(1) Do you have any policy or practice regarding granting motions for leave to file memoranda in excess of the specified page lengths?
Salinger, J.: Though I generally grant requests for a reasonable number of extra pages, my colleagues’ responses suggest that I should stop being so generous in allowing extra-long memoranda. Many lengthy legal memoranda would be more effective if they were pared down to their essence.
Krupp, J.: I disfavor motions for additional pages. I will grant them in particularly complicated cases where a good reason is shown.
Kazanjian, J.: I rarely allow such motions. If a party feels the need to file additional pages, they should move to do so before serving or filing the memorandum. I will allow the motion only if there is a specific reason why additional pages are necessary. I encourage parties to be concise and focused in their written filings.
Ricciuti, J.: I disfavor such requests and require a showing of good cause. I will generally not grant joint requests simply because the parties agree, as I find the discipline of page limitations is often critical to reducing memoranda to the crucial points.
(2) Do you ordinarily hold hearings on dispositive motions? If so, under what circumstances do you decide motions without a hearing? If not, under what circumstances do you hold a hearing?
Salinger, J.: I always have hearings on contested dispositive motions in BLS cases.
Krupp, J.: I hold hearings on motions that carry a presumptive right to a hearing under Superior Court Rule 9A(c)(3), unless the motion is assented-to or unopposed.
Kazanjian, J.: I always have hearings on dispositive motions.
Ricciuti, J.: Always unless the motion is unopposed.
(3) Are you willing to stay discovery during the pendency of a motion to dismiss? If so, what factors do you consider?
Salinger, J.: If a motion to dismiss may well dispose of the case, I will generally allow a motion to stay discovery until I can decide the motion to dismiss. A plaintiff would have to make a strong showing of unfair prejudice to convince me not to stay discovery for a short time until I can decide whether the case will survive the motion to dismiss.
Krupp, J.: Whether to stay discovery depends on the reasons for and the strength of the motion to dismiss, how long I think it will take me to decide the potentially dispositive motion, the nature of the dispute, the potentially fleeting nature of the information sought to be discovered, and the burden of discovery. In appropriate cases, I will stay discovery, or allow only certain discovery to proceed, pending a Rule 12 motion.
Kazanjian, J.: I am willing to stay discovery pending a ruling on a Rule 12 motion.
Ricciuti, J.: I will look closely at the facts to determine whether a stay will promote efficiency and fairness, and do not automatically grant such requests.
(4) Do you generally allow parties to file partially dispositive motions? What factors do you consider most important in deciding?
Salinger, J.: Partially dispositive motions make good sense when, if allowed, they would materially narrow the scope of discovery, facilitate settlement discussions, or simplify any trial. In my experience, counsel who seek leave to file a partially dispositive motion usually present good reasons for doing so, and therefore I generally allow those requests.
Krupp, J.: In my experience, the bar seems to understand the concerns addressed in the Procedural Order of the Business Litigation Session Regarding Partially Dispositive Motions (Mar. 1, 2019). As a result, I have allowed most requests.
Kazanjian, J.: I would generally allow the filing of motions for partial summary judgment. It is my view that a motion for partial summary judgment can help narrow the issues and facilitate settlement.
Ricciuti, J.: Same as Judge Salinger.
(5) How do you prefer parties cite to facts and exhibits in the summary judgment brief or memorandum?
For example, should parties cite only to the statement of facts or also to the specific supporting material?
Salinger, J.: Each time a motion or memorandum refers to part of the record, the reference should include the exhibit number and a specific page and (where appropriate) section reference, so that I can immediately turn to the supporting evidence. Citations to deposition transcripts are more helpful when they point me to specific line numbers. I like to see this in all memoranda that refer to supporting exhibits or affidavits, not just in summary judgment briefs. A memorandum supporting or opposing a motion for summary judgment should cite to the statement of facts to show that something is not in dispute or is hotly contested. But I would like to see a direct and specific cite to the supporting record evidence as well.
