Legal

Dacier’s Take on . . . Year End Reflections

Published by tippingthescales on December 19, 2013

Life is painting a picture, not doing a sum. As twenty men of genius looking out of the same window will paint twenty canvases, each unlike all the others, and every one great, so, one comes to think, men may be pardoned for the defects of their qualities if they have the qualities of their defect. – Chief Justice Oliver Wendell Holmes

Amid the flurry of gaiety, holiday receptions, gift giving, and tying up loose ends, it is essential that we stop and reflect on what distinguishes us as lawyers. Being a lawyer is not about making a lot of money or having a corner office with a view. As lawyers in a constitutional democracy, we have the knowledge necessary to enforce certain rights and the skills to make our voices heard in the appropriate forum.

Along with our good fortune comes a higher calling, or an obligation to do things not because we expect to see an editorial in our local paper praising us for having undertaken this or that pro bono initiative, but because such service is the right thing to do. This is a time to remember that even the most unlovable human beings must be accorded due process and other rights under our state and federal constitutions, regardless of public support or criticism.

As lawyers, we often notice a lack of understanding among people who should know better. This applies to the concept of three separate, co-equal branches of government, as in legislative, executive and judiciary. It also applies to differences among the responsibilities of local, state and federal government. As lawyers we should create “teachable moments” to remind our citizenry that the rights and safeguards accorded by our state and federal constitutions should not be taken for granted.

We at the BBA wish you all good things in the coming year!

Dacier’s Take on. . . The Example Nelson Mandela Set for the World

Published by tippingthescales on December 11, 2013

Photo credit to South Africa The Good News (www.sagoodnews.co.za)

Democracy is based on the majority principle. This is especially true in a country such as ours where the vast majority has been systematically denied their rights. At the same time democracy also requires that the rights of political and other minorities be safeguarded. – Nelson Mandela when he became the first Black President of South Africa in May, 1994

When Nelson Mandela died last Thursday at age 95, he left an enduring legacy. For those of you who want the in-depth picture, we recommend reading his 1994 biography, Long Walk to Freedom.

Meanwhile, we were delighted to get an email from Boston Bar Foundation President Jack Clymer saying he had heard former Chief Justice Margaret H. Marshall, a South African by birth, interviewed on National Public Radio last Friday — discussing Mandela’s contributions to justice and the rule of law.

She cited Mandela’s escaping the death penalty, asking, “What would have happened to South Africa had this man been executed?” She also credited him with negotiating South Africa’s democratic constitution, creating an independent constitutional court, where people aggrieved by the actions of their government could bring their cases. Afterwards, when he lost a case before an independent judiciary, he reacted with joy, because this affirmed that the judicial branch was no longer operating with its thumb on the scale.

On an even more fundamental level, we admire Nelson Mandela as a model of forgiveness and reconciliation. Despite the cruel and humiliating treatment of him and his people by South Africa’s all white, racist regime and a 27 year prison sentence for his political activities to overturn apartheid, he kept his eye on a larger purpose.

“As I walked out the door toward the gate that would lead to my freedom,” he said, “I knew if I didn’t leave my bitterness and hatred behind, I’d still be in prison.”

We mourn the loss of one of the greatest leaders in modern society, but we view his teachings and examples as something that should last ever. Let’s try to emulate in some small way what he has done, on a local level.

Dacier’s Take on . . . Being Principal for the Day

Published by tippingthescales on December 4, 2013

We had no idea what to expect when we received the invitation to participate in the Boston Plan for Excellence’s “Principal for a Day” event last month. The fact that the Boston Bar Association does two of its signature public service projects – the BBA Summer Jobs Program and the M. Ellen Carpenter Financial Literacy Program – in partnership with the Boston Public Schools was for us enough of a reason to want to spend time inside one of the city’s high schools.

Our morning at Charlestown High School was an eye-opening experience. We got the distinct impression that the teachers and administrators are working hard. Despite inadequate funding, they are committed to changing the lives of their students. We also saw a student body with a thirst for knowledge and an eagerness to learn.

