September 2013

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Dacier’s Take on. . . A Typical Day in Our State Courts

Published by on September 24, 2013

Recently, Chief Justice of the Massachusetts Trial Court Paula M. Carey, writing for the Boston Bar Journal said: “Although sometimes not considered as such, the Trial Court is often a last haven for those who have nowhere else to turn. We frequently must create order out of chaos in the lives of those who come to our courts.”

Did you know that every day some 42,000 people use our state courts? We have seven trial court departments and in some counties the number of litigants who are self-represented is north of 80 per cent. In many cases, these are people who walk through the court house doors with no understanding of how the legal process works. To complicate matters, the litigants may have limited proficiency in English.

Our judges are committed to administering fair and impartial justice to people from all walks of life. They are on the front lines of our justice system, left to sort out messy situations that the rest of us might characterize as horrific, bad, or ugly – in hopes that when litigants leave the court, they will be in a better place than when they came into the system. Our judges understand they may be seeing otherwise decent people at the worst time in their lives, suffering unspeakable emotional pain that renders them incapable of compromise or rationale behavior.

Subscribe to daily updates of written decisions from the Appeals Court and the Supreme Judicial Court, and you will develop a new appreciation of trial court judges doing their best to craft solutions that comport with the law while trying to make order out of chaos. Here are just two dramatically different examples of what our courts are seeing:

The Adoption of Cecily (2013), a case involving a two month old baby who arrived at North Shore Children’s Hospital with life-threatening injuries after being left in the care of her father. The judge writing the decision makes a point of writing that “faced with the overwhelming evidence that the father caused the horrific injuries to Cecily, the mother failed to acknowledge the evidence and failed to separate from Cecily’s abuser.” Initiated by the Department of Children and Families in the Juvenile Court, this case ended with the Appeals Court determining it would be in this child’s best interests to terminate the parental rights of both mother and father.

Daniel L. McDonough vs. Kevin W. McDonough (2013), a case involving two brothers who, if the filings are to be believed, now deeply regret that they went into business together – with Kevin having locked Daniel out of the headquarters of their electrical construction corporation.

Unhappy with the arbitration clause both brothers signed when they started their business and the arbitrator’s valuation of the business, Daniel learns on appeal that “one of the risks to which [he] subjected himself when he bargained for and agreed to the arbitration clause – the risk of a legal or factual error by the arbitrator, with no mechanism for substantive review by a court – came to fruition.” Yet Daniel gets some relief from the court, with the court ultimately deciding that he does have the right to pursue a claim against his brother for breach of fiduciary duty.

In the interest of brevity, we won’t delve too deeply into another category of cases that present themselves in the form of Petitions for Partition in the Land Court. The typical case involves a family fighting over Grandma’s modest beach cottage after her passing. Some family members want the cottage sold immediately, while other family members want to hang on to it, even if the property is now worth less than the value of its mortgage. Usually unaccompanied by lawyers, these litigants are looking to the court to impose a sense of order.

Even businesses – ranging from sole proprietors to multi-national companies – must turn to the courts when events cause life to go topsy-turvy. Only the courts, for example, can provide a preliminary injunction.

These illustrations demonstrate the challenges our courts face every day, and the impact that the decisions of our judges have on the lives of individuals and our society as a whole.

Dacier’s Take. . . On Civility

Published by admin on September 18, 2013

“The city’s position on appeal was not enhanced by its derogatory references to the plaintiffs’ case.” – Supreme Judicial Court in Darius

Our clients hire us to be advocates, and we wouldn’t be doing our jobs if we didn’t assert ourselves on their behalf. But incivility degrades our profession and works to the detriment of our clients.

Here are examples of behavior that goes beyond the pale, often not in a judge’s presence:

Filing briefs that engage in ad hominem attacks against opposing counsel, as in “among the myriad misrepresentations in the plaintiff’s brief” or stating before a judge, “Mr. Jones has just made another misrepresentation to the court.”
Jumping to the conclusion that opposing counsel is acting in bad faith, simply because opposing counsel has a different position.
Referring to any misstep by opposing counsel as “a fraud on the court.”
Automatically asking for sanctions against opposing counsel in every single motion they file.
Screaming at opposing counsel in person or over the phone for the sake of impressing a client misguided enough to believe he will be best served by a bulldog, or because the screamer is hoping to make opposing counsel feel cowed.
Automatically saying “no” when asked for an extension, regardless of whether opposing counsel has had a death in his family or needs to tend to a child with a broken leg, or posing an unreasonable quid pro quo that would require opposing counsel to abdicate his client’s rights.
Using a follow-up email to create a paper trail of things opposing counsel never said in a telephone conversation.
Bickering about small issues that have no relevance to the outcome of the case.
Setting deposition dates that are a problem for opposing counsel or a key witness, and thereby forcing an emergency motion.

