Massachusetts Lawyers Journal March 2015

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SEE PAGE 2 FOR A COMPLETE LISTING OF THIS ISSUE’S CONTENTS.

VOLUME 22 | NUMBER 7 | MARCH 2015

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PRESIDENT’S VIEW MARSHA KAZAROSIAN

A spring in our step I saw a photograph of a recently snow-engulfed Massachusetts neighborhood captioned, “Welcome to Alaskachusetts,” and had to remind myself that since February is the shortest month, this “snowpocalypse” should soon be over.

As we enter March and head toward spring, I am happy to announce a number of exciting upcoming events.

March 16 — Seeing voir dire in action: The courts have put a lot of thought into the voir dire pilot program and its roll out, and our rescheduled voir dire training scheduled for March 16 gives us all a chance to see how it continues to evolve. With Superior Court Judges Bonnie MacLeod-Mancuso, Peter Lauriat and Maynard Kirpalani, plus an expert panel of lawyers, this free CLE program will be a great opportunity to get insight from both bench and bar as to the best way to approach our voir dire and learn best practices.

April 6–10 — Member Appreciation Week: Our members (you) are the heart and soul of our association. The MBA would not be here today without your support for our programs, your commitment to volunteerism and your dedication to legal excellence. We are grateful year-round for everything 2

Trial attorney, activist Mark J. Geragos to keynote 2015 Annual Dinner

BY KELSEY SADOFF

The Massachusetts Bar Association is pleased to announce that trial attorney Mark J. Geragos, of Geragos & Geragos, APC, in Los Angeles, will deliver the keynote address at the Annual Dinner on Thursday, May 7, at the Westin Boston Waterfront.

Geragos, the principal at the internationally known law firm of Geragos & Geragos APC, in Los Angeles, is the only lawyer besides Johnnie Cochran ever named “Lawyer of the Year” in both the criminal and civil arenas.

Geragos cemented his national reputation as a trial attorney winning backto-back state and federal court jury trial acquittals, and a presidential pardon, for renowned Whitewater figure Susan McDougal. In addition, during the last decade, Geragos has won two consecutive dismissals of murder charges against clients by proving flawed eyewitness identification. One of those clients later won a $1.7 million settlement when the Geragos firm sued the City of Glendale for their false arrest of that client.

“I am so excited to announce attorney Mark Geragos as the MBA’s keynote speaker for our annual dinner. Attorney Geragos has had an extraordinary career in his representation of so-called celebrity clients, including but not limited to Winona Ryder, Michael Jackson and many more,” said MBA President Marsha V. Kazarosian. “Notably, as a proud Armenian, he advocates vigorously for the recognition of the Armenian genocide and for reparations. As an accomplished author and president of the Armenian Bone Marrow Donor Registry (ABMDR), Attorney Geragos has pledged a percentage of his earnings from his 2013 book, Mistrial, to the ABMDR. Please join us on May 7 to listen and learn from Attorney Geragos … an extraordinary lawyer, accomplished author, speaker and advocate for human rights.”

Geragos was one of the lead lawyers in a pair of groundbreaking federal class action lawsuits against New York Life Insurance and AXA Corporation for insurance policies issued in the early 20th century during the genocide of over 1.5 million Armenians by the Ottoman

Lawyer Referral Service a lifeline for lawyer and client

BY MIKE VIGNEUX

Finding the right lawyer can be a daunting task for many people. Not knowing what to do or even where to begin in the search for an attorney often presents a confusing and stressful situation.

That feeling of uncertainty was exactly what one of Jeffrey N. Catalano’s clients experienced before she reached out to the Massachusetts Bar Association’s Lawyer Referral Service (LRS) in July 2009. Before calling LRS she didn’t know any attorneys or even who to reach out to.

The client, a young mother who gave birth to a child with severe disabilities, was referred to Catalano, a partner at Todd & Weld LLP, who specializes in medical malpractice cases.

After a few years in the litigation process, Catalano’s client received a record-setting $10 million arbitration award this past fall. What began as an overwhelming situation for the client’s family was eased by a simple phone call to LRS. The final outcome was beyond what the family could have ever imagined.

“My client was very thankful that she had a reputable source to go to for a referral. The family wanted some assurance that whomever they were getting for a lawyer had requisite qualifications,” said Catalano, who also serves as MBA treasurer. “Part of the MBA’s mission is to serve the interests

Mark J. Geragos

Turk Regime, eventually settling these two cases for more than $37.5 million.

He is currently suing the Government of Turkey for reparations arising out of the Armenian genocide.

In addition, his $59 million jury verdict in a trade secrets case against pharmaceutical giant Pfizer Corporation was voted a “Top Fifty Verdicts in the United States” by the National Law 9

Understanding the new eyewitness I.D. jury instruction

BY PETER ELIKANN

of the citizens of the commonwealth. In this case, the MBA’s LRS helped to alleviate the tremendous financial and emotional burdens suffered by a terrific family.”

