Clerk's Guide for Counsel and Pro Se Litigants
This guide is designed to assist attorneys and pro se litigants preparing cases for argument before this Court, especially those who have not previously argued here. It is not a substitute for the Massachusetts Rules of Appellate Procedure.
Justices: The Justices enter the Courtroom through the (opened) curtain behind the bench. They enter in order of seniority, the Chief Justice entering first. They also sit on the bench in order of seniority with the Chief Justice in the middle, and the others alternating from left to right, ending with the most junior Associate Justice on the far right, as you face the bench.
Participants in the Courtroom
Clerk: The Clerk of the Supreme Judicial Court sits to the lower left of the Bench. The Clerk's responsibilities in the courtroom include providing the Justices with materials about the cases, ensuring that attorneys scheduled to argue cases are signed in and present in the courtroom, timing the oral presentations, and recording the arguments.
Law Clerks: Each Justice employs two law clerks, who are law school graduates, to assist in legal research. The law clerks are often present in the courtroom to listen to the oral arguments.
Court Officers: The court officers sit in the designated court officer's boxes in the courtroom. Usually there are two court officers present in the courtroom during regular sessions. The court officer's role is to call the Court to order, maintain decorum in the courtroom, and assist in seating of counsel and spectators.
Notice and Order of Argument; Counsel's obligations and options: Oral arguments are normally conducted during the months of September through May and sometimes June. The Court sits during the first full week of the month for four days. As early as two months before the scheduled argument date the Clerk will send a Notice of Argument by regular U. S. mail and e-mail. The Notice contains a form to be completed regarding counsel's availability. This form should be returned promptly to the Clerk's office. If counsel have conflicting trial court obligations longstanding professional or personal commitments, or for some reason cannot appear for oral argument on any date in the notice of argument, these matters should be called to the Clerk's attention by letter with a copy to opposing counsel. To the extent possible, the Clerk will endeavor to schedule the oral argument to avoid conflicts. No later than three to four weeks prior to the sitting the Clerk enters the Order of Argument on the docket which places the case on the hearing list for a specific day of the Court's sitting. Please note that after the Order of Argument is entered on the docket, the Clerk cannot make changes.
How a Case is Placed on the List for Argument
Why is a case noticed for more than one sitting: The needs of the Court to conduct its business and the conflicts identified by counsel often make it necessary for a case to be noticed for argument for more than one sitting. Cases that are not ordered during the sitting after the first notice will be re-noticed and scheduled in a subsequent month.
What does it mean to be a Reserve Case: A reserve case is a case placed on the list as a back- up case in the event of an unforeseen emergency. Reserve cases can be on reserve status for a date certain or for the length of a particular sitting. The Clerk considers such factors as the distance counsel must travel and the complexity of the record in determining reserve case status. Counsel may request that a case not be placed on reserve status if there is a compelling reason. Reserve status is also a means to expedite a case, inasmuch as reserve cases are always ordered for argument the following month if not reached in the reserve month.
What happens if an emergency arises: If you are involved in an emergency of a nature that would preclude oral argument, contact the Clerk's office immediately. The Clerk will make every effort to replace your case with a reserve case. However, the opportunity to call a reserve case is lessened nearer to the scheduled date for argument; the Court will deem a case submitted on the brief if counsel is unable to appear for argument and no reserve case can be called. If a reserve case is called in place of your case, your case will be rescheduled on the next month's list.
What Happens on the Day of ArgumentWhat do I do upon arrival: The Clerk and Assistant Clerk are available in or near the courtroom before argument to answer questions concerning protocol and procedures. Arguing counsel and counsel sitting with them must sign in on the sheet posted outside the courtroom. Counsel must sign in with their case name, docket number and order in which counsel will argue no later than 8:45 a.m. This is the only means by which the Clerk is able to know that you are present. Cell phones, pagers and personal computers must be turned off before entering the courtroom. Food and beverages are not allowed in the courtroom. Water is provided at counsel tables.
When do I need to be in the courtroom: Counsel on the first two cases on the list should sign in by 8:30 a.m. Counsel on the first two cases must be in the courtroom before the opening cry. Counsel on the first case must be at counsel table when Court opens. There have been instances where counsel on the first case were not present in the courtroom and the second case was called.
