Dacier's Take: : Page 5

Dacier’s Take on. . . The Increasing Complexity of Cases in the Trial Court

Published by tippingthescales on November 6, 2013

Our conversations with judges and staff in the Massachusetts Trial Court over the last two months suggest that cases are becoming more resource intensive in ways that our founding brothers and sisters in the law could never have predicted. The increasing demand for resources can be the result of societal problems but also statutory changes.

Take, for example, Massachusetts’ 21 drug courts, 3 mental health courts, 1 homelessness court, and 1 veteran’s court. All were established for the purpose of reducing recidivism, an action we applaud. Specialty courts offer judges and staff who have become experts at dealing with complex social issues and know what services are available in particular communities to help these vulnerable populations.

The Trial Court’s Strategic Plan emphasizes the expansion of specialty courts, and we think that’s a good thing. As you may have heard, keeping a defendant in a prison cell costs more than a year of college. So in the long term, any program that keeps defendants out of trouble and out of the courtroom will realize significant savings. But in the short term, these specialty court cases involve weekly or bi-weekly probation and review sessions over an extended period. This in turn creates more work for judges, clerks, probation officers, and also security staff.

Let’s take the Juvenile Courts as an example. Did you know that when the “Child in Need of Services” statute of 1973 gave way to the “Child Requiring Assistance” statute of 2012, life became a lot more complex for the Juvenile Court. As Juvenile Court Judge Dana Gershengorn wrote in an article for the Boston Bar Journal last summer, these cases “are truly unique in their confluence of complex mental health issues, substance abuse concerns, and family dynamics.”

Clerk’s offices are now required to explain the “Child Requiring Assistance” statute to those who are thinking of filing. And referring them to the 211 or Essential Community Services currently in place requires more work up front. Also, the specificity of time lines in the statute creates more complexity.

Other factors of a case’s complexity include number of docket entries, number of parties, number of documents filed, number of motions, and number of court events. The use of translators – essential for witnesses and defendants of limited English proficiency – also adds to the complexity of a case.

So as you can see, when we consider matters pending before the court, the case numbers tell only a portion of the story. We need to remember that achieving a just result in some cases requires considerably more time and resources than we might ever imagine.

Dacier’s Take on. . . Decorum in the Courtroom

Published by tippingthescales on October 30, 2013

We know that our judiciary occupies a special place as an independent, co-equal branch of government, as evidenced by the fact that its role was written into the Massachusetts Declaration of Rights. As Professor Lawrence Friedman of New England Law | Boston recently told us, when John Adams drafted our constitution, he could never have anticipated the vast universe of issues coming before the court in 2013.

But one thing is certain. Regardless of our State Courts not always having the technology or staffing levels essential for administering justice promptly, our courtrooms must maintain decorum both before jurors and the citizenry. More than a nicety, that decorum is essential for maintaining the dignity and credibility of what is from our vantage point, that branch of government that underpins the democratic process in a constitutional democracy.

So a recent conversation with Chief Justice Barbara Rouse of the Superior Court left us with few surprises. During the course of her 28 year career, she has had numerous opportunities to mentor newer judges. And here’s what she told us:

“I like to see judges using a formal opening and closing where the court officer calls people to attention. This has the effect of signaling that people have come into a dignified and solemn place that requires their best behavior. It brings people to attention; they have to stand and they have to stop talking.”

Chief Justice Rouse makes the important point that this decorum is an important predicate to good behavior, including lawyer civility and professionalism. Ensuring that the level of noise and activity is kept to an absolute minimum, she also advises newer judges to work with court staff, especially court officers, to minimize movement in and out of the courtroom.

It is important that those citizens serving on juries come out of the experience with respect for the judiciary. No nonsense in her approach, Chief Justice Rouse underscores the importance of civility, not tolerating counsel interrupting each other or the court. She’s also clear about counsel keeping their distance from a witness, unless showing an exhibit, and not moving too close to the jury rail.

In a previous post, we discussed the type of incivility that demeans the practice of law. As civility and professionalism fall under the umbrella of decorum, we cannot resist sharing with you something else Chief Justice Rouse told us. Recalling the words of the late Judge John Moriarty of Springfield, she said: “Every lawyer makes a first appearance before a judge with a deposit in the bank account of credibility. Every time that lawyer distorts, misrepresents, or engages in unprofessional conduct, the judge makes a withdrawal from the lawyer’s credibility account.”

One parting note. . . Chief Justice Rouse wants all of us to know that when a trial is over, judges often talk with jurors, who sometimes share their views of what they liked or didn’t like about a particular attorney. It turns out jurors do not like lawyers being rude or discourteous to the judge or witnesses.

