Sophisticated Local Counsel

Our lawyers have extensive trial experience, both jury and non-jury, in courts throughout the United States. When practicing outside of Massachusetts, we team up with local counsel, and our experience in that regard gives us a keen appreciation of the qualities and characteristics that make the relationship most effective. Turnabout is fair play, and we frequently act as local counsel to many national and international corporations with disputes in Massachusetts that cover a wide variety of subject matter, particularly in the patent arena.

Federal Court Litigation

Our attorneys frequently act as local counsel in patent suits in the United States District Court for the District of Massachusetts, and our deep experience with IP litigation combined with our local experience makes us a valuable resource and dependable ally. We adapt the scale of our role to best serve the client and its lead counsel.

We have extensive litigation experience practicing before the judges of the District of Massachusetts and the courts of the Commonwealth of Massachusetts, and know much about their particular likes and dislikes.

Some judges were our acquaintances in private practice before joining the bench, and our attorneys work closely with members of the judiciary in connection with our leadership roles in local bar associations, including the venerable Boston Bar Association, the Boston Patent Law Association and the Federal Bar Association. Out-of-state counsel have benefited from our close familiarity and strong relationships with the Massachusetts bar.

We are practiced in matters involving removal to federal court, remand of actions to state court, challenging Massachusetts personal jurisdiction, special appearances, motions to dismiss and transfer, and motions to apply the law of another state.

Our attorneys played an essential role in the promotion and drafting of Local Rule 16.6, which was adopted by the judges of the District of Massachusetts on November 4, 2008, and–as this article explains–sets forth rigorous new procedures for pre-trial discovery in patent cases.

We are well-versed in the Local Rules for the District of Massachusetts and the rules of the courts of the Commonwealth of Massachusetts, and help corporate and other outside counsel navigate the procedures that are unique to Massachusetts state and federal practice. We enjoy working with out-of-state practitioners, making them comfortable in our courts and enhancing the effectiveness of their advocacy.

Litigation in our State Courts

The Massachusetts state court system presents occasional pitfalls that are not readily apparent from court rules or guidelines.  Some attorneys prefer to file in federal court, when possible, if only for the assignment of each case to a particular judge. For certain litigations, however, the Massachusetts state courts provide either an optimal or a necessary venue. We offer some practice pointers for attorneys who find themselves practicing here:

Trial Courts:  A basic fact is that Massachusetts has two trial courts of general jurisdiction, the District Court and the Superior Court, each with numerous divisions or departments spread throughout the state.  The District Court has jurisdictional limitations that make it a less likely venue for high-stakes litigation, and therefore more complex cases are typically handled by the Superior Court.  (The Commonwealth also has a Probate and Family Court, a Land Court, a Housing Court, and a Juvenile Court.)

Business Litigation Session: The Business Litigation Session of the Superior Court (“BLS”) provides an alternative forum for bringing claims related to certain categories of corporate and commercial matters.  The BLS is a separate session of the court sitting in Suffolk County and is designated to hear solely such cases, in particular, complex cases requiring case management.  Selection into the session is discretionary.  If the case is not accepted into the BLS, it is assigned to a standard session.

The BLS has been successful in delivering efficient resolutions, and it should be strongly considered when handling complex cases, as it offers greater predictability and speed than standard Superior Court venues. A case in the BLS enjoys the benefit of remaining before the judge initially assigned to it.

Massachusetts Superior Court Rule 9A: Unlike traditional motion practice, in Superior Court motions are not filed with the court by the moving party in the first instance.  Rather, under Rule 9A, the moving party first serves the motion on the non-moving party and is then responsible for filing its motion along with the non-moving party’s opposition in what is referred to as the “Rule 9A package.”  This approach is intended to spare the court the burden of docketing and considering the motion should the moving party decide to withdraw it after receiving the opposition.

Summary Judgment Motions:  A party seeking summary judgment must file a statement of material facts under a subsection of the above-mentioned Rule 9A.  A Superior Court judge offers practical advice BBA_Release_Summary_Judgement to ensure that your statement does not run afoul of the letter or spirit of Rule 9A(b)(5).

