BLS Bench Notes – April 2022

BLS BENCH NOTES

MBA Complex Commercial Litigation Section

Business Litigation Session Practice Guide

Prepared by the 2022 Justices of the Business Litigation Session

Hélène Kazanjian

Peter B. Krupp

Michael Ricciuti

Kenneth W. Salinger

In Conjunction with

The MBA Complex Commercial Litigation Section Council

BLS Practice Questionnaire Committee

Jessica Gray Kelly, Freeman Mathis & Gary LLP, Chair

Kenneth N. Thayer, Sugarman Rogers, Vice-Chair

Charlotte Drew, Cooley

Derek B. Domian, Goulston & Storrs

Andrea C. Kramer, Kramer Law LLC

April 2022

BLS Bench Notes – April 2022

Page i

Table of Contents

A. Acceptance Into BLS .............................................................................................................................. 1

B. Case Management and General Issues .......................................................................................... 2

C. Discovery ................................................................................................................................................... 8

D. Motion Practice. .................................................................................................................................... 13

E. Pretrial ...................................................................................................................................................... 26

F. Trials .......................................................................................................................................................... 32

G. Miscellaneous ........................................................................................................................................ 42

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Expanded Table of Contents

A. Acceptance Into BLS .............................................................................................................................. 1

(1) What factors are relevant to your decision whether to accept a case into

the BLS? Are there types of cases you generally do not accept in the BLS? .......... 1

(2) What factors do you consider when transferring a case from a general

session to the BLS sua sponte? ............................................................................................... 1

B. Case Management and General Issues .......................................................................................... 2

(1) Do you use a customized Rule 16 case management conference notice

or the standard notice to appear? What, if anything, do you instruct the

parties to file in connection with a Rule 16 case management conference

beyond what is in the standard notice to appear? .......................................................... 2

(2) Do you have any requirements or preferences for who must appear for

the case management conference? If so, what are they? ............................................. 2

(3) Do you have any requirements or preferences for setting tracking order

deadlines? If so, what are they? ............................................................................................. 2

(4) During the ongoing pandemic, are you conducting Rule 16 conferences

via videoconference or in the courtroom? Will that change post-

pandemic? ...................................................................................................................................... 3

(5) Do you ever phase or bifurcate discovery? If so, when and how? ............................. 4

(6) Are there situations under which you do not grant a motion for a

confidentiality order or to file papers under seal, even if the parties

agree? Do you have any specific requirements for granting

confidentiality orders and/or motions to file papers under seal? .............................. 4

(7) What is your preference with regard to courtesy copies of pleadings,

motions, and memoranda? ...................................................................................................... 6

(8) Do you have any other case management tips or preferences for BLS

cases?................................................................................................................................................ 7

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C. Discovery ................................................................................................................................................... 8

1. General .................................................................................................................................................... 8

(1) Do you generally permit extensions of the tracking order when the

parties jointly request an extension? If so, under what circumstances do

you not permit an agreed-upon extension of a tracking order? ................................ 8

(2) Do you generally grant permission to parties to serve in excess of thirty

interrogatories? If not, under what circumstances do you grant

permission? .................................................................................................................................... 8

2. Electronically Stored Information .................................................................................................. 9

(1) Do you require parties to confer regarding a plan addressing discovery

of electronically stored information? .................................................................................... 9

(2) Do you have a standard order or established guidelines for the discovery

of electronically stored information and/or for specific aspects of the list

set forth in Rule 26(f)(3)? Do you generally include anything in addition

to the list set forth in Rule 26(f)(3)? ....................................................................................... 9

(3) What do you consider in issuing an order for allocating expenses for

discovery of electronically stored information? ................................................................ 9

3. Expert Discovery .................................................................................................................................. 9

(1) Do you require plaintiffs to disclose their expert reports before

defendants do, or do you require the parties to make the disclosures

simultaneously? ............................................................................................................................ 9

(2) How detailed do you require expert disclosures to be? .............................................. 10

(3) Do you usually permit expert depositions? What are your considerations

in determining whether an expert may be deposed? ................................................... 10

4. Discovery Disputes ........................................................................................................................... 11

(1) Do you ordinarily hold hearings on discovery motions? If so, under what

circumstances do you decide discovery motions without a hearing? If

not, under what circumstances do you hold a hearing?.............................................. 11

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(2) Under what circumstances, if any, have you imposed, or are you likely to

impose, sanctions in discovery disputes? What form have these sanctions

taken? ............................................................................................................................................. 11

(3) What level of detail do you require or prefer for parties’ statements

pursuant to Superior Court Rule 30A(3)(c) regarding the scope of the

search for responsive documents? Are there occasions in which you have

ordered a party to serve a revised statement? ................................................................ 12

(4) How do you address emergency calls during depositions? How do you

prefer parties to handle disputes that arise during a deposition? ........................... 12

D. Motion Practice. .................................................................................................................................... 13

(1) Do you have any policy or practice regarding granting motions for leave

to file memoranda in excess of the specified page lengths? ..................................... 13

(2) Do you ordinarily hold hearings on dispositive motions? If so, under

what circumstances do you decide motions without a hearing? If not,

under what circumstances do you hold a hearing?....................................................... 13

(3) Are you willing to stay discovery during the pendency of a motion to

dismiss? If so, what factors do you consider? .................................................................. 14

(4) Do you generally allow parties to file partially dispositive motions? What

factors do you consider most important in deciding? ................................................. 14

(5) How do you prefer parties cite to facts and exhibits in the summary

judgment brief or memorandum? For example, should parties cite only

to the statement of facts or also to the specific supporting material? .................. 15

(6) How do you prefer parties to respond to Rule 9A(b)(5) statements that

do not comply with the rule? For example, do you prefer motions to

strike or objections in the response or something else? ............................................. 15

(7) When, if ever, do you permit surreplies? If you permit them, do you place

any limitations on them? ......................................................................................................... 16

(8) Do you impose specific time limits for argument at a hearing? ............................... 17

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(9) Do you have any policy or preference with respect to having multiple

attorneys argue on behalf of a single party during a hearing? ................................. 17

(10) Do you have any policy or preference with respect to associates handling

just part of a hearing on a motion? ..................................................................................... 18

(11) Do you allow/require supplemental briefing after a hearing? If so, under

what circumstances? ................................................................................................................. 19

(12) When do you prefer Daubert-Lanigan motions be brought? ................................... 19

(13) Under what circumstances do you permit an evidentiary hearing in

connection with a Daubert-Lanigan motion? .................................................................. 20

(14) Do you have any preferred practices for parties’ seeking preliminary

injunctions or any other preliminary relief? In what circumstances, if any,

will you grant preliminary relief ex parte? ......................................................................... 20

(15) During the ongoing pandemic, are you conducting hearings on

dispositive motions via videoconference or in the courtroom? Will that

change post-pandemic? Will you entertain joint requests made by the

parties to hold a hearing via videoconference or in the courtroom? ..................... 22

(16) Do you have any other tips or preferences for preparing and filing

motion papers? 23

(17) Do you have any other tips or preferences for motion hearings? ........................... 25

E. Pretrial ...................................................................................................................................................... 26

(1) After the initial case management conference, do you generally schedule

any further conferences (e.g., status conference near or shortly after the

close of fact discovery)? ........................................................................................................... 26

(2) When do you typically schedule the final pretrial conference? ................................ 26

(3) At what point in the process do you set the trial date? ............................................... 27

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(4) What information do you require parties to provide at pretrial

conferences? Do you have a form or order regarding filings for the

pretrial conference? What degree of evidentiary detail do you prefer or

require in the pretrial memorandum? ................................................................................ 27

(5) Do you follow the standard pretrial schedule form or do you have a

different preference or practice for pretrial scheduling? How far ahead of

trial will you schedule motions in limine and request the submission of

jury instructions, exhibit lists, verdict forms, and other pretrial items? .................. 28

(6) Do you typically encourage the parties to pursue ADR? If you do so,

when and how do you typically do it? ............................................................................... 30

(7) Typically, will you stay proceedings if the parties pursue ADR? ............................... 30

(8) Do you have any other tips or preferences for pretrial practice? ............................. 31

F. Trials .......................................................................................................................................................... 32

(1) During the ongoing pandemic, are you holding any type of trial or any

aspect of trial via videoconference (e.g., out-of-state witness)? Do you

expect that to change post-pandemic? ............................................................................. 32

(2) Do you typically schedule full-day or half-day trials? Does the schedule

differ between jury and bench trials? ................................................................................. 32

(3) Do you set time limits for trials? If so, under what circumstances and

what are they? ............................................................................................................................. 33

(4) In general, how do you conduct jury voir dire? Do you allow counsel to

ask questions on voir dire? ..................................................................................................... 33

(5) Do you have a process for the sequence in which counsel exercise

peremptory challenges? .......................................................................................................... 35

(6) Do you exclude witnesses or exhibits that are not listed in the pretrial

memorandum, either sua sponte or by motion of the party? ................................... 36

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(7) Do you strictly limit the scope of expert testimony at trial to matters

explicitly disclosed in expert reports, either sua sponte or by motion of

the party, or do you permit an expert to testify on matters related to but

not specifically described in the reports? .......................................................................... 36

(8) What do you prefer that attorneys include or not include in proposed

jury instructions? ........................................................................................................................ 37

(9) What process do you use in charging the jury? ............................................................. 38

(10) Do you allow jurors to take notes during trial? .............................................................. 39

(11) Do you permit parties to provide jurors with notebooks of exhibits?.................... 39

(12) Do you allow jurors to submit questions during the presentation of

evidence at trial? 40

(13) Do you allow the parties to determine the technology they want to use

during trials? What happens when counsel cannot agree? ........................................ 40

(14) Do you have any other tips or preferences for lawyers trying BLS cases? ............ 40

G. Miscellaneous ........................................................................................................................................ 42

(1) Are there any other matters with regard to practice or procedure in your

courtroom about which you would like to advise the attorneys who

appear before you? ................................................................................................................... 42

(2) Are there common deficiencies in practice that you regularly observe on

which you would like to comment? .................................................................................... 43

(3) Are there any other orders, policies, or practices that you follow about

which you would like to advise the members of the bar? If so, please

attach copies to your response. ............................................................................................ 44

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A. Acceptance Into BLS

(1) What factors are relevant to your decision whether to accept a case into the BLS? Are

there types of cases you generally do not accept in the BLS?

Salinger, J.: The BLS Administrative Justice (currently me) decides whether to

accept a case into the BLS. The process and standards for accepting a case are

governed by Superior Court Administrative Directive No. 17-1.

When considering a requested for a case to be filed in or moved to the BLS, I

rely on the BLS cover sheet (when a plaintiff seeks to have a case accepted into

the BLS) or motion to transfer (when another party asks that a case by moved

to the BLS), and also look at the complaint and docket.

I will accept a case if the party or parties asking to be in the BLS show that the

action falls within one of the categories listed in AD 17-1, raises complex issues

with something substantial at stake, and either will benefit from the case

management and attention that BLS judges are able to provide or will raise

issues that are often addressed in the BLS but arise much less frequently in

other sessions.

I will reject a request for a case to be assigned to the BLS if the matter appears

to be a relatively simple dispute that does not require unusual attention from

the session judge, or primarily concerns issues that are not related to the sorts

of business disputes that this session handles.

Cases that were originally assigned to other Suffolk County civil sessions or

were originally filed in other counties may be transferred to the BLS. For

transfers, either venue must be proper in Suffolk County or any venue objection

must be waived. AD-17 provides that parties may waive a venue objection

either expressly or by not objecting on venue grounds when a transfer is

sought.

(2) What factors do you consider when transferring a case from a general session to the BLS

sua sponte?

Salinger, J.: I apply the same factors in considering whether a sua sponte transfer

to the BLS is appropriate. In addition, if a case in the BLS is closely related to

https://www.mass.gov/superior-court-rules/superior-court-administrative-directive-

no-17-1-superior-court-business-litigation-sessions#acceptance-into-the-bls .

BLS Bench Notes – April 2022

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one pending in another session, it may make a lot of sense to transfer the other

case to the BLS so that they can be managed in the same session.

B. Case Management and General Issues

(1) Do you use a customized Rule 16 case management conference notice or the standard

notice to appear? What, if anything, do you instruct the parties to file in connection with a

Rule 16 case management conference beyond what is in the standard notice to appear?

