(1) Are there any other matters with regard to practice or procedure in your courtroom about which you would like to advise the attorneys who appear before you?
Salinger, J.: Don’t forget Superior Court Rule 20, which allows and encourages parties to propose, and ideally agree upon, case management rules that will allow for faster and less expensive resolution of their dispute. Parties can craft ground rules that will let a BLS case move forward with the speed and cost savings associated with arbitration, while letting the case be managed and perhaps be decided by an experienced Superior Court judge—at no extra cost to the parties—who will be able to give the case the attention it deserves (because of the smaller caseloads in the BLS sessions) and apply well understood law and rules of evidence. And the substantial and growing body of decisions by BLS judges can often give parties insight into how legal issues in their case will be resolved if they proceed in the BLS.
I have already touched on some options that are expressly contemplated in Rule 20, such as specified limits on discovery, a waiver of any right to a jury, and a waiver of detailed factual findings in a bench trial with an agreement that the judge will decide the case by answering special questions agreed-to by the parties. The rule also lets parties waive argument on certain kinds of motions, agree to submit direct testimony by expert witnesses in writing (in a bench trial) with only cross-examination conducted live, agree or ask the judge to impose reasonable limits on the length and scope of trial. Indeed, the rule permits parties to propose (and, again, ideally agree upon) any set of special rules that will help lead to a fair decision while avoiding unnecessary expense and delay.
Though parties are free to waive or limit rights of appeal from Superior Court judgments, just as with an arbitration proceeding, many commercial litigants prefer the safety valve of appellate rights that are lost if a case is arbitrated.
If parties agree upon a set of streamlined procedures that they would like to apply in their BLS case, they can be confident that the BLS judges will welcome that agreement and make sure that it is carried out.
Krupp, J.: The BLS1 courtroom (Courtroom 1309) was built for appellate argument. The acoustics leave much to be desired. Lawyers trying in Courtroom 1309 need to prepare for that situation, including familiarity with the location of the fixed microphones.
Kazanjian, J.: Ask me this question a year from now!
Ricciuti, J.: I agree with Judge Salinger on Rule 20. Be creative. Sometimes a unique approach is wise – trying a representative claim, for instance. And even if a contract requires binding arbitration or some other dispute-resolution mechanism other than BLS, the parties can always agree to waive it and proceed here.
(2) Are there common deficiencies in practice that you regularly observe on which you would like to comment?
Salinger, J.: Do not let your client’s dispute with the opposing party turn into personal animus toward opposing counsel. You can provide your client with diligent and aggressive representation on all matters of substance, without ever being disagreeable and without getting into pointless fights over matters of procedure or minor things that will make no difference to the outcome. Be nice.
On a related note, please keep your advocacy focused on the substance of whatever it is your client needs me to decide. Arguments that amount to “But they’ve been bad!” are neither helpful nor effective advocacy.
Krupp, J.: The two most common deficiencies I have observed are the failure to confer adequately before filing motions and the lack of civility by some lawyers in written filings and even during in-person hearings. The two problems are often linked. Most discovery and scheduling motions can and should be resolved between counsel acting in good faith. And, like all judges I know, I find ad hominem attacks – often veiled as questioning the integrity or motives of the opposing party or its lawyer – to be distracting and counterproductive.
Kazanjian, J.: The incivility that exists during the discovery phase of civil cases is sometimes disheartening. Not every issue warrants at battle. In fact, very few do. I do not appreciate personal attacks on opposing counsel either in open court or in written filings. I will likely cut you off if you launch into a history of emailing, such as who did not respond to what. You should treat opposing counsel the way you wish to be treated. Unnecessary disagreements only serve to increase the costs of litigation, which is rarely in your client’s interest.
Ricciuti, J.: I agree with all of my colleagues. If I think there is such personal animosity between the parties that it is interfering with good case management, I will take proactive steps to address it.
(3) Are there any other orders, policies, or practices that you follow about which you would like to advise the members of the bar? If so, please attach copies to your response.
Salinger, J.: No, thank you. I agree with Judges Krupp and Ricciuti that it is a pleasure and a privilege to sit in the BLS.
Krupp, J.: No. I will add that overall it is a pleasure to sit in the BLS. The quality of the written and oral advocacy is quite high. The issues before the BLS are frequently engaging, obviously important to the litigants, and sometimes impactful well beyond the parties to the case.
Kazanjian, J.: No, I look forward to sitting in the BLS.
Ricciuti, J.: It is a privilege to handle cases in the BLS.
| Date published: | April 1, 2022 |
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