Krupp, J.: When reading a memorandum, I want to be able to find the key factual support for a statement as quickly and easily as possible. This is not a one size fits all answer. In some cases, the parties might number each page of the record appendix and cite to the page number (e.g. RA 37). Sometimes, for context, it is helpful in the memorandum for the reader to know that the authority isn’t just at some page in the record appendix, but that it comes from an opposing party’s own deposition (e.g. Ex. 17 - Def. Dep. 72:12). The citation form that you choose should be clearly explained and easily decipherable. I read the statement of material facts to get a picture of the nature of the case and the parties’ disputes, and I refer to it later to access the record while I am writing. In the brief or memorandum, I find that clear citation to the record is more helpful.
Kazanjian, J.: I agree with Judges Salinger and Krupp.
Ricciuti, J.: I expect the memos will make clear the precise location of the relevant evidence. Often a citation to the statement of facts makes this clear, but if it does not, the memo should precisely identify the location of the relevant evidence (e.g., exhibit number and page).
(6) How do you prefer parties to respond to Rule 9A(b)(5) statements that do not comply with the rule? For example, do you prefer motions to strike or objections in the response or something else?
Salinger, J.: If a non-moving party disputes a material fact without citing contrary evidence, or cites evidence that does not actually create a factual dispute, the moving party should point that out in their reply brief. I will deem those facts to be admitted for the purposes of the summary judgment motion. A motion to strike is generally not necessary. Other violations of Rule 9A(b)(5)—like inserting commentary about relevance or materiality, or trying to characterize a written document—undermine the credibility of the violator. Also, remember that creating a Rule 9A(b)(5) statement of material facts is an act of advocacy, not an exercise in creating a voluminous and sterile record. Leave out all the immaterial background facts and focus on what matters for the purpose of the summary judgment motions.
Krupp, J.: When objections to a party’s non-compliance with Rule 9A(b)(5) appear in the statement of undisputed facts, it is distracting, usually quite repetitive, and makes it difficult to read and effectively use the statement of undisputed facts. I prefer a failure to comply with Rule 9A(b)(5) to be first discussed between the parties and, if it cannot be resolved by agreement, then a motion should be filed. The motion, of course, must demonstrate compliance with Superior Court Rule 9C, so conferring about a party’s non-compliance with Rule 9A(b)(5) is necessary. Such a conference should occur as soon as the non-compliance is recognized to give the non-complying party an opportunity to bring their papers into compliance.
Kazanjian, J.: I am not in favor of motions to strike. The parties should work together prior to filing the motion at producing a Rule 9A(b)(5) statement of facts. If they cannot resolve the issues, than the parties should point out the deficiencies in their memoranda and ask the court to either disregard certain facts or deem certain facts admitted. I will make the appropriate rulings based on those arguments.
Ricciuti, J.: I agree with Judge Salinger, but in egregious cases, would prefer a motion to strike and would be inclined to allow such motions where the purpose of Rule 56 is undermined.
(7) When, if ever, do you permit surreplies? If you permit them, do you place any limitations on them?
Salinger, J.: Rarely. The few times I have allowed a surreply it was to respond to an important point or significant authority raised for the first time in a reply memorandum, and limited to just a few pages.
Krupp, J.: Surreplies may be useful to address a point raised for the first time in a reply, but I rarely allow many pages for a surreply. When faced with a new argument in a reply brief, the party opposing a motion should think about whether the new argument really requires a surreply or whether it may be reasonably addressed at the time of argument.
Kazanjian, J.: I only allow very short surreplies when there is a new issue raised in a reply.
Ricciuti, J.: Same as Judge Krupp, but I would prefer to see the response to a new issue in a short writing rather than hear it for the first time at argument.
(8) Do you impose specific time limits for argument at a hearing?
Salinger, J.: I do not set specific time limits for motion hearings, but will ask questions to focus counsel on the issues that I most need help on. Parties can expect that I have read and thought about the papers, and focus on the key reasons why I should rule in their favor. If someone is taking an unreasonable amount of time to present their client’s arguments, I will let them know.
Krupp, J.: Generally, no. Sometimes I will set a time limit if the press of other matters requires it. I have also rescheduled arguments, or continued argument to a second day, if the press of other business does not allow sufficient time to hear the parties’ on key points.
Kazanjian, J.: I generally do not set time limits. I find the arguments to be useful and interesting. It is an opportunity for counsel to educate the court about the case and issues. I welcome that opportunity. I will try to focus counsel on the key points if their argument is not otherwise focused.