Salinger, J.: No. The standard notice has been working for me.

Krupp, J.: I use the standard notice.

Kazanjian, J.: The standard notice is fine.

Ricciuti, J.: The standard notice is fine thus far.

(2) Do you have any requirements or preferences for who must appear for the case

management conference? If so, what are they?

Salinger, J.: A lawyer appearing at a case management conference must have the

authority and all information needed to agree on a case schedule and any other

case management issues that need to be resolved.

Krupp, J.: No, but the lawyer appearing must have authority to address all issues

that may come up during the Rule 16 conference.

Kazanjian, J.: The lawyer who appears before me must have the authority to

handle any issue that may come up.

Ricciuti, J.: Same as my colleagues.

(3) Do you have any requirements or preferences for setting tracking order deadlines?

If so, what are they?

Salinger, J.: In a typical case, I aim to set deadlines for completing all fact

discovery, expert disclosures (if needed) and expert depositions (if appropriate),

and a date for a further scheduling conference to discuss what comes next. I will

set additional or more detailed deadlines if doing so will help the parties move

the case along.

Krupp, J.: I aim to set a schedule that will work for all parties given their other

commitments, but that will not have to be extended. The parties should think

about and propose dates assuming that the dates will not be extended for

convenience. At an initial Rule 16 conference, I will set dates for the close of fact

discovery and for another Rule 16 conference 30-60 days before the close of

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fact discovery. I may set other interim dates depending on the needs of the

case. At a Rule 16 conference towards the end of discovery, I will set dates for

Rule 56 briefing, if applicable; a final pretrial conference; and sometimes trial,

particularly in multi-party cases or cases requiring the coordination of many

lawyers, the availability of expert witnesses, speedy trial rights, or other

extenuating circumstances.

Kazanjian, J.: I generally seek to schedule deadlines for fact and expert discovery.

I will set Rule 56 deadlines only when there is a real likelihood that Rule 56

motions are going to be filed.

Ricciuti, J.: I generally set separate deadlines for completing fact and expert

discovery, and typically set interim status dates when they are helpful. I will alter

these practices at the parties’ request – preferably their joint request –

to facilitate efficiency.

(4) During the ongoing pandemic, are you conducting Rule 16 conferences via

videoconference or in the courtroom? Will that change post-pandemic?

Salinger, J.: I think that Rule 16 conferences work well by video conference. I have

conducted them that way since the Spring of 2020, expect to keep doing so.

Krupp, J.: Mostly by videoconference. I do not plan to have an across-the-board

rule after the pandemic. An initial Rule 16 conference is usually perfect for using

a videoconference. A Rule 16 conference held well into the case may be better

in person. There are situations where it is clear to me that the parties are not

conferring sufficiently before filing motions or are not getting along. In those

instances, I am more inclined to see the parties in person. For case-specific or

personal reasons, the lawyers may ask that a Rule 16 conference be held in

person or by videoconference. Absent a good reason, I am likely to agree to

such requests.

Kazanjian, J.: I have a strong preference for in-person hearings. I will consider

conducting Rule 16 conference by videoconference if requested. However, in

order to conduct a hearing by videoconference, the attorneys need to have

adequate technology that allows the court to see and hear counsel during the

conference. The attorneys must also have adequate familiarity with operating

the technology and must present in a professional manner as if we are in court.

I will not conduct hearings of any kind by telephone only.

Ricciuti, J.: I strongly prefer in-person hearings, even for Rule 16 conferences. I

will consider conducting Rule 16 conference by videoconference if requested in

advance, but will in any event expect the lawyers to have had meaningful

discussions in preparation for the hearing.

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(5) Do you ever phase or bifurcate discovery? If so, when and how?

Salinger, J.: Yes. Sometimes all parties agree on phasing discovery. In other cases

a party may convince me that is the most efficient way to proceed. If early

resolution of a key issue will significantly streamline a case or facilitate

settlement talks, discovery about that issue can readily be separated from other

discovery, and doing so will not unduly delay resolution of the dispute if full

discovery ends up being needed, then phasing of discovery makes good sense.

Krupp, J.: Yes. Bifurcation of discovery makes sense to contain costs and allow the

parties to focus their efforts on a single issue that could substantially narrow or

resolve the case.

Kazanjian, J.: I consider bifurcation of discovery as an excellent way to contain

costs and narrow the issues.

Ricciuti, J.: Same as Judge Salinger.

(6) Are there situations under which you do not grant a motion for a confidentiality order or

to file papers under seal, even if the parties agree? Do you have any specific requirements

for granting confidentiality orders and/or motions to file papers under seal?

Salinger, J.: Agreement of the parties is never sufficient to justify impounding

documents filed in court.

I will always deny a motion to impound something

based solely on the parties’ agreement that they want to keep something

secret. Under Massachusetts law, I may impound a document only if a party

shows there is good cause to do so.

Necessary Showing

. A party seeking impoundment must explain the nature of

the information they seek to protect and why the private interest in keeping

that information confidential outweighs the strong public interest in being able

to access judicial records.

It is not enough merely to assert that the party keeps

See Mass. R. Impound. Proc. 7(a) (agreement of the parties “shall not, in itself, be

sufficient to constitute good cause” for impoundment). The impoundment rules are

available at https://www.mass.gov/trial-court-rules/trial-court-rule-viii-uniform-rules-

on-impoundment-procedure .

See, e.g.,

Boston Private Wealth LLC

Cummings

, “Memorandum and Order Requiring

Further Showing in Support of Request for Impoundment as well as Redacted Copy of

Brief,” Suffolk Sup. Ct. civ. action no. 1584CV01532-BLS (Mass. Super. Feb. 2, 2016)

(Salinger, J.). This decision is available through the Social Law Library’s Business

Litigation Session research database.

BLS Bench Notes – April 2022

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the information secret; counsel should describe the nature of the information so

that the judge will understand why maintaining confidentiality is important. If a

motion to impound does not attempt to make this showing, I will deny it

without prejudice and give the parties a second chance.

Redacted Versions.

Where only part of a document is subject to impoundment,

you should submit a redacted version that will be available to the public.

Hearing, or No Hearing.

The general rule is that judges must hold a hearing on

a motion to impound. But no hearing is required if “the reason for

impoundment is to protect trade secrets or other confidential research,

development, or business information.”

This exception applies almost every

time a motion to impound is filed in the BLS. When it does apply, it is a helpful

to note in an impoundment motion that no hearing is required because the

request falls within the scope of this exception.

Impoundment vs. Sealing

. Finally, parties that want to limit public access to a

document filed in a Massachusetts state court should seek “impoundment”

rather than to have the materials accepted “under seal.” The Supreme Judicial

Court says that although these terms are “closely related and often used

interchangeably,” they are in fact “meaningfully different.”

When documents

are “impounded,” they are kept separate from the rest of the case file and are

not available for public inspection, but they may be viewed by the parties. In

contrast, “[a] document is normally ordered ‘sealed’ when it is intended that

only the court have access to the document, unless the court specifically orders

limited disclosure.”

And the SJC has suggested that judges should be more

hesitant to seal documents than to impound part of a case file.

So, unless a

party is trying to keep other parties from seeing something filed with the court,

they should request “impoundment” rather than “sealing,” and make sure they

comply with the Uniform Rules on Impoundment Procedure.

Krupp, J.: I generally allow motions for entry of a confidentiality order to govern

discovery, although I look at the proposed orders carefully to see whether they

purport to impose obligations on the court, or unduly authorize disclosures

under an “attorneys’ eyes only” designation. See Formal Guidance of the

Mass. R. Impound. Proc. 7(e).

See

Pixley

Commonwealth

, 453 Mass. 827, 836 n.12 (2009); accord

Commonwealth

George W. Prescott Pub. Co., LLC

, 463 Mass. 258, 262 n.7 (2012).

See

Commonwealth

Pon

, 469 Mass. 296, 312 n.23 (2014).

BLS Bench Notes – April 2022

Page 6

Business Litigation Sessions Regarding Confidentiality Agreements (Jan. 2,

2008).

As a practical matter, it is difficult for me to assess whether a particular

document or information is confidential without adequate explanation from

counsel. The parties should not assume that motions to impound, even if

unopposed, will be granted absent an adequate explanation.

Kazanjian, J.: I agree with Judge Salinger on motions to impound or seal. I am

likely to allow a motion for the entry of a confidentiality order if the parties

agree and it does not contradict or violate the laws/rules regarding

impoundment and sealing.

Ricciuti, J.: Same as Judge Salinger.

(7) What is your preference with regard to courtesy copies of pleadings, motions, and

memoranda?

Salinger, J.: I have one answer for electronically-filed documents, and a different

one for filings made in paper form.

The BLS judges recently issued a Formal Guidance, available on our website,

that asks for courtesy copies of any electronically-filed papers that need

immediate attention, electronically-filed memoranda longer than twenty pages,

and electronically-filed papers with exhibits or attachments that exceed twenty

pages in total. It explains that both paper and digital courtesy copies of these

categories of electronically-filed documents are useful.

Courtesy copies should be clearly marked as courtesy copies.

When documents are filed in paper form, I do not need courtesy paper copies.

Courtesy electronic copies of voluminous exhibits that were filed in paper form,

either on storage device or through accessible cloud storage, are very helpful.

Krupp, J.: Please see Formal Guidance. I do not need a courtesy copy of

documents filed in paper form. If a courtesy copy is filed, it should be clearly

marked as a courtesy copy.

Kazanjian, J.: Please see Formal Guidance. I also do not need a courtesy copy of

documents filed in paper form.

All BLS Formal Guidance documents are available at https://www.mass.gov/lists/

superior-court-business-litigation-session-procedural-orders-and-formal-guidance .

All BLS Formal Guidance documents are available at https://www.mass.gov/lists/

superior-court-business-litigation-session-procedural-orders-and-formal-guidance .

BLS Bench Notes – April 2022

Page 7

Ricciuti, J.: Please see Formal Guidance. I welcome courtesy copies, and request

that they be clearly marked as such and delivered as promptly as possible.

Please also alert the courtroom clerk that courtesy copies are coming.

(8) Do you have any other case management tips or preferences for BLS cases?

Salinger, J.: Do not hesitate to ask the session clerk (after speaking with opposing

counsel, of course) to schedule a case management conference if one would be

helpful. We aim to have an initial scheduling conference soon after a case is

filed in or transferred to the BLS. If the case needs immediate attention, or if

several months go by and no Rule 16 conference has been scheduled, ask the

clerk for help. And if something arises in the middle of a case that can most

efficiently be resolved through a conference without formal motion practice, let

me clerk know and will schedule a time to meet on the record.

I agree with Judges Krupp and Kazanjian on the importance of conferring with

other parties before presenting an issue to the court.

Krupp, J.: The key to an effective Rule 16 conference is communication between

counsel in advance. It is usually obvious to the court when the parties have

conferred in an effort to agree to a workable schedule and when they have not.

We try to be flexible and available. If you think your case could benefit from a

conference with the court, please contact the session clerk and we will likely

schedule a conference. In BLS, we have the flexibility to see the parties quickly

on disputed matters. Often a status conference can save the parties hours of

work on motions and cross-motions.

Kazanjian, J.: It is very important that the parties confer before presenting the

issues to the court. If I do not feel that you have made a good faith effort to

resolve an issue, I may require further consultation.

Ricciuti, J.: See above; I agree with all of my colleagues’ views.

BLS Bench Notes – April 2022

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C. Discovery

1. General

(1) Do you generally permit extensions of the tracking order when the parties jointly request

an extension? If so, under what circumstances do you not permit an agreed-upon

extension of a tracking order?

Salinger, J.: I will generally allow requests to modify a tracking order where the

parties have a good reason for seeking the change, the revision seems

reasonable, and it will not require any change in a trial date. It is always easier

for me to allow a joint request than one that is bitterly opposed.

Krupp, J.: I try to set an initial schedule that will not require an extension. I will

grant extensions for good cause. I am less inclined to grant an extension that

appears to be based on a lack of diligence by a party or counsel.

Once trial dates are set in the BLS, the time is held for the particular case and, at

least close to trial, it is difficult to find another case that can be slotted in for

trial. I rarely allow motions to reschedule trials, particularly when they are filed

close to the trial date. I will only continue a trial for very good cause.