A word about the demographics of this particular school, charged with educating 954 students in grades 9-12. . . More than one third of the kids are “Limited English Proficient.” 8% receive special ed services part of each day and 17% have moderate-to-severe disabilities requiring separate special ed classes.

Some of the students have been in this country fewer than five years. The racial and ethnic background stats tell us that the study body is 31% Hispanic, 42% Black, 6% White, 20% Asian, and 1% other. 46% of them qualify for free or reduced-price school meals!

Like all of Boston’s public high schools, Charlestown High draws students from throughout the city. We learned that the vast majority of the students live outside Charlestown and commute anywhere from twenty minutes to an hour on public transit.

The school has formal English as a second language classes. Still, it struck us how challenging it must be for kids whose mother tongue is Spanish or Chinese to first master English, and then learn their academic subjects in English. At the same time, the school celebrates the rich cultural, racial, and ethnic identity of its student body, and offers Arabic as an elective.

Charlestown High will not give up on any student. Not only is the school teaching in a conventional way, but also in an unconventional way to students facing a multitude of language or other challenges. We were impressed that the school has a special program tailored to the needs of older students who are determined to resume their education and earn a high school diploma.

Admittedly, we found the metal detectors and the school security guards in the hallways somewhat disconcerting. At the same time, we are well aware that security precautions have been amped up the world over.

In the process of being Principal for the Day, this has reinforced in our mind the importance of reaching out to children, our most important asset going forward. We came away more committed than ever to the BBA’s Summer Jobs Program and M. Ellen Carpenter Financial Literacy Program. Education is critically important, and we are proud to offer programs like these that contribute to the development of Boston Public School students.

Charlestown High School Headmaster William Thomas (left) explained the school’s various initiatives to encourage students to earn their degrees.

Dacier’s Take on. . . One Size Fits All Trial Court

Published by tippingthescales on November 25, 2013

Landmark court reform legislation in 2011 left intact Massachusetts’ seven trial court departments. The Trial Court structure as we know it today reflects both the significant differences among specific types of cases, and maximizes the unique talents of our judges. Some departments handle high volume matters of relatively short duration and others handle lower volume but more complicated cases.

Thanks to that legislation — developed by House Speaker Robert DeLeo in collaboration with Chief Justice Roderick Ireland of the Supreme Judicial Court — Massachusetts now has a professional court administrator, Harry Spence, who is an expert in managing organizational change, and Paula Carey, Chief Justice of the Trial Court, who continues to emphasize efficiency and innovation in the administration of justice. After meeting with the department chiefs of the Massachusetts Trial Court, it’s clear that we’ve embarked on a new chapter for the Trial Court.

So what does our Trial Court look like in 2013? The talents and experience of judges and court staff in each department should not be underestimated. Facilitating efficient case resolution requires knowledge of the scheduling intricacies of specific types of litigation. For example, the Housing Court Department has some of the lowest costs per case. But if it were folded into a “one size fits all” department, those would increase significantly.

Imagine if you believed a member of your family had suffered a wrongful death involving a faulty product. You might have a lot of confidence in your tax lawyer, a senior partner at a respected law firm. Still, it would be in your best interests to retain the services of a seasoned personal injury lawyer with relevant experience. What comes with your seasoned trial attorney is a team of professionals who have worked on this type of case many times before. An attorney’s skills are no more fungible than those of our judges.

We now live in a world of increasing complexity, so the need for specialized trial court departments is more important than ever before. It is for this reason that judicial applicants are viewed through the lens of a particular trial court department. The judicial screening process takes into account the importance of training, specific practice experience, and skill sets required for the types of disputes the judicial candidate can expected to adjudicate.

Specialized judicial skills are not interchangeable. Adjudicating disputes involving family members and medical malpractice each takes a different type of expertise. The same goes for handling a Child Requiring Assistance case and suit alleging a toxic tort or insurance fraud.

At the same time, with any large organization it’s important to look at ways to preserve resources, consolidate back room operations, share knowledge, and save on overhead. In this regard, we are still reaping the benefits of having a professional court administrator working in partnership with the Chief Justice of the Trial Court.

