Massachusetts Civil Procedure: Rules for Filing Motions, Discovery, and Examinations, Lecture notes of Civil procedure

Download Massachusetts Civil Procedure: Rules for Filing Motions, Discovery, and Examinations and more Lecture notes Civil procedure in PDF only on Docsity! MCLE, Inc. | 6th Edition 2017 9–i CHAPTER 9 Preparing and Trying a Civil Case Jeffrey C. Melick, Esq. Kajko, Weisman & Colasanti LLP, Lexington § 9.1 Introduction ................................................................................. 9–1 § 9.2 Presuit Issues ................................................................................ 9–1 § 9.2.1 Interview Your Client .................................................... 9–1 § 9.2.2 Conduct a Preliminary Investigation ............................ 9–2 § 9.2.3 Fee Issues ...................................................................... 9–2 § 9.3 Pretrial Issues ............................................................................... 9–3 § 9.3.1 Filing an Action ............................................................ 9–3 (a) The Courts ........................................................... 9–3 (b) The Time for Filing an Action ............................. 9–4 (c) The Complaint ..................................................... 9–5 (d) Service of the Complaint on the Defendant......... 9–6 § 9.3.2 The Answer ................................................................... 9–7 § 9.3.3 Jurisdiction over the Defendant .................................... 9–8 § 9.3.4 Pretrial Deadlines ......................................................... 9–8 (a) State Courts ......................................................... 9–8 (b) Federal Court ....................................................... 9–9 § 9.3.5 Third-Party Claims ....................................................... 9–9 § 9.3.6 Contribution Claims ................................................... 9–10 § 9.3.7 Indemnity Claims ....................................................... 9–10 § 9.3.8 Strategies for Preparing for Trial ................................ 9–11 (a) In General .......................................................... 9–11 (b) Scope of Discovery Permitted ........................... 9–12 (c) Developing a Discovery Strategy ...................... 9–13 (d) Interrogatories ................................................... 9–16 Massachusetts Basic Practice Manual 9–ii 6th Edition 2017 | MCLE, Inc. (e) Requests for Production of Documents and Things ......................................................... 9–17 (f) Requests for Admissions ................................... 9–17 (g) Depositions ....................................................... 9–18 (h) Experts .............................................................. 9–22 (i) Independent Medical Examinations .................. 9–23 (j) Electronically Stored Information ..................... 9–23 § 9.3.9 Pretrial Motion Practice ............................................. 9–23 (a) General Considerations ..................................... 9–23 (b) Particular Motions ............................................. 9–25 § 9.3.10 Mediation ................................................................... 9–29 (a) How Mediation Works ...................................... 9–29 (b) The Proper Time for Mediation ........................ 9–29 (c) Choosing a Mediator ......................................... 9–30 (d) How to Mediate a Case ..................................... 9–30 § 9.3.11 The Pretrial Conference ............................................. 9–31 § 9.4 The Trial ..................................................................................... 9–32 § 9.4.1 Jury Selection Process ................................................ 9–32 § 9.4.2 Choosing the Right Jury ............................................. 9–33 § 9.4.3 Opening Statements ................................................... 9–35 (a) The Procedure ................................................... 9–35 (b) Preparing Your Opening .................................... 9–35 (c) Performing Your Opening ................................. 9–36 § 9.4.4 The Plaintiff’s Evidence ............................................. 9–36 § 9.4.5 The Defendant’s Evidence ......................................... 9–37 § 9.4.6 Direct Examination .................................................... 9–37 (a) Preparation of Your Direct Examination ........... 9–37 (b) Performing Your Direct Examination ................ 9–38 § 9.4.7 Cross-Examination ..................................................... 9–39 (a) Preparation of Your Client ................................. 9–39 (b) Preparation of Your Cross-Examination ............ 9–40 (c) Performing a Cross-Examination ...................... 9–40 MCLE, Inc. | 6th Edition 2017 9–1 CHAPTER 9 Preparing and Trying a Civil Case Jeffrey C. Melick, Esq. Kajko, Weisman & Colasanti LLP, Lexington Scope Note This chapter provides an overview of civil trial practice in Massa- chusetts. It begins with a discussion of pretrial activities such as conducting the initial client interview, filing an action, handling dis- covery, and preparing for mediation. It then addresses jury selec- tion, opening statements, direct and cross examination, motions, and closing arguments. The chapter concludes with a summary of posttrial motions. A documents checklist is included, as well as sample forms and a set of responses to frequently asked questions. § 9.1 INTRODUCTION This chapter explains the general mechanics and strategy that should be used in pre- trial discovery and the trial of a civil case. It is not intended to constitute advice for any given trial. Every case is different in both fact and complexity, so it is essential to consider issues and strategies that may not appear here. It is also essential to keep abreast of changes in the laws, rules, and court orders governing trial practice. § 9.2 PRESUIT ISSUES It is very difficult to turn down legal work. However, there are occasions when an attorney is better off not taking a case, particularly a contingent-fee plaintiff’s case. Before committing yourself, talk with your client, conduct a preliminary investiga- tion, and evaluate your chances of success. Do not feel you have to make a decision right away if you are not sure your client has a case. You may do a disservice to yourself and your client if the case is a frivolous one. Attorneys have a duty to use good faith under Mass. R. Civ. P. 11; clients can end up paying costs, expenses, and interests for a frivolous claim under G.L. c. 231, § 6F. Also, make sure you have the expertise, resources, and time to devote to the matter. If you do not, refer it to some- one who does. § 9.2.1 Interview Your Client Your client will most often be your most valuable source of information. Whether the action is a commercial, employment, real estate, environmental, or personal injury case, the people with the most knowledge about the facts are generally the parties to the litigation. Tap this resource as early as possible. § 9.2 Massachusetts Basic Practice Manual 9–2 6th Edition 2017 | MCLE, Inc. Before meeting with your client, obtain at least a general idea of what the case is about. Then check the law to verify the precise facts the plaintiff will need to prove a prima facie case and the defenses afforded the defendant. Make a list of the most basic legal and factual issues your client will face. Use this as a basis to expand the list to include the particular facts you need to know to assess the case. Often, clients will want to know the probability of success, the cost and expected duration of the litigation. Your ability to provide an answer will depend on what you already know about the case and, just as importantly, what you know about your opponent. Do not feel you need to provide answers as though you have a crystal ball. Be direct and honest. If you do not know the answer, say so and promise to look into it more before providing one. § 9.2.2 Conduct a Preliminary Investigation If there are witnesses that need to be identified and other information that needs to be obtained, hire a good investigator. However, do not hire someone you have never met. Your investigators will be performing essential work for your client and should be as good at what they do as you are at what you do. Ask for references and pay- ment schedules and how they perform their investigations. Make sure the person you speak with will be the same person who performs the work. A checklist of documents to obtain during a personal injury investigation is included as Checklist 9.1. However, be creative, as each case presents its own investigatory and evidentiary challenges. Sometimes attorneys like to conduct their own investigation. However, be careful not to put yourself in the position of being a witness, which would probably mean you would have to withdraw from the case. Mass. R. Prof. C. 3.7; see, e.g., Borman v. Borman, 378 Mass. 775 (1979); Kendall v. Akins, 374 Mass. 320 (1978). Also, make it clear that you are strictly looking for honest answers and facts. Do not contact any- one who is represented by an attorney; contact their attorney instead. See Mass. R. Prof. C. 4.2. Practice Note Do not record a telephone conversation without the permission of all par- ties to the call, and if they have given their permission, make sure they say so on tape. G.L. c. 272, § 99. § 9.2.3 Fee Issues A contingent fee agreement must be signed by every plaintiff and plaintiff attorney in personal injury and certain other cases. Mass. R. Prof. C. 1.5(c). A combination of a contingent fee and hourly rate is sometimes used in commercial and other cases. Make sure your client understands the implications of the fee agreement up front. Preparing and Trying a Civil Case § 9.3 MCLE, Inc. | 6th Edition 2017 9–3 § 9.3 PRETRIAL ISSUES § 9.3.1 Filing an Action (a) The Courts Before filing an action, it is obviously essential to understand where the case should be filed. An outline of the different courts in Massachusetts is provided below. Small Claims Court Small claims court has jurisdiction over claims involving up to $7,000, but property damage in automobile accident cases can be higher. G.L. c. 218, § 21. Cases are tried to a judge. Parties generally do not need attorneys in small claims court; often, the court prefers not to see them. Instead, the judge will try to make sure the evidence is introduced fairly. District Court Jurisdiction in the District Court is governed by G.L. c. 281, which provides that actions for damages “may proceed in the [District Court] only if there is no reasona- ble likelihood that recovery by the plaintiff will exceed $25,000.” G.L. c. 218, § 19 (as amended by 2004 Mass. Acts c. 252, § 5); Mass. R. Civ. P. 12(b)(10) (improper amount of damages in Superior or District Court). The standard is procedural rather than jurisdictional, however, and an objection grounded on the $25,000 threshold may be waived if not timely raised. Sperounes v. Farese, 449 Mass. 800, 806–07 (2007); see also Mass. R. Civ. P. 12(h)(1) (defense of improper amount of damages waived “if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course”). If the defendant does not object on the basis of the amount of the recovery, the District Court judge may dismiss the action sua sponte or permit it to proceed. Sperounes v. Farese, 449 Mass. at 807. The District Court has equitable and declara- tory judgment jurisdiction in actions for money damages and summary process ac- tions, G.L. c. 218, § 19C, subject to a provision for interlocutory appeal to the appel- late division, G.L. c. 231, § 118A. See Sperounes v. Farese, 449 Mass. at 242. Superior Court This court has concurrent jurisdiction with the Supreme Judicial Court over all cases except those where the Supreme Judicial Court has appellate jurisdiction