Kazanjian, J.: I will generally allow joint motions for extensions of tracking orders

with a showing of good cause but there must be a specific reason stated in the

motion that warrants the extension.

Ricciuti, J.: I will often reject requests, even joint requests, that follow closely on

the heels of a prior request, especially if it recites the same reasons. I will allow

properly-grounded joint requests, and if in doubt, will hold a hearing.

(2) Do you generally grant permission to parties to serve in excess of thirty interrogatories? If

not, under what circumstances do you grant permission?

Salinger, J.: I do not recall anyone ever asking for more than thirty interrogatories.

And I’m not sure why doing so would ever be a good idea.

Krupp, J.: Only if a good reason is shown.

Kazanjian, J.: I suppose I might allow such a motion but only in very rare

circumstances.

Ricciuti, J.: Generally no, but I will hear a party who asks.

BLS Bench Notes – April 2022

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2. Electronically Stored Information

(1) Do you require parties to confer regarding a plan addressing discovery of electronically

stored information?

Salinger, J.: Yes, absolutely. The parties should confer and agree how to make the

discovery process work for all concerned.

Krupp, J.: Yes.

Kazanjian, J.: Yes.

Ricciuti, J.: Absolutely.

(2) Do you have a standard order or established guidelines for the discovery of electronically

stored information and/or for specific aspects of the list set forth in Rule 26(f)(3)? Do you

generally include anything in addition to the list set forth in Rule 26(f)(3)?

Salinger, J.: I do not have a standard order or guidelines for discovery of

electronically stored information. Parties have generally been able to agree

upon the standards and parameters that make sense for that case.

Krupp, J.: No.

Kazanjian, J.: No.

Ricciuti, J.: No.

(3) What do you consider in issuing an order for allocating expenses for discovery of

electronically stored information?

Salinger, J.: Fundamental fairness.

Krupp, J.: I have rarely been presented with the issue.

Kazanjian, J.: I would consider the breadth of the request and the burden it would

imposed on the responding party. I would also consider proportionality issues,

such as the cost to respond to the request versus the amount in dispute.

Ricciuti, J.: Same as Judges Salinger and Kazanjian.

3. Expert Discovery

(1) Do you require plaintiffs to disclose their expert reports before defendants do, or do you

require the parties to make the disclosures simultaneously?

BLS Bench Notes – April 2022

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(2) How detailed do you require expert disclosures to be?

Salinger, J.: Detailed enough to give the opposing parties fair notice of the

subject matter on which any expert is expected to testify at trial, the substance

of their expected opinions and other testimony, the grounds for each of the

expert’s opinions, and the nature and basis for the witness’s expertise. There

should be no surprises about the scope of an expert’s testimony.

Krupp, J.: Expert disclosures should describe in detail the expert’s qualifications,

opinions and bases for those opinions. Any party calling an expert must

understand that opinions and the bases for those opinions that are not fairly

disclosed in the expert disclosures, including the expert’s report(s), are likely to

be excluded at trial.

Kazanjian, J.: Expert disclosures must describe the expert’s opinion in sufficient

detail to give the opposing party fair notice of the opinion and the basis for the

opinion, and a fair opportunity to cross-examine. I will exclude testimony that

goes beyond a fair reading of the substance of the disclosure if I feel that the

opposing party is prejudiced.

Ricciuti, J.: I generally follow the same approach as in medical malpractice cases –

that if the disclosure did not give adequate notice of the subject matter on

which any expert is expected to testify at trial, the substance of their expected

opinions and other testimony, the grounds for each of the expert’s opinions,

and the nature and basis for the witness’s expertise, it is subject to exclusion.

(3) Do you usually permit expert depositions? What are your considerations in determining

whether an expert may be deposed?

Salinger, J.: Parties usually reach agreement as to whether they want to depose

expert witnesses. If there is a dispute, the party seeking to depose an expert

must show that doing so is needed to obtain information to cross-examine the

expert and will likely streamline the presentation of the case at trial.

Krupp, J.: The parties can, and often do, agree to expert depositions. Obviously, a

potentially unavailable expert may be deposed to preserve the expert’s

testimony at trial. Expert depositions are also useful if the expert disclosures are

ambiguous or not comprehensive, to mitigate prejudice if the expert is

disclosed late, where the proposed expert testimony is novel, if there is a

meaningful challenge to an expert’s qualifications, or when a deposition may

help to resolve the case.

Kazanjian, J.: My hope is that the parties can reach agreement about whether

expert depositions would be warranted either to clarify issues or preserve

BLS Bench Notes – April 2022

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testimony. I am not opposed to ordering expert depositions if it would serve to

narrow or expedite issues.

Ricciuti, J.: Same as Judge Salinger, although I expect the showing to be made in

the event of dispute to be convincing as to why the disclosure is inadequate.

4. Discovery Disputes

(1) Do you ordinarily hold hearings on discovery motions? If so, under what circumstances do

you decide discovery motions without a hearing? If not, under what circumstances do you

hold a hearing?

Salinger, J.: Yes, I usually hold a hearing on discovery motions. But from time to

time the issues are clear enough on the papers that a hearing does not seem

useful.

Krupp, J.: About half the time I hold hearings on discovery motions. I am more

likely to hold a hearing where there are multiple issues, the issues appear

particularly complex, where I perceive that the parties have not adequately

conferred about the issue, or where it appears the lawyers’ relationship is

interfering with their ability to resolve the discovery dispute.

Kazanjian, J.: Yes. I usually hold a hearing on discovery motions. In my experience,

it is rare that the issues can be decided on the papers.

Ricciuti, J.: In almost all cases I will hold a hearing, as I think prompt and ongoing

attention to discovery disputes is critical to achieving efficiency.

(2) Under what circumstances, if any, have you imposed, or are you likely to impose,

sanctions in discovery disputes? What form have these sanctions taken?

Salinger, J.: Routine disputes about the scope of discovery do not justify a request

for sanctions. But I have sanctioned parties for deliberate destruction or

attempted destruction of relevant evidence. For example, I dismissed the

counterclaims of a defendant that intentionally destroyed important financial

records, and ordered a different party that tried to delete electronic files after

litigation began to pay all costs incurred to the files.

Krupp, J.: Sanctions are appropriate for failure to abide by a prior court order, or

for conduct during discovery for which there is no good faith basis (e.g.

interposing obstacles to discovery of clearly discoverable evidence; behavior

that disrupts a deposition; failing to prepare a Rule 30(b)(6) witness so that the

Rule 30(b)(6) deposition is a waste of time, etc.). Sanctions most often include

the attorneys’ fees and costs of the injured party, but I have also dismissed

BLS Bench Notes – April 2022

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cases, and substantially curtailed arguments that could be advanced at trial, as

sanctions in appropriate situations.

Kazanjian, J.: I do not think sanctions are appropriate in the ordinary discovery

dispute. It would require something more egregious in my view, such as failing

to follow a court order, or intentionally destroying or hiding information.

Sanctions might be warranted for repeated violations of discovery rules.

Ricciuti, J.: I look closely at the facts and law and will assess sanctions – typically

attorney’s fees under a lodestar analysis and costs – in cases where, for

example, a court order was flouted or the non-compliant party’s position was

not substantially justified or otherwise caused an injustice. I will consider more

serious sanctions as the circumstances warrant.

(3) What level of detail do you require or prefer for parties’ statements pursuant to Superior

Court Rule 30A(3)(c) regarding the scope of the search for responsive documents? Are

there occasions in which you have ordered a party to serve a revised statement?

Salinger, J.: Parties need to document all the physical and electronic locations

where responsive documents might be found, and either certify that they have

all been searched or explaining which have not been searched and why. Parties

can usually resolve disputes over the adequacy of a Rule 30A(3)(c) statement.

Krupp, J.: I have rarely been presented with the issue.

Kazanjian, J.: It depends largely on the circumstances and the complexity of the

production. The responding party should provide enough detail and specificity

for opposing counsel to evaluate whether the responding party has adequately

complied with its obligations.

Ricciuti, J.: In the few instances where this issue has arisen, I have strongly

encouraged the parties to confer and have issued detailed orders to eliminate

ambiguity in the absence of agreement.

(4) How do you address emergency calls during depositions? How do you prefer parties to

handle disputes that arise during a deposition?

Salinger, J.: It is best for the parties to work cooperatively to resolve disputes

about the scope and conduct of a deposition, ideally well before the deposition.

If court assistance is needed to get a deposition completed, the parties should

finish what they can, suspend the deposition, and then serve and file an

appropriate motion or request a court conference. An emergency call to the

court in the middle of a deposition would only be appropriate if it would not be

possible to suspend the deposition and restart it after a court ruling.

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Krupp, J.: I have rarely been presented with the issue. In almost all instances, the

deposition can be halted, a transcript prepared, and the issue presented to the

court by motion under Superior Court Rule 9A. If a party believes an emergency

call to the court is necessary, they may contact the session clerk to schedule an

emergency hearing.

Kazanjian, J.: This should be a rare occurrence. The parties should be able to work

cooperatively to resolve disputes during depositions. If there is an emergency,

the parties should contact the clerk to see if a judge is available.

Ricciuti, J.: I have arranged to be available for such calls ahead of time when I am

aware of the potential issue. Otherwise, the parties should finish the rest of the

deposition and suspend only on the disputed issues, and the party seeking the

testimony should promptly comply with Rules 9A and 9C and bring the matter

to my attention. I strongly discourage delay under such circumstances.

D. Motion Practice.

(1) Do you have any policy or practice regarding granting motions for leave to file

memoranda in excess of the specified page lengths?

Salinger, J.: Though I generally grant requests for a reasonable number of extra

pages, my colleagues’ responses suggest that I should stop being so generous

in allowing extra-long memoranda. Many lengthy legal memoranda would be

more effective if they were pared down to their essence.

Krupp, J.: I disfavor motions for additional pages. I will grant them in particularly

complicated cases where a good reason is shown.

Kazanjian, J.: I rarely allow such motions. If a party feels the need to file additional

pages, they should move to do so before serving or filing the memorandum.

I will allow the motion only if there is a specific reason why additional pages are

necessary. I encourage parties to be concise and focused in their written filings.

Ricciuti, J.: I disfavor such requests and require a showing of good cause. I will

generally not grant joint requests simply because the parties agree, as I find the

discipline of page limitations is often critical to reducing memoranda to the

crucial points.

(2) Do you ordinarily hold hearings on dispositive motions? If so, under what circumstances

do you decide motions without a hearing? If not, under what circumstances do you hold a

hearing?

Salinger, J.: I always have hearings on contested dispositive motions in BLS cases.

BLS Bench Notes – April 2022

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Krupp, J.: I hold hearings on motions that carry a presumptive right to a hearing

under Superior Court Rule 9A(c)(3), unless the motion is assented-to or

unopposed.

Kazanjian, J.: I always have hearings on dispositive motions.

Ricciuti, J.: Always unless the motion is unopposed.

(3) Are you willing to stay discovery during the pendency of a motion to dismiss? If so, what

factors do you consider?

Salinger, J.: If a motion to dismiss may well dispose of the case, I will generally

allow a motion to stay discovery until I can decide the motion to dismiss. A

plaintiff would have to make a strong showing of unfair prejudice to convince

me not to stay discovery for a short time until I can decide whether the case will

survive the motion to dismiss.

Krupp, J.: Whether to stay discovery depends on the reasons for and the strength

of the motion to dismiss, how long I think it will take me to decide the

potentially dispositive motion, the nature of the dispute, the potentially fleeting

nature of the information sought to be discovered, and the burden of discovery.

In appropriate cases, I will stay discovery, or allow only certain discovery to

proceed, pending a Rule 12 motion.

Kazanjian, J.: I am willing to stay discovery pending a ruling on a Rule 12 motion.

Ricciuti, J.: I will look closely at the facts to determine whether a stay will promote

efficiency and fairness, and do not automatically grant such requests.

(4) Do you generally allow parties to file partially dispositive motions? What factors do you

consider most important in deciding?

Salinger, J.: Partially dispositive motions make good sense when, if allowed, they

would materially narrow the scope of discovery, facilitate settlement

discussions, or simplify any trial. In my experience, counsel who seek leave to

file a partially dispositive motion usually present good reasons for doing so,

and therefore I generally allow those requests.