Ricciuti, J.: The parties should expect that I have reviewed the filings and often the critical statues and cases, and will usually begin hearing with questions I have developed from the filings or relevant law. On occasion, however, I have given the parties a time limit – often 15 minutes – not to regurgitate the memos but to focus on the critical issues. I often ask questions as the argument proceeds.
(9) Do you have any policy or preference with respect to having multiple attorneys argue on behalf of a single party during a hearing?
Salinger, J.: When different lawyers will address different issues or different motions, or when a more senior lawyer wants to be able to support a more junior colleague by adding something important, I am happy to hear from more than one lawyer representing the same party. But a tag-team approach, where a second lawyer will try to tag in and add something whenever they think it may help their client’s cause, is not effective advocacy and should be avoided.
Krupp, J.: I am fine with multiple attorneys arguing for a single party. When more than one attorney will argue for a party, it is helpful to me to know from the beginning of the argument who will address particular points.
Kazanjian, J.: I am fine with multiple attorneys arguing as long each particular issue is handled by a single attorney. I am not in favor of the tag-team approach described above by Judge Salinger.
Ricciuti, J.: Same as Judge Salinger. As per the Formal Guidance summarized below, I strongly encourage younger lawyers to argue and expect the parties to find opportunities to allow this to occur, such as by splitting up arguments. I will give younger lawyers more time to argue than senior lawyers.
(10) Do you have any policy or preference with respect to associates handling just part of a hearing on a motion?
Salinger, J.: The BLS judges strongly supporting letting associates play an active role in court. We recently issued a Formal Guidance, available on our website, emphasizing our strong preference that associates be given opportunities to handle parts or all of motion hearings and other court proceedings. Signed by all four current BLS judges, this policy statement says:
We welcome and encourage active participation by less senior attorneys in all court proceedings.10 To facilitate this, we will let two or more lawyers handle different parts of a hearing, give a supervising attorney time to confer with and provide guidance to a less senior colleague during a court proceeding, and permit a more senior attorney to add something after a less senior colleague finishes arguing a motion. The BLS judges will accommodate other reasonable requests that would allow less experienced counsel to play an active role in a court proceeding.
Krupp, J.: I am comfortable with – and appreciate! – associates handling any part of a motion hearing.
Kazanjian, J.: I encourage the participation of associates.
Ricciuti, J.: I strongly encourage younger lawyers to argue and expect the parties to find opportunities to allow this to occur, such as by splitting up arguments. I will give younger lawyers more time to argue than senior lawyers.
(11) Do you allow/require supplemental briefing after a hearing? If so, under what circumstances?
Salinger, J.: If I raise an issue during a motion hearing that no party had anticipated or addressed, I will let the parties submit short supplemental briefing limited to that new issue. Otherwise, I rarely welcome yet more briefing after a hearing. Parties should never submit additional briefing or letters after a hearing without leave of court.
Krupp, J.: Yes, but only on my request and only if a potentially outcome-determinative issue was not adequately briefed by the parties.
Kazanjian, J.: I will rarely allow supplemental briefing, and only when there has been an issue raised that was not covered in the brief’s filed in advance of the hearing.
Ricciuti, J.: Yes, either at the parties’ request or at my suggestion.
(12) When do you prefer Daubert-Lanigan motions be brought?
Salinger, J.: As early as possible. Some Lanigan motions challenge the expertise of a particular witness and, if allowed, can be cured by hiring a new expert. Such a motion needs to be resolved early enough that a party could, if need be, find a new expert. Other Lanigan motions, if allowed, could require a party to alter their trial strategy. It would be unfair for that to be sprung just before trial.
Parties need to identify any Lanigan motion in the joint pretrial memorandum and ask that it be scheduled for a hearing well in advance of trial. The Superior Court’s “Notice to Appear for Final Pre-Trial Conference” requires this, and says that “[f]ailure to inform the court in the pre-trial memorandum of a party’s intent to file a Daubert-Lanigan motion may, in the discretion of the court, constitute a waiver of the motion.”
