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Bloom & Buell's

STANDING ORDERS AND ROLLER COASTERS

For those of our readers who have an interest in Massachusetts jury trails, July 1, 1988 is a memorable day.  On that day, Superior Court Standing Order 1-88 took effect.  Recently, however, we have begun to notice a trend, which may cause 7/1/88 to lose its standing, so to speak, as a day worth mentioning.  Those of our readers who are not based in Massachusetts will no doubt recognize the scenario.

Several years before 1988, it had been quite apparent that there were not enough Superior Court civil sessions and judges to handle anywhere near the incoming caseload of civil litigation.   Those of us who did medical malpractice defense work and other heavy-duty defense in those days recall that written discovery and depositions would go along for quite some time, and then the case file would fall into an abyss.  Every six months or so it would be taken out and dusted, and returned to the file cabinet.  Only after years of waiting would it be "called for trial", which of course in no way meant it was going to be tried anytime soon.

When the bulk of that litigation consisted of auto and general liability cases, the solution effected by some of the Superior court judges was to call the cases and hold the attorneys (and sometimes the parties) hostage in the courthouse on the pretext that they were being "held for trial" and should be reachable at any moment.  Many cases had been settled during the seemingly interminable waiting for the trial call, and this was the second step in wringing out settlements.  If parties and attorneys were kept standing in the hallways long enough, it was declared they would see the wisdom of settlement, and only the few stalwarts left standing there after stewing for several days would have to get a jury trial.  However, the medical malpractice litigation did not fit this mold, nor did some other types of litigation of a hardier variety.  Insurers in malpractice litigation were not about to start settling large volumes of cases because of delay and lengthy waits at the courthouse.  In time, this hardier variety practically choked the civil sessions to a standstill.

Along came Standing Order 1-88.  It was a worthy and well-intentioned attempt, especially since its proponents knew that the legislature was never going to fund the real solution to the problem by providing more courtrooms, judges, and judicial personnel.  A good description of this Standing Order, by analogy, would be that the Superior Court declared its dockets "bankrupt," acknowledging that it had nowhere near enough time and energy to try everything before it, so it wiped out all the cases on its docket and started fresh with the new cases entered after July 1, 1988, promising to dispose of them with dispatch, and setting up timetables for that purpose.  (A few sessions were dedicated to disposing of what were euphemistically referred to as "Inventory" cases, namely, all the cases already on the dockets, about 35,000 in number.)  For a while, with so many civil sessions pretending that there were no cases but these before them, things worked out, and trials were being held in a number of counties in what legal beagles think of as a "reasonable" time, three years, more or less.  To be truthful, a few judicial groupings throughout the state refused to agree that the Emperor had some very nifty duds on, and the situation didn't really change in those geographical pockets, but most of the judges gave it a try.

However, nothing was done about the root issue (not enough sessions, etc.), and in fact a number of intervening events made things even worse.  For one, the state government decided it would be really great to imprison practically everyone who showed up in criminal court, and while they have just recently agreed that maybe that would call for more jails, it has not yet dawned on anyone that more judges will be needed if everyone is going to the slammer.  In any event, we have begun to notice signs that civil docket bankruptcy is in the cards again, but this time even worse.  Of course, we discount those counties where no one even tried to implement the Standing Order.  In the counties that did, however, we now get a neat and sassy pre-trial notice right on time, just like we have since 1988.  The first glimmer of a problem develops at the Pre-Trial Conference, when the assigned trial date seems just a bit further in the future than we had been getting used to, but that's no big deal.  The roller coaster ride starts as the assigned trial date nears, and we begin to get messages from the court that maybe we had better select another trial date, because the judge already has something for the date (She sure does! A quick calendar check discloses that ten cases are already being hauled in for trial at 9:00 AM.).

The new date, as you might suspect, suffers from the same problem, and here we are back to where we were in 1987, with the added headache of lining parties and witnesses up for a trial date only to notify them of another and then another.  Everyone is a bit punchy by the fifth go-round.  Call me a fool, but I preferred the abyss.  A Request for Proposals should shortly be appearing for suggestions on where to go from here.  Only one proviso:  it can't cost the state any money.  Any takers?