Answering the call for 40-plus years LRS has served as a trusted starting point for those in need of a lawyer for more than 40 years. Created in 1974, LRS is 6 a free referral service that connects people with MBA

Juries have traditionally placed a great deal of faith in eyewitness identifications.

They generally find it exceptionally credible when a witness takes the stands, points to the defendant and says something to the effect of: “Look, it was absolutely, definitely, positively him. Don’t you be telling me I didn’t see what I saw.”

Yet almost every one of a plethora of recent studies by the relevant scientific community have shown that despite these sorts of loud declarations of unconditional certainty, the eyewitness might still very well be mistaken.

For example, in recent years, DNA has exonerated innocent citizens languishing in prison whose conviction may have rested 3 solely on an adamant identification by

MASSACHUSETTS LAWYERS JOURNAL | MARCH 2015

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PRESIDENT’S VIEW

Continued from page 1 you bring to the MBA, and for the fifth year in a row we’ve dedicated a week to celebrate you. This year, from April 6–10, the MBA will offer fun social activities, as well as great giveaways and prizes. Please join us in all that we offer during this special week (and all year, of course) and revel in the vibrant statewide legal community that you, as a member, have created.

April 14–16 — ABA Day in Washington: Right after Member Appreciation Week, from April 14–16, I have the honor of representing the MBA during ABA Day in Washington, DC, where I and other leaders from the American Bar Association and other local bars will have a chance to meet with members of Congress to lobby for important issues that directly impact the legal profession and the administration of justice. We all know of the positive impact we can make when we collaborate with legislative leaders here in the commonwealth. On ABA Day, we have an opportunity to educate our elective representatives on Capitol Hill and make a difference on a national level.

May 7 — 2015 MBA Annual Dinner: Plans are now set for what prom-

ises to be the pinnacle of our year — the MBA’s 2015 Annual Dinner, which will be held at the Westin Boston Waterfront on May 7. We have a very full agenda planned, highlighted by keynote remarks from Mark J. Geragos, a renowned trial lawyer who has amassed an extraordinary career representing high-profile and celebrity clients, such as Susan McDougal (“Whitewater” controversy), Winona Ryder, Michael Jackson and many others. Attorney Geragos is also an accomplished author, speaker and advocate for human rights. As a fellow ArmenianAmerican and grandchild of genocide survivors, I am especially proud of his vigorous advocacy for the recognition of the Armenian genocide and for reparations. It makes his presence at our Annual Dinner especially meaningful to me.

We will also be honoring two individuals who have consistently supported members of the bar: House Speaker Robert A. DeLeo (President’s Award) and Superior Court Judge Dennis J. Curran (Chief Justice Edward F. Hennessey Award). The Annual Dinner will also feature the presentation of the Access to Justice Awards, and, for the first time, the presentation of the Oliver Wendell Holmes Jr. Scholarship to a third-year law

student. This will be a can’t-miss event.

You can find all the details about the Annual Dinner at www.massbar.org/AD15.

No more snow! It goes without saying that all of us are looking forward to seeing an end to this winter. Record snowfall led to court closures, office closures, commuter headaches and more.

The wheels of justice kept moving (even if the MBTA was not), but I know many lawyers had to make sacrifices to meet their client and court obligations, because that’s what we do.

MBA programs were not immune to disruptions, and several meetings and CLEs had to be rescheduled. The MBA’s Mock Trial program was hit especially hard as the storms wreaked havoc on previously scheduled trials around the commonwealth. With over 100 trials that had to be rescheduled, I am grateful to all the attorneys who took on make-up trials at very last moment, as well as the MBA’s Elizabeth O’Neil and Amy Osborne for their hard work in keeping this important program on track under such trying weather conditions.

We have a great deal to look forward to in the second half of our MBA year.

I have a spring in my step just thinking about it.

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Volume 22 / No. 7 / March 2015 EDITOR/DIRECTOR OF MEDIA AND COMMUNICATIONS: Jason M. Scally, Esq. ASSISTANT EDITOR: Kelsey Sadoff ASSISTANT EDITOR: Mike Vigneux SENIOR DESIGN MANAGER: N. Elyse Lindahl CHIEF OPERATING OFFICER/ CHIEF LEGAL COUNSEL: Martin W. Healy, Esq. LEGAL EDITOR: Martin W. Healy, Esq. DIRECTOR OF POLICY AND OPERATIONS: Lee Ann Constantine PRESIDENT: Marsha V. Kazarosian, Esq. PRESIDENT-ELECT: Robert W. Harnais, Esq. VICE PRESIDENT: Christopher A. Kenney, Esq. VICE PRESIDENT: John J. Morrissey, Esq. TREASURER: Jeffrey N. Catalano, Esq. SECRETARY: Christopher P. Sullivan, Esq. © 2015 Massachusetts Bar Association Materials not to be reproduced without permission.

Lawyers Journal (ISSN 1524-1823) is published monthly by the Massachusetts Bar Association, 20 West St, Boston, MA 02111-1204. Periodicals postage paid at Boston, MA 02205.