and those under G.L. c. 211, § 4A. However, there is a threshold requirement with respect to the amount of monetary damages. A civil action for money damages filed in the Su- perior Court may proceed to trial in that court “only if there is no reasonable likeli- hood that recovery by the plaintiff will be less than or equal to $25,000.” G.L. c. 212, § 3. In a case of money damages only, a judge who believes there is no reasonable likelihood that damages will exceed $25,000 must dismiss the case. Zizza v. Zizza, 456 Mass. 401, 406 (2010); see also Mass. R. Civ. P. 12(b)(10), (h)(1) (improper § 9.3 Massachusetts Basic Practice Manual 9–6 6th Edition 2017 | MCLE, Inc. Certain matters must be pled with particularity, including allegations of fraud, mis- take, duress, and undue influence. Mass. R. Civ. P. 9(b). Failure to plead facts sup- porting a prima facie case for these causes of action may result in dismissal of the case. However, the facts stated will be sufficient if they provide a “short and plain statement of the claim” pursuant to Mass. R. Civ. P. 8(a). The complaint does not need to set out all of the facts on which the claim is based. Lazzaro v. Holladay, 15 Mass. App. Ct. 108, 110–11 (1983). In personal injury cases, the complaint may not include a demand for a specific amount of money as damages. If it does, it may be dismissed. G.L. c. 231, § 13B; Friedman v. Globe Newspaper Co., 38 Mass. App. Ct. 923, 925 (1995) (dismissing case after party refused to comply with court order to remove ad damnum clause). But cf. 2014 Mass. Acts c. 254, § 1 (amending G.L. c. 231, § 13B to provide that, “[i]n civil actions in the superior court, parties, through their counsel, may suggest a specific monetary amount for damages at trial”). The complaint must be signed by an attorney, and his or her signature constitutes a certificate by him or her that he or she has read the complaint and that to the best of his or her knowledge, information, and belief, there are good grounds to support it. Mass. R. Civ. P. 11(a). The complaint and all other pleadings must also have the at- torney’s Board of Bar Overseers number and his or her e-mail address. Mass. R. Civ. P. 11(a); Super. Ct. R. 9A(6); Fed. R. Civ. P. 11(a). Declaratory Judgment Actions A declaratory judgment action requests that the court declare the rights, duties and legal relationships of the parties. G.L. c. 231A, § 1. It may be brought when the facts are not in dispute and the rights and obligations of the parties can be resolved by application of legal principles. For example, in the tort context, a declaratory judg- ment action may be brought to determine whether an insurance policy provides cov- erage for harm caused by the acts or omissions of an insured. If the underlying facts of the occurrence are not in dispute, the court will interpret the coverage sections of the policy and make a “declaration” as to whether coverage applies. If the underlying facts regarding the occurrence are in dispute, a jury trial may be necessary to resolve these issues. Once the jury makes findings as to the facts, the judge will adopt these facts and, on applying the law, make a declaration on the issue of coverage. (d) Service of the Complaint on the Defendant After filing the action in court and receiving a civil action number, the plaintiff must serve a summons and complaint on the defendant. For individuals, this may be ac- complished by • serving the defendant in hand, • leaving the papers at the defendant’s last and usual place of abode, or • delivering it to an agent authorized by appointment or statute to receive service of process. Preparing and Trying a Civil Case § 9.3 MCLE, Inc. | 6th Edition 2017 9–7 Mass. R. Civ. P. 4(d)(1). For corporations, this may be accomplished by • delivering a copy of the complaint and summons to an officer, managing agent, or general agent, or to the person in charge of the business at the principal place of business within the Commonwealth; or • delivering copies to any other agent authorized by appointment or by law to receive service of process, provided that any further notice required by law is given. Mass. R. Civ. P. 4(d)(2). If the process server cannot effectuate service this way, the plaintiff may ask the court to issue an order of notice as prescribed by law, usually by publishing it in the newspaper. Mass. R. Civ. P. 4(d)(1). Corporations located outside the Common- wealth may be served by any form of mail requiring a signed receipt. Mass. R. Civ. P. 4(e)(3). The plaintiff must serve a complaint on the defendant within ninety days or the case will be dismissed by the court. Mass. R. Civ. P. 4(j). Once service is effectuated, the process server must file a proof of service with the court. Mass. R. Civ. P. 4(f). § 9.3.2 The Answer In the state courts, the defendant must file an answer to the complaint within twenty days of being served. Mass. R. Civ. P. 12(a)(1). Extensions of time are usually granted by plaintiffs and by the court, but if the case is on the “fast track,” the time for dis- covery may be so adversely affected that extensions of more than thirty days may be difficult to obtain. In the federal court, as well, the defendant must file an answer within twenty days of being served, but if it waives service, it may file the answer within sixty to ninety days. See Fed. R. Civ. P. 12(a)(1). The answer must respond to each allegation, paragraph by paragraph. A defendant may admit the allegations, deny them, or state that it does not have sufficient infor- mation to either admit or deny them and that it therefore calls on the plaintiff to prove them. Mass. R. Civ. P. 8(b). A defendant must set forth certain “affirmative defenses” in the answer or it may not use them at trial. These affirmative defenses include but are not limited to the statute of limitations, comparative negligence, statute of frauds, res judicata, release, and laches. Mass. R. Civ. P. 8(c); Fed. R. Civ. P. 8(c). Therefore, the answer must be pre- pared with care. § 9.3 Massachusetts Basic Practice Manual 9–8 6th Edition 2017 | MCLE, Inc. An answer must also be filed for any counterclaims raised by the defendant in its answer. An answer to a counterclaim is technically called a “reply.” Mass. R. Civ. P. 7(a). But see Fed. R. Civ. P. 7(a)(3) (referring to an answer to a counterclaim). § 9.3.3 Jurisdiction over the Defendant The issue of personal jurisdiction arises when a Massachusetts plaintiff seeks to sue an out-of-state person or entity in the Massachusetts courts. In the area of tort litiga- tion, the general rule is that if a foreign defendant commits a tort in Massachusetts that causes injury in this state, it may be sued within Massachusetts. G.L. c. 223A, § 3(c). If the foreign defendant commits a tortious act outside of Massachusetts that causes injury in Massachusetts, the defendant may be sued in Massachusetts if it • transacts any business in Massachusetts and the injury arose out of the trans- acting of that business, • engages in the regular and systematic business or solicitation of business in Massachusetts, or • derives substantial revenue in Massachusetts from its business activities within the state. G.L. c. 223A, § 3(d). If any of these requirements are met, the court then must determine whether the for- eign defendant has sufficient contacts with Massachusetts such that it would be fair and reasonable to require the defendant to defend itself in this state. Tatro v. Manor Care, Inc., 416 Mass. 763 (1994). § 9.3.4 Pretrial Deadlines (a) State Courts Pursuant to Superior Court Standing Order 1-88, all cases filed in the Superior Court are assigned a track designation, which determines the amount of time the parties have to prepare and resolve the case. Cases are assigned to one of three tracks: fast, average, and accelerated. Fast track cases include claims involving contracts, general tort cases, real estate cases, and various actions for equitable relief. Discovery must be completed within ten months (300 days) of filing and the case should be disposed of within fourteen months. Average track cases include claims involving products liability, medical and other malpractice, wrongful death, defamation, asbestos, declaratory judgment, and vari- ous other actions. Discovery must be completed within twenty-six months (780 days) of filing and the case should be disposed of within thirty-two months. Preparing and Trying a Civil Case § 9.3 MCLE, Inc. | 6th Edition 2017 9–11 indemnity principles may be found in the Massachusetts Tort Law Manual (MCLE, Inc. 3d ed. 2017). § 9.3.8 Strategies for Preparing for Trial Trial preparation is enormously important in determining the outcome of a case. Ob- viously, proper preparation greatly enhances a party’s chance of success in the court- room. However, proper preparation also has a significant impact on cases that do not go to trial. Only about 5 percent of cases are actually tried; the vast majority of cases are settled during the discovery phase. The manner in which the case is prepared has an effect on the settlement reached. Therefore, it is essential to understand the mech- anisms available for trial preparation and how best to use them. (a) In General Rules 26–37 of the state and federal rules of civil procedure cover formal discovery in civil cases. Review them thoroughly. Also consult James W. Smith & Hiller B. Zobel, Rules Practice (7 Massachusetts Practice Series) (West 1975). See also Su- per. Ct. R. 30A (setting forth uniform definitions and rules for objections to interrog- atories and production requests). The Supreme Judicial Court has held that the adjudged construction given to the Federal Rules of Civil Procedure is to be given to the Massachusetts rules, absent compelling reasons to the contrary. Rollins Envtl. Servs., Inc. v. Superior Court, 368 Mass. 174 (1975); see also Gangl v. Ford Motor Credit Co., 37 Mass. App. Ct. 561, 562 (1994) (federal rules provide interpretive guidance to state courts); Russell v. Pride Convenience, Inc., 37 Mass. App. Ct. 502, 503 (1994). Therefore, federal court decisions applying the Federal Rules of Civil Procedure can often be used persua- sively in the resolution of discovery disputes. The leading treatises on the federal rules are Charles Wright, Arthur Miller & Mary Kay Kane, Federal Practice and Procedure (West 3d ed. 1998 & Supp. 2007) and Moore’s Federal Practice (Lexis Publishing 3d ed. 1997 & Supp. 2006). The extent to which formal discovery should be used is a matter of judgment. Factors in the decision include expense, timing, and whether facts are otherwise available that will enable attorneys to adequately evaluate the case and, if necessary, prove the case at trial. Many attorneys use discovery extensively in the belief that the best way to evaluate a case is to prepare it for trial, and the best way to achieve a fair settle- ment is to telegraph to the opposing party that the case is ready to be ably tried in court. The use of formal discovery for both these purposes has been made even more important by a decision holding that a lawyer who inadequately prepares a case for trial and then settles the case may be liable for malpractice and subject to damages, even if the client has approved the settlement. Fishman v. Brooks, 396 Mass. 643 (1986). For sample forms, see Matthew Bender, Bender’s Forms of Discovery (Bender, 1963) (16 volumes); R. Simpson, Modern Civil Discovery and Depositions (Garland Law § 9.3 Massachusetts Basic Practice Manual 9–12 6th Edition 2017 | MCLE, Inc. Pub. 1988); Douglas Danner & Larry L. Varn, Pattern Deposition Checklists (West Group, 4th ed. 1998). (b) Scope of Discovery Permitted The scope of permissible discovery is governed by Massachusetts and Federal Rule of Civil Procedure 26(b)(1), which states that information and documents may be obtained if they are not privileged and are “reasonably calculated to lead to the dis- covery of