Survey Shows Lawyers Skeptical About Firm, Fair Trial Date Initiative
Superior Court Chief: Improvements Evident; More Expected in 2008
By Noah Schaffer
An initiative by the Superior Court to establish firm and fair trial dates for civil cases received lukewarm reviews in a survey conducted by the Massachusetts Bar Association, with some members complaining that they have yet to see any improvement in cases being tried on schedule and that the program is too inflexible.
But the architect of the initiative, Superior Court Chief Justice Barbara J. Rouse, said the effort — which got under way in 2005 — has resulted in a dramatic drop in the number of continuances issued, and there has been a reduction in the Superior Court’s caseload. Further improvements will be seen next year, she predicted, when the “Firm and Fair Trial Date Initiative” is fully up and running in Hampden and Worcester counties.
In the MBA survey, members were asked to rate the initiative on a scale of 1 to 10, with 10 being the most positive. The majority of responses were either 1 or 5, with no one giving the initiative a 10.Asked to relate positive and negative experiences with the program, MBA members wrote that they found it “oppressive” and “unreasonable.” Lawyers in several different counties said “judges have become inflexible” and are more worried about meeting statistical guidelines than considering unforeseen circumstances that arise for attorneys.
Thirty-nine attorneys participated in the ranking portion of the survey.
Rouse said that while she “appreciated the input,” the MBA’s Civil Litigation Section has more than 3,000 members, and “by my statistical calculation [the survey] had a return of about 1 percent, so I think you need to keep that in mind.”
But according to MBA Executive Board member Douglas K. Sheff of Boston, “the purpose of the survey was not to conduct some sort of scientifically controlled study, but rather to ferret out some of the experiences and anecdotes, good and bad, with the new program.”
‘Precious Resource’
MBA President David W. White Jr. said the survey results show that there are “some concerns” over the effectiveness of the program.
“One of the common complaints seemed to be the inflexibility of the courts when all parties agree on a continuance,” White said. “I’m hopeful the court will be more sensitive to the needs of lawyers, especially when everyone is in agreement.”
White said the MBA will meet with Rouse and Chief Justice for Administration and Management Robert A. Mulligan soon as “continued dialogue will make everything better for everybody.”
Meanwhile, Rouse, responding to survey complaints that cases are being assigned trial dates too far in the future, said those dates are part of the concept of getting an actual trial date as opposed to one that “everybody knows will be continued two or three times.”
The chief justice added: “The comments about the dates being far out are true, because we only have so many dates on the calendar to try cases. Dates are a precious resource. The dates are going [further] out because we’re trying to make that a firm date. … That’s why it is so important for the judges to conduct the pre-trial conferences.”
According to statistics provided by Rouse and Superior Court Judge Stephen E. Neel, chairman of the Civil Steering Committee, from November 2004 to September 2007 there was a 15 percent decrease in the court’s pending caseload; a 6 percent decrease of “aged” cases (those pending for more than three years); and a 22 percent decrease in continuances. Sixty percent of the cases disposed by trial during the second quarter of 2007 were tried by their second scheduled trial date.
Rouse said the goal is to have 75 percent of cases tried on the first or second scheduled date.
“We want to stress that this is not a ‘no-continuance’ policy,” said Neel. “It’s not intended to be rigid. We want to reduce the need for attorneys to have to ask for continuances.”
‘Firmer and Fairer’
According to Rouse, some of the respondents in the MBA survey practice in counties such as Worcester, where the initiative has yet to fully take hold.
One respondent noted that Worcester County’s civil case backlog is such that he is still waiting for a trial date on a case that was appealed in November 2002 and which has been on the trial assignment list four times since January 2006.
Noting that Worcester has the “oldest caseload” in the commonwealth, Rouse said major improvements with that backlog should come at the start of 2008 now that the new courthouse in Worcester is open for business.
“We just haven’t had enough courtrooms for sessions,” she said. “We are now in the new courthouse, and we will increase the number of civil sessions, so there will be a reduction in the number and age” of cases.
Rouse said that while there has been “more and more trial date certainty” in Worcester County as the system is phased in, “they still have far too many cases to really give the full force to the program.”
The initiative is also just getting started in courthouses in the state’s four western counties.
“Again, there was a resource problem,” explained Rouse. “Hampden has the biggest criminal caseload of any county. Now we have another courtroom [there], so we have two civil sessions.”
Rouse said a successful aspect of the initiative in several counties has been the swapping of trials between sessions if one session is backlogged and another is not.
Efforts to convince medical-malpractice carriers to broaden the slate of defense attorneys they use have been another element of the plan. Med-mal trials have been particularly susceptible to delays because of the small defense bar, low settlement rate and challenges of scheduling expert witnesses.
“It’s been a real challenge,” said Rouse of med-mal trials. “I think there’s been some improvement, but not as much as we would have liked.”
MBA Civil Litigation Section Chairman Jeffrey N. Catalano of Boston applauded the court’s efforts, but said that attorneys are anxious to keep pushing forward, “and these [survey] comments reflect that. We have a lot of people interested in making this a firmer and fairer initiative year by year.”