Postmaster: send address changes to Lawyers Journal, 20 West St., Boston, MA 02111-1204.

Subscription rate for members is $20, which is included in the dues. U.S. subscription rate to non-members is $30. Single copies are $3.

Snapshots from around the MBA

Telephone numbers: editorial (617) 338-0680; general MBA (617) 338-0500.

Email address: lawjournal@massbar.org.

Readers are invited to express their opinions as letters to the editor and op-ed commentaries. All submissions are subject to editing for length and content. Submit letters and commentaries to: Editor, Lawyers Journal, at the address given above or via email to lawjournal@massbar.org, or fax to (617) 542-7947.

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THE WARREN GROUP DESIGN / PRODUCTION / ADVERTISING ADVERTISING (617) 896-5307 EVENTS (617) 338-5359

Young Lawyers host Celtics Night The MBA’s Young Lawyers Division hosted a Celtics Night on Feb. 11. Members of the division were able to sit courtside for pre-game warm-ups. The Celtics played the Atlanta Hawks at TD Garden.

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INSIDE THIS ISSUE ON THE COVER • TRIAL ATTORNEY, ACTIVIST MARK J. GERAGOS TO KEYNOTE 2015 ANNUAL DINNER

• PRESIDENT’S VIEW • LAWYER REFERRAL SERVICE A LIFELINE FOR LAWYER AND CLIENT

• UNDERSTANDING THE NEW EYEWITNESS I.D. JURY INSTRUCTION

LEGAL NEWS 3 NEWS FROM THE COURTS 4 SJC RULES PARENT HAS RIGHT TO COUNSEL IN GUARDIANSHIP PROCEEDINGS

EXPERTS & RESOURCES 8, 9, 10, 11

BAR NEWS

FOR YOUR PRACTICE

5 MASSBAR EDUCATES: CLE AT A GLANCE

12 LAWYERS CONCERNED FOR LAWYERS

6 MEMBER SPOTLIGHT 7 NOTABLE AND QUOTABLE 8 CALENDAR OF EVENTS 10 MOCK TRIAL CHAMPIONSHIP SET FOR MARCH 27

11 MEMBER SPOTLIGHT 13 MASSACHUSETTS BAR FOUNDATION

SECTION REVIEW 14 CARE: AN ALTERNATIVE TO MEDICAL MALPRACTICE LITIGATION

15 PRACTICE POINTERS PREVENT POTENTIALLY PAINFUL PITFALLS

16 ATTORNEY-CONDUCTED VOIR DIRE BEGINS IN MASSACHUSETTS

MASSACHUSETTS LAWYERS JOURNAL | MARCH 2015

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LEGAL NEWS

News from the Courts

Chief Justice Rapoza announces retirement Appeals Court Chief Justice Phillip Rapoza has announced he will retire from the Massachusetts Appeals Court on June 30, 2015. Rapoza was first appointed to the bench in 1992 by Gov. William Weld and has served as a trial judge on the Fall River District Court and the Massachusetts Superior Court.

Chief Justice Phillip Rapoza In 1998, Rapoza was appointed to the Massachusetts Appeals Court and in 2006 was named chief justice of the court.

Rapoza is a past recipient of the MBA President’s Award (2011), which is given to individuals who have made a significant contribution to the work of the MBA, to the preservation of MBA values, to the success of MBA initiatives and to the promotion of MBA leadership roles within the legal community in Massachusetts.

“Chief Justice Rapoza has been an outstanding leader for the Massachusetts Appeals Court. Under his helm, the Appeals Court brought sessions to the four corners of the state, making our justice system open and transparent to the public and instilling confidence in the judiciary,” said MBA Chief Legal Counsel and Chief Operating Officer Martin W. Healy. “We applaud Chief Justice Rapoza, whose commitment to justice included serving as an international expert to developing countries on behalf of the United Nations. His footprint in the judicial arena has been felt throughout the world.”

Judge William Hillman to retire, bankruptcy merit selection panel appointed Chief Judge Sandra Lynch of the United States Court of Appeals for the First Circuit has announced the formation of a Bankruptcy Merit Selection Panel to screen and review the qualifications of applicants for a forthcoming vacant bankruptcy judgeship in Worcester.

The Hon. William C. Hillman, who has served as a bankWilliam C. Hillman ruptcy judge in the District of Massachusetts in Boston since 1991, has announced his retirement, effective Aug. 14, 2015. The First Circuit Judicial Council has approved Chief United States Bankruptcy Judge Melvin S. Hoffman’s request to change his duty station from Worcester to Boston, also effective on Aug. 14, 2015. Consequently, the bankruptcy judgeship vacancy to be filled will occur in Worcester.