admissible evidence.” A party does not have to show that the discovery sought will be actually admissible under the rules of evidence at the time of trial. It is enough that it can in turn lead to such evidence. Rule 26(b)(5) of the Massachusetts Rules of Civil Procedure requires that a privilege log be produced by a party withholding information or documents it claims are privi- leged. However, the parties may agree in writing that such a log is unnecessary. Mass. R. Civ. P. 26(b)(5); see also Fed. R. Civ. P. 26(b)(5)(A) (corollary rule in the federal court). Practice Note Since privilege logs can be expensive to prepare due to the time involved in putting together the information they need to contain, counsel should consider the likelihood that there is additional information that is actually discoverable before deciding not to waive the need for it. The privileges that limit the scope of discovery are discussed below. Documents Prepared in Anticipation of Litigation The rule protecting documents prepared in anticipation of litigation allows parties to begin preparation for a lawsuit without having to worry that their work will be pro- vided to the opposing side. However, an exception arises when a party can show that it has substantial need of the materials in preparation of the case and it is unable to obtain the substantial equivalent of the materials by other means. In ordering the dis- covery of the information, the court shall protect from disclosure the mental impres- sions, conclusions, opinions, or legal theories of the attorney concerning the litigation. Additionally, a party must produce any statement it has taken from another party to that party or be prevented from introducing the statement as evidence at trial. G.L. c. 233, § 23A. Thoughts and Impressions of Counsel The so-called attorney “work-product” privilege protects the attorney from having to provide expertise, strategy, mental impressions, and opinions to the opposing party. Hickman v. Taylor, 329 U.S. 495 (1947); Venkus v. Norcross, Suffolk Super. Ct. No. 13764 (Superior Court memorandum by Judge James P. Lynch, Jr., which serves as a minitreatise on the scope of discovery). However, there are some distinctions that must be drawn. In responding to discovery, plaintiffs must describe their claims against the defendant, even if the plaintiffs themselves do not understand the legal Preparing and Trying a Civil Case § 9.3 MCLE, Inc. | 6th Edition 2017 9–13 significance of them due to their lack of knowledge of the law. In other words, the plaintiffs’ attorney has to provide the factual basis of the clients’ claims. Similarly, defendants must provide the basis of their defenses. Attorney-Client Communications Communications between an attorney and his or her client are protected. An excep- tion exists where a client indicates an intent to commit a crime in the future. Purcell v. Dist. Attorney for the Suffolk Dist., 424 Mass. 109, 112–13 (1997). For a helpful explanation of the extent of this privilege, see Commissioner of Revenue v. Comcast Corp., 453 Mass. 293 (2009). (c) Developing a Discovery Strategy Before embarking on a course of discovery, attorneys should have a clear idea of what they intend to accomplish and why. Thoughtful reflection at the beginning of a case can pay handsome dividends later. A determination of the following is helpful in that regard. Use Your Client’s Knowledge As mentioned above, one of the best and most important assets attorneys have in preparing a case is their client. Clients have a better insight into the case at the be- ginning of the lawsuit because they are more familiar with it. Therefore, the attorney and client should act as a team in preparing the discovery strategy. Learn the Law The attorney must have a clear understanding of the law governing the case. An un- derstanding of the law provides a legal road map for discovery and allows for the identification of the facts that are critical to success. An understanding of the law will also allow the preparation of the case for summary judgment before trial or a directed verdict during trial. Master the Facts The attorney must also have a clear understanding of the facts of the case. Although this seems basic and obvious, an attorney cannot possibly prepare a case without spending the time to master the details and other minutiae of a case. Often, the facts that seem the simplest and least important can lead to valuable evidence. Inspect the Evidence One of the best ways to appreciate the facts of a case is to inspect the evidence. This may include the documents in commercial cases, the product in product liability cases, real estate in environmental and property cases, and the accident scene in personal injury cases. This should be done with your client and your expert. § 9.3 Massachusetts Basic Practice Manual 9–16 6th Edition 2017 | MCLE, Inc. (d) Interrogatories A party’s use of interrogatories is governed by Mass. R. Civ. P. 33 and Fed. R. Civ. P. 33. Interrogatories are a relatively inexpensive and versatile way of obtaining infor- mation. Any party may serve interrogatories on any other party without leave of court. However, for cases pending in the Superior Court, interrogatories must be filed within one year of the entry of the action unless the court allows a longer period. Super. Ct. R. 30. In the state courts, a party may serve up to thirty interrogatories and, on leave of court, may serve more if the situation justifies it. Mass. R. Civ. P. 33(a). In federal court, the maximum number is twenty-five, including subparts. Fed. R. Civ. P. 33(a)(1). If the court allows your motion to serve more interrogatories, the opposing party will likely get a chance to serve more as well. Answers to interrogatories must be signed under the penalties of perjury and provided within forty-five days in state court and thirty days in federal court, unless the court permits additional time. In light of the time allowed for response, it is best to send interrogatories out early in the case. Practice Note Since courts often grant extensions, parties often provide them as a courtesy. The courts often do not like to see lawyers play hardball by re- fusing reasonable requests for additional time. Interrogatories must be answered in the form set out in Superior Court Rule 30 in Superior Court and D. Mass. R. 33.1 in federal court. Standard definitions and re- quirements for objections are set out in Superior Court Rule 30A. If a party does not provide answers in a timely fashion and has not obtained an ex- tension of time, the party seeking discovery may file a motion to compel the answers under Mass. R. Civ. P. 37(a) or Fed. R. Civ. P. 37(a). This requires compliance with the applicable procedures for filing motions set out by court rules. In the state courts, the requesting party may also serve a final request for answers under Mass. R. Civ. P. 33(a)(4). The final request must state that the interrogating party may apply for final judgment for relief or dismissal pursuant to Mass. R. Civ. P. 33(a)(4) if the answers are not obtained within forty days. If the answers are not ob- tained within that time frame, the party may file a written application for entry of final judgment for relief or dismissal. The forty days are deemed to include the three- day period allowed by Mass. R. Civ. P. 6(d) (which allows for additional time when serving by mail). The application must be accompanied by a copy of the final request for answers and an affidavit containing the following information: • the date on and manner in which the interrogatories were served, • the facts that the forty-five-day time period for service of the answers or objec- tions expired and that they were not received, • the date on and manner in which the final request for answers was served, Preparing and Trying a Civil Case § 9.3 MCLE, Inc. | 6th Edition 2017 9–17 • the facts that the forty-day time period has expired and that no answers or ob- jections have been received, and • a statement that the party now applies for final judgment for relief or dismissal. In lieu of providing a written answer to an interrogatory, a party may refer to its business records instead (if they contain the information requested). Mass. R. Civ. P. 33(c); Fed. R. Civ. P. 33(d); D. Mass. R. 33.1(B). However, a party may not refer to documents it did not create. For example, personal injury plaintiffs may not refer to their medical records to answer questions about their medical condition, because they did not prepare the records. Practice Note As a practical matter, one of the benefits of filing interrogatories is that parties have to make reasonable inquiry of the information known to them in preparing answers. Therefore, questions should be asked about subjects the party may not remember well at a deposition, such as the basis for the party’s claims and defenses, the amount of special damages, and witness names and addresses. (e) Requests for Production of Documents and Things Rule 34 of the state and federal rules of civil procedure provides that parties may make a request for the production of documents and things to every other party in order to obtain evidence. The items requested must be provided within thirty days. There is no statutory limit on the number of documents that a party can request. If a party does not provide the items requested, the party seeking discovery must file a motion to compel their production with the court. There is no application procedure similar to the one available for failure to provide answers to interrogatories. Practice Note Send out document requests early so you can have the documents be- fore depositions are taken. This will allow you to use the documents dur- ing your examination of witnesses. Responses must be set out in the format provided by Mass. R. Civ. P. 34(b) in the Superior Court and D. Mass. R. 34.1 in the federal court. Standard definitions are set out in Superior Court Rule 30A. General objections may be made only where the response is served before production is complete. Super. Ct. R. 30A(3)(a). Once pro- duction is complete, general objections are prohibited. Super. Ct. R. 30A(3)(b). When an objection is made, the objecting party must identify the nature of the docu- ments withheld. Super. Ct. R. 30A(3)(b). (f) Requests for Admissions Rule 36 of the state and federal rules of civil procedure provides that a party may serve on any other party a written request for admission of the truth of any matters § 9.3 Massachusetts Basic Practice Manual 9–18 6th Edition 2017 | MCLE, Inc. that relate to statements or opinions of fact, or the application of law to fact, includ- ing the genuineness of any document described in the request. Parties have thirty days in which to admit or deny the requests or state that after mak- ing reasonable inquiry, the facts known or readily obtainable are insufficient to admit or deny the request. If no such responses are made within thirty days, the requests are automatically deemed admitted. Reynolds Aluminum Bldg. Prods. Co. v. Leonard, 395 Mass. 255, 258 (1985). However, the court may provide additional time if the party so moves. Under Rule 36(b), upon motion and subject to Rule 16 (governing amendment of a pretrial order), the court may also permit a party to withdraw or amend the responses when the presentation of the merits of the action will be sub- served thereby, and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice it in maintaining its action or defense on the merits. See Farr Man & Co. v. M/V Rozita, 903 F.2d 871, 875–77 (1st Cir. 1990). Practice Note Be very careful to record the date responses to requests for admissions are due and make sure they are filed on time. Requests are deemed admitted if they are not responded to in a timely fashion. Responses must be set out in the format provided by Mass. R. Civ. P. 36(a) in the Superior Court, and D. Mass. R. 36.1 in