Effective May 16, 2016 to December 30, 2016

INTRODUCTION 

The purpose of the Interim Policies and Procedures for Civil Cases and the Pilot Project for the Boston Municipal Court Department (hereinafter the “BMCD”), is to simplify and to improve the progression and resolution of civil money damage actions and, consequently, reduce litigation costs and delays. The BMCD anticipates that the Interim Policies and Procedures undoubtedly will be modified during the six-month Pilot Project period. 

I. PROPOSED PROCEDURES FOR CIVIL CASES 

The proposed procedures would establish changes in the handling of civil cases in the BMCD. However, Joint Standing Order No. 1-04 will continue to govern current procedures not affected by the proposed procedures. 

The proposed changes will be initially implemented on an interim basis in connection with the Pilot Project beginning May 15, 2016, and ending December 30, 2016 – subject to possible extension. The changes will apply to all civil money damage actions pending or commenced on or after May 15, 2016. Successful implementation of the Pilot Project will be followed by formal revision of Joint Standing Order No. 1-04 as it applies to the BMCD. 

A. Lead Civil Judge 

The Chief Justice of the BMCD, in consultation with the First Justices of each Division within the Court, will designate a Lead Civil Judge, who will oversee and focus judicial attention on all civil proceedings, including pretrial hearings, motions, bench trials, the prompt and efficient resolution of all matters requiring a judicial decision in each such case, and the elimination of unnecessary continuances and delay in accordance with the time limits set forth in BMCD Standing Order 1-04. See Addendum. 

B. Clerk’s Office Contact for Civil Cases 

The Chief Justice of the BMCD has requested that the Clerk-Magistrates of each Division within the Court Department assign an Assistant Clerk-Magistrate or Clerk’s Office staff member to act as the lead contact for civil cases for their Divisions. The individual so assigned will be responsible for ongoing awareness of the court’s civil caseload, for interaction with counsel in individual cases regarding scheduling and case management issues, and for providing assistance, as needed, to Clerk’s Office personnel regarding the processing of case papers in accordance with applicable law, court rules and standing orders. See Addendum. 

C. Designated Civil Sessions (“DCS”) 

Brighton, Central, Dorchester, Roxbury and West Roxbury Divisions: Each Division presently has a DCS (a regularly-scheduled session dedicated to hearing civil cases). 

Charlestown, East Boston and South Boston Divisions: While the three single-justice Divisions do not and will not have DCS, civil cases will continue to be heard in these Divisions except civil jury trials which will continue to be transferred to the Central Division for trial assignment and trial. 

D. Civil Jury Trial Sessions 

As stated above, the Brighton, Central, and Roxbury Divisions have DCS. Civil cases filed in the East Boston, South Boston, and Charlestown Divisions are transferred to the Central Division for jury trial. However, civil cases filed in the West Roxbury and Dorchester Divisions are transferred to the Brighton Division for jury trial. The West Roxbury “transfers” will end when the extensive nearby road construction is completed. 

Central Division: Presently, at least one civil session operates daily in the Central Division. To the extent possible, a second civil session will be opened for trials and any other civil business. However, if a civil case is ready for jury trial, and a civil session is unavailable, the case will be tried in any available trial session. 

Roxbury Division: Presently, jurors are summonsed to the Roxbury Division each week, Tuesday through Thursday, for criminal and civil jury trials. On one Monday or Friday per month, during the pilot project, the Roxbury Division will run an additional session devoted exclusively to civil jury trials. 

Brighton Division: Presently, jurors are summonsed to the Brighton Division each week, Monday through Thursday, for criminal and civil jury trials. During the Pilot Project, the Brighton Division, one Monday per month, will run a session devoted exclusively to civil jury trials. 

E. Two Case Categories 

All incoming civil money damage actions will be divided into the following two categories: (1) cases alleging only consumer credit debt, and (2) cases involving any other form of tort, contract or statutory money damage claim. 

The plaintiff will identify the appropriate category of each case on the Statement of Damages form. (The filing of the Statement of Damages form is required in order to commence a civil action for money damages.) 