As we envision what we want our courts to look like in the next decade, we applaud Speaker DeLeo’s court reform legislation, and the commitment of Trial Court Administrator Harry Spence and Chief Justice of the Trial Court Paula Carey as Massachusetts becomes a national leader in delivering quality justice to all.

Dacier’s Take on. . . Criminal Trials in the Massachusetts Superior Court

Published by tippingthescales on November 13, 2013

Regardless of how heinous the charges, a criminal defendant is presumed innocent, with the Massachusetts Constitution providing a series of important safeguards for those accused of crimes in a court of law. Article XII provides the defendant with a right to counsel, and to due process. It also guarantees the defendant the right to “meet the witnesses against him face to face,” and to a trial by jury.

Recently we spoke with Superior Court Judge Linda E. Giles, who has served on that court for the past 15 years, and previously on the BMC for seven years. She typically alternates hearing civil and criminal cases for discrete three month periods, and frequently sits in Suffolk County. Despite welcome news of the hiring freeze of 2008 being lifted this year, Judge Giles notes that the Superior Court is still working with inadequate resources.

The criminal justice system can be unpredictable. For example, no one would have foreseen the state drug lab scandal. Yes, it’s true that the court has the benefit of a cadre of retired Superior Court judges addressing the drug lab cases on a per diem basis. But these cases still put a strain on the criminal justice system, diverting staff resources and courtroom space from other sessions. Similarly, high profile cases can attract large crowds, requiring additional security to maintain safety and decorum.

For purposes of this particular post, let’s focus on criminal sessions. In some instances, a defendant appearing in Judge Giles’ courtroom in Suffolk County is facing multiple charges. That same defendant may face additional charges in other counties.

While these criminal cases constitute a fraction of the Superior Court’s total annual caseload, Judge Giles says they present their own unique challenges:

“Criminal cases raise huge security issues in our court system. Here in Suffolk County we try murder cases constantly. Many of these murder cases involve allegations and perceptions of gang affiliation to the point where we have to be mindful of gang affiliates of both the defendant and sometimes of the alleged victim(s). Gang tensions and rivalries have resulted in melees in our courtroom, and actual stabbings outside of the courthouse.”

Noting that “any event in a criminal case can be volatile from arraignment all the way to the taking of a verdict,” Judge Giles reports that despite very professional court officers who are highly trained in maintaining security, outbreaks of pandemonium can be unpredictable and difficult to contain.

Security at the courthouse entrance includes metal detectors. Still, court officers are on the watch for calculators designed to conceal knives, cell phones re-engineered to shoot bullets, and cell phones used to take pictures of witnesses for purposes of intimidation.

A related concern is that associates of defendants follow jurors outside the courthouse. The judge must then question the juror to determine whether he has become so frightened that fairness and impartiality have been compromised.

Even if 85 to 90 percent of criminal cases result in guilty pleas, the remaining 10 to 15 percent keep the court more than busy. Between the time of arraignment and the plea or trial, there are many “court events” along the way.

Based on Judge Giles’ experience, the majority of those convicted of crimes in the Superior Court are not first timers and have already been before the district and municipal courts on lesser charges. Most are under 30, have minimal education, and come from difficult backgrounds of deprivation and sometimes abuse. Often times, she makes getting their G.E.D. a condition of their probation. She is also enthusiastic about the court’s efforts to establish pilot programs in evidence based probation.

Some 80 percent of the criminal defendants processed by the Superior Court have substance abuse problems. Within that group are also people with undiagnosed mental illness, self-medicating with alcohol, and licit or illicit drugs. Judge Giles’ observations were reinforced by a recent CBS Sixty Minutes broadcast segment highlighting the number of criminal defendants who have not gotten the mental health services they need.

Ask Judge Giles how she sees her life on the bench, and she cites the mantra of the Trial Court’s recently unveiled strategic plan, “Justice with Dignity and Speed.” Press her for greater spontaneity, and she says: “Every day I come to work I try to do the right thing. My goal is to administer justice as fairly and impartially as I possibly can. Of course, I would like to see that offenders not return to court.”

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 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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