupings be organized along geographic lines, other organizational
structures that achieve the same objectives might be used.
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The Court should identify and
monitor performance metrics, including analyzing relevant, simple
and uniform data as a key component of improvement and change.
These metrics can gauge any improvements of the proposed modifications
to the system.
In addition to Birnbach and Frank,
the following members of the bar served on the Task Force: Mark
W. Batten, Bingham McCutchen LLP;Mary Lisa Bonauto, Gay &
Lesbian Advocates & Defenders; Richard P. Campbell Campbell
Campbell Edwards & Conroy; John J. Carroll, Jr.
Meehan, Boyle, Black & Fitzgerald,
P.C.; David H. Harris, Lawyers’ Committee for Civil Rights;
Joseph A. Hernandez, Law Offices of
Joseph A. Hernandez; The Hon. David A. Mills, Appeals Court;Elizabeth
N. Mulvey, Crowe & Mulvey LLP; Walter B. Prince, Prince, Lobel,
Glovsky & Tye LLP; Joseph D. Steinfield, Prince, Lobel, Glovsky
& Tye LLP; and Richard M. Zielinski, Goulston & Storrs,
P.C.
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