Krupp, J.: In my experience, the bar seems to understand the concerns addressed

in the Procedural Order of the Business Litigation Session Regarding Partially

Dispositive Motions (Mar. 1, 2019). As a result, I have allowed most requests.

Kazanjian, J.: I would generally allow the filing of motions for partial summary

judgment. It is my view that a motion for partial summary judgment can help

narrow the issues and facilitate settlement.

BLS Bench Notes – April 2022

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Ricciuti, J.: Same as Judge Salinger.

(5) How do you prefer parties cite to facts and exhibits in the summary judgment brief or

memorandum? For example, should parties cite only to the statement of facts or also to

the specific supporting material?

Salinger, J.: Each time a motion or memorandum refers to part of the record, the

reference should include the exhibit number and a specific page and (where

appropriate) section reference, so that I can immediately turn to the supporting

evidence. Citations to deposition transcripts are more helpful when they point

me to specific line numbers. I like to see this in all memoranda that refer to

supporting exhibits or affidavits, not just in summary judgment briefs. A

memorandum supporting or opposing a motion for summary judgment should

cite to the statement of facts to show that something is not in dispute or is

hotly contested. But I would like to see a direct and specific cite to the

supporting record evidence as well.

Krupp, J.: When reading a memorandum, I want to be able to find the key factual

support for a statement as quickly and easily as possible. This is not a one size

fits all answer. In some cases, the parties might number each page of the record

appendix and cite to the page number (e.g. RA 37). Sometimes, for context, it is

helpful in the memorandum for the reader to know that the authority isn’t just

at some page in the record appendix, but that it comes from an opposing

party’s own deposition (e.g. Ex. 17 - Def. Dep. 72:12). The citation form that you

choose should be clearly explained and easily decipherable. I read the

statement of material facts to get a picture of the nature of the case and the

parties’ disputes, and I refer to it later to access the record while I am writing. In

the brief or memorandum, I find that clear citation to the record is more helpful.

Kazanjian, J.: I agree with Judges Salinger and Krupp.

Ricciuti, J.: I expect the memos will make clear the precise location of the relevant

evidence. Often a citation to the statement of facts makes this clear, but if it

does not, the memo should precisely identify the location of the relevant

evidence (e.g., exhibit number and page).

(6) How do you prefer parties to respond to Rule 9A(b)(5) statements that do not comply with

the rule? For example, do you prefer motions to strike or objections in the response or

something else?

Salinger, J.: If a non-moving party disputes a material fact without citing contrary

evidence, or cites evidence that does not actually create a factual dispute, the

BLS Bench Notes – April 2022

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moving party should point that out in their reply brief. I will deem those facts to

be admitted for the purposes of the summary judgment motion. A motion to

strike is generally not necessary.

Other violations of Rule 9A(b)(5)—like inserting commentary about relevance or

materiality, or trying to characterize a written document—undermine the

credibility of the violator.

Also, remember that creating a Rule 9A(b)(5) statement of material facts is an

act of advocacy, not an exercise in creating a voluminous and sterile record.

Leave out all the immaterial background facts and focus on what matters for

the purpose of the summary judgment motions.

Krupp, J.: When objections to a party’s non-compliance with Rule 9A(b)(5) appear

in the statement of undisputed facts, it is distracting, usually quite repetitive,

and makes it difficult to read and effectively use the statement of undisputed

facts. I prefer a failure to comply with Rule 9A(b)(5) to be first discussed

between the parties and, if it cannot be resolved by agreement, then a motion

should be filed. The motion, of course, must demonstrate compliance with

Superior Court Rule 9C, so conferring about a party’s non-compliance with Rule

9A(b)(5) is necessary. Such a conference should occur as soon as the non-

compliance is recognized to give the non-complying party an opportunity to

bring their papers into compliance.

Kazanjian, J.: I am not in favor of motions to strike. The parties should work

together prior to filing the motion at producing a Rule 9A(b)(5) statement of

facts. If they cannot resolve the issues, than the parties should point out the

deficiencies in their memoranda and ask the court to either disregard certain

facts or deem certain facts admitted. I will make the appropriate rulings based

on those arguments.

Ricciuti, J.: I agree with Judge Salinger, but in egregious cases, would prefer a

motion to strike and would be inclined to allow such motions where the

purpose of Rule 56 is undermined.

(7) When, if ever, do you permit surreplies? If you permit them, do you place any limitations

on them?

Salinger, J.: Rarely. The few times I have allowed a surreply it was to respond to an

important point or significant authority raised for the first time in a reply

memorandum, and limited to just a few pages.

Krupp, J.: Surreplies may be useful to address a point raised for the first time in a

reply, but I rarely allow many pages for a surreply. When faced with a new

argument in a reply brief, the party opposing a motion should think about

BLS Bench Notes – April 2022

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whether the new argument really requires a surreply or whether it may be

reasonably addressed at the time of argument.

Kazanjian, J.: I only allow very short surreplies when there is a new issue raised in

a reply.

Ricciuti, J.: Same as Judge Krupp, but I would prefer to see the response to a new

issue in a short writing rather than hear it for the first time at argument.

(8) Do you impose specific time limits for argument at a hearing?

Salinger, J.: I do not set specific time limits for motion hearings, but will ask

questions to focus counsel on the issues that I most need help on. Parties can

expect that I have read and thought about the papers, and focus on the key

reasons why I should rule in their favor. If someone is taking an unreasonable

amount of time to present their client’s arguments, I will let them know.

Krupp, J.: Generally, no. Sometimes I will set a time limit if the press of other

matters requires it. I have also rescheduled arguments, or continued argument

to a second day, if the press of other business does not allow sufficient time to

hear the parties’ on key points.

Kazanjian, J.: I generally do not set time limits. I find the arguments to be useful

and interesting. It is an opportunity for counsel to educate the court about the

case and issues. I welcome that opportunity. I will try to focus counsel on the

key points if their argument is not otherwise focused.

Ricciuti, J.: The parties should expect that I have reviewed the filings and often the

critical statutes and cases, and will usually begin hearing with questions I have

developed from the filings or relevant law. On occasion, however, I have given

the parties a time limit – often 15 minutes – not to regurgitate the memos but

to focus on the critical issues. I often ask questions as the argument proceeds.

(9) Do you have any policy or preference with respect to having multiple attorneys argue on

behalf of a single party during a hearing?

Salinger, J.: When different lawyers will address different issues or different

motions, or when a more senior lawyer wants to be able to support a more

junior colleague by adding something important, I am happy to hear from more

than one lawyer representing the same party. But a tag-team approach, where a

second lawyer will try to tag in and add something whenever they think it may

help their client’s cause, is not effective advocacy and should be avoided.

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Krupp, J.: I am fine with multiple attorneys arguing for a single party. When more

than one attorney will argue for a party, it is helpful to me to know from the

beginning of the argument who will address particular points.

Kazanjian, J.: I am fine with multiple attorneys arguing as long each particular

issue is handled by a single attorney. I am not in favor of the tag-team

approach described above by Judge Salinger.

Ricciuti, J.: Same as Judge Salinger. As per the Formal Guidance summarized

below, I strongly encourage younger lawyers to argue and expect the parties to

find opportunities to allow this to occur, such as by splitting up arguments. I will

give younger lawyers more time to argue than senior lawyers.

(10) Do you have any policy or preference with respect to associates handling just part of a

hearing on a motion?

Salinger, J.: The BLS judges strongly supporting letting associates play an active

role in court. We recently issued a Formal Guidance, available on our website,

emphasizing our strong preference that associates be given opportunities to

handle parts or all of motion hearings and other court proceedings. Signed by

all four current BLS judges, this policy statement says:

We welcome and encourage active participation by less senior attorneys in all

court proceedings.

To facilitate this, we will let two or more lawyers handle

different parts of a hearing, give a supervising attorney time to confer with and

provide guidance to a less senior colleague during a court proceeding, and

permit a more senior attorney to add something after a less senior colleague

finishes arguing a motion. The BLS judges will accommodate other reasonable

requests that would allow less experienced counsel to play an active role in a

court proceeding.

Krupp, J.: I am comfortable with – and appreciate! – associates handling any part

of a motion hearing.

Kazanjian, J.: I encourage the participation of associates.

Ricciuti, J.: I strongly encourage younger lawyers to argue and expect the parties

to find opportunities to allow this to occur, such as by splitting up arguments. I

will give younger lawyers more time to argue than senior lawyers.

This is the policy of the entire Superior Court, not just BLS judges. See the Superior

Court Policy Statement Regarding Less Experienced Counsel (Dec. 1, 2017) at:

https://mass.gov/news/superior-court-policy-statement-re-newer-attorneys .

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(11) Do you allow/require supplemental briefing after a hearing? If so, under what

circumstances?

Salinger, J.: If I raise an issue during a motion hearing that no party had

anticipated or addressed, I will let the parties submit short supplemental

briefing limited to that new issue. Otherwise, I rarely welcome yet more briefing

after a hearing. Parties should never submit additional briefing or letters after a

hearing without leave of court.

Krupp, J.: Yes, but only on my request and only if a potentially outcome-

determinative issue was not adequately briefed by the parties.

Kazanjian, J.: I will rarely allow supplemental briefing, and only when there has

been an issue raised that was not covered in the brief’s filed in advance of the

hearing.

Ricciuti, J.: Yes, either at the parties’ request or at my suggestion.

(12) When do you prefer Daubert-Lanigan motions be brought?

Salinger, J.: As early as possible. Some

Lanigan

motions challenge the expertise of

a particular witness and, if allowed, can be cured by hiring a new expert. Such a

motion needs to be resolved early enough that a party could, if need be, find a

new expert. Other

Lanigan

motions, if allowed, could require a party to alter

their trial strategy. It would be unfair for that to be sprung just before trial.

Parties need to identify any

Lanigan

motion in the joint pretrial memorandum

and ask that it be scheduled for a hearing well in advance of trial. The Superior

Court’s “Notice to Appear for Final Pre-Trial Conference” requires this, and says

that “[f]ailure to inform the court in the pre-trial memorandum of a party’s

intent to file a

Daubert-Lanigan

motion may, in the discretion of the court,

constitute a waiver of the motion.”

Krupp, J.:

Daubert

Lanigan

motions should be brought as early as possible so the

logistics of having the motion heard may be addressed.

Daubert-Lanigan

motions usually should be resolved by the trial judge. Judges generally serve in

BLS for six-month assignments, rotating at the end of June and the end of

December. If a trial is scheduled for March, it should not be difficult to schedule

Daubert

Lanigan

motion with the trial judge in January. But if trial is

scheduled for July,

Daubert-Lanigan

may have to be scheduled much earlier, or

arrangements may have to be made to get the matter before the trial judge.

Kazanjian, J.: I concur with Judges Salinger and Krupp on this issue.

BLS Bench Notes – April 2022

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Ricciuti, J.: Same as Judge Salinger, but I find there is often no reason to choose

to leave these motions to the eve of trial, and that they need not necessarily be

heard by the trial judge.

(13) Under what circumstances do you permit an evidentiary hearing in connection with a

Daubert-Lanigan motion?

Salinger, J.: Most

Lanigan

motions in BLS cases do not need an evidentiary

hearing because they are based on the written expert disclosures and do not

turn on any facts that are in dispute. If a party thinks I will need to make

findings of fact in order to decide a

Lanigan

motion, they should explain what

kind of evidentiary hearing is needed in their joint pretrial memorandum and

when we are setting a schedule for filing and hearing the motion.

Krupp, J.: Novel expert opinions on topics that are not routinely presented in

court often require an evidentiary hearing.

Kazanjian, J.: Whenever it is necessary for me to make findings of fact in order to

resolve the issue.

Ricciuti, J.: A hearing is often required or is wise, but generally it need not be

evidentiary, unless a party demonstrates the need for one.

(14) Do you have any preferred practices for parties’ seeking preliminary injunctions or any

other preliminary relief? In what circumstances, if any, will you grant preliminary relief

ex parte?

Salinger, J.: Here are a few thoughts about motions for preliminary relief.

Emergency Filings.

