Massachusetts State House.
Boston Bar Journal

Changing the Culture: Making Civil Litigation Reform Work Through Superior Court Rule 20 and Standing Order 1-88(F)

August 09, 2017
| Summer 2017 Vol. 61 #3

starkeyby Hon. Douglas H. Wilkins

Voice of the Judiciary

The Courts are committed to the “just, speedy, and inexpensive determination of every action.”  Mass. R. Civ. P. 1.  Hopefully, that does not come as a surprise.  I fear, though, that many lawyers, parties and clients assume that there is little or nothing they can do about a “system” they may perceive as inflexible, expensive and inefficient.

Not so.  With leadership from Chief Justice Gants, the trial courts have adopted new rules and initiatives, effective this year, to reform the civil justice system.  The goal 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, for instance, arbitration.

In the Superior Court, lawyers, parties and clients must play a central role, if our reforms are to work.  Effective January 1, 2017, Superior Court Rule 20 and a Pilot Project for case management conferences (Standing Order 1-88(F)) give them significant input into scheduling, timing of settlement and ADR, eliminating unnecessary steps, streamlining discovery and trials, and addressing other common sources of delay.  Those initiatives reflect the work of an ad hoc committee, which included a cross-section of bar members, law professors and judges, chaired originally by now-retired Superior Court Judge Raymond Brassard and now by Superior Court Judge Bruce Henry.

Adopting these rules was the easy part.  Implementation is harder.  We realize that we are trying to change the culture.  For some reason, when I talk to bar groups, I hear mixed messages.  For instance, there seems to be a desire for more Rule 16 case management conferences, but a reluctance even to request them.  Apparently, there is a sense that judges won’t grant a Rule 16 conference; or that making the motion requires substantial motion practice, instead of simply asking for the conference.  If my assessment is correct, then both the bench and the bar – perhaps with urging from clients and insurers – may want to rethink some of the existing assumptions and “traditional wisdom” about what other participants in the system are thinking.  General counsel and other in-house counsel of any public or private entity that finds itself regularly involved in litigation also has a significant interest in reducing costs by asking trial counsel to use these new rules.

We have tried to make it as easy as possible for lawyers and parties to do so. A standard Rule 20 motion appears, in a fillable PDF, on the Superior Court’s web site.  The motion may be joint or contested.  You don’t have to think up (or fight about) an agenda; the form motion already contains one.  Notices for Pilot Project case management conferences are already being sent by court clerks in employment, real estate, construction, products liability cases and, upon request, in other case categories.  Preparation for these case management conferences includes filling out a case management report (Standing Order 1-88, Appendix A) and exchanging a demand and response.

The forms and Rule 20 itself list a wide and self-explanatory menu of options, too long to discuss in this article.  The nature and benefits of most of these options are probably self-explanatory.  If the Court approves an individual track (schedule) for your case, then the one-size-fits-all deadlines of Standing Order 1-88 no longer apply to that case.  See Amended Standing Order 1-88(B)(2) (“Individual Track”)

It may be useful, though, to mention one option that can address a common concern – issuance of written findings in bench trials.  The current process starts with a potentially costly and time-consuming need for the parties to prepare detailed proposed findings of fact.  After the trial, the parties often ask to submit additional findings to conform to the evidence. That takes more lawyer hours and additional time. The judge may need significant time to issued detailed findings, particularly where exhibits and testimony are voluminous and a transcript is not immediately forthcoming.  All the while, the judge is probably ready to decide the case at the close of the evidence.  And yet, the detailed written findings required by Rule 52(a) often are not worth the expense, effort and delay.  Unless there is some actual need for detailed written findings for appeal purposes (or otherwise), the parties will save significant legal expense by having the judge issue a decision in a form that is the same or similar to the “verdict slip” in a jury trial, perhaps after a conference to specify the rules of law the judge will apply.

Superior Court Rule 20(h) tries to address these problems.  It allows the parties to agree to waive detailed written findings, in which case Superior Court Rule 1-17 requires the judge to issue the equivalent of a special jury verdict.  At the same time, these rules recognize the parties’ right to complete Rule 52(a) written findings if they wish.  You will be seeing this option offered in new standard forms for final pretrial conferences and in the standard pretrial order for jury-waived cases.  The parties can also explore this option during pilot project case management conferences.

This example illustrates a larger point.  The current time standards were adopted in 1988 as Standing Order 1-88.  While there have been some amendments since then, the basic tracking order deadlines still set standards by case category.  Standard deadlines have worked well to reduce the huge backlog that existed 30 years ago.  The time has come, however, to customize case management and avoid unnecessary costs and delay that standardization can cause.

Lawyers frequently ask me whether judges will be receptive to Rule 20 motions to change existing tracking orders.  Will judges seriously entertain requests for case management and settlement conferences and actually consider reasonable limitations on motions, discovery and the like?  I know that some will.  In fact, in April, 2016, the Superior Court judges unanimously adopted the very rules that contemplate those motions and requests.  It is also true that the past few years have seen an unusually high number of new Superior Court appointees, whose views and practices may not conform to past assumptions about case management from the bench.  To be sure, the rules respect the discretion of individual judges to make the ultimate decision, so there will be individual variation in rulings on motions and requests.  But it can’t hurt to ask.

Judge Wilkins is an Associate Justice of the Superior Court, Chair of the Superior Court Rules Committee, and a Member of the Superior Court Ad Hoc Committee on Civil Litigation Reform.