Related to:

Opinion CJE Opinion No. 97-10

Date: 10/17/1997
Organization: Massachusetts Supreme Judicial Court

The following is an archived advisory opinion of the Committee on Judicial Ethics (CJE) from the time period of 1989 through 2014, and the Code of Judicial Conduct that was in effect from October 1, 2003 to December 31, 2015. Archived advisory opinions also include the Code that was in effect through September 30, 2003. The Supreme Judicial Court adopted a new Massachusetts Code of Judicial Conduct, effective on January 1, 2016. A judge should not rely on any pre- 2016 CJE Advisory Opinion without contacting Supreme Judicial Court Senior Attorney Barbara F. Berenson, counsel to the Committee on Judicial Ethics, at or 617- 557-1048.

Implementing Case Management System

You have requested an opinion concerning your use of a Pretrial Conference Report form and a Civil Trial Calendar form on an experimental basis in several District Courts as part of a District Court civil jury pilot project. You indicate that several judges have expressed concern that the use of the forms could somehow expose judges to charges of violation of the canons of judicial ethics. Your request does not specify the particular focus of their concern.

The purpose of the forms appears to be to gather through pretrial conferences information to enable the court to make a prediction concerning the likelihood of particular cases settling prior to trial, with a view to minimizing the inconvenience and cost to the parties of multiple false trial dates and reducing the waste of court resources that results from the breakdown of the trial list. The Civil Trial Calendar form, taking into account factors developed at the pretrial conference reflecting the parties' attitude and progress towards settlement, attempts to assign a "trial rating percentage" to each case that reflects the likelihood of the case settling. This percentage, or score, coupled with factors such as expected length of trial, is used to construct daily trial lists that, if successful, achieve optimal use of judicial resources with minimal inconvenience to parties and their counsel.

The only objection that occurs to us is one that has been expressed by some judges and counsel concerning the propriety of judges' extensive pretrial or during-trial involvement in settlement discussions, particularly if the judge engages in settlement discussions with the parties separately, out of each other's presence.

As we understand your letter, however, the purpose of the pretrial conferences in your system is not to generate settlements but only to predict the likelihood of settlement, and no mention is made of separate party discussions. In any event, the system you describe provides that where the judge, as contrasted with a clerk or mediator, conducts a pretrial conference, he or she will not thereafter preside at a jury-waived trial, unless the parties consent. That would seem to resolve the single concern that occurs to us.

If the system as implemented gives rise to other concerns under the Code of Judicial Conduct, these have not been considered by the Committee, and this opinion is not to be understood as addressing them.


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