Rules of Civil Procedure  Civil Procedure Rule 63: Unavailability of a judge; receipt of verdict

If by reason of death, sickness, resignation, removal, recusal, or other unavailability, a judge before whom a trial has commenced is unable to perform the duties to be performed by the court, then any other judge regularly sitting in or assigned to the court in which the trial was commenced may complete the trial, on assignment by the Chief Justice of such court or the Chief Justice's designee; but the replacement judge has discretion to grant a new trial if the judge determines that he or she is unable to perform the required duties.

Any judge properly sitting in, appointed to, or assigned to that court may receive a verdict of the jury.

(2024) At the request of the Chief Justice of the Superior Court, the Supreme Judicial Court Rules Committee asked the Standing Advisory Committee on the Rules of Civil Procedure to consider recommending amendments to Rule 63. Rule 63 previously allowed the designation of another judge to deal with matters that arose in a civil action after a verdict or after the filing of findings of fact and conclusions of law in a case where the trial judge had become disabled.

The Chief Justice of the Superior Court had requested that Rule 63 be amended to make civil practice consistent with criminal practice. Rule 38 of the Massachusetts Rules of Criminal Procedure allows replacement of a judge during a jury trial where the trial judge is unable to proceed "by reason of death, sickness, or other disability." The Standing Advisory Committee on the Rules of Civil Procedure agreed that Rule 63 should be broadened to deal with incapacity of a judge at any time in the litigation process. The change in Rule 63 is consistent with the directive in Rule 1 that the rules of procedure "be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding."

The amendment divides Rule 63 into two parts, (a) and (b).

Rule 63(a) allows the Chief Justice of the court (or the Chief Justice's designee) to assign another judge to complete a trial where the trial judge has become "unavailable" after a trial has begun. As had been previously provided by the former language of Rule 63, the replacement judge has discretion to grant a new trial if the judge determines that he or she is unable to perform the required duties.

Rule 63(b) deals with verdicts. It allows any judge of the court to receive a jury verdict. There is no requirement of incapacity or disability to do so. For example, where the trial judge is out of the courthouse when a verdict is returned, any other judge of that court may receive the verdict.

The title of Rule 63 has been changed to reflect the division of the rule into two parts. The rule was formerly titled "Disability of a Judge."

(1996) With the merger of the District Court rules into the Mass.R.Civ.P., minor differences which had existed between Mass.R.Civ.P. 63 and Dist./Mun.Cts.R.Civ.P. 63 have been eliminated.

(1973) Rule 63 closely follows Federal Rule 63 with the following additions: (1) The enumerated disabilities have been expanded specifically to include resignation and removal; (2) An assignment mechanism has been added.

Rule 63 permits any other judge regularly sitting in or assigned to the court in which the action was tried to perform the duties of the judge who by reason of some disability is unable to perform his own duties after a verdict has been returned or after he has filed findings of fact and conclusions of law. The rule provides, however, that only by assignment may the successor judge perform the duties of the disabled judge.

If the successor judge cannot perform his substituted duties satisfactorily either because he did not preside at the trial or "for any other reason", he may in his discretion grant a new trial. See St. Louis Southwestern Ry. Co. v. Henwood, 157 F.2d 337 (8th Cir.1946); Brennan v. Grisson, 198 F.2d 532 (D.C.Cir.1952).