In what order are cases called: The cases are called in the order posted on the list by the sign-in sheet. Occasionally circumstances have arisen that necessitate a late change in the order of cases. Please confer with the court officer or Clerk to verify the order of argument. Four, five or six cases may be scheduled on the daily list. All cases scheduled for a particular day will be called on that day; cases are never rescheduled to the following day.
Courtroom seating: All oral arguments are open to the public, but seating is limited and on a first-come first-seated basis. Standeees are not allowed and provisions will be made for viewing a videocast of the argument in an adjacent courtroom if the main courtroom is filled to capacity. Visitors should be aware that many cases may attract large crowds and make plans accordingly. Please advise the Clerk or the court officer of any necessary accommodations (handicap access), to enable court personnel to make suitable arrangements. The district attorneys' offices and the criminal defense bar may contact the Clerk's office (either through the victim or defendant's assistance advocate) to plan for any accommodations that may involve security issues or victim-witness assistance issues.
Where do I sit while waiting for my case to be called: Counsel should wait in the courtroom if arguing the first or second case on the list. If the case is after the second case on the list, the attorneys' room is available for waiting; the arguments are broadcast in the attorneys' room. Be aware that cases may conclude earlier than planned or otherwise may be advanced unexpectedly. If you must leave the courtroom, please notify the court officer. If your case is the next case on the list, you should be in the courtroom prepared to come to counsel table when the case is called.
The Clerk will announce your case and then distribute the case "call cards" to the Justices. Counsel who will argue first should immediately advance to the podium. The Chief Justice will indicate that your case will now be heard. After the conclusion of argument in a case, counsel in the following case will have a brief moment to set up at counsel table after the case is announced and while the case call cards are being distributed.
At which counsel table do I sit: The counsel table for the appellant is on the left as you face the bench. Counsel table for the appellee is on the right. The designation of appellant and appellee never changes.
Who argues first: The appellant argues first, except in a case where further appellate review was granted, in which the successful applicant for further appellant review argues first.
How do I address the members of the Court: The usual opening address is "Chief Justice and Associate Justices, may it please the Court". It is appropriate to introduce yourself and state whom you represent for the record. Associate justices are referred to as "Justice Spina" or "Your Honor."
How does the timer operate; what do the lights indicate: The set of timers, one facing the podium and one facing the bench, is operated by the Clerk and is started at the Court's indication or when counsel begins to speak. The green light is on for the first fourteen minutes of argument. A yellow light indicates one minute remaining. A red light indicates the end of the time allotted. When the red light appears, counsel should immediately conclude the argument, unless actively engaged in responding to a question from the bench.
How much time is allowed; is there rebuttal: In all cases (except appeals of convictions of murder in the first degree) each side is allowed fifteen minutes for argument. Requests for additional time may be allowed in certain circumstances and must be made in advance of argument by written motion. There is no rebuttal argument; requests for rebuttal have been routinely denied. There is an opportunity to file post-argument letters if opposing counsel have raised issues not previously addressed or if there has been a misstatement of the record, or if the Justices have so requested.
May I split my time: Splitting time among more than two attorneys per side is discouraged. A comprehensive and cohesive single argument is the better practice.
How does the microphone operate: The microphone is preset to amplify as well as record. Do not attempt to adjust the microphone. During argument you should speak in a clear, distinct manner so that your voice will be audible to the Justices and will be clearly recorded. You should avoid having notes, books or your hands touch the microphone since this interferes with the recording process.
Exhibits/Transcripts -- Who has them and where are they on argument day: In civil cases, the rules place the obligation on the appellant to designate the record on appeal, including transcripts and exhibits. Those documents are reproduced in the record appendix and in transcript and exhibit volumes. In criminal cases, the transcript is part of the assembled record on appeal transmitted by the trial court. Exhibits remain in the trial court unless and until called for by the Clerk's Office. If counsel wish to have exhibits or chalks used at argument, arrangements must be made through the Clerk's Office prior to argument.
The Clerk and the staff will be pleased to answer any questions and to address any requests for assistance. Counsel may obtain information on the status of their cases by calling the Clerk's office at 617-557-1020. The court monthly docket of cases scheduled for argument is available on the Supreme Judicial Court at http://ma-appellatecourts.org/