Krupp, J.: Daubert-Lanigan motions should be brought as early as possible so the logistics of having the motion heard may be addressed. Daubert-Lanigan motions usually should be resolved by the trial judge. Judges generally serve in BLS for six-month assignments, rotating at the end of June and the end of December. If a trial is scheduled for March, it should not be difficult to schedule a Daubert-Lanigan motion with the trial judge in January. But if trial is scheduled for July, Daubert-Lanigan may have to be scheduled much earlier, or arrangements may have to be made to get the matter before the trial judge.
Kazanjian, J.: I concur with Judges Salinger and Krupp on this issue.
Ricciuti, J.: Same as Judge Salinger, but I find there is often no reason to choose to leave these motions to the eve of trial, and that they need not necessarily be heard by the trial judge.
(13) Under what circumstances do you permit an evidentiary hearing in connection with a Daubert-Lanigan motion?
Salinger, J.: Most Lanigan motions in BLS cases do not need an evidentiary hearing because they are based on the written expert disclosures and do not turn on any facts that are in dispute. If a party thinks I will need to make findings of fact in order to decide a Lanigan motion, they should explain what kind of evidentiary hearing is needed in their joint pretrial memorandum and when we are setting a schedule for filing and hearing the motion.
Krupp, J.: Novel expert opinions on topics that are not routinely presented in court often require an evidentiary hearing.
Kazanjian, J.: Whenever it is necessary for me to make findings of fact in order to resolve the issue.
Ricciuti, J.: A hearing is often required or is wise, but generally it need not be evidentiary, unless a party demonstrates the need for one.
(14) Do you have any preferred practices for parties’ seeking preliminary injunctions or any other preliminary relief? In what circumstances, if any, will you grant preliminary relief ex parte?
Salinger, J.: Here are a few thoughts about motions for preliminary relief.
Emergency Filings. If your client needs the court to act on an emergency basis, the motion itself should explain the nature of the emergency and the specific time frame within which a court decision is needed. It is a big help to know whether a particular emergency needs to be resolved today, two days from now, or two weeks from now. I have received truly emergency TRO motions in the morning, held a hearing at 2pm that afternoon, and issued decisions later that day or first thing the next morning. But sometimes a hearing in a week and a decision a week later is all your client really needs.
Proposed Orders. Though I do not need a proposed form of order for every motion, please include a proposed form of order as an attachment to any motion seeking a preliminary injunction or other complex court order. And remember that, under Mass. R. Civ. P. 65(d), a preliminary injunction must be self-contained and may not refer to other documents.
Ex Parte Relief. I will almost never grant preliminary relief without giving the other side a chance to be heard. I am mindful of the constitutional due process constraints on granting ex parte relief, and the fact that I almost always learn things from the opposition to such a motion that affect my decision.
Opposition Papers. Please get them to me in advance if at all possible. If you are scrambling to pull together a written opposition and supporting affidavit for a hearing in a day or two, please aim to get me your papers at least an hour before the start of the hearing.
Evidentiary Hearings. Parties do not often ask for an evidentiary hearing on a motion for preliminary relief, because they are able and prefer to present all necessary evidence through affidavits and exhibits. But if you think you need a short evidentiary hearing, confer with opposing counsel and then request one through the session clerk. For example, if a moving party has obtained a very short order of notice, the opposing party may wish to present 20 minutes of direct testimony rather than scramble to prepare and file an affidavit. Or, if key facts are contested, it may be helpful to arrange a short evidentiary hearing with limited time for each side to present evidence and cross-examine the opposing witness. Though a judge may resolve factual disputes and make credibility determinations based on affidavits, there can be real value to giving the judge a chance to hear from a key witness or two.
Pre-Hearing Discovery. Sometimes a very short period of focused discovery, followed by supplemental briefing, is the best way to let the judge make an informed decision on a motion for preliminary relief.
Krupp, J.: I do not have particular preferred practices. Papers related to preliminary relief should contain all facts upon which the party wants the court to rely. Those facts should be presented by affidavit or otherwise in a form the court may consider. Lawyers should not assume an evidentiary hearing will be allowed. In addition, memoranda of law should focus on the likelihood of success on the merits and why the harm that will befall the movant without the injunction will truly be irreparable. Without both, you are unlikely to prevail on a request for a preliminary injunction. Ex parte injunctive relief will be granted only if notice is reasonably likely to render the relief unavailable, or if truly irreparable harm will occur in the interim.