If your client needs the court to act on an emergency basis,

the motion itself should explain the nature of the emergency and the specific

time frame within which a court decision is needed. It is a big help to know

whether a particular emergency needs to be resolved today, two days from

now, or two weeks from now. I have received truly emergency TRO motions in

the morning, held a hearing at 2pm that afternoon, and issued decisions later

that day or first thing the next morning. But sometimes a hearing in a week and

a decision a week later is all your client really needs

Proposed Orders

. Though I do not need a proposed form of order for every

motion, please include a proposed form of order as an attachment to any

motion seeking a preliminary injunction or other complex court order. And

remember that, under Mass. R. Civ. P. 65(d), a preliminary injunction must be

self-contained and may not refer to other documents.

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Ex Parte Relief

. I will almost never grant preliminary relief without giving the

other side a chance to be heard. I am mindful of the constitutional due process

constraints on granting ex parte relief, and the fact that I almost always learn

things from the opposition to such a motion that affect my decision.

Opposition Papers

. Please get them to me in advance if at all possible. If you

are scrambling to pull together a written opposition and supporting affidavit for

a hearing in a day or two, please aim to get me your papers at least an hour

before the start of the hearing.

Evidentiary Hearings.

Parties do not often ask for an evidentiary hearing on a

motion for preliminary relief, because they are able and prefer to present all

necessary evidence through affidavits and exhibits. But if you think you need a

short evidentiary hearing, confer with opposing counsel and then request one

through the session clerk. For example, if a moving party has obtained a very

short order of notice, the opposing party may wish to present 20 minutes of

direct testimony rather than scramble to prepare and file an affidavit. Or, if key

facts are contested, it may be helpful to arrange a short evidentiary hearing

with limited time for each side to present evidence and cross-examine the

opposing witness. Though a judge may resolve factual disputes and make

credibility determinations based on affidavits, there can be real value to giving

the judge a chance to hear from a key witness or two.

Pre-Hearing Discovery.

Sometimes a very short period of focused discovery,

followed by supplemental briefing, is the best way to let the judge make an

informed decision on a motion for preliminary relief.

Krupp, J.: I do not have particular preferred practices. Papers related to

preliminary relief should contain all facts upon which the party wants the court

to rely. Those facts should be presented by affidavit or otherwise in a form the

court may consider. Lawyers should not assume an evidentiary hearing will be

allowed. In addition, memoranda of law should focus on the likelihood of

success on the merits

and

why the harm that will befall the movant without the

injunction will truly be irreparable. Without both, you are unlikely to prevail on a

request for a preliminary injunction. Ex parte injunctive relief will be granted

only if notice is reasonably likely to render the relief unavailable, or if truly

irreparable harm will occur in the interim.

Kazanjian, J.: I will rarely allow ex parte relief. If you are seeking ex parte relief,

you must clearly state how you meet the legal requirements. In all cases, it is

helpful if the moving party is specific about what they are seeking the court to

order. In that regard, I prefer to have a proposed order in advance.

BLS Bench Notes – April 2022

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Ricciuti, J.: Same as Judge Salinger. I have granted ex parte relief in those few

cases where the papers alone demonstrate clearly that it is appropriate under

the facts and law.

(15) During the ongoing pandemic, are you conducting hearings on dispositive motions via

videoconference or in the courtroom? Will that change post-pandemic? Will you entertain

joint requests made by the parties to hold a hearing via videoconference or in the

courtroom?

Salinger, J.: During the pandemic, I have been hearing argument on dispositive

motions by video conference. But there is value to doing so in person. If a party

has a reason to prefer a hearing in person or by video conference, they should

say so and explain why, as early as possible. The BLS judges recently issued a

Formal Guidance, available on the BLS website, that also addresses these issues.

Here are a few tips for appearing in court by video.

o Make sure in advance that you have an adequate internet connection, you

can be heard (I use an external lavalier microphone that plugs into a USB

port on my computer and clips to my robe just out of camera view), and

you can be seen (confirm that your camera is centered on your face and

upper torso, avoid backlighting, and make sure that your face is well lit).

o Look at your camera when speaking, and position your camera so that if

you look at my image or opposing counsel’s image you are looking close to

the camera. It can be distracting if appears that counsel is talking to

someone off camera rather than to their video audience.

o Resist the temptation to read from a script on your screen. Doing so will be

obvious and make your presentation less effective. If you were in a

courtroom for a motion hearing, you would want to be engaged in

conversation with the judge, not reading from a prepared text. Do the same

thing during a video appearance.

o If appearing before me by video conference, you should conduct yourself

and dress the same way that you would if appearing in my courtroom.

Krupp, J.: During the pandemic, I have been holding dispositive motion hearings

in person, by videoconference, and sometimes in hybrid form. I prefer to hear

dispositive motions in person, but I understand that videoconferences mitigate

health risks for those who are particularly vulnerable, save travel costs, and

provide interested parties (e.g., clients, adjusters, associated lawyers, members

of the public, etc.) an opportunity to observe the proceedings. After the

pandemic, I will remain flexible. Lawyers who prefer a hearing in the courtroom

or by videoconference in a particular case should inform the court in their

BLS Bench Notes – April 2022

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request for a hearing and/or should so indicate to the Assistant Clerk assigned

to the session. The request should be made sufficiently in advance so that the

court can decide the issue and other participants can adjust accordingly.

Kazanjian, J.: During the pandemic I did conduct dispositive motion hearings by

videoconference. However, I have a strong preference for in-person hearings

and am not likely to conduct hearings on dispositive motions by

videoconference post-pandemic.

Ricciuti, J.: Same as Judge Kazanjian. My presumption is for live hearings; I will

proceed via videoconference only where justified in advance.

(16) Do you have any other tips or preferences for preparing and filing motion papers?

Salinger, J.: Here are a few other practices that I find to be very helpful. Plus one

that is required by the Superior Court rules but not always followed.

The Motion Itself

. All motions should specify the relief sought, in a form that

would make sense if a judge were to endorse the motion itself as “allowed.” The

judge must be able to tell on the face of the motion what relief the moving

party is seeking; please do not hide this important information in the

supporting memorandum.

All motions should also briefly summarize, in a sentence or two, the key reason

why the motion should be allowed. The summary should be case-specific.

Stating that “this motion for summary judgment should be granted because

undisputed material facts show the defendant is entitled to judgment as a

matter of law” says nothing that judge could not figure out from the title

“motion for summary judgment.” But if a motion says that summary judgment

should be granted because the facts show that all claims are time-barred, or

that the defendant did not owe a duty of care as a matter of law, it will have

done a good job of getting the judge oriented for the details to follow in the

supporting memorandum.

Introductions to Memoranda

. As they say in the newspaper business, don’t bury

your lede. Please include a brief introduction to each memorandum of law,

ideally in a paragraph or two that explains the party’s key arguments—and does

so without merely repeating the motion itself. Just as opening statements at

trial help the jury and judge absorb and understand the evidence to follow, so a

clear opening to a legal memorandum will allow the judge to appreciate the

significance of each point developed thereafter.

Tables of Contents.

Please include tables of contents in any memorandum or

request for findings that exceeds ten pages, and for any tabbed set of exhibits.

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I find tables of contents to be very helpful. In a memorandum they serve as an

additional summary of the party’s key points. In any large document or set of

materials they help me find things quickly when working on a written decision.

Document Title on First Page

If there is no way to make your case caption fit

onto one page, please make sure that the document title still appears on the

first page. It is very hard to work with a set of motion papers that all have an

identical cover page without any visible document title.

Single Sets of Exhibits.

Please coordinate with opposing counsel to ensure that

the court receives only one copy of each exhibit, and that each exhibit number

is used only once. This may mean the parties should coordinate in advance to

prepare and cite to a single set of exhibits (for example, when there are going

to be cross-motions for summary judgment) or that the responding party only

adds exhibits that the moving party has not yet compiled, and identifies any

additional exhibits beginning with the next number or letter in the sequence

used by the moving party.

Page Numbers and Tabs

. Any document longer than one page should have

page numbers. Bates numbers on exhibits can be an effective way to identify

specific parts of a record. Any paper attachments or set of exhibits should have

tabs.

Oppositions

. Though a motion must be supported by a separate memorandum,

an opposition to a motion is a single document (perhaps supported by

affidavits and exhibits). Please do not file an opposition plus a memorandum in

support of the opposition; the opposition itself should be a memorandum that

explains why the motion should not be allowed.

Hyperlinks

. I recently received a thumb-drive with electronic copies of a set of

voluminous exhibits, with a table of contents formatted with clickable links that

would open each exhibit. Other parties have filed legal memoranda or post-trial

requests for findings of fact and rulings of law that contain embedded

hyperlinks to case law, statutes, and exhibits. These kinds of filings can be

expensive and are not appropriate in most cases. But where the nature of the

controversy justifies the cost of producing such a filing, such hyperlinked

electronic filings can be very helpful to the judge.

Rule 9C Conferences

. This Superior Court rule requires that counsel must confer

to narrow areas of disagreement before filing any kind of motion. I expect that

counsel will do so, and ask me to address only those issues that cannot be

resolved despite diligent efforts by all parties.

Finally, I agree with my colleagues and with Cicero.

Krupp, J.: Two small points:

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The aphorism ascribed to many including Cicero – “If I had more time, I would

have written a shorter letter.” – applies equally to legal writing. Even though it

may take more time, trim your writing to only what is necessary. Many a brief

that I receive could benefit from considerable editing. If you can write a

memorandum in 12 pages, do not write it in 20.

Cross-motions that mirror the motion are unnecessary. For example, if a party

files a motion to compel production of certain discovery, it generally is not

necessary to file a cross-motion for a protective order from the same discovery.

Kazanjian, J.: Short, concise and organized is the key.

Ricciuti, J.: I agree with the foregoing. Two further points. First, I am a strong

proponent of Rule 9C and will reject out-of-hand motions that do not comply

with it. Second, do not file competing motions for summary judgement with

separate sets of facts and exhibits. The rule requires cross-motions in such

cases.

(17) Do you have any other tips or preferences for motion hearings?

Salinger, J.: The most helpful oral argument on a substantive motion is a

conversation between the lawyer and the judge, not a prepared lecture

delivered to a passive audience. My goal is to make sure that I understand each

party’s position by the end of the hearing. I will have read and thought about

the motion papers in advance. So get to the point. Make your opening count.

Use the hearing to highlight the key points you need me to focus on, respond

to the opposing party’s best arguments, and answer my questions about things

that are troubling me or that I need to learn more about. And don’t forget to

make clear what your client wants me to do.

Krupp, J.: I prefer to get to the heart of a matter quickly during argument and to

focus on the arguments that matter most to each side’s position. I will often ask

a party if they have a case for the proposition they are arguing, or what case

best supports their position. It is helpful if the lawyers have prepared for such

questions.

Kazanjian, J.: I usually try to focus the hearing on the key issues. I may ask a lot of

question to make sure that I am understanding your arguments. I appreciate

lively (but respectful) debate.

Ricciuti, J.: I usually start with questions based on the filings; rarely do I allow the

parties to simply argue. When I do, I interject with questions and engage in

discussion rather than listening passively to prepared arguments. I agree with

Judge Salinger that good arguments are learned conversations, not soliloquies.

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E. Pretrial

(1) After the initial case management conference, do you generally schedule any further

conferences (e.g., status conference near or shortly after the close of fact discovery)?

Salinger, J.: During the initial case management conference, I typically will

schedule another conference at the point when parties should know whether

they will be seeking summary judgment. Sometimes that is at the end of fact

discovery, and sometimes it comes after expert disclosures are complete.

Krupp, J.: Yes. I will generally set a second Rule 16 conference or status

conference 30-60 days before the end of fact discovery. The circumstances of a

particular case may also warrant other case management conferences before

trial (e.g., after a mediation, a stay of proceedings, an interlocutory appeal, the

addition of a new party, a change in counsel, a material amendment of a

pleading, etc.).

Kazanjian, J.: Yes. It may depend on the case, but I will likely follow Judge Krupp’s

practices in BLS1.

Ricciuti, J.: Same as Judge Salinger. The parties should not hesitate to ask for a

conference when it would be helpful.

(2) When do you typically schedule the final pretrial conference?