the federal court. (g) Depositions Deposition Strategy After commencement of an action in state court, any party may take the testimony of any person, including a party, by deposition on oral examination. Mass. R. Civ. P. 30(a); cf. Fed. R. Civ. P. 26(d), 30(a) (requiring leave of court in certain instances, including cases in which the parties have not yet conferred pursuant to Fed. R. Civ. P. 26(f)). Seven days’ written notice to the other parties is required in state court, Mass. R. Civ. P. 30(b); “reasonable written notice” is required in federal court, Fed. R. Civ. P. 30(b)(1). But cf. Fed. R. Civ. P. 32(a)(5) (“A deposition must not be used against a party who, having received less than 11 days’ notice of the deposition, promptly moved for a protective order under Rule 26(c)(1)(B) requesting that it not be taken or be taken at a different time or place—and this motion was still pending when the deposition was taken.”). A party wishing to depose a nonparty witness must serve the deponent with a subpoena (subpoenas are not necessary when deposing a party to the action). Both party and nonparty witnesses may be required to bring documents or things to the deposition. In state court, nonparty witnesses should be served at least ten days before the deposition to give them a chance to move for a protective order, see Mass. R. Civ. P. 45; in federal court, the witness is allowed up to fourteen days to object to the subpoena if documents are requested, see Fed. R. Civ. P. 45(c)(2)(B). A deposition is an extremely efficient way to obtain evidence for trial. Therefore, it is essential to properly prepare for it. Attorneys should have a very clear idea of the Preparing and Trying a Civil Case § 9.3 MCLE, Inc. | 6th Edition 2017 9–21 mail with a certificate that they are complete and the deposition need not go forward, but this is best done by agreement of counsel. Video Depositions Video depositions, which are governed by Mass. R. Civ. P. 30A and Fed. R. Civ. P. 30(b)(3)(A), are used to secure the testimony of doctors and witnesses who will be unavailable for trial. Since the video will be played directly to the jury, it is essential to handle a video deposition with particular care. You should read the rules thoroughly to make sure you are familiar with the technical requirements. Get to the deposition early and familiarize yourself with the manner in which the deposition will be filmed. Speak with the camera operator to ensure that he or she understands the job. Find out if there will be any problems with the physical layout and background of the deposition. Talk with opposing counsel to work out any po- tential disagreements—these are usually better off worked out in advance. The witness will generally be filmed from the stomach or chest up. However, to make things more interesting, videographers will zoom the camera in and out during the examination. Make sure that the area behind the witness, which will be visible during testimony, is appropriate. Inappropriate backgrounds would include bookshelves with medical and legal books on them, inadmissible charts and pictures, and any other background that would be out of keeping with a courtroom. Make sure the witness wears the same type of attire that would be expected during the trial. For instance, doctors do not wear white jackets with stethoscopes around their necks at trial and should not do so on the video. Remember that everything you say will be heard by the jury at trial. Conduct your- self accordingly. Also keep in mind that you will be off-camera and that the jury will be focusing on what you say, not what you do. Since you will have a microphone attached to your shirt, everything you say and any noises you make will be recorded. Therefore, do not engage in conversations with other counsel at the table, groan, or make other inappropriate sounds during the dep- osition. If you do, you will hear it all over again at trial. Since you will be off-camera, you can put as many notes in front of you as you wish; therefore, do not hesitate to do so. Jurors are used to watching television but generally expect to be continually enter- tained by what they are watching. So keep any exhibits you want the witness to refer to handy so you can present them quickly. There is nothing more boring to a jury than watching a witness on television while nothing appears to be happening. Make your examination as polished as possible. Think of it not so much as a video deposition as video trial testimony. § 9.3 Massachusetts Basic Practice Manual 9–22 6th Edition 2017 | MCLE, Inc. When you receive the video and transcript, review them carefully to determine what motions in limine you may wish to bring to exclude any portions of the deposition. (h) Experts Expert testimony is appropriate where the subject matter at issue is beyond the knowledge of the ordinary juror. Jackson v. Anthony, 282 Mass. 540, 544 (1933). Plaintiffs must present expert testimony to establish liability in some cases due to the nature of the allegations. For example, product liability cases involving complex en- gineering design issues require expert testimony. See, e.g., Goffredo v. Mercedes- Benz Truck Co., 402 Mass. 97 (1988). However, expert testimony is not necessary in cases where ordinary jurors can form an opinion on the issue of a defect without it. Smith v. Ariens Co., 375 Mass. 620 (1978) (simple nature of design defect involving sharp metal protrusions plaintiff struck in accident did not require expert). Plaintiffs in personal injury cases generally must provide expert medical testimony that causally relates the plaintiff’s injury to the accident. Failure to provide this tes- timony may result in judgment for the defendant. Grant v. Lewis/Boyle, Inc., 408 Mass. 269, 275–76 (1990); Kaye v. Newhall, 356 Mass. 300, 303 (1969). Experts can be the most important part of a case due to the nature of the testimony they can provide. Choose your expert carefully. Experts should have expertise on the specific issues involved. They should also be capable of explaining complex princi- ples to lay jurors in a convincing manner. Retain an expert early in the litigation to provide advice on trial preparation. This will enable you to properly understand the complicated issues involved and develop a strategy for preparing your case for trial. Make sure your expert is willing to be an advocate for you. They must not only be convinced of the truth of their opinion, they must also be interested in convincing the jury of it. In product liability cases, inspect the product with your expert as soon as possible. This will be an invaluable opportunity to learn about the strengths and weaknesses of the product’s design, manufacture, and warnings. Learning how to operate it will enable you to effectively depose witnesses. Remember, you have to become an ex- pert on the product. Additionally, if your expert has possession of the product, ensure that it is properly preserved. It should be kept in a location where it will not be al- tered or lost and where chain of custody can be maintained and verified. Do not per- mit destructive testing without the express written consent of all of the parties and potential parties in interest or a court order with proper notice to each of them. Spoli- ation of evidence can result in preclusion of the expert from testifying at trial. Nally v. Volkswagen of Am., Inc., 405 Mass. 191 (1989). Disclosure of information concerning experts during discovery is governed by Mass. R. Civ. P. 26(b)(4) and (e) and Fed. R. Civ. P. 26(a)(2), (b)(4). Preparing and Trying a Civil Case § 9.3 MCLE, Inc. | 6th Edition 2017 9–23 (i) Independent Medical Examinations Defendants in personal injury actions may obtain a court order to have the plaintiff examined by an independent medical expert of their choice. Mass. R. Civ. P. 35; Fed. R. Civ. P. 35. However, the doctor must then write a report containing his or her findings and opinions, and produce a copy to the plaintiff. In state court, the report may be introduced at trial by the plaintiff without the need for calling the doctor to testify. G.L. c. 79G. To reduce the risk of an independent medical expert creating helpful evidence for the plaintiff, the best procedure for a defendant is to have the expert first review the med- ical records, answers to interrogatories, and deposition transcripts. Once the expert has rendered a preliminary opinion (that is not discoverable), a decision can be made on whether an independent medical examination (IME) should go forward. Proceed with the IME only if the expert believes the report will be favorable to the defendant. (j) Electronically Stored Information There used to be a time when the term “documents” referred just to pieces of paper. That is not the case anymore. A tremendous number of documents are stored elec- tronically and consist not only of what was traditionally printed or typed on paper, but also of e-mails, texts, and other such communications. Effective January 1, 2014, there are new rules of civil procedure dealing with this issue. Rule 26(f) addresses the discovery of electronically stored information, Rule 34 addresses the production of that information by the parties, Rule 37 addresses the failure to provide that information, and Rules 45(b) and 45(f) deal with subpoenas of that information. Counsel need to prepare a strategy dealing with each of these issues before and dur- ing the litigation, and to take affirmative steps to ensure that their clients do not in- tentionally or inadvertently destroy electronically stored information that meets the discoverability test of Rule 26. § 9.3.9 Pretrial Motion Practice (a) General Considerations Motion practice is often a critical part of pretrial preparation. Motions are filed for a wide variety of reasons, such as to file answers late, remove defaults, add parties, add claims and defenses, obtain better discovery responses, obtain extensions of time, obtain attachments, dismiss claims, and obtain summary judgment. Practices differ among the state superior and district courts and the federal court. An understanding of the proper procedures for each court is essential. Civil motion practice in the state and federal courts is governed by state and federal rules of civil procedure, especially Rules 5, 6, 7, 10, 11, and 12. The Superior Court also has its own supplemental rules—primarily Superior Court Rules 9, 9A, and 9C § 9.3 Massachusetts Basic Practice Manual 9–26 6th Edition 2017 | MCLE, Inc. days after it is served. Otherwise, amendments must be accomplished by motion; leave to amend shall be “freely” given. Mass. R. Civ. P. 15(a); Fed. R. Civ. P. 15(a). Motion to Consolidate Actions When actions involving a common question of law or fact are pending, the court may order a joint hearing or trial of any of the matters in issue in those actions. Mass. R. Civ. P. 42; Trenz v. Family Dollar Stores of Mass., Inc., 73 Mass. App. Ct. 610 (2009) (separate actions involving claims between the same parties that arise out of the same contractual relationship and that could have been raised as claims and counterclaims in a single action are particularly suitable for consolidation). But if consolidation will delay the resolution of the case or cause confusion, the court may deny a motion to consolidate. City of Springfield v. Civil Serv. Comm’n, 403 Mass. 612 (1988). Motion to Bifurcate Trial In furtherance of convenience or to avoid prejudice, the court may order separate trials of any claim, cross-claim, counterclaim, or third-party claim if doing so will be conducive to expedition and economy. Mass. R. Civ. P. 42. Motion to Dismiss A defendant may file a motion to dismiss asserting that the complaint is deficient as a matter of law and that the action should be terminated without any further response from the defendant. Grounds for a motion to dismiss, which are set forth in Mass. R. Civ. P. 