Judicial Rotations in the Superior Court: Pros, Cons, and the Possibility of Reform
by Michael Brier
One of the first lessons that every new litigator learns when practicing in Massachusetts Superior Court is that the judge that hears his or her case one week may not be the same judge who hears it the next. In that, the Superior Court differs from other federal or specialty courts that assign cases to particular judges (such as the U.S. District Court for the District of Massachusetts or the Land Court) or courts where judges commonly sit in the same location for long periods of time (such as the Massachusetts District Court). The Superior Court handles some of the most serious cases in the Commonwealth, and must contend with a heavy caseload (up to eight hundred cases at any one time in many sessions in Middlesex and Suffolk County), so the best way to assign its judges is a matter of more than academic interest. This article considers some of the advantages of the rotation system, some of the perceived disadvantages, and whether changes might benefit the bench, the bar, or both.
Historical Context of the Rotation System
The question of whether the rotation system is the best one for the Superior Court is not a novel one. Indeed, nearly forty years ago the Boston Bar Journal published both a fulsome panel discussion on the rotation system and an article authored by now-retired Judge Hiller Zobel on the topic. Those sources are helpful in understanding the origin of judicial rotation, which dates back to the establishment of the Superior Court in 1859. The Superior Court bench was a small one (just ten judges for many years), so the judges “rode circuit” between counties, presiding over trials in one county before moving on to another. The system remained in place as the judiciary grew. One of its benefits is allowing judges the experience of working in different counties with their own distinctive caseload, bar, and court staff. Another benefit (or at least perceived benefit) is in preventing the development of (to quote Judge Zobel) an “overly warm, or the reverse,” relationship between bench and bar.
However, the rotation system, especially as it was practiced in the twentieth century, has caused its share of inefficiencies. According to the Boston Bar Association’s December 2003 Report on the Superior Court Circuit System, at the time of publication the majority of judicial assignments lasted for just one month, and only a very small minority lasted for four months or more. These short stints made it unlikely that a motion or trial judge would have any prior experience with a given case. The short length of judicial rotations also created frequent “dead weeks” at the end of a sitting during which it would be difficult for a judge to begin a trial.
At least partly in response to these concerns, about twenty years ago, the Superior Court implemented a reformed rotation system that extended judicial rotations to three months (six months in the Business Litigation Session and a few sessions in larger counties), except in a few counties in the western part of the state.1 This reform retained the advantages of the existing system, including giving busy judges time to finish up lengthy bench trials and summary judgment decisions while serving in criminal sessions, which often require less writing.
Current Concerns
Still, some members of the bar to whom I have spoken for the purposes of this article remain dissatisfied with the rotation system. Some believe that it permits litigants to engage in “judge shopping,” as an attorney who prefers not to try a case or argue a motion in front of a particular judge may claim unavailability and secure a delay until a new one enters the session. Others believe that the rotation system incentivizes judges—even unconsciously—to deny dispositive motions, since they know that a different judge will handle the ensuing trial. Finally, some felt they received better-reasoned rulings (especially on discretionary issues) from judges who were familiar with a case as opposed to judges who were not.
I offer no opinion on the merits of these concerns (which are plainly subjective), but rather mention them as a backdrop to the disadvantage of the rotation system that is much more clear-cut: the increased workload that it creates for bench and bar alike. After all, bringing half a dozen different judges up to speed about a case (a situation that is not unknown) inevitably will require much more time for counsel than one or two. Likewise, while even judges who have handled a case in the past will need to spend time re-familiarizing themselves with it prior to making a ruling, that certainly involves less effort than learning a case from square one. The work involved alone represents good cause to consider further reforms of the Superior Court rotation system.
Consideration of the Federal Model
One approach would be to implement a system like the federal one, where a judge sits in a given courthouse on a permanent basis and handles both civil and criminal cases at the same time. This approach would largely solve the perceived problems with the rotation system, but is probably not practical, for several different reasons.
The first impediment relates to how the Superior Court is structured. The vast majority of Superior Court sessions are either exclusively civil or exclusively criminal. Therefore, the end of the rotation system would imply the conversion of all existing sessions into mixed civil and criminal ones. But criminal courtrooms are often set up differently from civil ones in order to accommodate defendants who are in custody. And Suffolk County has two elected clerks—one civil and one criminal. It is difficult to see how their responsibilities could be consolidated without new legislation.
The second impediment arises from the fact that there simply are not enough judges to fill all of the existing sessions. There is no “senior status” in the Massachusetts system, as there is in the federal one. Mandatory retirement at age 70 essentially guarantees a certain number of retirements and judicial vacancies each year. If a given session were exclusively dedicated to one judge, and that judge were to retire, it could create additional delays and administrative burden than might otherwise be the case under the existing system.
Finally, under the existing system, judges (especially more junior ones) sometimes need to travel to sessions farther from their homes than is convenient for them, with the consolation that they will move to a courthouse closer to home in a future rotation. The end of the rotation system could see judges sent to distant courthouses for long periods of time, a result that hardly seems fair to them.
Balancing Efficiency and Fairness
But if the end of the rotation system altogether would seem to be ill-advised, two less dramatic reforms might be more practicable.
First, the Court could expand the number of six-month rotations and make them the standard (while retaining some flexibility to use shorter rotations, especially in smaller counties and to accommodate judicial vacancies). We already know that six-month rotations can work, since they are used all of the time in the Business Litigation Session and are used in a few other sessions as well. Second, the Court could further encourage the creation of judicial “teams”: groups of two or three judges who rotate between the same session for several years at a time. So, for example, the judge who rules on serial discovery disputes or summary judgment would be significantly more likely to be the judge who presides over trial, either because the judge is still in the session months later or has returned to the same session after a rotation elsewhere.
There is no question that changing the existing system would require work on the part of the Chief Justice, Regional Administrative Justices, and Court administration. Nevertheless, these two measures, taken together, could be helpful to the judge (who could rely on his or her own previous rulings in getting back up to speed regarding the case) and would certainly be helpful to counsel, who could spend less time describing the case background to the judge. They would also address some of the other concerns about the rotation system voiced by members of the bar. In light of Superior Court’s (and every court’s) objective of becoming more efficient without compromising the rights of litigants, longer rotations and more judicial teams are reforms worthy of serious consideration.
Michael Brier is a partner at Gesmer Updegrove LLP. He focuses his practice in the areas of business and employment litigation, and appears regularly before the Superior Court.