Salinger, J.: We want to have the final pretrial conference as soon as all other

pretrial work on the case is complete. If there is not going to be any summary

judgment motion, that should be right after fact and expert discovery is

complete. If one or more parties seek summary judgment, the final pretrial

conference should take place soon after those motions are decided. If your case

is ready for a final pretrial conference that has not yet been scheduled, contact

the session clerk (after speaking with opposing counsel, of course) and ask for

one.

Krupp, J.: The final pretrial conference should be held, and trial scheduled, as

soon as the case is ready for trial. If a summary judgment motion is not definite,

I will sometimes set a final pretrial conference date at the Rule 16 conference,

and will schedule the summary judgment motion to be heard on the date set

for, and either in lieu of or in addition to, the final pretrial conference.

Kazanjian, J.: As soon as discovery is complete and any Rule 56 motions are done.

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Ricciuti, J.: Same as J. Salinger, except that I strongly encourage the parties to

seek final pre-trial conferences if it will facilitate earlier disposition, such as

when scheduled expert discovery is no longer needed.

(3) At what point in the process do you set the trial date?

Salinger, J.: I will usually not set the trial date until discovery is complete and any

summary judgment motions have been decided. In the BLS we give everyone a

firm trial date, and do not schedule multiple trials at the same time. That system

would break down if we give cases trial dates far before we know whether the

case is heading for trial.

Krupp, J.: I usually set the trial date at the final pretrial conference. In cases that

are particularly cumbersome to schedule (e.g., cases that involve many parties,

many out-of-state witnesses, many lawyers, speedy trial act issues, or a number

of difficult-to-schedule expert witnesses, etc.), I will set the trial date at the case

management conference. Often the duration of trial at that stage is a rough

estimate, which must then be refined at the final pretrial conference.

Kazanjian, J.: I will generally set the trial date at the final pretrial conference.

However, sometimes it is helpful to schedule a trial date earlier in the case.

Ricciuti, J.: Same as Judge Salinger.

(4) What information do you require parties to provide at pretrial conferences? Do you have a

form or order regarding filings for the pretrial conference? What degree of evidentiary

detail do you prefer or require in the pretrial memorandum?

Salinger, J.: I use the standard final pretrial conference order. Please make clear

what claims and counterclaims are to be tried, and what issues you will need

me or the jury to decide at the end of the trial. As I discuss below, don’t forget

to flag any choice of law issues as well as affirmative defenses that must be

resolved at trial. In the summary of anticipated evidence, I want just enough

detail to give me a rough idea of what the trial will be about. Like Judge

Kazanjian, I like to read the joint pre-trial memo before the final pretrial

conference.

Krupp, J.: I use the standard form. I read the joint pretrial memorandum for

several specific purposes. I want the parties to have prepared a robust

description of the case to be read to the jury. Preparing this statement requires

collaboration. It should contain facts about the case, and a description of each

party’s respective arguments, in order to help the parties and the court detect

relevant juror bias. When I receive a joint pretrial memorandum in which the

BLS Bench Notes – April 2022

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parties have not been able to agree to a joint statement of the case, it loudly

signals a problem between counsel. I want a real witness list, not a list of the

100 names of people who appear in the discovery. I want to know what work

has to be done by the parties and the court in order to get the case to trial (e.g.,

pending motions, issues with experts, witness availability issues, anticipated

motions to narrow the issues to be tried, counts that will be dismissed, etc.).

And I am looking for a meaningful estimate of the duration of trial.

Kazanjian, J.: I urge counsel to spend time in advance working together on the

joint pretrial memorandum. It should represent counsel’s best effort to resolve

any disputed issues. You really should be able to agree on a statement of the

case. The statement of the case is not the place for partisan advocacy. You

should present a realistic witness list. I like to read the joint pretrial memo

before the conference, so please do not wait to file it until you get to court.

Ricciuti, J.: I agree with my colleagues. Like them, I expect, and will strongly urge,

the parties to eliminate unnecessary witnesses and issues through stipulations,

agreements, dismissal of claims or defenses and the like. Witness lists should

reflect expected witness (not, for instance, record keepers, who are almost

always unnecessary), and realistic estimates of trial days needed. I also expect

the joint pre-trial memo in advance of the conference.

(5) Do you follow the standard pretrial schedule form or do you have a different preference or

practice for pretrial scheduling? How far ahead of trial will you schedule motions in limine

and request the submission of jury instructions, exhibit lists, verdict forms, and other

pretrial items?

Salinger, J.: I always like to have a final trial conference, usually a week or two

before trial. If you have unusually complex or difficult motions in limine that will

take some time to decide, I will want to receive and hear argument on those

motions further in advance of trial; in such a case, coordinate with opposing

counsel and ask for a scheduling conference so we can work out a plan to get

that done.

I will want to receive all voir dire requests, motions in limine with any

opposition or other response, and proposed special verdict forms at least a few

days before the final trial conference. The sooner that you can get me proposed

jury instructions, the better.

Parties should confer before preparing and serving motions in limine, as

required by Superior Court Rule 9C, to narrow areas of disagreement. I often

receive motions in limine to exclude evidence that the opposing party does not

BLS Bench Notes – April 2022

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intend to offer, or to impose some other restriction or requirement that the

other side also thinks is a good idea. That is not a good use of anyone’s time.

Also, I want all motions in limine to be filed together with any opposition or

other response. The parties may want to agree on shorter response times for

motions in limine than are specified in Superior Court Rule 9A, but there is no

motion-in-limine-exception from the procedural requirements in Rule 9A.

Krupp, J.: I use the standard pretrial schedule form.

At the final pretrial conference, I will usually schedule a final trial conference a

week or more before trial, depending on the anticipated issues; and will

schedule the filing of motions in limine and motions related to voir dire a week

or two before the final trial conference. Motions for voir dire should address

whether a party is requesting a precharge to the prospective jurors during jury

selection, or to the impaneled jurors before opening statements. In other

sessions, I have allowed motions in limine to be filed directly, without

complying with Superior Court Rule 9A, provided the motions are served on

opposing counsel sufficiently in advance of the final trial conference so counsel

can determine whether to oppose the motion. Increasingly in BLS cases, I have

been ordering motions in limine and motions related to voir dire to be filed

pursuant to Superior Court Rule 9A.

In cases involving thorny legal issues, I appreciate receiving jury instructions

and the parties’ proposed verdict form early, although an early submission of

instructions often must be supplemented or revised during the trial.

Kazanjian, J.: I will schedule a final trial conference a week or two before the

scheduled trial date. I usually do that at the final pretrial conference. I will also

inquire at the final pretrial conference if you intend to file any evidentiary or

complex motions in limine, such as Daubert motions. You need to be prepared

at the final pretrial conference to alert the court about any such motions. I will

schedule a hearing for those motions in advance of the final trial conference.

Motions in limine should be filed a week before the final trial conference. They

should be filed pursuant to Superior Court Rule 9A. Parties should also file

requests regarding voir dire, jury instructions and proposed verdict slips the

week before the final trial conference.

Ricciuti, J.: I agree with Judge Salinger and strongly agree that every pre-trial

motion, including motions in limine, are subject to Rules 9A and 9C. Like Judge

Krupp, I prefer to receive jury instructions and any related motions on difficult

legal issues as early as possible, preferably at the final pre-trial conference.

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(6) Do you typically encourage the parties to pursue ADR? If you do so, when and how do you

typically do it?

Salinger, J.: I encourage mediation, not arbitration.

I regularly ask counsel what they are doing to help their clients resolve their

dispute, and encourage mediation if that seems helpful.

Historically, when some parties think of ADR they have in mind private

arbitration, believing that it can reduce costs and lead to a fairly quick and final

decision. With agreement of the parties, however, a BLS bench trial can offer all

the benefits of arbitration without losing the benefits of appearing before a

Superior Court judge who is assigned to sit in the BLS.

Some corporate counsel are replacing arbitration clauses in commercial

contracts with provisions that require any dispute to be resolved in the BLS with

specified limits on discovery, a waiver of any right to a jury, a waiver of any right

to detailed factual findings with an agreement that the judge will decide the

case by answering special questions agreed-to by the parties, and perhaps even

a limitation on appellate rights. Other attorneys handling a dispute with a

contract mandating arbitration are proposing that both sides instead agree to

file the case in the BLS.

If the parties want to streamline the litigation process in order to achieve

benefits of ADR while adjudicating their dispute in the BLS, I am happy to work

with them to do so.

Krupp, J.: I generally ask the lawyers at a Rule 16 conference and at a final pretrial

conference whether they have discussed resolving the case, including through

the use of ADR. In situations where I will not preside over a case at trial, I have

conducted judicial mediations in cases that are close to trial.

Kazanjian, J.: I encourage mediation and will ask at the Rule 16 conference and

final pretrial conference whether you have made efforts to resolve the case.

Ricciuti, J.: I will affirmatively ask the parties what efforts have been made to

resolve the case at any pre-trial hearing, so the parties should be prepared to

answer this question at any point. In some cases, I have had the parties

themselves, not just their counsel, appear in court where appropriate to discuss

ADR.

(7) Typically, will you stay proceedings if the parties pursue ADR?

Salinger, J.: Yes, so long as it is not on the eve of trial.

Krupp, J.: Yes, but generally I will not continue a trial to allow ADR.

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Kazanjian, J.: Yes, but not on the eve of trial. I will not necessarily continue a final

pretrial conference based on a last-minute representation that the parties have

decided to mediate the case. If you seek a continuance or stay of any kind due

to a decision to mediate, please note the date of the mediation in your motion.

Ricciuti, J.: Generally yes, and sometimes on the eve of trial if the facts support

that result and the parties show that the benefit is worth the cost of the delay.

(8) Do you have any other tips or preferences for pretrial practice?

Salinger, J.: Here are a few more suggestions.

Contract Interpretation

. If you are trying a case that turns on the meaning of a

contract, you should raise any disputes or questions about contract

interpretation before trial. Sometimes these issues are best resolved on a

motion for summary judgment long before trial. But if they have not been, you

may need to file a motion in limine asking the Court to decide whether

particular provisions are ambiguous and will need to be construed by the

factfinder at trial, or are unambiguous and will need to be explained by the

judge to the jury or themselves. And, of course, if the judge concludes that a

disputed contract provision is unambiguous you need to know before trial how

the judge construes the contract. You do not want to discover in the middle of

a trial that your theory of the case is inconsistent with the judge’s interpretation

of your client’s contract.

Choice of Law

: I prefer to know well before trial if the law of some other

jurisdiction will govern part or all of the issues at trial. If there is a dispute as to

choice of law, please raise it in a motion in limine and make sure that motion

gets heard more than a few days before trial. If there is agreement that some

other jurisdiction’s law governs, please make that clear in the joint pre-trial

memorandum and flag it for me during our final trial conference.

Affirmative Defenses

. Similarly, if any affirmative defenses as to which the

defendant has the burden proof will have to be decided at trial, note them in

the joint pre-trial memo and remind me of them during the final trial

conference.

Krupp, J.: No.

Kazanjian, J.: No.

Ricciuti, J.: Same as Judge Salinger. In addition, I will want to discuss early on the

circumstances under which whether younger lawyers will be given opportunities

to participate at trial.

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F. Trials

(1) During the ongoing pandemic, are you holding any type of trial or any aspect of trial via

videoconference (e.g., out-of-state witness)? Do you expect that to change post-

pandemic?

Salinger, J.: In the Spring of 2021, I conducted a two-week bench trial by video

conference. Though I hope not to do that again, I am open to conducting parts

of a trial by video hookup where necessary or appropriate, for example if a

witness lives far away and will testify for a very short time, or cannot reasonably

attend in person.

Krupp, J.: I have not held a trial by videoconference. I have had witnesses testify in

evidentiary proceedings (e.g., a civil trial, various hearings) by videoconference.

In appropriate cases post-pandemic, I would consider allowing a witness to

testify by videoconference, particularly where all parties agree. It is often

cheaper and easier for all concerned to allow such testimony by video-

conference rather than require the parties to take a video deposition to

preserve trial testimony of a witness who is otherwise unavailable.

Kazanjian, J.: I am unlikely to do a full trial by videoconference. I have had

individual witnesses testify by video conference and would consider that if the

parties agree and there is a good reason to proceed that way.