12(b), include • lack of consideration, • lack of jurisdiction, • improper venue, • insufficient process, • insufficient service of process, • failure to state a claim upon which relief can be granted, • failure to join a party under Rule 19, • misnomer of a party, • pendency of a prior action in a court of the Commonwealth, and • an amount of damages likely to be recovered that does not meet the require- ments of G.L. c. 212, § 3 (Superior Court) or G.L. c. 218, § 19 (District Court and Boston Municipal Court). Preparing and Trying a Civil Case § 9.3 MCLE, Inc. | 6th Edition 2017 9–27 Motion for Summary Judgment General Considerations After the complaint and answer have been filed and adequate discovery has taken place, a defendant must consider whether the plaintiff has marshaled enough evi- dence to state a viable cause of action. Under Mass. R. Civ. P. 56 and Fed. R. Civ. P. 56, a party seeking a declaratory judgment or against whom a claim, counterclaim, or cross-claim has been made may move with or without supporting affidavits for sum- mary judgment. Parties contemplating the filing of a summary judgment motion or responding to such a motion should carefully review applicable court rules as to the required form, timing, and manner of filing motion papers. See, e.g., Super. Ct. R. 9A(b)(5); D. Mass. R. 56.1. Time for Filing A motion for summary judgment may be filed by a claimant at any time after the expiration of twenty days from the commencement of the action or after service of a motion by the adverse party. Mass. R. Civ. P. 56(a); Fed. R. Civ. P. 56(a). There is no such time limitation for defendants. Mass. R. Civ. P. 56(b); Fed. R. Civ. P. 56(b). Practice Note Massachusetts Superior Court Standing Order 1-88(E) provides dead- lines by which these motions must be filed and heard. For fast track cases, the deadline is 330 days after the case is filed, and for average track cases the period is 840 days. However, given that these deadlines are contrary to the rules of civil procedure, which are statutory and clearly state that the motion may be filed at any time, there is a question as to whether these deadlines are legally enforceable. Parties in the Superior Court must first send the motion to the other parties, who then have twenty-one days to send back an opposition (plus three days for mailing). The motion and all oppositions are then filed in the court by the moving party. The court sets a hearing date. Super. Ct. R. 9A(a)(2), (b). Practice Note If you are successful and there are additional defendants who remain in the case, or fewer than all of the claims against the defendant are re- solved, the defendant will need to file a motion for separate entry of final judgment pursuant to Mass. R. Civ. P. 54(b). Otherwise, the appeal per- iod will not begin until the entire case has been resolved. A sample mo- tion and proposed order are contained in Exhibits 9A and 9B. § 9.3 Massachusetts Basic Practice Manual 9–28 6th Edition 2017 | MCLE, Inc. Standard of Review A party is entitled to summary judgment if it can establish that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(b). All reasonable inferences drawn from the materials accompanying a motion for summary judgment must be viewed in the light most favorable to the party opposing the motion. E.g., Curly Customs, Inc. v. Bank of Boston, N.A., 49 Mass. App. Ct. 197, 198 (2000). Motion for Sanctions If a party fails to obey a court order or engages in inappropriate conduct during the litigation, any other party thereby aggrieved may file a motion for sanctions. Mass. R. Civ. P. 37(b); Fed. R. Civ. P. 37(b). The motion should be accompanied by a memorandum in support stating • the nature of the case, • the nature of the order violated or the inappropriate conduct, • the sanctions desired, and • legal support justifying the sanction. A hearing is then held on the motion. Sanctions that may be imposed by the court include the following: • an order prohibiting a party from introducing certain evidence at trial, • an order compelling a party to produce evidence or submit to an inspection or independent medical examination, • an order dismissing the case or entering judgment in a party’s favor, and • an order requiring payment of attorney fees incurred in preparing the motion and attending the hearing. Other sanctions may be entered, depending on the circumstances. Motion to Continue Trial Motions to continue a trial will be granted only for good cause. Mass. R. Civ. P. 40; D. Mass. R. 40.3(A). The decision as to whether to continue the trial date rests in the sound discretion of the trial judge. Foote v. Process Equip. Co., 353 Mass. 755 (1967); Knapp v. Graham, 320 Mass. 50 (1946). In the state court, if the reason for the continuance is the unavailability of a witness, the moving party must file a supporting affidavit stating • the name of the witness and, if known, the witness’s address; • the facts to which the witness would testify; Preparing and Trying a Civil Case § 9.3 MCLE, Inc. | 6th Edition 2017 9–31 If you are not confident that the case will settle and you feel that providing part of your defense will enable your opponent to counter it better at trial, keep it to your- self. Do not feel you need to risk your ability to try your case if the probability of a settlement is low. This is always a difficult judgment call to make. Never tell a mediator your full authority to settle a case. Despite the mediator’s best intentions, this will compromise your ability to negotiate. § 9.3.11 The Pretrial Conference Pretrial conferences usually take place shortly after the discovery deadline. Parties are required to file a joint pretrial memorandum. Although the format varies, the con- tents are generally the following: • agreed facts, • contested facts and position of the parties, • agreed legal issues, • contested legal issues and positions of the parties, • witnesses, • experts, • agreed exhibits, • contested exhibits, • estimated length of trial, and • settlement status. The purpose of the memorandum is to provide the trial judge with a fairly detailed overview of the case. The memorandum will undoubtedly have an impact on how the judge views the case, so attorneys must prepare it carefully. Failure to list a docu- ment or witness may preclude a party from calling the witness or introducing the document at trial. Pretrial conferences may be held in open court or in the judge’s chambers. Trial counsel are required to attend. Settlement is almost always discussed and the judge often asks the attorneys for a detailed recitation of the evidence they intend to present at trial. The admissibility of evidence and the sufficiency of the plaintiff’s claims and defendant’s defenses are also explored. A judge may enter sanctions against unpre- pared attorneys. A trial date is set, as well as a date for a hearing on any preliminary matters the judge believes necessary. Practice Note It is essential to be thoroughly prepared for the pretrial conference so questions asked by the judge may be answered quickly and accurately. Judges do not respect attorneys who are unprepared. § 9.3 Massachusetts Basic Practice Manual 9–32 6th Edition 2017 | MCLE, Inc. Address your comments to the judge, not to other counsel. Answer the judge’s questions directly, concisely, and persuasively. § 9.4 THE TRIAL Trials are often compared to theater. The jury is the audience; the lawyers and wit- nesses are the actors. Their scripts have largely been written during pretrial deposi- tions and answers to interrogatories. However, the selection of which parts go first and precisely how they are delivered is up to the attorneys. Careful preparation is essential to ensure a good performance. A great performance requires correspondingly more work. Expect the jury to watch and listen to every- thing presented to them and keep in mind that every nuance may be accorded great weight. It is critical that you maintain an unconcerned “poker face” when damaging evidence is introduced. The basic activities making up a trial are discussed below, in the order in which they generally occur. § 9.4.1 Jury Selection Process Juries are chosen from a jury pool at the beginning of the trial. Each juror is assigned a number and submits a form with their name, address, occupation, spouse’s name and occupation, and their prior involvement with the court system. The forms are provided to trial counsel, who generally have about ten minutes to review them. Practice Note Beginning February 2, 2015, attorneys and self-represented parties in Superior Court have been permitted, upon request, “to conduct an oral examination of the prospective jurors at the discretion of the court.” 2014 Mass. Acts c. 254, § 2 (to be codified at G.L. c. 234, § 28). Superior Court Standing Order 1-15, available at http:// www.mass.gov/courts/docs/ courts-and-judges/courts/superior-court/standing-order-1-15.pdf, set forth an interim procedure that included the submission of motions for leave to conduct such examinations, guidance on proposed questions that will generally be approved or disapproved, actions to be taken by the trial judge, and a mechanism for “panel voir dire,” in which counsel question jurors as a group. Effective September 1, 2017, the court’s provisions on attorney-conducted voir dire will be set forth in Superior Court Rule 6. During that time, the judge welcomes the jury pool to the courtroom, introduces him- self or herself, and asks the attorneys to introduce themselves. The judge then tells the jurors very generally what the case is about and how long the trial is expected to take and asks the attorneys to stand, introduce themselves, and say whom they repre- sent. The judge reads the names of all witnesses expected to testify and asks the pro- spective jurors if they know any of the attorneys or witnesses. Preparing and Trying a Civil Case § 9.4 MCLE, Inc. | 6th Edition 2017 9–33 The procedure for examining potential jurors in the Superior Court is set out in Mass. R. Civ. P. 47(a) (there are two versions of this rule so you need to check which one applies to your case), and the procedure for the federal court is set out in Fed. R. Civ. P. 47(a). The clerk then calls jurors to sit in the jury box. The plaintiff is given the first chance to challenge the jurors. The order in which the clerk calls the jurors corresponds to the order in which their forms are stacked. Thus, attorneys can predict which juror the clerk will call next. Each party is permitted four challenges for each opposing party (i.e., if there is one plaintiff and two defendants, the plaintiff gets eight chal- lenges and each defendant gets four). A party may challenge a juror for any reason except race or gender but need not give the reasons. The attorneys walk up to the sidebar and tell the judge which jurors they challenge. The clerk then fills any vacancies created by the challenges, and the plaintiff is asked whether it is satisfied with the new jurors. If it decides to challenge them, counsel approaches the sidebar, where he or she again does so quietly and on the record. This is repeated until the plaintiff is satisfied with all of the jurors or runs out of challenges. The defendant then has a chance to challenge jurors in the same way the plaintiff did. Once all defendants are satisfied, the plaintiff is again afforded the opportunity to challenge any new jurors if it has any challenges left. The plaintiff may not challenge jurors it accepted in the first round of challenge. This system is repeated until the parties are satisfied or have run out of challenges. Practice Note In light of the paucity of information provided on the juror forms, the un- certainty of which jurors the other parties will challenge, the limited num- ber of challenges provided each party, and the limited amount of time to make decisions, a strategy for selecting a jury should be considered be- fore trial. § 