Dacier’s Take on…Elections

Published by tippingthescales on October 23, 2013

Flash back to Election Day 1976: a Marquette University freshman from Hudson, Massachusetts waited to vote at a Milwaukee public library. This was the presidential contest between Gerald Ford and Jimmy Carter. Exercising one of his rights and responsibilities as a United States citizen for the first time, he took one last glance at the ballot, making absolutely sure he had pulled the lever for the candidate of his choice.

As you might have guessed, that student was me. The right to vote is a hallmark of life in a constitutional democracy, as is the right to run for office. Come the New Year, Boston will have a new Mayor, and Massachusetts will have a new Congressman. In 2014, we will witness campaigns to elect a Governor, Lt. Governor, Secretary of State, Treasurer, and Attorney General.

Article IX of the Massachusetts Declaration of Rights points to the sanctity of elections in the Bay State: “All elections ought to be free; and all the inhabitants of this commonwealth, having such qualifications as they shall establish by their frame of government, have an equal right to elect officers, and to be elected, for public employments.” And even the most cursory glance at Article XXXVIII, an amendment dealing with the right to use voting machines, emphasizes our absolute right to keep our voting choices secret.

At the same time, our freedom of expression permits us to shout our support for particular candidates from the rooftops, hold signs near polling places, and publicly debate the merits of this or that candidate on social networks. Consistent with campaign finance laws, we may choose to contribute to campaigns, well aware that our names, occupations, and the amounts of our gifts will be available for anybody to review.

In the best of American traditions and in the most civilized campaigns, losing candidates make concession calls and congratulate their opponents. They may even pledge their support or accept positions helping the candidate they had once worked to defeat. Instinctively they know that a willingness to reach across the aisle for the good of democracy is essential – and sometimes missing.

After what we endured in this month of October, witnessing the shutdown of our federal government and the threat of defaulting on our obligations and harming our nation’s bond rating, we should all keep a few things in mind as we move toward Election Day 2013 and then toward the many campaigns of 2014:

We are a nation of laws, not of men, so let’s put principles over personalities and partisan pettiness;
Candidates should treat each other with civility;
Winners should be congratulated, and those that don’t prevail should throw their support behind them;
Leadership is having the courage to put the interests of our city, state or nation above our self-interest.

Why bother mentioning any of this? Are we taking the right to vote or to run for office for granted?

Think about this. . . News accounts from around the world in 2013 about elections speak make note of “communal violence,” “fears of turmoil,” and “violence [turning] deadly.”

The very process of participating in an election provides evidence of something positive and uniquely American. In this our democracy, which has served as a beacon for the world, we vote to ensure that our voices are heard.

Dacier’s Take on . . . “One Mission: Justice with Dignity and Speed”

Published by on October 16, 2013

Mention the term “strategic plan” and eyes may glaze over. Detailed by their very nature, these documents do not make for light reading. The other risk of a strategic plan is that despite the best of intentions, it may end up on a shelf gathering dust. Still, no institution can maximize strengths, leverage opportunities, address weaknesses, and prepare to deal constructively with threats to its future without a plan.

With 7 court departments and 379 judges who deliver justice in 101 courthouses across the state, the Massachusetts Trial Court is a major institution affecting every person in Massachusetts. So we applaud the Trial Court for keeping its strategic plan, “One Mission: Justice with Dignity and Speed,” front and center. Under the leadership of Trial Court Chief Justice Paula Carey and Court Administrator Harry Spence, judges and court staff meet regularly to track progress in implementing the plan adopted last June.

Any strategic plan worth its salt includes a vision defining what will constitute success for the Trial Court. Here is just a small sampling of the elements we like:

“Massachusetts [will be] a national leader in delivering quality justice to all.”
“Litigants, attorneys, witnesses, jurors, and all other users of the court system [will be] unfailingly treated with dignity and respect.”
With optimal use of resources and advanced technologies, “cases [will] move expeditiously through the system [with] minimal wait times.”
“Processes and standards [will be] consistent within each department and appropriately consistent across departments.
Court facilities will to “up- to- date, accessible for all and secure.”

Court staff will play an important role in assuring successful implementation. They have embraced the plan, and expressed enthusiasm for collaborating with judges in ensuring that users of the court come away with a new respect for our third branch of government.

We are especially pleased that “Strengthen relations with the Legislative and Executive branches” is a specific goal spelled out in the plan. Given the importance of the work of the Trial Court for both criminal and civil cases, adequate funding is essential for realizing the vision outlined in the strategic plan, and the BBA expects to be a staunch partner in any and all advocacy efforts.

Dacier’s Take. . . On Federal Judicial Nominations for Massachusetts

Published by on October 9, 2013

Late last month, we received some welcome news from the White House. President Obama nominated three lawyers for federal judgeships in Massachusetts: David Jeremiah Barron to the First U.S. Circuit Court of Appeals, Mark G. Mastroianni to the U.S. District Court in Springfield, and Indira Talwani to the U.S. District Court in Boston.