The court is seeking attorneys with demonstrated excellence in the practice of bankruptcy law and/or commercial litigation. Interested applicants may obtain an application from the Circuit Executive’s Office, from the Bankruptcy Court Clerk for the District of Massachusetts or by accessing the Court of Appeals’ website at www.ca1.uscourts.gov. Persons interested in applying for this position should submit seven copies of their application to: Susan J. Goldberg, Circuit Executive, Office of the Circuit Executive, John Joseph Moakley U.S. Courthouse, 1 Courthouse Way, Suite 3700, Boston, MA 02210. Applications are to be postmarked by Monday, March 16, 2015.

Reminder: MA Trial Court Electronic Case Access Massachusetts attorneys can research civil, summary process and small claims cases online through Massachusetts Trial Court electronic case access at www.masscourts.org.

Baker establishes Judicial Nominating Commission; Appeals Court vacancies posted Gov. Charlie Baker has signed Executive Order 558 establishing the Judicial Nominating Commission (JNC), a 21-member, statewide body to screen applications for judicial and clerk-magistrate positions. He also announced that the Baker-Polito Administration is currently accepting applications for individuals seeking to serve on the JNC. Baker and Lt. Gov. Karyn Polito are recruiting a team of commissioners to serve on the JNC through the JNC website, mass.gov/jnc.

After the members of the commission have been selected, the JNC will immediately begin work on reviewing applications for open judicial positions.

The JNC has posted two Appeals Court vacancies as the first openings they are accepting applications for, both with an application deadline of March 18, 2015.

Appeals Court: • The Honorable Joseph A. Grasso, Jr., Associate Justice (Jan. 9, 2015) • The Honorable R. Malcolm Graham, Associate Justice (Feb. 22, 2015) Applications for the new JNC and current judicial 4 openings are available at www.mass.gov/jnc.

JURY INSTRUCTION

Continued from page 1 an eyewitness. In fact, 76 percent of the first 250 convictions overturned because of DNA evidence since 1989 involved eyewitness misidentification. Eyewitness misidentification is the single greatest cause of wrongful convictions in the United States.

This only confirms the consistent reliability of what research going back into the late 1800s has shown.

For example, a 1932 groundbreaking book by Yale law professor Edwin Borchard examined 65 wrongful convictions and determined that eyewitness misidentification was the chief cause to blame.

In order to better protect accused citizens and better maintain the integrity of the system, the Massachusetts Supreme Judicial Court recently upgraded its jury instruction to assist jurors to better assess the reliability of eyewitnesses.

In Commonwealth v. Gomes, 470 Mass. 352 (2015), the SJC, in a unanimous decision authored by Chief Justice Ralph D. Gants, did not, in fact, overturn the conviction of the defendant who was convicted of slashing the face of a man as he sat in a car in Pittsfield. It reasoned, in part, that the judge did not abuse his discretion in refusing to give a jury instruction proposed by the defense because the defense did not present an expert witness, scholarly articles or treatises to substantiate the concepts outlined in the proposed instruction.

Nevertheless, the SJC did insist that a variation of the proposed jury instruction requested by the defense should be adopted from here on in. It is the first update of the eyewitness I.D. jury instruction in Massachusetts

since 1979. The court’s viewpoint was further bolstered by a recent report from its own SJC Study Group on Eyewitness Identification, which concluded, “The scientific studies have produced a consensus among experts about the ... variables that have been shown to affect the reliability of eyewitness identification.”

The court concluded that juries should be instructed on five increasingly accepted scientific principles regarding eyewitness identification and human memory, most importantly that (1) human memory does not operate like a video recording that a person can replay to recall what happened; (2) a witness’s level of confidence in an identification may not indicate its accuracy; (3) high levels of stress can reduce the likelihood of making an accurate identification; (4) information from other witnesses or outside sources can affect the reliability of an identification and inflate an eyewitness’s confidence in the identification; and (5) viewing the same person in multiple identification procedures may increase the risk of misidentification.

It cited a dissent from U.S. Supreme Court Justice Sonia Sotomayer in the recent case of Perry v. New Hampshire, which said: “Study after study demonstrates that eyewitness recollections are highly susceptible to distortion by postevent information or social cues; that jurors routinely overestimate the accuracy of eyewitness identifications; that jurors place the greatest weight on eyewitness confidence in assessing identifications even though confidence is a poor gauge of accuracy; and that

suggestiveness can stem from sources beyond police-orchestrated procedures.”

It is fair to say that misidentifications cannot solely blame system failures such as poorly conducted lineups and photo arrays. Many factors outside the criminal justice system can also come into play, such as lighting, distance, racial perceptions and the stress and trauma momentarily experienced by the eyewitness.

Most concerning is that the more vociferous the eyewitness is in the confidence of his or her unquestionable certainty, the more weight the jury gives to that identification. Yet the court concluded that “such confidence correlates only weakly with accuracy. Therefore, it is necessary to inform the jury that an eyewitness’s expressed certainty in an identification, standing alone, may not indicate the accuracy of an identification.”

The SJC expressed the belief that, since there is a “near consensus” that jurors give more weight to an eyewitness’s certainty than is warranted by the research into its accuracy, it would be remiss in not informing the jury to, at the very least, consider this.