9.4.2 Choosing the Right Jury You do not select the jury; you deselect jurors. You have a limited number of chal- lenges, so you need to ensure that you use them correctly. Give jury selection a lot of thought before the trial begins. Prepare a list of questions for the judge to ask potential jurors. For instance, if you are defending a company in a personal injury lawsuit, ask the judge to find out if any of the jurors or their family members have been injured in an accident; they may be prejudiced in favor of the plaintiff. In general, many lawyers have thought that the following characteristics are associated with the manner in which parties choose jurors. • Pro-defendant jurors: – very young: they do not have enough experience to have compassion. – very old: jealous of giving much money. § 9.4 Massachusetts Basic Practice Manual 9–36 6th Edition 2017 | MCLE, Inc. As you can see from these examples, you can determine the battlefield of the case by the way you structure your opening. Make sure the jury sees this as a case about facts that are favorable to you. If the jury sees the case as depending on facts favorable to your opponent, you are more likely to lose. (c) Performing Your Opening Be respectful of the jury. This is your first opportunity to address them, and first im- pressions are important. Jurors will tend to size you up and assess your credibility from the moment you begin speaking. Make sure that what you say makes sense and comes across in a natural and sincere manner. During your opening, teach the jury about complicated issues they will be consider- ing. We were all trained from a young age to trust our teachers. Become a trusted teacher to the jury. Use pejorative words when talking about your opponent. Word choice is very im- portant. For instance, “ignored warning” is better than “didn’t do anything.” Hit your weak points on terms you can explain. For example, say “Although you will hear . . . ,” then explain it away. Juries can be told how to receive information and file it away with a particular perspective and attitude. Alter your pace and tone of voice during the opening. Do not be afraid of silence. Pausing before an important point will help emphasize it. Be yourself. Do not try to be like a dramatic actor you saw on television. Sincerity comes from the heart. If you have a good liability case, concentrate on liability in your opening statement. Although you should mention damages, keep it relatively short. You can discuss damages in the closing argument. § 9.4.4 The Plaintiff’s Evidence Plaintiffs present evidence to the jury first. They may call witnesses and introduce documentary and other evidence in any order they choose. The plaintiffs may call the defendant to testify and defense counsel must be prepared for this. The defendant has a chance to cross-examine each of the plaintiff’s witnesses once the plaintiff’s attorney has finished direct examination. Leading questions are permit- ted on cross-examination but not on direct examination. The presentation of evidence is addressed below. Preparing and Trying a Civil Case § 9.4 MCLE, Inc. | 6th Edition 2017 9–37 § 9.4.5 The Defendant’s Evidence If the motion for a directed verdict is not allowed, the defendants then present their evidence. The plaintiffs cross-examine each witness in the same manner as the de- fendants did earlier. The presentation of evidence is addressed below. Practice Note To rely on a response to a request for admissions under Rule 36, you must introduce it into the record during trial. This can be done at the end of the trial or while cross-examining a witness. See James W. Smith & Hiller B. Zobel, Rules Practice (7 Massachusetts Practice Series) § 36.9, at 402 (West 1975). § 9.4.6 Direct Examination (a) Preparation of Your Direct Examination Before your witnesses arrive at the courthouse, make sure they realize the importance of their appearance. They should wear formal clothes in conservative colors. How- ever, they should also be comfortable. Therefore, if they are not used to wearing for- mal clothes and you want them to do so at trial, have them wear their outfits for a period of time before the trial to become accustomed to them. Tell your witnesses that if they forget something, you will ask them about it. This will help put them at ease; all they need to do is answer your questions. Develop a logical organization for the examination. This will make it easier for your witnesses and the jury to follow. Develop an outline of the testimony you want to elicit from each witness. After you have become familiar with it, reduce each point to a couple of words. This will lessen the amount of reading you need to do as you glance at your notes during the examination. Expert witnesses should be told to keep their testimony as simple as possible and to go slowly. Jurors tune out once they get lost. The expert’s job is to teach; they should assume that the jurors know nothing about the topic at issue. Prepare your clients by having them sit in a chair away from other furniture and ob- jects. Stand far away when you practice the questions and answers. This will get your clients used to talking on the witness stand. Practice your examination with the exhibits you intend to use. Make sure the wit- nesses are familiar with them and know how you intend to use them. § 9.4 Massachusetts Basic Practice Manual 9–38 6th Edition 2017 | MCLE, Inc. Most people are not used to speaking in public, let alone in courtrooms. They will be nervous during their testimony. Therefore, try to put them at ease by giving them positive reinforcement. Often, acknowledging someone’s nervousness can put them at ease. (b) Performing Your Direct Examination During a direct examination, it is best if the witness does most of the talking. You should simply feed open-ended questions, such as “What happened next?” or “How did that make you feel?” Your job is to keep the narrative moving and steer it in the proper direction. Take the wind out of your opponent’s sails by referring to your case’s problems. Bury this in the middle of the testimony and make it a nonissue. Make sure your witnesses speak loudly enough. Tell them beforehand that their an- swers are important and that if the jurors cannot hear them, their efforts will be wasted. Have your witnesses talk to you rather than to the jury. If a witness looks at you for the question and then at the jury while giving the answer, it will look rehearsed and insincere. However, it is a good idea for your witnesses to look at the jury from time to time if it can be done in a natural fashion. Show respect for your witnesses. Juries are more likely to respect someone for whom you have demonstrated your own respect. Have the witnesses tell the jury who they are by going through their background, including their family, education, employment, and places lived. This will make it easier for the jury to identify with them and get to know them. This will also put the witnesses at ease. Maintain eye contact with the witness. If you do not look at the witness, the jurors will think he or she is unimportant and will not pay attention. Listen to the witness’s answers. Do not simply think about your next question or look at your notes. You may miss things they need to say and the flow will seem less like a conversation. Pay attention to the witness and the other things going on in the courtroom. If the witness’s voice drops, ask him or her to be kind enough to speak up a little bit. If people are noisily entering or leaving the courtroom, give them a chance to settle down so the jurors are not distracted from the testimony you want them to hear. A natural rhythm is important. Let the end of the witness’s answer become the focus of your next question. This will also help the jury follow the testimony and help you remember the next question to ask. When moving from one topic to another, use a transitional sentence to let the wit- nesses and jury know you are changing gears. Make the transition smoothly, i.e., Preparing and Trying a Civil Case § 9.4 MCLE, Inc. | 6th Edition 2017 9–41 § 9.4.8 Questions by Jurors The Supreme Judicial Court ruled in 2001 that jurors may ask questions of witnesses in all cases. Commonwealth v. Britto, 433 Mass. 596 (2001). Jurors’ questions are not limited to important matters, as previously required in Commonwealth v. Urena, 417 Mass. 692 (1994), but may also extend to seeking clarification of a witness’s testimony. Commonwealth v. Britto, 433 Mass. at 613. This expansion poses the po- tential problem of an increased number of juror questions and the need for a judge to rein in energetic jurors. It also presents additional considerations for trial counsel, as well as some burdens, that require some thought both before and during the trial. (a) Procedure After a given witness’s testimony on direct and cross-examination, jurors are given the chance to submit their own questions in writing to the judge. The questions should have the juror’s identification number on them. Having a way to identify the questioner allows the judge to address problems unique to a juror or to give a cura- tive instruction without exposing the entire jury to any prejudice. Trial counsel then has an opportunity, outside the hearing of the jury, to review the questions and make objections or suggestions for rewording them. This may be done at side bar, in chambers, or in the courtroom with the jury excused. After ruling on any objections, the judge asks the questions. After the witness an- swers, counsel are given a chance to reexamine the witness on the issues raised by the juror’s questions. See Commonwealth v. Urena, 417 Mass. 692, 701–03 (1994). (b) Considerations Before Trial Since your clients may find themselves answering questions posed by jurors, make sure you tell them beforehand that this may happen. They should understand that these questions are probably going to be very important to at least one juror— otherwise the juror would not have bothered to ask. They should answer the ques- tions without attempting to evade them and with the same respect they displayed in answering questions from the attorneys. Evasive answers may particularly offend the juror who wanted the question answered. Practice Note Since these questions come from jurors, it is best for the witness to look at the jury when answering them. (c) Considerations During Trial Counsel must ensure that the trial judge instructs the jury properly on the procedure for asking questions. The following instructions were set out by the court in Britto: • The judge should instruct the jury before the trial begins that they will be given the opportunity to ask questions of the witnesses. § 9.4 Massachusetts Basic Practice Manual 9–42 6th Edition 2017 | MCLE, Inc. • The jury should be instructed that they should not let themselves become aligned with any party, that their questions should not be directed at helping or responding to any party, that they are to remain neutral and impartial, and that they should not assume the role of investigator or advocate. While this instruc- tion is not mandatory, most judges would probably provide it, and counsel should be prepared to ask for it if it is not given. It is easy to imagine jurors getting wrapped up in an imaginary Perry Mason role during a trial, something trial counsel should certainly dread. • The judge should emphasize to the jury that their questions must comply with the technical rules of evidence and that the judge may have to exclude or mod- ify questions for that reason. • The judge should emphasize to the jury that if a question is altered or refused, the juror posing the question should not be offended or hold that against the witness or either party. Counsel should ask the trial judge to tell the jury that it is the judge who is making the ruling, not counsel. • The jurors should be told that they should not give the