Senator Elizabeth Warren has described the two U.S. District Court nominees as “talented and respected practitioners with diverse professional backgrounds, strong ties to the community, and impressive legal careers.” Similarly she’s noted that the nominee for the First Circuit “is a highly respected law professor and former government official with a strong commitment to public service.”

As you may know, the Boston Bar Association does not rate candidates for the federal judiciary, a role traditionally left to the American Bar Association. As our federal judges serve for life, we do take very seriously Article III, Section 2 of the United States Constitution, which requires that nominees for judicial posts be vetted by the United States Senate.

Nobody benefits from having three unfilled judicial positions at a time when there is work to be done. Even the most cursory reading of news accounts over the past year suggests that the federal courts in Massachusetts have been extremely busy with both high profile criminal cases and extremely complex civil cases. There are some additional high profile criminal trials that will be coming soon, putting further strain on the District of Massachusetts. This will have an impact on all litigants.

In Springfield, for example, the position has been vacant since Judge Michael Ponsor’s taking senior status in August 2011, in the process placing an undue burden on the U.S. District Judges in Boston. The District Court vacancies in Boston came about when Judges Mark Wolf and Joseph Tauro assumed senior status in January and September of this year. The First Circuit Court of Appeals vacancy occurred when Judge Michael Boudin assumed Senior Status last June.

As an independent, co-equal branch of government, our federal judiciary plays too important a role in our lives to be politicized. It is in that spirit that, we urge the Senate Judiciary Committee to exercise all due haste in scheduling hearings for each nominee, and then proceed to vote each nominee up or down. In the event that a nominee is voted up, we would urge that the nominee be voted up or down by the full Senate. All we ask is that the nominees be judged on their qualifications, including the ability to be fair and free from bias, not on any political considerations.

Dacier’s Take on. . .Ted Olson’s BBA Keynote Address

Published by on October 1, 2013

Earlier this week the iconic appellate advocate Ted Olson was back in the news, advocating for marriage equality. Having worked with David Boies to overturn California’s ban on same-sex marriage, he and Boies are now focusing their attention on Virginia. Their goal is to persuade the Supreme Court of the United States that the United States Constitution provides gays and lesbians with the right to marry the partner of their choosing. As you may know, the Boston Bar Association (BBA) is proud to have worked on this issue for more than a decade.

At the BBA, we’re still feeling the exhilaration of hearing Ted talk to some 1,400 lawyers and judges at our Annual Meeting Luncheon last Friday. Here are just a few things many of us find so admirable about the former Solicitor General who has argued 60 cases before the Supreme Court and prevailed in 75 per cent of these arguments:

Despite having argued against David Boies in Bush v. Gore, he welcomed Boies as his co-counsel in this series of marriage equality cases. This tells us he cares deeply about the Constitution as a living document whose importance takes precedence over partisan issues. What a great lesson for all of us in a country that could benefit from dialing down the divisive dialogue.
A model of civility, he doesn’t let his personal political allegiances get in the way of being an effective advocate for larger issues. As he told us on Friday, he figured that if people could see “two old white, straight guys” from different sides of the political aisle coming together to argue for marriage equality, this would help them win in the court of public opinion.
Ted Olson has extraordinary respect for the Supreme Court as an institution and deep respect for its nine justices, because our third branch of government answers the tough questions perhaps too hot to handle for the executive or legislative branches.

A veritable encyclopedia of information about the Supreme Court, Olson began by reminding us that the court’s first chief justice, John Jay, served just seven years, declining re-appointment, echoing Alexander Hamilton’s comment in Federalist No. 78 that “the Judiciary branch of the proposed government would be the weakest of the three because it had “no influence over either the sword or the purse,. . . It may truly be said to have neither FORCE nor WILL, but merely judgment.”

He went on to say that the next chief justice, John Marshall, cemented the court’s authority as being the final arbiter of what the Constitution means in Marbury v. Madison. As for the importance of the court today, Olson observed that “there is virtually no issue affecting our lives that the Supreme Court has not touched.”

Among Olson’s observations on the Roberts Court. . .

The concept of diversity on the Supreme Court is far more complex than meets the eye. While the court now has 3 women, 1 African American, and 3 Jews, all of them have gone to the handful of Ivy League colleges or law schools from which their white male counterparts graduated.
The confirmation process, once unanimous, has become overtly political – with every confirmed justice receiving negative votes not based on qualifications. “This change is permanent and not for the better,” he observed.
During John Marshall’s tenure the court spoke with one voice; Chief Justice Roberts has realized that’s not going to happen.
Cases involving new technologies will continue to be prevalent in the term that started this week.

Many of us came away nodding our heads in agreement at his conclusion that the Supreme Court is a model for the functioning of any government institution, because the cases are argued in open court, and then decided in writing before a year’s time. The crowd’s enthusiasm for Ted Olson’s remarks was palpable, as was his respect for the role of the Boston Bar Association as a non-partisan organization.

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.”

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