F. Procedure for Cases in Category 1: CONSUMER DEBT CREDIT CASES 

1. Discovery Order 

For cases in this category, in which an answer has been timely served, the Notice of Case Management Conference will be sent to the parties by the court, as currently required, but the Notice will include an order that the plaintiff serve on the defendant, and file with the court, a copy of the written contract, if any, that is the basis of the action, and any records and documents pertaining to any payments made by the defendant on the credit account at issue. In cases in which the debt has been bought by or assigned to the plaintiff, the plaintiff must also serve and file written documentation of such purchase(s) or assignment(s). 

The foregoing documents must be served and filed no later than 14 days before the date of the Case Management Conference. The plaintiff’s failure to comply with this requirement, without good cause, will subject the case to a judgment of dismissal. However, such a dismissal will be treated as a sanction for unexcused non-compliance with a discovery order, pursuant to the provisions of Mass. R. Civ. P. 37 (b)(2)(C), and will not represent a determination regarding the legal adequacy of the complaint. 

2. Transfer for Jury Trial 

Cases in this category will be resolved in the court in which the action was commenced, provided that if a jury trial were demanded, the case will be transferred to the appropriate Division for jury trial as set forth in section (D) above. 

G. Procedure for Cases in Category 2: ALL OTHER CASES, TORT AND CONTRACT 

1. Case Management Conference (“CMC”) 

After a defendant has filed an answer, the court promptly will give notice to all parties in the action of a CMC, pursuant to Mass. R. Civ. P. 16, to be held on a date certain within four months of the date of filing of such answer, or sooner if directed by the court or jointly requested by all parties. There will be a presumption that the CMC will occur as scheduled by the court. 

However, if all parties are represented by counsel and all counsel file a written agreement, no later than seven days before the scheduled CMC, the CMC may be waived. The written agreement shall certify that the parties have: (1) considered and discussed settlement; (2) considered and discussed resolution of the case by means of alternative dispute resolution; (3) considered, discussed and presented any stipulation(s) and/or other agreement(s); (4) stipulated that discovery will be completed by the date of the Pretrial Conference; and (5) agreed to a date for a Pretrial Conference within the time limits established by subsection three, below. 

The CMC otherwise will be subject to the provisions of Section III of the BMCD Joint Standing Order 1-04: Civil Case Management

2. Discovery Completion 

Subject to a written motion requesting more time, notices for Pretrial Conferences will include an order that all discovery be completed prior to the Pretrial Conference date. Failure to comply with this order, without good cause, shall subject the party to a loss of the discovery that was not timely sought or provided. 

3. Scheduling of Pretrial Conference (“PTC”) 

Unless all parties agree to an earlier date, a PTC will be scheduled no earlier than six months from the date of service of an answer. A Judge in the Division where the case originally was filed will conduct the PTC. 

II. PROCEDURE IN JURY TRIALS – VOIR DIRE 

A. Presumed Voir Dire Procedure 

The trial judge will ask the seven (7) “standard” questions of the entire venire pool and, within the judge’s discretion, any other written question(s) submitted by a party prior to the venire pool coming into the courtroom: 

  • Are you related to either the plaintiff or the defendant? 
  • Do any of you know the plaintiff, the defendant, either of the lawyers, or any of the witnesses in this case? 
  • Do any of you have an interest or stake of any kind in this case? 
  • To the extent that you have heard anything about this case, have any of you expressed or formed any opinions about it? 
  • Are any of you aware of any bias or prejudice that you have toward either the plaintiff or the defendant? 
  • Do any of you not understand that in a civil case the burden of proof is a preponderance of the evidence, and not proof beyond a reasonable doubt? 
  • Finally, do any of you know of any reason or reasons why you would not be able to be completely fair and impartial in this case, and be able to render a true and just verdict, based solely on the evidence that you will hear while in this courtroom, and the law as I shall instruct you on the law, both at the beginning of and at the close of the evidence? 

Each prospective juror who responds affirmatively to any of the above mentioned questions shall be called to the sidebar individually, and inquiry shall be made of the prospective juror as to which question(s) the juror responded to affirmatively. The trial judge, and attorney(s) or any self-represented party, with the permission of the trial judge, may inquire further as to the affirmative response(s) by the prospective juror only to seek information as to: 

  • How the prospective juror’s affirmative response would be pertinent to the issue expected to arise during the trial; 
  • How the prospective juror’s background or experiences as determined from the affirmative response might influence the juror during the trial; 
  • Identification of any preconceptions or biases relating to the parties or the nature of the claims; 
  • Whether the prospective juror is willing and has the ability to accept and apply pertinent legal principles as instructed; or 
  • Any other reason directly related to the prospective juror’s ability to serve impartially, subject to the judge’s approval. 