answers to their own questions any disproportionate weight compared to the answers given to ques- tions posed by the attorneys or other jurors. • The jury should be told that they should not discuss the questions among themselves but instead should decide independently which questions they would like to ask, if any. • These instructions should be repeated to the jurors during the final charge, be- fore they begin deliberations. Commonwealth v. Britto, 433 Mass. at 613–14. § 9.4.9 Motions During Trial There are a number of motions that must be filed during trial; otherwise, you will be deemed to have waived your appellate rights on the issues not properly preserved. The following is a discussion of some of those motions. (Due to the number of pos- sible circumstances that may arise during trial, it would be impractical to include them all.) (a) Motion for Directed Verdict/Motion for Judgment A motion for a directed verdict in the state court is the equivalent of a motion for judgment in the federal court. Both are governed by Rule 50 of the respective rules of civil procedure. Indeed, the Massachusetts Appeals Court has noted that because the rules are the same, state courts may be guided by the federal courts’ construction of the federal rule. O’Shaughnessy v. Besse, 7 Mass. App. Ct. 727, 728 n.2 (1979). For ease in reading this section, both will be referred to as “motions for directed verdicts.” Preparing and Trying a Civil Case § 9.4 MCLE, Inc. | 6th Edition 2017 9–43 The basis of the motion must be that the plaintiff or counterclaimant has filed to prove an essential element of his or her claim. This is best proved by comparing the evidence submitted with the prima facie case required by law. A party may move for a directed verdict upon the close of the evidence offered by an opponent. Mass. R. Civ. P. 50(a); Fed. R. Civ. P. 50(a). Typically, a defendant files a motion for a directed verdict once the plaintiff has rested and, if unsuccessful, again at the close of all of the evidence. This motion is also filed on cross-claims once the cross-claimant has rested. Practice Note Although the rules do not specifically provide for this, defendants may also file the motion at the end of the plaintiff’s opening statement. If the evi- dence raised by the plaintiff in its opening does not support a prima facie case for a particular claim, the judge may allow the motion. Gans Tire Sales Co. v. City of Chelsea, 16 Mass. App. Ct. 947 (1983); Garfinkle v. Chestnut Hill Mortgage Corp., 679 F.2d 276 (1st Cir. 1982) (treating the motion as a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6)). A proper motion for a directed verdict is a necessary prerequisite for a motion for judgment notwithstanding the verdict. Mass. R. Civ. P. 50(b); Bonofiglio v. Commer- cial Union Ins. Co., 411 Mass. 31, 34 (1991); cf. Continental Assurance Co. v. Diorio- Volungis, 51 Mass. App. Ct. 403, 404 n.3 (2001) (motion at sidebar conference in which parties declared their respective intentions to rest found sufficient to preserve rights); see also Sears v. Pauly, 261 F.2d 304, 306–07 (1st Cir. 1958) (court treated the motion as one for a new trial). A motion for directed verdict must be made at the close of all evidence to preserve appellate rights; moving solely at the close of one’s opponent’s evidence generally will not suffice. Martin v. Hall, 369 Mass. 882, 884–85 (1976); Wells Real Estate, Inc. v. Greater Lowell Bd. of Realtors, 850 F.2d 803, 810 (1st Cir. 1988). In jury-waived trials, instead of filing a motion for a directed verdict, the party files a motion for involuntary dismissal under Mass. R. Civ. P. 42, the standard of which is the same as a motion for a directed verdict. Skowronski v. Sachs, 62 Mass. App. Ct. 630 (2004); Brown v. Gerstein, 17 Mass. App. Ct. 558 (1984). If the motion is im- properly titled as a motion for a directed verdict, the court will treat it as a motion for involuntary dismissal. Skowronski v. Sachs, 62 Mass. App. Ct. 630 (2004); Brown v. Gerstein, 17 Mass. App. Ct. 558 (1984). (b) Motion for Summary Judgment As addressed in § 9.3.9(b), above, motions for summary judgment are most often filed before trial. However, it is also permissible to file them during trial. See Mass. R. Civ. P. 56(a) (may be filed “at any time”); Fed. R. Civ. P. 56(a) (same). The only party having any real interest in doing so would be the plaintiff. In other words, a plaintiff who believes that he or she established grounds for summary judgment § 9.4 Massachusetts Basic Practice Manual 9–46 6th Edition 2017 | MCLE, Inc. the comments were not perceived to be significantly prejudicial when they were made.”). Whether to grant a mistrial is within the sound discretion of the trial judge. Riley v. Davidson Constr. Co., 316 Mass. 432, 444 (1980); Real v. Hogan, 828 F.2d 58, 61 (1st Cir. 1987). § 9.4.10 Closing Arguments (a) Procedure After all the evidence, the attorneys may make a closing argument using the im- portant evidence presented at trial. Juries are always told by the judge that what the attorneys say is not evidence and that if their memory differs from what the attorney claims a witness said, the juror’s memory should govern. In civil trials, the closing arguments are made in reverse order from the opening statements. Thus, the defendants go first and the plaintiff goes last. The last defend- ant to give an opening goes first, and so on. As of November 2014, counsel in Superior Court civil actions “may suggest a spe- cific monetary amount for damages at trial.” G.L. c. 231, § 13B. Unless the time period is shortened or decreased by the trial judge, closing arguments are limited to thirty minutes in the Superior Court. Mass. R. Civ. P. 51(a). (b) Preparation of Your Closing Argument The closing argument is the last presentation the parties may make to the jury. There- fore, as with the opening statement, a great performance is critical. Most attorneys think this is the most important part of the trial. Begin preparing your closing argu- ment when you first get the case. This will maximize the likelihood that you will have obtained and introduced the evidence that you want to refer to in your closing. Make a logical, orderly, and progressive outline for your closing. This will make it easier for the jury to follow and for you to remember it. It will also make it easier for you to keep focused in the event that you are interrupted by an objection. The outline should be simple. If it is overly complex, the jury will get lost and it will be more difficult for you to remember. Distill your case to a minimum number of positions that, if logically proven, will result in a favorable verdict. Incorporate this into your outline. It will most likely drive the outline’s form. Prepare an opening remark for your closing that grabs the jury’s attention and focuses the case the way you want it focused. This should be done in much the same way as you did in your opening statement. Preparing and Trying a Civil Case § 9.4 MCLE, Inc. | 6th Edition 2017 9–47 Once you have finalized your outline, distill it to one- or two-word sections so that in the event that you have to refer to it during your closing, you will not have to read many words to remember what you want to address next. (c) Performing Your Closing Argument Use the demonstrative evidence introduced at trial. Jurors react well to visual stimuli. It will keep them interested and emphasize your point. They will also learn the con- text in which you want them to look at the evidence when they examine it in the jury room. Be clear. Use simple language. Remember that you know your case much better than the jury does because you have lived with it longer. Re-explain things the jurors may not understand or remember. Make sure that they can follow your argument. Be sincere, and be yourself. Use a conversational approach. Juries can see through people quickly. If they do not trust you, they will not trust your client. Emphasize the strengths of your case. It is better to take a positive position than a negative one. Deal with your weaknesses. The jury will certainly hear about them from your oppo- nent. Provide the jury with a way to explain them away. Since the defendants go first, they can challenge the plaintiffs to deal with their weaknesses. This can be done by rhetorical questions or by positive statements. The effect will be to force the plaintiffs to conduct their closing at least partially on your terms. If your opponent made promises during the opening statement that were not kept, argue this to the jury. This will harm the other party’s credibility. If credibility is re- duced on one issue, it may be called into question across the board. Anticipate the jury instructions that will be given by the judge. Although you cannot instruct the jury on the law, use the same wording and shape your argument to follow the jury charge. Use appropriate analogies. This will create the context in which you want the evi- dence to be viewed. Use emotion carefully. Overuse of emotion can be draining for a jury, will seem un- natural, and will harm your credibility; save it for the appropriate places and make sure that it is reasonable and sincere. Vary your tone. Monotone arguments are difficult to follow, especially before or after a closing with a natural tone. Appear spontaneous. Do not read your closing. Do not stand rigidly behind a po- dium—stand to the side of it. § 9.4 Massachusetts Basic Practice Manual 9–48 6th Edition 2017 | MCLE, Inc. Rehearse your argument with family members or friends. This will help sharpen your closing and will help you know it better. The better you know your closing, the more naturally and spontaneously you will deliver it. Speak to each of the jurors at various times. However, avoid locking eyes with them and be sensitive to jurors who appear awkward with your eye contact. § 9.4.11 Jury Charge After closing arguments, the judge instructs the jury on the law they must use to de- cide the case. For instance, they are told • that the plaintiff has the burden of proof, • the specific elements the plaintiff must prove, • the legal defenses raised by the defendant, • that they may draw reasonable inferences from the evidence but may not guess or speculate, and • the rules governing the award of damages. Judges consult requests for jury instructions submitted by counsel at the beginning of the trial. The judge’s jury charge is the only time during the trial that the door is locked and no one is permitted in or out of the courtroom. After the judge has given the charge, the attorneys may come to the sidebar to request that additional instruc- tions be given or to object to instructions they did not like. If no objection is raised, the issue is deemed waived for purposes of appeal. Jury instructions are generally discussed on the record and out of the hearing of the jury well before they are given. That way, the judge is less likely to commit reversible error in giving them. Practice Note Prepare proposed jury instructions before the trial and let the judge know of any disagreements between the parties, as well as any unique legal issues before the trial starts. Provide a copy of out-of-state cases cited. Prepare a checklist for any particular instructions you want the judge to give. Check them off as they are given and make note of any deficien- cies. Make sure you bring these deficiencies to the judge’s attention, on the record, immediately after the charge and before the jury begins its deliberations. § 9.4.12 Special Verdict Forms Rule 49(a) of the Massachusetts Rules of Civil Procedure and Federal Rules of Civil Procedure permits the use of special verdict forms containing separate questions for the jury to answer in lieu of a general verdict in favor of one party or the other. This format has become the preferred form for obtaining a verdict. The questions are most often broken down into the