New England And Boston - Courts Massachusetts' Superior Court Circuit System: A Need For Reform

Saturday, May 1, 2004 - 01:00
Robert S. Frank, Jr.

Editor: Would you provide our readers with an overview of the Superior Court system in Massachusetts? And the rotation system it uses?

Frank:The Superior Court is the trial court of general jurisdiction in Massachusetts.Above it is the Appeals Court, and above that is the Supreme Judicial Court. When a case is filed at the Superior Court level, it is assigned to a particular courtroom. Barring some extraordinary event, that case will be heard in its entirety - from opening day to final decision - in that courtroom. It is the judges who move. That is, a judge will sit in a courtroom in January, following which he may be replaced by a second judge for the months of February and March, and the cases assigned to that courtroom may be heard by yet a third judge in April. Needless to say, it is often a very difficult task for a judge who arrives on the scene midway through a particular case to determine what the case is about, what his predecessor has decided and how to handle the next issue to arise. Depending on that session's case load, the newly arrived judge may have to pick up literally hundreds of cases at some intermediate point. This is, of course, in marked contrast to the federal court system, where the judge handles a case from start to finish.

Editor: How did you come to be the co-chair of the Boston Bar Association's Task Force on the Superior Court Circuit System?

Frank:A couple of years ago the Chief Justice of the Supreme Judicial Court appointed a commission under the leadership of Father Monan, former Dean of the Boston College Law School, to look into ways in which our court system might be administered in a more businesslike and efficient manner. This initiative was at least partly in response to the reluctance of the legislature to provide additional funding to the courts at a time when state revenues were badly depleted. One of the recommendations of the Monan Commission was that the circuit system be abandoned. The then President of the Boston Bar Association, Joe Kociubes, then appointed a committee, composed of lawyers who possessed considerable experience with respect to the court system, to consider the matter. He asked me to co-chair the group with Deborah Birnbach.

Editor: The current system has a very long history.Why has change not come about much sooner?

Frank:In colonial times there was simply not enough judicial business for a judge to sit in one place all the time.A judge might sit in Boston for two weeks, move on to Cambridge for a week, spend the following week in Dedham, and so on. Until the judge arrived, the cases would accumulate.

Although case loads have grown monumentally, the system has remained essentially the same.Many judges like this system because it provides them with a variety of cases to deal with on an ongoing basis.Also, many judges find that the responsibility for, say, 1000 pending cases in a particular session is an unreasonable burden, one they could never discharge no matter how hard they work. Of course, they are relieved of this burden by being rotated on to another case load in another session.

The problem with the system is that it is very inefficient.Imagine a law firm where a set of client files resided permanently in one office.Every 60 days the lawyers in the firm would drop what they are doing - irrespective of where they were in completing their work - and move one office to the left and pick up the files in that office.Two months later, the lawyers would all move to new offices - and new cases - again.Any law firm carrying on that type of inefficient operation would be incapable of competing in the marketplace.

In addition, individual judges in this system are not accountable for reducing, and do not have sufficient incentive to reduce, the backlog of cases in a particular session.There is no incentive to encourage settlement discussions in those cases which may be ripe for settlement, and there is no incentive to dispose of cases which are either dead or near death. Also, as a result of the constant movement of judges, there is no reasonable or reliable way to determine which judges are shouldering more than their fair share of the case load and which are shouldering less.

Editor: Is the current financial crisis in Massachusetts something that is contributing to the need for change?

Frank:A more efficient use of the available resources would shorten the amount of time cases are pending in the system. Given the size of the case load in the system, however, it would take a very long time for those efficiencies to translate into saving money. Of course, at a time of fiscal crisis increased efficiency is generally thought to be a good thing irrespective of its financial impact.
Editor: Would you describe the recommendations of the Task Force?

