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Preparing and Trying a Civil Case
Jeffrey C. Melick, Esq.
Massachusetts Basic Practice Manual
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EXHIBIT 9C—Special Verdict Questions for the Jury........................ 9– 58
EXHIBIT 9D—Ten Frequently Asked Questions ................................. 9– 60
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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.
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§ 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– (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
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amount of damages as affirmative defense). Attorney fees pled as an element of dam- ages per a provision in a contract would be included in the $25,000 figure. See Diantgikis v. Old Time Sports, Inc. , 78 Mass. App. Ct. 1128 (2011) (unpublished decision; text available at 2011 WL 589961).
Cases are tried to a twelve-member jury, five-sixths of whom must agree on a verdict. G.L. c. 234, § 34A. Often, two alternates are seated. If the parties agree, the alter- nates may also deliberate. In that event, five-sixths are still needed to reach a verdict (twelve of fourteen).
Housing Court
This court has jurisdiction over matters pertaining to human habitation, including conditions that affect the health, welfare, and safety of occupants. G.L. c. 185C, § 3.
Practice Note Time standards in the Housing Court are contained in Housing Court Department Standing Order 1-04.
U.S. District Court
This court has jurisdiction over matters that involve a federal issue and matters where there is diversity of citizenship and the amount in controversy exceeds $75,000, ex- clusive of interest and costs. 28 U.S.C. §§ 1331, 1332. For instance, if the defendant is from Massachusetts, all plaintiffs must be from another state.
Cases are tried to a jury of no more than twelve and no fewer than six persons, and, unless the parties stipulate otherwise, the verdict must be unanimous. Fed. R. Civ. P. 48.
(b) The Time for Filing an Action
There are statutes limiting the time in which civil actions may be filed in court. Keep this in mind when preparing your case; research the proper date and ensure that you do not miss a deadline. An excellent discussion of limitations statutes is contained in chapter 20 of the Massachusetts Tort Law Manual (MCLE, Inc. 3d ed. 2017). Al- though a full treatment of the issue is beyond the scope of this chapter, a select listing is provided below.
Tort Actions
A plaintiff must file a personal injury action within three years of the date the cause of action accrues. G.L. c. 260, § 2A. Generally, a cause of action accrues at the time of the accident and resulting injury. E.g. , Riley v. Presnell , 309 Mass. 239, 243 (1991). Therefore, a plaintiff injured in an accident on January 1, 1994, must file his or her complaint on or before January 1, 1997.
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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.
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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.
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Accelerated track cases involve claims for worker’s compensation, auto surcharge appeals, cases reactivated after relief from judgment, and various other types of cases. The case should be disposed of within six months.
The tracking orders also have dates by which new parties and claims must be added and by which motions to dismiss and those for summary judgment must be filed. However, these provisions are not generally binding against a party if they set dead- lines that are inconsistent with those set by statute or the rules of civil procedure. See Sullivan v. Iantosca , 409 Mass. 796, 800–02 (1991).
Parties may file a motion to change the track designation from fast to average if the case was misdesignated or if the issues involved are more complex than an ordinary case. Super. Ct. Standing Order 1-88(B)(3). Those motions are frequently allowed if they have merit.
Parties may also file a motion to obtain more time in which to conduct discovery, but these may be denied unless good grounds are shown in the motion.
Practice Note Keep a close eye on the discovery deadline, especially in fast track cases. Because a plaintiff has ninety days in which a defendant may be served, defendants are often caught with too little time to conduct discovery. This often affects the usual courtesies for extensions counsel can give.
(b) Federal Court
In the U.S. District Court for the District of Massachusetts, the judge, or the desig- nated magistrate judge will hold a scheduling conference pursuant to Local Rule 16. and will establish a schedule for performing discovery. The parties must confer at least twenty-one days prior to the conference pursuant to Fed. R. Civ. P. 26(f)(1) and D. Mass. R. 16.1(B).
Practice Note Practitioners litigating in federal court should be sure to familiarize them- selves with the initial (automatic) disclosure requirements of Fed. R. Civ. P. 26(a) and D. Mass. R. 16.1(B) and 26.2(A). Initial disclosures must be made “at or within 14 days after the parties’ Rule 26(f) confer- ence unless a different time is set by stipulation or court order.” Fed. R. Civ. P. 26(a)(1)(C).