different claims brought by the plaintiff or each different fact at issue in the case. The format depends on the issues involved. The nature, Preparing and Trying a Civil Case § 9.5 MCLE, Inc. | 6th Edition 2017 9–51 The motion for JNOV must be served no later than ten days after the entry of judg- ment and filed within a reasonable time thereafter. Mass. R. Civ. P. 50(b); see also Fed. R. Civ. P. 50(b); F.W. Webb Co. v. Averett, 422 Mass. 625 (1996). A motion for a new trial may be joined with this motion. Mass. R. Civ. P. 50(b). A party must file a motion for JNOV to preserve its appellate rights with respect to obtaining judgment as a matter of law. E.g., Michnik-Zilberman v. Gordon’s Liquor, Inc., 14 Mass. App. Ct. 533, 536 (1982). § 9.5.2 Motion for a New Trial Motions for a new trial are governed by Mass. R. Civ. P. 59, Super. Ct. R. 26, and Fed. R. Civ. P. 59. These rules are substantially the same, although the state courts have an additional provision. A new trial may not be granted solely on the ground that the damages were excessive until the prevailing party has first been given the opportunity to remit so much of the verdict as the judge believes is excessive. The same rule applies to motions granted solely on the grounds that the verdict is inade- quate. The defendant must first have an opportunity to accept an addition to the ver- dict in the amount the judge finds reasonable. Mass. R. Civ. P. 59(a). A motion for a new trial must be served not later than ten days after the entry of judgment. Mass. R. Civ. P. 59(b); Super. Ct. R. 26; Fed. R. Civ. P. 50(d), 59(b). If a judgment notwithstanding the verdict is allowed, the nonprevailing party may file a motion for a new trial not later than ten days after entry of the judgment notwith- standing the verdict. Mass. R. Civ. P. 50(c)(2); Super. Ct. R. 26; Fed. R. Civ. P. 59(b). To preserve appellate issues concerning an unfair trial, a party must file a motion for new trial in the first instance before the trial court, particularly where the weight of the evidence is at issue. See, e.g., Braunstein v. Mass. Bank & Trust Co., 443 F.2d 1281, 1285 (1st Cir. 1971). § 9.5.3 Motion for Remittitur In cases where a defendant believes the jury overcompensated the plaintiff, it may file a motion for a remittitur, asking the judge to reduce the damages. A judge has broad discretion in acting on such a motion. Powers v. H.B. Smith Co., 42 Mass. App. Ct. 657, 665 (1997). Upon deciding that a remittitur is warranted, the judge proposes a corrected amount of damages. The plaintiff then has the option of accepting the amount or appealing. The defendant may also choose to accept or appeal. However, if the judge subse- quently believes that a new trial or other entry should be made on the record, and the time for doing so has not expired, that finding may be entered instead of the remit- titur even if the parties accepted it. Franchi v. Stella, 42 Mass. App. Ct. 251, 258 (1997) (“It would be a reproach to justice if a trial judge, who became convinced that an injustice was about to be done and who was still in possession of jurisdiction over a case, was reduced to a wringing of hands.”). § 9.5 Massachusetts Basic Practice Manual 9–52 6th Edition 2017 | MCLE, Inc. In order to preserve appellate rights with respect to the amount of an excessive award, a defendant must file a motion for remittitur before filing a motion for a new trial. Mass. R. Civ. P. 59(a). § 9.5.4 Motion to Alter or Amend Judgment A motion to amend or alter judgment is governed by Rule 59(e) of the state and fed- eral rules of civil procedure. It seeks to correct a portion of the judgment that was erroneous as a matter of law (such as an inaccurate calculation of interest), not to find facts different from those found by the jury. See, e.g., Page v. New Eng. Tel. & Tel. Co., 9 Mass. App. Ct. 916 (1980) (court corrected verdict of $10,000 to $1 where only nominal damages were allowable). A Rule 59(e) motion may be used to harmonize an apparently inconsistent set of answers to special verdict questions. Holder v. Gilbane Bldg. Co., 19 Mass. App. Ct. 214, 219–20 (1985). In ruling on the motion, the judge may call the jurors back to reconcile the inconsistencies, even if they have been discharged (as long as the com- plaining party so moved before the jury was dismissed). Holder v. Gilbane Bldg. Co., 19 Mass. App. Ct. at 219. A party may serve a motion to alter or amend a judgment no later than ten days after entry of the judgment. Mass. R. Civ. P. 59(e); Fed. R. Civ. P. 59(e). The motion must be filed with the court within a reasonable time thereafter. Filing a motion under Rule 59(e) affects the finality of the judgment and therefore tolls the time for taking an appeal from that judgment. The time does not begin to run again until after the motion has been decided. Practice Note Keep in mind that the time runs until the motion is filed and then starts again after the motion is decided. Therefore, if you wait until the eighth day to serve the motion and the motion is denied, you will have only two days to file your notice of appeal. § 9.5.5 Motion for Relief from Clerical Mistake Any party may file a motion to correct a judgment, order, or other part of the record and other errors therein that arise from oversight or omission. The court may also do so on its own initiative. Mass. R. Civ. P. 60; Fed. R. Civ. P. 60. Preparing and Trying a Civil Case MCLE, Inc. | 6th Edition 2017 9–53 ü CHECKLIST 9.1 Documents for Personal Injury Cases IN GENERAL q Plaintiff’s medical records from doctors, hospitals, physical therapy, counseling and ambulance service q Plaintiff’s employment records q Plaintiff’s school records q Police records q Fire department records q Photographs of accident scene q Photographs of plaintiff’s injuries q Worker’s compensation file q Index check through insurance company re: prior claims q Criminal records q Documents regarding plaintiff’s prior accidents q Weather reports AUTO CASES q Operators’ reports q DPW records regarding accident scene q Roadway plans q Traffic signal settings and specifications PREMISES LIABILITY q Maintenance records q Maintenance contracts Massachusetts Basic Practice Manual 9–56 6th Edition 2017 | MCLE, Inc. EXHIBIT 9A—Motion for Separate Entry of Final Judgment COMMONWEALTH OF MASSACHUSETTS [COUNTY], SS. SUPERIOR COURT CIVIL ACTION NO. 678910 ) JOHN SMITH, ) Plaintiff, ) ) v. ) ) JOHN BROWN and ) JOHN JONES, ) Defendants ) ) DEFENDANT JOHN BROWN’S MOTION FOR SEPARATE ENTRY OF FINAL JUDGMENT Pursuant to Mass. R. Civ. P. 54(b), the defendant, John Brown, moves this Court for separate entry of final judgment with prejudice. In support of this motion, the de- fendant states the following. The plaintiff filed this action to recover damages for personal injuries he allegedly sustained when [fill in details]. The defendant denies the allegations. Following the conclusion of discovery, John Brown filed a Motion for Summary Judgment on the grounds that [fill in grounds]. The plaintiff filed an opposition to this motion and a hearing was set. After the hearing, the motion was allowed by the court on [fill in date]. No other claims are presently pending against John Brown. Under the circumstances, there is no just reason for delaying the separate entry of final judgment in John Brown’s favor. There is no evidence to support a claim against him. The defendant should not have to bear the additional expense of defending this action. WHEREFORE, the defendant respectfully requests this Honorable Court to enter separate and final judgment in his favor with prejudice. By his attorney, Preparing and Trying a Civil Case MCLE, Inc. | 6th Edition 2017 9–57 EXHIBIT 9B—Order for Separate Entry of Final Judgment COMMONWEALTH OF MASSACHUSETTS [COUNTY], SS. SUPERIOR COURT CIVIL ACTION NO. 678910 ) JOHN SMITH, ) Plaintiff, ) ) v. ) ) JOHN BROWN and ) JOHN JONES, ) Defendants ) ) ORDER FOR SEPARATE ENTRY OF FINAL JUDGMENT IN FAVOR OF JOHN BROWN ON ALL CLAIMS This cause came on for hearing before the Court on the motion of the defendant, John Brown, for separate entry of final judgment on all claims and after hearing, the Court on an express determination that there is no just reason for delay expressly directs and Orders that separate and final judgment enter in favor of John Brown on all claims against him in this action, with prejudice and without costs. J. Dated: Massachusetts Basic Practice Manual 9–58 6th Edition 2017 | MCLE, Inc. EXHIBIT 9C—Special Verdict Questions for the Jury COMMONWEALTH OF MASSACHUSETTS SUFFOLK COUNTY, SS. SUPERIOR COURT CIVIL ACTION NO. ) PETER AND PATRICIA POTTER, ) Plaintiffs, ) ) v. ) ) DAVID DOYLE, ) Defendant ) ) SPECIAL VERDICT QUESTIONS FOR THE JURY PART I—NEGLIGENCE Q.1. Was David Doyle negligent? A.1. YES _____ NO _____ (If you answered Question 1 “YES,” proceed to Question 2. If you an- swered Question 1 “NO,” report your verdict to the court.) Q.2. Was David Doyle’s negligence a proximate cause of the plaintiffs’ injuries? A.2. YES _____ NO _____ (If you answered Question 2 “YES,” proceed to Question 3. If you an- swered Question 2 “NO,” report your verdict to the court.) Q.3. Was Peter Potter negligent? A.3. YES _____ NO _____ (If you answered Question 3 “YES,” proceed to Question 4. If you an- swered Question 3 “NO,” proceed to Question 6.) Q.4. Was Peter Potter’s negligence a proximate cause of his injuries? A.4. YES _____ NO _____ (If you answered Question 4 “YES,” proceed to Question 5. If you an- swered Question 4 “NO,” proceed to Question 6.) Preparing and Trying a Civil Case MCLE, Inc. | 6th Edition 2017 9–61 your motion is allowed, the other side will probably get an opportunity to file the same number. 6. I want to depose the defendant and obtain certain documents by requesting that he bring them to the deposition. How do I go about doing this? You can require a deponent to bring the documents. The documents you are request- ing must be described in a document request appended to the deposition notice. When the person to be deposed is a party to the lawsuit, then you must give at least thirty days’ notice, pursuant to Mass. R. Civ. P. 30(b)(5). 7. What happens at a pretrial conference? Settlement is almost always discussed, and the judge will likely ask you and oppos- ing counsel for a detailed recitation of the evidence each of you intends to present at trial and how long the trial will last. The admissibility of evidence and the sufficiency of the plaintiff’s claims and the defendant’s defenses are also explored. Sanctions may be entered against you if you are unprepared. A trial date is set, as well as a date for a hearing on any preliminary matters the judge believes necessary. 8. How many challenges does each party get in the jury selection process? Each party is permitted four challenges for each opposing party (i.e., if there is one plaintiff and three defendants, the plaintiff gets twelve challenges and each defendant gets four). 9. Is there a general “profile” for jurors who are likely to be sympathetic to plaintiffs? Often, jurors who are “pro-plaintiff” tend • to be married, middle-aged, blue-collar, and Democrats; • to have children; and • to be unlike the defendant. This is obviously a very general characterization, however. 10. Is it possible to file a motion for summary judgment once trial has started? Yes. Although motions for summary judgment are most often filed before trial, the rules of civil procedure allow such motions to be filed “at any time.” A plaintiff who believes that he or she has established grounds for summary judgment and who does not expect the defendant to be able to refute it may be entitled to summary judgment without the need to sit through the defense’s presentation. The court may set aside the applicable notice requirements if the opponent will not be prejudiced. Massachusetts Basic Practice Manual 9–62 6th Edition 2017 | MCLE, Inc.