Ricciuti, J.: I have tried one case by videoconference. As much as I strongly prefer

in person proceedings, especially trials, I encourage the parties to consider how

videoconference can be used effectively to promote efficiency and reduce costs.

After all, we routinely permit video depositions to be played at trial;

videoconference is similar but allows the jury (or judge in a jury-waived trial) to

see the witness is real time, which is often preferable.

(2) Do you typically schedule full-day or half-day trials? Does the schedule differ between jury

and bench trials?

Salinger, J.: I usually try BLS cases from 9am to 1pm, whether it is a jury trial or a

bench trial. I will go into the afternoon if necessary to accommodate a witness’s

scheduling constraints. But generally, while on trial I need the time after 1pm to

attend to other cases, by holding hearings and working on decisions.

A small quibble: a 9am to 1pm schedule is 2/3 of a 9-4 schedule, after

subtracting a short morning break from both and a lunch break from the latter.

So, if you refer to a 9-1 schedule as calling for half-days, I may protest.

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Krupp, J.: Jury and bench trials are generally held from 9 a.m. to 1 p.m. Over the

course of a week, I can and generally will find one or two days when the trial

day can go until 4 p.m. Such scheduling issues are usually known and discussed

by the time of the final trial conference.

Kazanjian, J.: I usually try cases from 9am -1pm and reserve the afternoons for

other business.

Ricciuti, J.: While trials are generally held 9 to 1, I will schedule full day trials when

appropriate.

(3) Do you set time limits for trials? If so, under what circumstances and what are they?

Salinger, J.: I have only set time limits for trials a few times, when I was concerned

that counsel would fail to complete the trial within the time they promised me

and the jury unless I set and enforced explicit time limits. It worked quite well.

I keep a running tally of time used and can tell the parties at the end of each

trial day where they stand. In each case the parties did not come close to using

all their allotted time.

Krupp, J.: I have not had to set time limits. At the final trial conference, I talk

about each side’s case in detail, including how long their direct examination will

be of key witnesses. I then come up with an estimate of the duration of the trial.

I usually tell the prospective jurors how long I expect the case will take based

on my discussion with the lawyers. I update the jurors daily about whether we

are on schedule. No one wants to upset the jurors’ expectations.

Kazanjian, J.: I have never had to set time limits at a trial. I have limited the length

of any filings during trial (e.g., nothing more than 5 pages) so that we do not

get bogged down trying to resolve issues. I expect counsel to try to move the

case along efficiently for the sake of maintaining the jurors’ attention.

Ricciuti, J.: I have considered, and will consider, time limits in appropriate cases,

much as Judge Salinger has outlined.

(4) In general, how do you conduct jury voir dire? Do you allow counsel to ask questions on

voir dire?

Salinger, J.: I have always welcomed attorney-conducted voir dire.

If we are using individual voir dire, I will ask a set of questions to the entire

venire and then ask additional questions to each prospective juror individually.

If I have not excused the juror for cause, I will then let the lawyers follow up on

answers to my questions, ask about anything in or missing from the written

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juror questionnaire, and ask questions on any additional topics that I have

approved in advance during the final trial conference.

If we are using panel voir dire, I will conduct more limited questioning of jurors

to determine whether they seem able to sit on the jury. Some of that

questioning will be done individually, and I let the lawyers follow up on those

answers during the individual questioning. But most of the questioning by

counsel will take place when they speak with each panel of prospective jurors.

Under either method, I am not a fan of supplemental written juror

questionnaires.

Lawyers need to read, understand, and follow Superior Court Rule 6, which

governs jury selection; pay particular attention to the provision listing lines of

questioning that are improper.

In addition, avoid any question the fair answer

to which would be, “It depends on what the evidence shows.”

Please remember that individual voir dire is not an opportunity to learn

everything about what makes each prospective juror tick. Trial lawyers’ training

and instinct in conducting depositions is to learn everything possible, leaving

no stone unturned. Voir dire is very different. You will want to pose just a few

short, open-ended questions that focus on your key criteria for selecting jurors

and that are aimed at getting each prospective juror to provide a narrative

answer.

Also, do not expect or demand that prospective jurors answer voir dire

questions with lawyerly precision. Normal humans may say “I think so” or

“I guess,” but their tone and manner make clear they mean “Yes.” If a potential

juror says “I think I can be fair” in a firm and declarative tone, do not insist that

they add, “By that I meant I can definitely, without reservation, be completely

fair to both sides.” If you try to pin down every prospective juror, the way you

might with an adverse witness during a deposition, you will annoy them and

may not accomplish much else.

Please be aware that the Superior Court now has official model jury

empanelment scripts that judges may use or adapt as they see fit.

Krupp, J.: I permit panel voir dire, attorney-conducted voir dire at the sidebar, or

attorney-conducted voir dire in other formats. I have used supplemental juror

questionnaires as another way of assessing juror bias. Having presided over

more than two dozen cases in which panel voir dire was used, I have been

persuaded that panel voir dire is an incredibly powerful tool to detect juror bias

See https://www.mass.gov/superior-court-rules/superior-court-rule-6-jury-selection .

Available at https://www.mass.gov/guides/superior-court-model-jury-instructions .

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and to assess the suitability of jurors for a particular case. It has been under-

used in the last five years.

Kazanjian, J.: I permit attorney conducted individual voir dire and panel voir dire.

If the parties opt for panel voir dire, I will limit the questions that are asked of

each juror during the individual voir dire stage. I will also give you a time limit

for the panel portion of panel voir dire. I have used supplemental

questionnaires in certain types of cases. Counsel sometimes need to be

reminded that the goal of voir dire is to select a fair and impartial jury, not to

interrogate each potential jury the way you would depose an adverse party.

Ricciuti, J.: I disfavor panel voir dire. I will ask a set of questions to the entire

venire and then ask additional questions to each prospective juror individually.

If at any point I believe the juror should be excused for case, I will address that

with the parties immediately to maximize efficiency. If I have not excused the

juror for cause, I will then let the lawyers follow up on answers to my questions

and ask questions on any additional topics that I have approved in advance

during the final trial conference. I usually limit such questioning to two minutes

or five questions per side, unless there is cause to extend the questioning (such

as when the juror fails to give a clear answer). I do not find juror questionnaires

helpful, and need to be convinced to use them. I will hear strikes for cause or

using peremptory challenges immediately upon the conclusion of the

questioning of a prospective juror.

(5) Do you have a process for the sequence in which counsel exercise peremptory challenges?

Salinger, J.: I usually try to alternate between opposing parties. Sometimes I

alternate for each prospective juror. Other times, if conducting individual voir

dire, I alternate for each jury seat—plaintiffs go first until we fill seat one,

defendants go first until we fill seat two, etc.—because that makes it easier for

me to keep track of who goes first.

Krupp, J.: With attorney-conducted voir dire at the sidebar, I usually require

attorneys to exercise their peremptory challenges after we see each juror. In

that context, we alternate the order of exercising peremptory challenges after

each juror. With panel voir dire, after the attorney questioning of the first panel,

I will require plaintiff to exercise its peremptory challenges until content, and

then have defendant exercise its peremptory challenges until content, with no

back strikes. The order is reversed with respect to the second panel.

Kazanjian, J.: With individual voir dire, I generally require counsel to exercise

preemptory challenges after each juror is found indifferent. I will alternate who

goes first. With panel voir dire, each party must exercise peremptory challenges

BLS Bench Notes – April 2022

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on the seated panel. The remaining jurors are seated and the parties may not

back strike.

Ricciuti, J.: I will hear strikes for cause or using peremptory challenges

immediately upon the conclusion of the questioning of a prospective juror, and

alternate which side goes first.

(6) Do you exclude witnesses or exhibits that are not listed in the pretrial memorandum,

either sua sponte or by motion of the party?

Salinger, J.: I will exclude an undisclosed witness or exhibit only if the opposing

party can show they are unfairly prejudiced by the surprise. I do not do so sua

sponte.

Krupp, J.: When it comes to exhibits, I do not police compliance with the pretrial

memorandum. If a lawyer objects to an exhibit, prejudice is the principal

concern. Was the exhibit produced in discovery? Was it the subject of

questioning during a deposition? Is it being introduced as part of witness’ direct

examination (i.e. was using it foreseeable), or during cross-examination or

unexpected impeachment of a witness? The answers to these questions are

relevant. As for a new witness, I am more likely to question the lawyer sua

sponte, particularly if I have carefully reviewed each party’s anticipated

witnesses in advance. If you expect to call a witness or introduce an exhibit that

was not previously disclosed, it is best to alert opposing counsel and the court

as early as possible.

Kazanjian, J.: I will judge the situation based on fundamental fairness.

Ricciuti, J.: I will look at the facts and may, in rare cases, act sua sponte.

(7) Do you strictly limit the scope of expert testimony at trial to matters explicitly disclosed in

expert reports, either sua sponte or by motion of the party, or do you permit an expert to

testify on matters related to but not specifically described in the reports?

Salinger, J.: I will bar an expert witness from testifying about matters not

specifically disclosed only if the opposing party can show they are unfairly

prejudiced by the surprise. I do not do so sua sponte.

Krupp, J.: I generally limit an expert’s testimony to matters contained in the expert

disclosures, but I rely on the opposing party to bring issues to my attention.

Kazanjian, J.: I will bar an expert witness from testifying about matters not

specifically disclosed if the opposing party can show they are unfairly

prejudiced by the testimony. I do not do so sua sponte.

Ricciuti, J.: Same as Judge Krupp.

BLS Bench Notes – April 2022

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(8) What do you prefer that attorneys include or not include in proposed jury instructions?

Salinger, J.: Please be aware that the Superior Court now has a growing body of

official model jury instructions, including model versions of the instructions that

apply in every case; judges may use or adapt these models as they see fit.

welcome lawyers’ feedback on the model instructions. As the introduction to

these models on the Superior Court website notes:

These Model Jury Instructions have been drafted by a committee of Superior

Court judges. They are designed to be legally accurate and easy for jurors to

understand and for judges and practitioners to use. The instructions will be

revised regularly to keep current with developments in statutory and case law.

They are published here in both PDF and searchable Microsoft Word format,

and are accompanied by a Table of Contents organized by topic.

These Model Jury Instructions are intended to be just that—models. Judges

have broad discretion and inherent authority to decide how to instruct a jury,

whether it is by adapting these models, crafting their own instructions, or

starting with some other model.

* * *

The Superior Court welcomes input regarding these instructions. Please forward

your comments or suggestions to Superior Court Assistant Deputy Court

Administrator William Burke at [email protected].us.

Counsel should read and think about these models before drafting their own

proposed jury instructions.

My aim in every case is to craft jury instructions focused on the particular

special questions that we need the jury to answer. So I would like the parties to

propose a jury verdict slip as early as possible, ideally before trial. I also

welcome proposed jury questions tailored to the case and the questions we will

put to the jury. I do not need the parties to give me copies of model

instructions that I already have access to. Nor do I need proposed forms of all

the general instructions that I deliver in every case; I tend not to look at those at

all.

Krupp, J.: A party’s proposed jury instructions should focus on the core legal

issues in the case. In the usual case, I do not need general instructions or

proposed instructions about how the jury should handle its deliberations.

Available at https://www.mass.gov/guides/superior-court-model-jury-instructions .

BLS Bench Notes – April 2022

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I will usually provide counsel with a draft set of instructions one or two days

before charging the jury, followed by a charge conference. It is quite useful if

counsel is prepared at or before the charge conference to provide specific

suggested changes to the language in my draft instructions.

Kazanjian, J.: I do not need any general instructions from the parties. Please

provide the court with your proposed instructions on the substantive claims

before the Final Trial Conference. I will also hear your requests for additional

instructions as the trial progresses. I will usually follow model instructions

(MCLE or Superior Court) unless there is a reason to deviate, or the instructions

can be made clearer. I will provide counsel with a draft set of instructions so

that we can have a meaningful discussion at the charge conference. I expect

counsel to read the draft before the charge conference and to be ready to

suggest any alternative language.

Ricciuti, J.: Same as Judge Kazanjian. I’d like to see proposed instructions on any

genuinely disputed issues of law as early as possible, preferably at the final pre-

trial conference.

(9) What process do you use in charging the jury?