The provisional jury instruction goes into immediate use, but the SJC will solicit public comments prior to finalizing an authoritative version.

Yet it did acknowledge that, even then, any eyewitness identification instruction may never reach its final form and may perpetually be a work in progress, since, as the research into this science evolves, it will continually be subject to further revision. ■ Peter Elikann is a criminal defense attorney and vice chair of the MBA’s Criminal Justice Section Council. He also serves as a member of the MBA’s Executive Management Board.

MASSACHUSETTS LAWYERS JOURNAL | MARCH 2015

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LEGAL NEWS NEWS FROM THE COURTS

Continued from page 3

Trial Court seeks public comments on proposed BMC and District Court Standing Order 1-15 The Chief Justice of the Trial Court invites comments on the proposed Standing Order 1-15 on Verification of Defendant’s Address for Claims Incurred in Trade or Commerce or Pursuing Assigned Debt.

This new standing order would expand the current requirements for address verification in Small Claims R. 2(b) to all Boston Municipal Court and District Court regular civil cases for claims incurred in trade or commerce or pursuing assigned debt. This order is intended to introduce uniformity and to reduce the number of default judgments the courts must later vacate because service was made to an improper address.

The chief justice welcomes all comments pertaining to the issues raised and will determine whether to approve the proposed standing orders after reviewing the comments submitted.

Comments should be directed to Chief Justice Paula M. Carey, c/o General Counsel Joseph M. Ditkoff at Jo-

seph.Ditkoff@jud.state.ma.us or Administrative Office of the District Court, Edward W. Brooke Courthouse, 24 New Chardon St., Boston 02114 on or before March 16, 2015. Comments will be made available to the public upon request.

Pasquarello appointed director of the Electronic Monitoring Program Massachusetts Commissioner of Probation Edward J. Dolan has appointed Thomas Pasquarello as the new statewide manager of the Electronic Monitoring Center. Pasquarello started his new position at the center on March 2.

The Monitoring Center in Clinton is the headquarters for the Massachusetts Probation Service’s Electronic Monitoring (ELMO) Program. The center is a 365-day, 24-hour operation which employs a 40-member staff. The employees closely monitor the whereabouts of 3,000 probationers and parolees who are sentenced to wear the GPS bracelet.

Pasquarello, formerly the Chief of Police in Somerville, brings to the position more than 30 years of municipal and federal law enforcement experience.

Among Pasquarello’s duties as the statewide manager of ELMO are the development and implementation of ELMO Center operation policies and practices, management of ELMO Center operations and oversight of staff, ensuring compliance with subpoenas for records and testimony by ELMO staff and monitoring the issuance of warrants by the on-call staff.

SJC amends Rule 1 and Rule 6 of the Commission on Judicial Conduct; Mass. R. Civ. P. 45; Mass. R. Crim. P. 12 The Supreme Judicial Court has recently announced amendments to the following rules: • Rule 1 and Rule 6 of the Commission on Judicial Conduct: On Jan. 29, 2015, the SJC adopted amendments to Rules 1 and 6 of the Rules of the Commission on Judicial Conduct.

The amendments became effective on March 1, 2015. The amendment to Rule 1 permits the Commission to adopt a broader definition of the term “complainant,” for purposes of

its rules. The amendments to Rule 6 reflect the replacement of the position of Chief Justice for Administration and Management with the position of Chief Justice of the Trial Court, pursuant to M.G.L. c.93, sec. 137.

• Mass. R. Civ. P. 45: Through amendments to Rule 45, Massachusetts adopted the practice of a “documents only” subpoena directed to a nonparty, a practice that has existed under the Federal Rules of Civil Procedure since 1991. With the adoption of a documents only subpoena as of the effective date of April 1, 2015, there is no longer a need in Massachusetts to use deposition practice in regard to a non-party for the sole purpose of document production.

• Mass. R. Crim. P. 12: As the title of Rule 12 suggests (Pleas and Plea Agreements), the 2015 revision of the rule resulted in a more carefully delineated and somewhat expanded role for plea agreements in the process of a judge’s consideration and acceptance of a proffered guilty plea. The amendments, resulting from proposals of the Court’s Standing Advisory Committee on the Rules of Criminal Procedure, will become effective on May 11, 2015.

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SJC rules parent has right to counsel in guardianship proceedings In early February, the Supreme Judicial Court ruled that the parent of a minor child has a right to counsel when someone other than the parent seeks to be appointed as the child’s guardian. In doing so, the court agreed with the Massachusetts Bar Association and numerous other legal organizations, which had filed an amicus brief in the case.