Frank:We noted that the lawyers engaged in practice in the Superior Court system tended to take a negative view of the rotation of judges, while many of the judges viewed the system favorably. One recommendation, accordingly, was to conduct an experiment in which a half dozen or so sessions were operated on a single judge basis for a period of two years and place them alongside sessions operated in the current manner. We thought it possible to compare the results of the two approaches.Certain performance criteria can be measured objectively and others subjectively and it should be possible to draw some meaningful conclusions from such an experiment.

Another recommendation was that no judge sit in a session for less than four months.At present about 60 % of the time a judge sits in a session for only one month, and about 80% of the time a judge sits in a session for two months or less.If you think of a one-month session as having, typically, 21 working days, the newly arrived judge needs to take a couple of days to try to figure out what he or she has on the docket and then, at the end of session, the judge cannot start the trial of a case that will last beyond the end of the session because he or she is about to leave.That often translates to a loss of about five days out of the available 21 days. Rotation after four months might entail the loss of the same five days, but out of an available 80-plus days. The system would benefit from the implementation of a four-month rule.

We thought that having the judges rotate in teams through a relatively small number of sessions would engender a greater sense of collective responsibility for the case load in those sessions and would decrease the risk of one judge leaving a difficult case behind for another judge. We thought that this change would also bring about a degree of accountability - and a sense of responsibility to one's colleagues - that is important.

Another recommendation had to do with the seniority system, which permits the most senior judge to select his or her own assignments, leaving what remains to judges of less seniority.What this means is that the judges with the least seniority - presumably those with the least experience and the least ability to size up a situation upon initial introduction to a courtroom - are the judges who most frequently receive the one-month assignments.What the Task Force has recommended is that the Chief Judge be authorized to assign people in accordance with their particular expertise and talents, and that the seniority system be done away with except for those judges with more than ten years of service. They would continue to benefit from seniority, but, of course, they would also gradually retire out of the system.

The Superior Court consists of a Chief Judge and 82 judges. In each county there is a civil and a criminal Regional Administrative Judge, but that person's administrative responsibilities are very modest. We have suggested that the system be broken down into some sort of manageable administrative units - each consisting of, say, six to twelve judges - with one judge charged with a certain degree of management responsibility for the group. Judges could rotate from courtroom to courtroom but only in the area to which that group was assigned.Each administrative group and each leader would be responsible for the performance of the group.At present, it is the Chief Judge who has management responsibility for all 82 judges, and that is simply not a workable model.

Editor:Is there any support for setting up courts for a variety of different legal specialties?

Frank:Not really.Judges don't like to be circumscribed and lawyers would prefer not to appear before a very narrow selection of judges for a particular type of case.In addition, I should point out that the Task Force recommendations do not extend to the entire state. There is a reason for that. There are one-judge courthouses in some of the rural areas of Massachusetts, and the rotation system avoids the risk that one judge would become a local potentate.For similar reasons, there is a recognition that establishing courts for certain specialized practice areas raises certain risks. For instance, a medical malpractice court would probably have no more than one or two judges in a county.Suppose one of them was a weak judge, or an opinionated one, or someone who had crossed swords with a particular attorney and was clearly perceived as hostile toward him?Overall, there was not a great deal of support for setting up courts for different practice areas or specialties.

Editor: You referred to the fact that many of the judges favor the seniority system.Do you expect resistance if assignments of judges are made on criteria other than seniority?

Frank: The Chief Judge has appointed another committee to examine the questions that the Task Force has examined, including the seniority question.There is, I believe, agreement that sitting for longer periods of time is sensible, although I have not seen any indication that a four-month minimum period for a single session is going to be accepted.Similarly, the Chief Judge has encouraged judicial teaming.Regarding some of the other recommendations, it is clear that some of the judges would welcome them, while others would not.

Editor: Are there any financial implications if the recommendations are accepted?

Frank:The Chief Judge is reported to have said the system is functioning in such aresource constrained environment that implementing the changes suggested by the Task Force is not possible.I certainly agree with him that the system is under severe resource constraints, but I believe that a more efficient use of the resources that are available could only serve to improve the service the system provides to the public.