§ 9.3.5 Third-Party Claims
A defendant asserting that the plaintiff has failed to sue all appropriate defendants or having a right of indemnity from another entity may add another party to the case. In state courts, defendants may add another party as of right within twenty days after filing an answer; in federal courts, they may do so within ten days. Mass. R. Civ. P. 14(a); Fed. R. Civ. P. 14(a)(1). Otherwise, leave of court is required (it is freely given unless the discovery deadline is close). Mass. R. Civ. P. 14(a); Fed. R. Civ. P. 14(a)(1).
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Third-party actions are often brought against other tortfeasors for contribution. In prod- uct liability cases, the defendant may also add a third-party defendant on a contractual or statutory indemnity claim (i.e., the retailer adds the distributor or manufacturer).
Third-party defendants are generally permitted to redepose all witnesses deposed before they were added to a case and to add their own fourth-party defendants on contribution or indemnity claims. They may also file a motion to extend the discov- ery deadline if they were added late and need more time to get ready for trial.
Practice Note If there are third parties that should be added, it is best to add them early. Otherwise, they will want to redepose parties and witnesses, which will be expensive to your client and may expose your client to more than one deposition. The Superior Court tracking order will provide a date by which third-party claims should be brought, but if there was good reason for delay, the court will most likely allow a motion to file the claim late.
§ 9.3.6 Contribution Claims
Pursuant to G.L. c. 231B, each defendant in a negligence action has a right of contri- bution against any other party found liable to the plaintiff. Defendants share the obli- gation to pay a judgment against them on a pro rata basis. Therefore, if three defend- ants are found to have been negligent, and their negligence was found to be the cause of the plaintiff’s injuries, they will each be responsible for one-third of the verdict regardless of their percentages of fault.
The plaintiff may elect to pursue any of the defendants to collect a judgment. The defendant paying the plaintiff then may collect the one-third shares from the other two defendants.
A contribution claim against a codefendant may be made as a cross-claim in the de- fendant’s answer and then served on the codefendant. The codefendant must then answer the allegations in the contribution claim. However, the claim does not have to be presented in the answer; it may be brought at any time within one year of the day the judgment enters.
Practice Note Since most defendants do not wish to appear adversarial toward one an- other, they often forgo filing a cross-claim for contribution in their answer in order to provide a unified front against the plaintiff.
§ 9.3.7 Indemnity Claims
Your client may have recourse to contractual indemnity or common law indemnity claims against a third party. It is important to determine any rights in that regard early, so you can add the party owing indemnity to the case. An excellent discussion of
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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
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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.
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be helpful; you have to learn how all evidence affects your case and how you will deal with it at trial.
Take Proper Account of Electronic Materials
Often, documents, e-mails, and other information relevant to an action are stored in a computer or other electronic database. It is important to draft your discovery requests with this in mind to ensure that this type of information is included. You may also want to consider obtaining a preliminary injunction preventing your opponent from erasing or otherwise failing to preserve this kind of evidence. See Transkaryotic Therapies, Inc. v. Bain & Co. , No. 020747BLS, 2002 WL 799694 (Mass. Super. Ct. Mar. 5, 2002).
Also, ensure that your client does not permit discoverable electronic and other evi- dence to be destroyed. Destruction of that evidence may lead to sanctions and a de- fault judgment. See Linnen v. A.H. Robins Co. , No. 97-2307, 1999 WL 462015 (Mass. Super. Ct. June 16, 1999).
For an excellent discussion of issues concerning electronic discovery, see Dahl v. Bain Capital Partners, LLC , 655 F. Supp. 2d 146 (D. Mass. 2009).
Evaluate Admissibility of Evidence
As favorable evidence is gathered, it is essential to determine whether and how it will be admitted at trial. If the rules of evidence preclude its introduction, it will be worthless. Additional discovery may be necessary to ensure that the jury actually hears the critical evidence.
Reevaluate Strategy as Discovery Progresses
The theory of the case and the discovery strategy have to be fluid so they can adapt to new evidence. Do not feel locked into the original theory or strategy if the evi- dence better supports another one. The strategy needs to be reevaluated as pretrial discovery progresses.
Practice Note One of the best tools attorneys have is their ability to think. However, too often, lawyers fail to sit back and take the time to really think about their case. Do not fall into that trap. Run your case through your mind from le- gal, commonsense, and practical viewpoints. Be creative. Try to antici- pate what a jury may like or dislike about your case and keep that in mind during discovery so you can minimize your problems and accentu- ate your strengths. It is not enough to do this at the beginning of the case. Rethink your strategy as discovery unfolds, and adapt to changes in the evidence developed during the discovery process.
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(d) Interrogatories
A party’s use of interrogatories is governed by Mass. R. Civ. P. 33 and Fed. R. Civ. P.
- 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,