Salinger, J.: I provide counsel with a draft of my instructions well before the end

of trial, give them a chance to review and think about my draft, and then

conduct a jury charge conference in which I ask counsel to tell me what

changes they would like me to consider making to my draft.

Then, when I charge the jury, I will provide every juror with a copy of my final

written instructions and invite them to read along if that will help them absorb

and understand what I am saying.

And I split my charge by delivering my substantive instructions about the

special questions before closing arguments, pausing for closing arguments, and

then delivering my general instructions about how to evaluate evidence and

jury deliberations. I closely follow the Superior Court’s new “Civil Jury

Instruction Template,”

pausing for closing arguments just before the “Role of

the Jury” section.

Krupp, J.: I usually charge the jury from the well of the courtroom. I give each

juror a copy of my instructions. I allow the jurors to mark up the draft as I go

through the instructions and take their copy with them into the jury

Available at https://www.mass.gov/guides/superior-court-model-jury-instructions#-

civil-instruction-scripts-(empanelment,-precharge,-final-charge)- .

BLS Bench Notes – April 2022

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deliberation room. I ordinarily do not split my charge, but I have done so on the

parties’ request.

Kazanjian, J.: I will provide counsel with the final version of the charge so they can

follow along while I charge the jury. I provide the jury with a copy of my

instructions to use during their deliberations. I will consult with counsel before

providing the copy to the jury to see if my oral instructions deviated in any way

from the written instructions.

Ricciuti, J.: Same as Judge Salinger, but I generally do not give the jury a copy of

the charge when I deliver it to minimize prejudice if an error or ambiguity is

identified during the charging process.

(10) Do you allow jurors to take notes during trial?

Salinger, J.: Yes, always.

Krupp, J.: Yes. Usually we pass out notebooks after the opening statements.

Kazanjian, J.: Yes, always.

Ricciuti, J.: Yes.

(11) Do you permit parties to provide jurors with notebooks of exhibits?

Salinger, J.: Yes. The parties should confer, try to reach agreement on the most

effective way to present evidence in that particular case, and propose an

appropriate process during the final trial conference.

Krupp, J.: Jurors do not want to be left out. They want to see what everyone else

is talking about. Juror notebooks of some subset of all of the exhibits is a great

way to allow the jurors to follow along. Blowing up exhibits, or projecting

exhibits on a screen, is another excellent way of including the jurors. In a long

trial, think about using mixed media to keep the jurors engaged.

Once a juror notebook is given to a juror, it belongs to the juror. The juror may

highlight or make notes on the documents in the notebook. As a result, the

juror notebook may not be “taken back” by the lawyers to add exhibits. Juror

notebooks may be supplemented by providing additional pages with

appropriate tabs for the jurors to insert into their notebooks.

Kazanjian, J.: Yes.

Ricciuti, J.: Yes – I strongly prefer it when the exhibits are few in number.

BLS Bench Notes – April 2022

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(12) Do you allow jurors to submit questions during the presentation of evidence at trial?

Salinger, J.: No. I have done so twice at the request of all parties. The first time

the jurors asked just a few questions that were very focused and quite helpful.

The second time the jurors proposed long lists of questions, most of which I

had to exclude; the process was time consuming, disruptive, and added no

value. That experience left me skeptical about letting jurors try to take control

of the presentation of evidence away from the lawyers.

Krupp, J.: No.

Kazanjian, J.: No.

Ricciuti, J.: No.

(13) Do you allow the parties to determine the technology they want to use during trials?

What happens when counsel cannot agree?

Salinger, J.: Yes. If counsel cannot agree, we should discuss it during the final trial

conference, or earlier if need be. I agree with Judge Krupp that display

technology used in the courtroom must be available to all parties. And I agree

with Judge Kazanjian that counsel should do a practice run with evidence-

display technology in the courtroom before trial.

Krupp, J.: Yes. Any technology brought into the courtroom by one party must be

available to all parties. This may include providing the personnel necessary to

operate the technology.

Kazanjian, J.: Yes. I encourage the use of technology. If you cannot agree, please

raise that issue at the final trial conference and I will resolve it. I also urge

parties to make arrangements with the clerk to practice the technology in the

courtroom before trial.

Ricciuti, J.: I agree with all of my colleagues on this.

(14) Do you have any other tips or preferences for lawyers trying BLS cases?

Salinger, J.: I would like to address two other trial-related topics.

Waiving Findings of Fact in Bench Trials

. When a case is being tried without a

jury, try to convince your client and all other parties to waive the default rule

requiring a judge to make detailed findings of fact, and agree instead to submit

detailed special questions for the judge to answer. Your clients will avoid the

cost of having you prepare proposed findings of fact and rulings of law, and get

a much faster decision from the judge. I am happy to have the equivalent of a

BLS Bench Notes – April 2022

Page 41

jury charge conference, and to prepare (with the parties’ input) written

instructions to myself, to make clear how I will instruct myself on the governing

law. Doing so where the parties waive detailed findings of fact should address

any concern that your client will inadvertently lose the opportunity to have a

legal error corrected on appeal.

Here are a few tips about

trial exhibits

Limit the number

of exhibits that you offer at trial. Discovery in a BLS case

will often unearth a large volume of emails and other documentation. There

is no need to introduce all of that into evidence, however. Parties that

introduce hundreds of exhibits usually ask the jury or judge to focus and

decide the case based on a small subset of them. Which means most of the

others probably did not have to be introduced into evidence.

Summary Documents

. Summaries of voluminous financial, accounting, or

other records are admissible into evidence.

A summary exhibit that is a

compilation of parts of many other exhibits may also be admissible.

Such

summaries or compilations can be a very effective way to distill this kind of

information; trial counsel should use them more often.

Index

. If you expect there will be more than a handful of exhibits, the parties

should keep a running index in a form that everyone agrees may be given

to the jury or judge at the end of the trial. Each exhibit should be described

or unidentified in a completely neutral way that will let the jurors or judge

find an exhibit even if they failed to make note of the exhibit number.

Electronic Exhibits

. If any of the exhibits in a jury trial are in electronic form

(such as a spreadsheet in native Excel format, or a copy of a television

advertisement) and will need to be accessed or played on an appropriate

device for the jury to consider them while deliberating, the parties will need

to provide a tablet or laptop that the jury may use to do so.

I recently conducted a BLS jury trial in which we ended up with well over 200

exhibits, the official exhibits were in paper form, but all exhibits were presented

to the jury electronically during the trial. The parties provided the deliberating

jury with a clean laptop, electronic copies of all the exhibits, and a searchable

electronic copy of the index. The jurors really appreciated being able to search

Mass. Guide to Evid. § 1006; see also, e.g.,

Commonwealth

Bin

, 480 Mass. 665, 679–

680 (2018);

Commonwealth

Greenberg

, 339 Mass. 557, 581–582 (1959).

See

Commonwealth

Chin

, 97 Mass. App. Ct. 188, 201–205 (2020) (compilation of

surveillance video from different locations).

BLS Bench Notes – April 2022

Page 42

the index and access the exhibits electronically. Their ability to do so probably

shaved days off their deliberations.

Krupp, J.: BLS cases are often heavy document cases. Do not lose the jurors in the

sea of documents. Think about ways to pare down the documents you need. If

you must introduce many documents, work hard to keep the case interesting

for the jurors. There are many software products available that allow a

document to be projected on a screen, a portion to be highlighted, and then

the highlighted portion to be blown up so it can be seen at a distance by the

jurors. Making sure the jurors know which part of a document you are

addressing is key to keeping the jurors engaged.

Kazanjian, J.: The goal should be to keep the jury’s attention and to simplify the

issues. This also applies to the bench trials. It is more effective if you focus your

case and the issues for the judge.

Ricciuti, J.: I agree with all of my colleagues.

G. Miscellaneous

(1) Are there any other matters with regard to practice or procedure in your courtroom about

which you would like to advise the attorneys who appear before you?

Salinger, J.: Don’t forget Superior Court Rule 20, which allows and encourages

parties to propose, and ideally agree upon, case management rules that will

allow for faster and less expensive resolution of their dispute. Parties can craft

ground rules that will let a BLS case move forward with the speed and cost

savings associated with arbitration, while letting the case be managed and

perhaps be decided by an experienced Superior Court judge—at no extra cost

to the parties—who will be able to give the case the attention it deserves

(because of the smaller caseloads in the BLS sessions) and apply well

understood law and rules of evidence. And the substantial and growing body of

decisions by BLS judges can often give parties insight into how legal issues in

their case will be resolved if they proceed in the BLS.

I have already touched on some options that are expressly contemplated in

Rule 20, such as specified limits on discovery, a waiver of any right to a jury, and

a waiver detailed factual findings in a bench trial with an agreement that the

judge will decide the case by answering special questions agreed-to by the

parties. The rule also lets parties waive argument on certain kinds of motions,

agree to submit direct testimony by expert witnesses in writing (in a bench trial)

with only cross-examination conducted live, agree or ask the judge to impose

reasonable limits on the length and scope of trial. Indeed, the rule permits

BLS Bench Notes – April 2022

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parties to propose (and, again, ideally agree upon) any set of special rules that

will help lead to a fair decision while avoiding unnecessary expense and delay.

Though parties are free to waive or limit rights of appeal from Superior Court

judgments, just as with an arbitration proceeding, many commercial litigants

prefer the safety valve of appellate rights that are lost if a case is arbitrated.

If parties agree upon a set of streamlined procedures that they would like to

apply in their BLS case, they can be confident that the BLS judges will welcome

that agreement and make sure that it is carried out.

Krupp, J.: The BLS1 courtroom (Courtroom 1309) was built for appellate

argument. The acoustics leave much to be desired. Lawyers trying in Courtroom

1309 need to prepare for that situation, including familiarity with the location of

the fixed microphones.

Kazanjian, J.: Ask me this question a year from now!

Ricciuti, J.: I agree with Judge Salinger on Rule 20. Be creative. Sometimes a

unique approach is wise – trying a representative claim, for instance. And even

if a contract requires binding arbitration or some other dispute-resolution

mechanism other than BLS, the parties can always agree to waive it and

proceed here.

(2) Are there common deficiencies in practice that you regularly observe on which you would

like to comment?

Salinger, J.: Do not let your client’s dispute with the opposing party turn into

personal animus toward opposing counsel. You can provide your client with

diligent and aggressive representation on all matters of substance, without ever

being disagreeable and without getting into pointless fights over matters of

procedure or minor things that will make no difference to the outcome. Be nice.

On a related note, please keep your advocacy focused on the substance of

whatever it is your client needs me to decide. Arguments that amount to “But

they’ve been bad!” are neither helpful nor effective advocacy.

Krupp, J.: The two most common deficiencies I have observed are the failure to

confer adequately before filing motions and the lack of civility by some lawyers

in written filings and even during in-person hearings. The two problems are

often linked. Most discovery and scheduling motions can and should be

resolved between counsel acting in good faith. And, like all judges I know, I find

ad hominem attacks – often veiled as questioning the integrity or motives of

the opposing party or its lawyer – to be distracting and counterproductive.

Kazanjian, J.: The incivility that exists during the discovery phase of civil cases is

sometimes disheartening. Not every issue warrants at battle. In fact, very few

BLS Bench Notes – April 2022

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do. I do not appreciate personal attacks on opposing counsel either in open

court or in written filings. I will likely cut you off if you launch into a history of

emailing, such as who did not respond to what. You should treat opposing

counsel the way you wish to be treated. Unnecessary disagreements only serve

to increase the costs of litigation, which is rarely in your client’s interest.

Ricciuti, J.: I agree with all of my colleagues. If I think there is such personal

animosity between the parties that it is interfering with good case management,

I will take proactive steps to address it.

(3) Are there any other orders, policies, or practices that you follow about which you would

like to advise the members of the bar? If so, please attach copies to your response.

Salinger, J.: No, thank you. I agree with Judges Krupp and Ricciuti that it is a

pleasure and a privilege to sit in the BLS.

Krupp, J.: No. I will add that overall it is a pleasure to sit in the BLS. The quality of

the written and oral advocacy is quite high. The issues before the BLS are

frequently engaging, obviously important to the litigants, and sometimes

impactful well beyond the parties to the case.

Kazanjian, J.: No, I look forward to sitting in the BLS.

Ricciuti, J.: It is a privilege to handle cases in the BLS.