Visit www. MassBar.org/Guardianship to view the SJC’s ruling and the amicus brief submitted by the MBA and others. ■

MASSACHUSETTS CHAPTER ANNOUNCEMENT The following attorneys are recognized for

Excellence in the field of Alternative Dispute Resolution

Dennis Calcagno

Richard Corbett

Paul Finn

Warren Fitzgerald

Brad Honoroff

Brian Jerome

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Brian Mone

Brockton

Phillip O’Neill Boston (Arb. Only)

John Ryan

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Geoffrey White

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Check preferred available mediation dates or schedule appointments online directly with our Massachusetts Chapter Members for free at

This free bar website is funded by the members of our Massachusetts Chapter. For more info on NADN, visit www.NADN.org/about

MASSACHUSETTS LAWYERS JOURNAL | MARCH 2015

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M A R C H 2 0 15

Your MBA membership includes FREE, UNLIMITED CLE seminars and MBA On Demand programming. (Excludes half- and fullday conferences and Practicing with Professionalism courses.)

COMPLEX COMMERCIAL LITIGATION RECENT PATENT LAW DEVELOPMENTS AT THE U.S. SUPREME COURT

SOLICITATION AND REPRESENTATION OF CHAPTER 11 CREDITORS’ COMMITTEES Wednesday, March 11, 4–6 p.m., MBA, 20 West St., Boston Join us for a discussion of the standards and the latest decisions governing the solicitation of members of creditors’ committees formed in Chapter 11 bankruptcy by attorneys seeking to be retained as committee counsel.

The discussion will include issues relating to the representation of such committees.

Wednesday, March 18, noon–3 p.m., MBA, 20 West St., Boston

FACULTY: Steven C. Reingold, Esq., program chair; Eric K. Bradford, Esq.; Andrew G. Lizotte, Esq.; Adrienne K. Walker, Esq.

The Massachusetts Bar Association’s Complex Commercial Litigation Section’s Intellectual Property Litigation Committee and the MBA’s Business Law Section will host an educational forum regarding recent developments Attendees are encouraged to in patent law at the U.S. Supreme Court. bring their own lunch.

VOIR DIRE TRAINING: LEARN FROM THE EXPERTS

This program will provide an overview and analysis of recent U.S. Supreme Court decisions bearing on patent law, including CLS Bank, Limelight Networks and Octane Fitness.

Now that Massachusetts attorneys are allowed to question prospective jurors in civil and criminal trials throughout the Superior Court, learn how to conduct voir dire from experts who have used it successfully.

FACULTY: Sean Thompson, Esq., program co-chair; Mat Trachok, Esq., program co-chair; Michelle Liszt Sandals, Esq.

SEAN THOMPSON

MAT TRACHOK

CRIMINAL LAW THE 4Cs PART II: EMPLOYMENT CONSEQUENCES OF CORI Wednesday, March 11, 4:30– 7 p.m., MBA, 20 West St., Boston Too often defendants are unaware of and/or not informed about significant barriers to employment and opportunities for professional advancement that arise from pleas and involvement in the criminal justice system. This second installment of the MBA’s Criminal Justice Section’s “4Cs” programs examines the collateral consequences of CORI in the employment context and what attorneys can do to ameliorate the effects of CORI. We encourage not only defense attorneys and other advocates to attend, but also prosecutors so that they too can make well informed and reasoned recommendations.

PAULINE QUIRION

FACULTY: Pauline Quirion, Esq., program chair; Crispin Birnbaum, Esq.; Agapi Kouloris, Esq.

FAMILY LAW ALIMONY ROUNDTABLE: MOVING ALONG THE PATHWAY FROM THE ALIMONY REFORM ACT OF 2011 Thursday, March 12, 5–7:30 p.m., MBA, 20 West St., Boston Hosted by the MBA in collaboration with the American Academy of Matrimonial Lawyers

Join the MBA as we team with the AAML to present this exciting roundtable event.

Experienced panelists, including members of the joint MBA/BBA Alimony Task Force and the attorneys who argued the most recent trio of alimony reform cases before the Supreme Judicial Court , will build upon the thoughtful analysis Free for AAML presented at the 2014 MBA Family Law Conference and address the members.Register at evolving implementation of the Alimony Reform Act of 2011. Dis- MBA Member Services at (617) 338-0530. cussion will focus on the recent SJC decisions in the matters of Chin v. Merriot, Rodman v. Rodman and Doktor v. Doktor. Be part of the continuing discussion and at the forefront of developments relating to the act, the most significant overhaul of family law in the last quarter century.

FACULTY: Kimberley J. Joyce, Esq., moderator; Catharine V. Blake, Esq.; David E. Cherny, Esq.; Cynthia Grover Hasting, Esq.; David H. Lee, Esq.; Paul P. Perocchi, Esq.

STEVEN C. REINGOLD

Monday, March 16, 1–5 p.m., MBA, 20 West St., Boston Visit the MBA’s Voir Dire Resource Center— www.massbar.org/voirdire — for voir dire protocols, alerts and other useful information.

With the passage of Chapter 254 of the Acts of 2014 last August, Massachusetts joined 39 other states that allow some form of attorney-conducted voir dire. The law not only permits attorneys to question potential jurors and screen for bias in Superior Court trials, it also allows attorneys to suggest a monetary amount for damages suffered by a plaintiff in a civil trial. The Massachusetts Bar Association advocated strongly for both measures.