Massachusetts Evidence Law: Massachusetts evidence law is comprised of common law and statutory provisions.  Massachusetts has not codified rules of evidence, but the “Guide to Evidence”, prepared under the aegis of the Supreme Judicial Court, is a helpful summary of Massachusetts evidence law (as of its date of publication).

Filing System: Massachusetts state courts continue to utilize a paper-filing system, which can be tedious and slow compared to the federal courts’ electronic approach.  Although electronic docket listings are available, these dockets are frequently not up to date.

Written Discovery Responses: As in other jurisdictions, the Superior Court has seen its share of obstructionist games in which the answering party often declines to respond to discovery on the basis that the request is vague or otherwise indefinite.

Superior Court Standing Order 1.09 was meant to put an end to evasive discovery tactics.  For instance, it provides a definition to the discovery-request favorite, “State the Basis,” and aims to limit the ability of the responding party to circumvent discovery requests employing this term.  Attorneys practicing in the Superior Court should be sure to consult this Standing Order before making or responding to written discovery requests.

Judge Rotation: Superior Court judges (and law clerks, of which there are none at present due to steep budget cuts) in Massachusetts rotate periodically among the various county courthouses.  Thus, a litigant may face a judge who has little knowledge of previous events in the case. This circumstance puts a premium on the ability to help the court zero in on the issues critical to the case.

BLS Limited Discovery Pilot Project: The BLS has been engaged in a pilot project in which the parties may opt for limited discovery.  This project is meant to address the increasing burden and cost of discovery and expedite the litigation process.  The guiding principle is to tie the scope of discovery to the magnitude of the claims asserted.

Among other limitations, the program encourages the parties to impose numerical and time limitations on discovery and to limit the number of individuals from whom discovery may be sought.  The parties are also expected to produce all non-privileged documents in support of their claims and defenses at the beginning of the case, the deadline for which is set by the court unless agreed upon by the parties.

Electronic discovery may be managed by reference to the nature and scope of the case, relevance, importance to the court’s adjudication, expense, and logistical burdens.  Attorneys with BLS cases that would benefit from a streamlined discovery process should consider volunteering for this pilot program.

Expert Discovery: Expert discovery in Massachusetts state courts is relatively limited, a vestige of the courts’ traditional concern (formally abandoned in the federal rules in 1993) that such discovery serves to build the asking party’s own case on his adversary’s better preparation rather than to prepare for cross-examination.

Depositions are not permitted except in defined circumstances and require leave of court.  Although there are basic form expert interrogatories to which an expert may be compelled to respond, the responses are often of little value and seldom provide the quality of information one can obtain through expert discovery in federal court.  Mass. R. Civ. P. 26(b)(4)(A).

Further expert discovery may be allowed if answers to expert interrogatories are incomplete or inconsistent, or when the asking party cannot obtain equivalent information through other means. Under proposed amendments to the rules of civil procedure, expert reports would become the required form of expert disclosure. Because in Massachusetts state court the first opportunity to discover the complete basis of an expert’s opinion is often at trial, the examination of expert witnesses at trial must be approached with caution. Some judges are wary of expert surprises, so will permit expert discovery where expert testimony is critical to factual or legal issues.

Appeal: The District Court has its own appellate division for civil cases.  This in-house appellate review does not exist in the Superior Court. Trial court cases, whether from the District or Superior Courts, may be appealed to the Appeals Court.  A party seeking to appeal a decision from the Appeals Court may petition for further review by the Supreme Judicial Court.

Most litigants end their journey in the Appeals Court, however, since the SJC declines to hear most cases.  On the other hand, if an issue of statewide importance is raised by a particular case, the SJC may allow the litigants to bypass the Appeals Court altogether.

While we have not enumerated all of the distinguishing features of Massachusetts state practice, this information should assist out-of-state attorneys in maneuvering through the system.  Should you require more guidance, feel free to contact one of our litigation attorneys.

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