Kazanjian, J.: I will rarely allow ex parte relief. If you are seeking ex parte relief, you must clearly state how you meet the legal requirements. In all cases, it is helpful if the moving party is specific about what they are seeking the court to order. In that regard, I prefer to have a proposed order in advance.
Ricciuti, J.: Same as Judge Salinger. I have granted ex parte relief in those few cases where the papers alone demonstrate clearly that it is appropriate under the facts and law.
(15) During the ongoing pandemic, are you conducting hearings on dispositive motions via videoconference or in the courtroom? Will that change post-pandemic?
Will you entertain joint requests made by the parties to hold a hearing via videoconference or in the courtroom?
Salinger, J.: During the pandemic, I have been hearing argument on dispositive motions by video conference. But there is value to doing so in person. If a party has a reason to prefer a hearing in person or by video conference, they should say so and explain why, as early as possible. The BLS judges recently issued a Formal Guidance, available on the BLS website, that also addresses these issues. Here are a few tips for appearing in court by video.
- Make sure in advance that you have an adequate internet connection, you can be heard (I use an external lavalier microphone that plugs into a USB port on my computer and clips to my robe just out of camera view), and you can be seen (confirm that your camera is centered on your face and upper torso, avoid backlighting, and make sure that your face is well lit).
- Look at your camera when speaking, and position your camera so that if you look at my image or opposing counsel’s image you are looking close to the camera. It can be distracting if appears that counsel is talking to someone off camera rather than to their video audience.
- Resist the temptation to read from a script on your screen. Doing so will be obvious and make your presentation less effective. If you were in a courtroom for a motion hearing, you would want to be engaged in conversation with the judge, not reading from a prepared text. Do the same thing during a video appearance.
- If appearing before me by video conference, you should conduct yourself and dress the same way that you would if appearing in my courtroom.
Krupp, J.: During the pandemic, I have been holding dispositive motion hearings in person, by videoconference, and sometimes in hybrid form. I prefer to hear dispositive motions in person, but I understand that videoconferences mitigate health risks for those who are particularly vulnerable, save travel costs, and provide interested parties (e.g., clients, adjusters, associated lawyers, members of the public, etc.) an opportunity to observe the proceedings. After the pandemic, I will remain flexible. Lawyers who prefer a hearing in the courtroom or by videoconference in a particular case should inform the court in their request for a hearing and/or should so indicate to the Assistant Clerk assigned to the session. The request should be made sufficiently in advance so that the court can decide the issue and other participants can adjust accordingly.
Kazanjian, J.: During the pandemic I did conduct dispositive motion hearings by videoconference. However, I have a strong preference for in-person hearings and am not likely to conduct hearings on dispositive motions by videoconference post-pandemic.
Ricciuti, J.: Same as Judge Kazanjian. My presumption is for live hearings; I will proceed via videoconference only where justified in advance.
(16) Do you have any other tips or preferences for preparing and filing motion papers?
Salinger, J.: Here are a few other practices that I find to be very helpful. Plus one that is required by the Superior Court rules but not always followed.
The Motion Itself. All motions should specify the relief sought, in a form that would make sense if a judge were to endorse the motion itself as “allowed.” The judge must be able to tell on the face of the motion what relief the moving party is seeking; please do not hide this important information in the supporting memorandum. All motions should also briefly summarize, in a sentence or two, the key reason why the motion should be allowed. The summary should be case-specific. Stating that “this motion for summary judgment should be granted because undisputed material facts show the defendant is entitled to judgment as a matter of law” says nothing that judge could not figure out from the title “motion for summary judgment.” But if a motion says that summary judgment should be granted because the facts show that all claims are time-barred, or that the defendant did not owe a duty of care as a matter of law, it will have done a good job of getting the judge oriented for the details to follow in the supporting memorandum.
Introductions to Memoranda. As they say in the newspaper business, don’t bury your lede. Please include a brief introduction to each memorandum of law, ideally in a paragraph or two that explains the party’s key arguments—and does so without merely repeating the motion itself. Just as opening statements at trial help the jury and judge absorb and understand the evidence to follow, so a clear opening to a legal memorandum will allow the judge to appreciate the significance of each point developed thereafter.
