On June 11, the Boston Bar Association hosted its annual “Business Litigation Session Year in Review.” The BLS judges, including incoming Judge Brian Davis (who is taking over for Judge Leibensperger in BLS1), shared tips and other thoughts for attorneys practicing in the BLS to consider.
Here are the key takeaways from the discussion:
- The BLS Is Open to Accepting Most Complex Cases – Judge Sanders urged the bar to seek acceptance of cases into the BLS. She reported that 98% of cases considered for admission are accepted. Judge Kaplan commented that it may be more apt to describe the BLS as the “Complex Litigation Session.” The only genres of cases unlikely to find acceptance at the BLS: personal injury, medical malpractice, product liability, and employment discrimination.
- Use Superior Court Rule 20 to Manage Discovery – The judges encouraged practitioners to take full-advantage of Superior Court Rule 20 (effective 3/1/2018). While the BLS has been using these mechanisms (as well considering the proportionality concept under the Federal Rules) for some time, Rule 20 provides a useful roadmap for tailoring discovery to the needs of the case. The judges also promoted the early, non-binding judicial assessment provision of Rule 20. That provision, the judges noted, is rarely used in practice.
- Rein In Summary Judgment Statements of Material Fact – The judges implored the bar to stop submitting lengthy SOMFs that are too often “unreadable” and “unusable.” Statements by the moving party should be limited to material facts and supported by specific citations to the record. Do not give the judge every piece of evidence on every fact. Parties should not pad the SOMF with lengthy quotations of documents; cite the record in your brief and let the judge read the document. The non-moving party, on the other hand, should simply admit or deny a fact; when denying a fact, state “denied” and provide a citation with pincites to the part of the record that shows the fact is in dispute. Do not argue the point in the SOMF, and do not cite to every single piece of evidence remotely pertaining to every fact.
- Make Your Brief Easy to Read and Navigate – Use a table of contents in your brief. Tab and bind the appendix of exhibits and provide an index. Give pincites. And finally, don’t bury the lede—tell the judge right up front what you are asking for and why you are entitled to that relief. These are all relatively simple additions to your papers, but parties often omit these valuable devices. At a minimum, they are necessary for dispositive motions.
- Use Motions to Strike Sparingly in the Context of Summary Judgment Motions – The judges, generally speaking, are not receptive to motions to strike when ruling on summary judgment motions. Litigants should reserve these motions for limited situations, e.g., where a party wants to strike expert-opinion testimony based on the lack of qualification of a putative expert. The judges acknowledged the existence of some appellate case law suggesting that failure to move to strike inadmissible evidence may waive an objection to it. (Editor’s note: if a party does not move to strike defective portions of an affidavit, a judge may, in his or her discretion, rely on the defective portions. See, g., Fowles v. Lingos, 30 Mass. App. Ct. 435, 439–40 (1991)).
- Waiver of Rule 52 Findings and Special Verdict Forms – The judges encouraged the bar to consider waiving Rule 52 findings in jury-waived trials. They believe that it could be a big cost-saver for the parties and will result in quicker decisions. Judge Leibensperger has a strong idea, he stated, about how he is going to rule at the conclusion of trial; he further stated, however, that his impressions of witness credibility can become hazy when drafting findings months later. The court can use special-verdict forms, even in jury waived trials, to provide clarity concerning key rulings. The judges commented that they rarely receive special-verdict forms at the pretrial conference, even in jury cases. Special-verdict forms can really help crystallize the issues for the parties, the judge and the jury, especially where there are mixed questions of fact and law, the judges said.
- Senior Editor, Co-Chair, Business Litigation Practice Group