FACULTY: Marsha V. Kazarosian, Esq., program chair; Hon. Peter Lauriat; Hon. Maynard Kirpalani; Hon. Bonnie MacLeod-Mancuso; Bud DeLuca, Esq.; Annette Gonthier-Kiely, Esq.; Carolyn McGowan, Esq.; Christopher Parkerson, Esq.; Douglas K. Sheff, Esq.

MARSHA V. KAZAROSIAN

PROBATE LAW FINANCIAL EXPLOITATION OF ELDERS AND UNDUE INFLUENCE Thursday, March 26, noon–4 p.m., Massachusetts School of Law, 500 Federal St., Andover When the elderly fall victim to undue influence (a key element in financial abuse cases), it is usually done through coercion or manipulation causing loss of property or money. This program will address financial exploitation of elders and other vulnerable persons.

FACULTY: Lisa Cukier, Esq., program chair; James M. O’Sullivan, Esq.

LISA CUKIER

REAL ESTATE LAW UNDERSTANDING TITLE EXAMINATIONS AND THE ANATOMY OF TITLE COMMITMENTS & POLICIES Tuesday, March 10 , 3–7 p.m., MBA, 20 West St., Boston Title examination is the most important phase of a real estate transaction. The examination determines whether the title is marketable and informs the purchaser and lender if the property being conveyed is free of any liens, encumbrances or judgments that may have arisen during prior ownership.

MELANIE HAGOPIAN

FACULTY: Melanie Hagopian, Esq., program chair; Elizabeth J. Barton, Esq.; Ward P. Graham, Esq.

BUSINESS LAW

KIMBERLEY J. JOYCE

Banking Law Update Recorded Jan. 14, 2015

LITIGATION

CRIMINAL LAW

Substance Use, Abuse and Addiction in District Court

FEED YOUR MIND — THE MBA’S LEGAL LUNCH SERIES: EFFECTIVE SUMMARY JUDGMENT MOTIONS Wednesday, March 11, 12:30–1:30 p.m., MBA, 20 West St., Boston All Massachusetts Bar Association members are encouraged to attend these free lunchAttendees are encouraged to time programs. We gear these programs toward civil bring their own lunch. litigators of all experience levels, providing an opportunity to participate in a discussion of selected areas of law, or practice, in a collegial setting where you can meet and exchange ideas with other members of the profession. This month’s speakers will provide a “how to” on effectively drafting and arguing a motion for CRAIG LEVEY COURTNEY SHEA summary judgment.

FACULTY: Craig D. Levey, Esq., co-moderator; Courtney C. Shea, Esq., co-moderator; Adam Hamel, Esq.; Jennifer Markowski, Esq.

Recorded Jan. 13, 2015

Check out these MBA On Demand programs you may have missed and view them

FAMILY LAW

Sophisticated Family Law Practice: Critical Tax and Creative Compensation Issues Recorded Feb. 5, 2015

LITIGATION

anytime, anywhere ... FREE with

Feed Your Mind—The MBA’s Legal Lunch Series: Taking and Defending Depositions

your MBA membership.

Recorded Jan. 21, 2015

NEW LAWYERS

A Day in the Life: The Real Lives of Young Lawyers Recorded Jan. 15, 2015

Intellectual Property Basics for the Non-Specialist Recorded Jan. 20, 2015

REGISTER ONLINE AT WWW.MASSBAR.ORG/EDUCATION OR CALL (617) 338-0530

MASSACHUSETTS LAWYERS JOURNAL | MARCH 2015

6

BAR NEWS "As a lawyer, it’s nice to have another source

REFERRAL SERVICE

Continued from page 1 member attorneys in a specific geographic location based on law practice area.

The service can be reached Monday through Friday from 9 a.m. to 5 p.m. by calling (617) 654-0400 or tollfree at (866) MASS-LRS. Requests can also be made online any time at www.MassLawHelp.com, which also includes a helpful list of answers to frequently asked questions, such as: When do I need a lawyer? How can a lawyer help me? How do I find the right lawyer?

When calls come in they are initially screened as the caller describes their situation. With the assistance of MBA staff, the area of law is determined and an attorney who practices that type of law is identified based on a ZIP code provided by the caller.

Attorneys can choose to have calls transferred directly to their office and can opt in to receive an email once a referral is made to them. The caller can also choose to receive an email containing all the necessary referral contact information.

Online users fill out a request form and are contacted by LRS the next business day.

In 2014, LRS received nearly 23,000 calls and more than 1,500 emails. While there is no cost to use LRS, referrals are made to fee-charging attorneys.

Member benefit for attorneys In order for an attorney to join LRS and start receiving referrals, they have to be an MBA member, be in good standing with the Board of Bar Overseers and carry professional liability insurance. There is a minimal fee for MBA members to join LRS in addition to their normal membership dues.

of referrals. It costs very little money and pays tremendous dividends."