Granted, all of us have our moments and may believe claims being asserted by opposing counsel are ridiculous. But that is for the judge or the jury to decide. Our own enlightened self- interest requires we take to heart a few of the observations provided to us by both well respected lawyers and Massachusetts Trial Court judges:

Lawyers who posture about their cases can unwittingly call attention to their own concerns about weaknesses in their case they would otherwise prefer not to reveal.
Nasty emails can become part of the record, to be seen by a judge who won’t think too highly of the lawyer who fired them off.
The way a lawyer is behaving can affect on the spot discretionary decisions by a judge.
Indiscriminate motions for sanctions can seriously harm an attorney’s reputation among judges.
Jurors dislike watching a lawyer treat opposing counsel with disrespect.
Incivility virtually never advances the ball for your client.

By the way, there are two good resources for guidance about what constitutes professional behavior among lawyers. One is the Boston Bar Association’s Civility Standards for Civil Litigation; the other is the American College of Trial Lawyers’ Code of Conduct.

There is a distinction between being civil and being a push-over. You don’t have to concede any points or argue any less zealously for your client when you’re being civil.

Dacier’s Take on. . . The MA Constitution, An Independent Judiciary, and Civil Discourse

Published by admin on September 9, 2013

If you’ve been spending too much time on Amazon.com you may have missed the greatest bargain to be had in Massachusetts. Available free-of-charge at the State House Bookstore is The Constitution of the Commonwealth of Massachusetts in hard copy.

At the risk of sounding like your high school civics teacher, I’m going to urge you to read this magnificent document that provides us with three separate, co-equal branches of government, and guarantees us an independent judicial branch. You may even want to take a moment to thank John Adams for his work as a dedicated volunteer, drafting the Massachusetts Constitution in less than one month. He’s also the lawyer who founded the organization to which the Boston Bar Association traces its roots and the second president of the United States.

Some context may help. Think back to September of 1779, a time in American life when there were more pressing matters than purchasing back to school clothing and supplies. Both Massachusetts and our nation were on the brink of bankruptcy.

We needed a constitution to establish a framework for governing our state. At the same time we feared anything smacking of the British monarchy. Our founders had grown increasingly frustrated with judges whose rulings reflected loyalty to the king rather than loyalty to any established principles of impartially rendered justice.

By June 1780, the Massachusetts Constitution was ratified by a convention. According to David McCollough, this constitution was one of Adams’ great achievements in life. And the greatest aspect of this constitution was that it established an independent judiciary with judges appointed, not elected, for life. Judges were to uphold the Constitution and to deter any overreaching by the Governor or the Legislature.

Even without the word processing and redline function we take for granted today, this did not deter convention delegates from making a few changes to Adams’ draft. According to McCollough, he wasn’t happy to see his reference to all men being “born equally free and independent” changed to all men being “born free and equal.” Similarly Adams, an ardent proponent of a powerful executive elected by the populace, disliked the fact that the legislature was ultimately given the right to override the governor’s veto.

But rather than bicker about words, Adams and others compromised for the sake of a greater good, a sound framework for governing Massachusetts. What’s remarkable is that 233 years later, the Massachusetts Constitution still enables us to live as a state of laws, not of men.

Still I’m troubled by the apparent, willful ignorance of the role and the stature of the judiciary in ensuring “an impartial interpretation of the laws, and administration of justice.” We have considerable judicial talent and sound court management. But the courts need the resources to ensure that the rights guaranteed by our constitution are not at risk.

What’s more, the dialogue between those of divergent viewpoints on any variety of issues affecting how our state is governed and how our spending priorities are determined has gotten so shrill that we have come to tolerate that which is unacceptable – gridlock. Have we gotten so entangled in minutiae and redlining that we’ve forgotten the big picture or whatever it was we hoped to accomplish in the first place?

Fortunately, here in Massachusetts the spirit of compromise prevailed enough to provide our state court judges with a long overdue pay raise, the first installment of which will go into effect in January. Still years of underfunding have left our judicial branch in catch up mode.

How about we return to the type of civil discourse that made passage of the Massachusetts Constitution possible? Could we start by trying to identify principles we can embrace rather than bickering ad infinitem? Civil discourse can be time consuming as we reach out to constituents who may not share our views and vice versa. But the alternative is gridlock, and that is not what democracy is all about.”