Making firm, fair trial dates a reality

Listen to this article

Over one year ago, the Superior Court embarked on an initiative to improve the delivery of justice in a more timely and cost-effective manner and to establish more predictable trial dates in civil cases.

The impetus for this initiative came from the court’s recognition that excellent decision making was undermined by the inability to hold court events as scheduled, especially trials.

We know that the ramifications of elusive trial dates are many. The cases age, attorneys prepare multiple times, litigants suffer the emotional upheaval of anticipation and disappointment; the cycle repeats, litigation gets costlier, and the public loses heart and confidence in the legal system.

A civil steering committee, chaired by Judge Stephen E. Neel, undertook to move the court toward a more informed trial calendar, and toward firm, fair trial dates. The first thing the steering committee did was to adopt working definitions for this initiative.

A firm trial date is one in which there is a strong likelihood that the case will be reached on the assigned date, or within a reasonably short period after that date. A fair trial date is one that is selected well in advance, with agreement of all counsel, after checking the court’s calendar, counsels’ calendars and witnesses’ schedules.

After many rounds of meetings with judges, clerks and the bar to gather information about how each county currently conducts its civil business, the steering committee worked with each civil session to develop an action plan setting forth strategies to reduce the overall caseload and detailing techniques for “smart calendaring” of trial dates. (The steering committee has initially worked with counties from Worcester east, and will soon begin working with the western counties.)

These plans encourage all judges who share a session to work as a team with the clerk to promote continuity and uniform management of the session. As a result of these plans and other case management efforts, the bar should be aware of the following developments:

* Judicial assignments are longer

Assignments are for a period of three to six months; in some sessions two judges alternate three-month sittings.

* Judge-conducted pre-trial conferences

One key component of the court’s improvement in scheduling trials is judge-conducted pre-trial conferences.

The primary objective of these conferences is to ensure that the case is or will be trial ready and that the date selected for the trial is one to which both the court and counsel are committed.

It is, therefore, important that the judge discuss with counsel whether there are any impediments to trying the case, such as incomplete discovery, expert problems or unresolved dispositive motions. The judge may enter any case management orders to resolve any dispute and to set a schedule for the completion of anything necessary to put the case in a trial posture.

At the conference, the judge will also explore with counsel the status of any settlement discussions, the willingness to use any alternative dispute resolution forum, and any other innovative approaches to resolution or refinement of issues such as an agreed statement of facts, bifurcation of the issues, mini-trials, advisory trials, summary trials or masters.

Finally, at the pre-trial conference, the court will set a mutually agreeable trial date. The setting of a trial date involves an assessment of the length of the trial and a realistic assessment by the judge of the likelihood that a case will settle, as 95 percent of civil cases do, because this affects how many trials are scheduled within a given time period and what the mix of those cases will be.

Together with counsel, the judge must make a conscientious effort to determine counsels’ professional schedules and vacation plans, and witnesses’ availability.

More attention is being paid to staggering trials throughout the week to avoid congestion on Mondays and, in many sessions, to set fewer cases for trial to increase the likelihood that they will be reached. One of the reasons that so many cases are continued at the request of counsel — which accounts for almost 60 percent of continuances — is that attorneys do not prepare because they do not expect that the court will reach their case.

* Standing Order on 1-06, Continuances of Trial

The Superior Court adopted a new standing order concerning continuances of trial, which went into effect on Jan. 3. The order states, in summary, that any request for a trial continuance must be in the form of a written motion and set forth the grounds for the requested continuance and whether any previous continuances have been sought and, if so, for what reasons. The session judge or, in his or her absence, the regional administrative justice, must act on the motion.

This standing order makes uniform practices throughout the commonwealth so that the court will have a written record of why continuances are requested and granted. This is not a “no continuance” policy and individual judges will continue to exercise discretion in ruling on such motions.

* Case may be tried in any session

Even if the session to which the case is assigned is unavailable for whatever reason, another session that is open may try your case.

What the bar can do

The cooperation of the bar is essential to the success of this initiative. Specifically, we ask that the bar:

* prepare for hearings and pre-trial conferences;

* cooperate with opposing counsel in preparing a joint pre-trial memorandum;

* be prepared to discuss settlement at the pre-trial conference;

* have trial counsel prepare for and attend the pre-trial conference after having diligently checked witnesses’ availability, including experts, and counsels’ own trial commitments and vacation plans, for a period of up to six months after the conference;

* utilize Rule 16 of the Mass. R. Civ. P. to enlist the court’s assistance with simplifying issues, settlement, expert problems, or any other matters that could aid in efficient case processing;

* commit to only one trial date for a given period; do not overbook trials with the view that one or more of the cases may settle or be continued.

This initiative is already having a beneficial effect on civil business. Since Nov. 1, 2004, the court has reduced its civil caseload from 36,663 to 32,482 cases, reduced the number of aged cases and trial continuances, and increased the percentage of on-track cases.

As with any change worth effecting, this undertaking is a long-term effort that must be done in partnership with the bar. We are confident that over time we will be able to develop firm and fair trial dates that will benefit the court, lawyers, litigants and witnesses, and do a better job of doing individual justice in individual cases.

Barbara J. Rouse is chief justice of the Superior Court.