Tables of Contents. Please include tables of contents in any memorandum or request for findings that exceeds ten pages, and for any tabbed set of exhibits. I find tables of contents to be very helpful. In a memorandum they serve as an additional summary of the party’s key points. In any large document or set of materials they help me find things quickly when working on a written decision.
Document Title on First Page. If there is no way to make your case caption fit onto one page, please make sure that the document title still appears on the first page. It is very hard to work with a set of motion papers that all have an identical cover page without any visible document title.
Single Sets of Exhibits. Please coordinate with opposing counsel to ensure that the court receives only one copy of each exhibit, and that each exhibit number is used only once. This may mean the parties should coordinate in advance to prepare and cite to a single set of exhibits (for example, when there are going to be cross-motions for summary judgment) or that the responding party only adds exhibits that the moving party has not yet compiled, and identifies any additional exhibits beginning with the next number or letter in the sequence used by the moving party.
Page Numbers and Tabs. Any document longer than one page should have page numbers. Bates numbers on exhibits can be an effective way to identify specific parts of a record. Any paper attachments or set of exhibits should have tabs.
Oppositions. Though a motion must be supported by a separate memorandum, an opposition to a motion is a single document (perhaps supported by affidavits and exhibits). Please do not file an opposition plus a memorandum in support of the opposition; the opposition itself should be a memorandum that explains why the motion should not be allowed.
Hyperlinks. I recently received a thumb-drive with electronic copies of a set of voluminous exhibits, with a table of contents formatted with clickable links that would open each exhibit. Other parties have filed legal memoranda or post-trial requests for findings of fact and rulings of law that contain embedded hyperlinks to case law, statutes, and exhibits. These kinds of filings can be expensive and are not appropriate in most cases. But where the nature of the controversy justifies the cost of producing such a filing, such hyperlinked electronic filings can be very helpful to the judge.
Rule 9C Conferences. This Superior Court rule requires that counsel must confer to narrow areas of disagreement before filing any kind of motion. I expect that counsel will do so, and ask me to address only those issues that cannot be resolved despite diligent efforts by all parties.
Finally, I agree with my colleagues and with Cicero.
Krupp, J.: Two small points:
The aphorism ascribed to many including Cicero – “If I had more time, I would have written a shorter letter.” – applies equally to legal writing. Even though it may take more time, trim your writing to only what is necessary. Many a brief that I receive could benefit from considerable editing. If you can write a memorandum in 12 pages, do not write it in 20.
Cross-motions that mirror the motion are unnecessary. For example, if a party files a motion to compel production of certain discovery, it generally is not necessary to file a cross-motion for a protective order from the same discovery.
Kazanjian, J.: Short, concise and organized is the key.
Ricciuti, J.: I agree with the foregoing. Two further points. First, I am a strong proponent of Rule 9C and will reject out-of-hand motions that do not comply with it. Second, do not file competing motions for summary judgement with separate sets of facts and exhibits. The rule requires cross-motions in such cases.
(17) Do you have any other tips or preferences for motion hearings?
Salinger, J.: The most helpful oral argument on a substantive motion is a conversation between the lawyer and the judge, not a prepared lecture delivered to a passive audience. My goal is to make sure that I understand each party’s position by the end of the hearing. I will have read and thought about the motion papers in advance. So get to the point. Make your opening count. Use the hearing to highlight the key points you need me to focus on, respond to the opposing party’s best arguments, and answer my questions about things that are troubling me or that I need to learn more about. And don’t forget to make clear what your client wants me to do.
Krupp, J.: I prefer to get to the heart of a matter quickly during argument and to focus on the arguments that matter most to each side’s position. I will often ask a party if they have a case for the proposition they are arguing, or what case best supports their position. It is helpful if the lawyers have prepared for such questions.
Kazanjian, J.: I usually try to focus the hearing on the key issues. I may ask a lot of question to make sure that I am understanding your arguments. I appreciate lively (but respectful) debate.
Ricciuti, J.: I usually start with questions based on the filings; rarely do I allow the parties to simply argue. When I do, I interject with questions and engage in discussion rather than listening passively to prepared arguments. I agree with Judge Salinger that good arguments are learned conversations, not soliloquies.
| Date published: | April 1, 2022 |
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