The foregoing procedure will be the presumed voir dire procedure in civil jury trials in the BMCD. Within the discretion of the trial judge, attorneys or self-represented parties may elect ot proceed in accordance with a modified voir dire procedure that is derived from the procedure set forth in . 

B. Modified Voir Dire Procedure 

Any attorney or self-represented litigant who seeks to examine the prospective jurors shall file a motion requesting leave to do so. The motion shall identify generally the topics of the questions the party proposes to ask the venire pool. Topics identified shall be interpreted to include reasonable follow-up questions. The trial judge may, in the exercise of discretion, require attorneys and self-represented parties to submit the specific language of the proposed questions for approval prior to the questions being posed to the prospective jurors. The modified voir dire procedure will then follow the procedure set forth in paragraphs 3 through 8, inclusive, of Superior Court Standing Order 1-15. 

III. RECOMMENDED STATUTORY AMENDMENTS 

Statutory differences can impede the efficient movement of cases to disposition. Such differences can result from differing or conflicting statutory provisions applicable to different Courts. There are two statutes that may create unwarranted or unintentional procedural differences in civil cases heard in the Superior Court and in the BMCD. 

G. L. c. 231, § 6F authorizes courts to impose costs as a sanction for claims, defenses, counterclaims, etc., determined to be “wholly insubstantial, frivolous and not advanced in good faith.” However, “courts” as defined in G. L. c. 231, § 6E includes the “supreme judicial court, the appeals court, the superior court, the land court, any probate Court and any housing court, and any judge or justice thereof,” but does not expressly include either the BMCD or the District Court Department. The omission appears to be a vestige of the long-abandoned “remand and removal” system, under which jury trials were virtually unavailable in the BMCD and to the District Court Department because civil bench trials were subject to de novo retrial in the Superior Court. 

Furthermore, G. L. c. 231, § 13B authorizes parties (through their counsel) in the Superior Court, but not in the BMCD or in the District Court Department, to “suggest a specific monetary amount for damages” at civil jury trials. There does not appear to be any rationale for the limitation especially if subject-matter jurisdiction of the District/Municipal Courts is expanded to civil money damage actions that may involve damages up to fifty thousand dollars. 

The two statutory amendments will promote procedural regularity and uniformity because procedure in the BMCD and in Superior Court in such cases is otherwise already virtually identical. Uniformity of procedure is important to civil litigants and to the bar, and such uniformity will be particularly desirable if a portion of the Superior Court civil caseload is redirected to the District/Municipal Courts.

 Accordingly, the two statutes should be amended as suggested. 

ADDENDUM A

Joint Standing Order 1-04: Civil Case Management

ADDENDUM B

LEAD CIVIL JUDGES

DivisionLead Civil JudgeClerk's Office Contact
BrightonFirst Justice David DonnellyAsst. Clerk Mag. Gary Myrick
Oper. Sup. Ramesh Kaur Singh
CharlestownFirst Justice Lawrence E. McCormickAsst. Clerk Mag. Peri Nawawi
CentralJudge Robert J. McKenna, Jr.Asst. Clerk Mag. Patty Wong-Murphy
DorchesterJudge Serge Georges, Jr.Asst. Clerk Mag. John Clough
East BostonFirst Justice John E. McDonald, Jr.Head Acct. Clerk Karamarie Lombardi
Case Coord. Carmela Cappucci
RoxburyJudge Debra A. DelVecchioAsst. Clerk Mag. Bob Lynch
Asst. Clerk Mag. Kim Annesi
South BostonFirst Justice Michael C. BoldenAsst. Clerk Mag. Teresa Hamilton
West RoxburyJudge Ernest L. Sarason, Jr.Asst. Clerk Mag. Karen Harrison

ADDENDUM C

Superior Court Standing Order 1-15: Participation in Juror Voir Dire by Attorneys and Self-Represented Parties

 


Effective May 16, 2016 to December 30, 2016.