— MBA Treasurer Jeffrey N. Catalano

Jeffrey N. Catalano

“As a lawyer it’s nice to have another source of referrals. It costs very little money and pays tremendous dividends,” said Catalano, who has subscribed to LRS for more than 10 years. Several other cases that also led to settlements have come to Catalano through LRS. MBA members from across the state use LRS as an additional referral source.

These attorneys range from solo practitioners to lawyers at large firms. When lawyers join LRS they choose what areas of

The Massachusetts Bar Association’s SPRINGFIELD office and the MBA INSURANCE AGENCY have

d e v o

m

MBA SPRINGFIELD NEW ADDRESS 1441 MAIN ST., SUITE 925 SPRINGFIELD, MA 01103-1450 TEL (413) 731-5134 FAX (413) 731-5915

WWW.MASSBAR.ORG

law they want to be listed under: family, labor and employment, estate planning, real estate, consumer protection, personal injury, criminal, personal finance, business, individual rights, government benefits and services, and immigration.

From a caller’s viewpoint, there’s a certain comfort level that these attorneys have all been vetted by the MBA. This is a much more reliable way of finding an attorney than conducting a blind search on the Internet without the necessary background information.

“The lawyers who are a part of the MBA are people who understand the importance of their role,” said Catalano.

“Someone who’s calling the MBA is going to be assigned to or given the name of an MBA lawyer who’s dedicated to the profession, dedicated to justice and dedicated to getting a good result for their client.”

The MBA handles all the marketing and promotion of the service as a member benefit. In addition to advertising on the MBTA and on WBZ radio, LRS is also promoted as a referral source during the MBA’s monthly Dial-A-Lawyer program, which takes place on the first Wednesday of every month.

An additional member benefit of LRS is that attorneys can now access referral information online whenever they need it.

LRS uses Intellix, a cloud-based management system, which allows participating

attorneys to go online and update their cases, renew their LRS membership, put temporary holds on referral notices and pay remittance fees.

A sympathetic ear The MBA is uniquely positioned to help people when they call LRS because of its available resources. Staff members answering the phones understand the legal realm and can often sympathize with the plight of a caller. A key first step in the referral process is simply serving as a sympathetic ear on the other end of the phone.

“When people are calling the Mass.

Bar Association, they’re calling someone who understands what they’ve gone through. They’re not just calling some 1-800 number where the person on the other end of the line doesn’t have the sensitivity to appreciate what someone’s dealing with,” said Catalano.

Depending on the situation, the MBA staff members answering the phones are also able to provide supplemental resources to callers in addition to providing a referral. Some instances may require the caller to also get in touch with agencies, such as the Attorney General’s Office, their local police department or mayor’s office, or the Better Business Bureau.

“We help people find some order in the chaos that’s going on when they have a legal issue,” said Joseph Caci, LRS/public and community marketing manager at the MBA. Also available to LRS callers is a language line so calls can be taken in virtually any language. The MBA provides a bilingual staff member to assist with Spanish speaking callers.

Everyone’s referral service Whether someone is filing for bankruptcy, going through a divorce, buying a house, adopting a child or going through any other type of legal situation, LRS is a free service that’s applicable to everyone.

When someone needs a lawyer, contacting LRS is an easy and reassuring first step.

Although cases with high-level settlements such as the one involving Catalano’s client are rare, LRS serves a vital function for the everyday situations that arise in people’s lives.

“These are life events for people and we fill a void of being able to match a person with an attorney they need,” said Elizabeth O’Neil, director of community and public services at the MBA. “Through LRS we are able to provide a great public service to the entire commonwealth.”

■

Member Spotlight

Sullivan to serve as BBO Hearing Officer Massachusetts Bar Association Secretary Christopher P. Sullivan has been appointed to a three-year term as a Board of Bar Overseers Hearing Officer. Sullivan’s term continues through Dec. 31, 2017.

As part of a three panel Hearing Committee, Sullivan will take part in disciplinary proceedings brought by the Office of Bar Counsel against individual attorneys. The position receives no monetary compensation and is for individuals who are interested in “devot[ing] their time as a public service in the vital interest of preserving the integrity of the Christopher P. Sullivan legal profession.”

“It is an honor and privilege to serve as a BBO Hearing Officer. I am delighted to have the chance to perform a public service and give back to the legal community here in Massachusetts. I am truly looking forward to doing this important work,” said Sullivan.

■

MASSACHUSETTS LAWYERS JOURNAL | MARCH 2015

7

AND

NOTABLE QUOTABLE MBA MEMBERS IN THE MEDIA

Criminal justice attorney compensation Without a doubt, we’re mindful of the fiscal reality. But even in good times, policy makers have the challenging task of making decisions on how to spend limited tax dollars. So we’re hopeful that with this report, on top of the MBA report, there will be some positive movement on this critical issue.

MBA EXECUTIVE MANAGEMENT BOARD MEMBER AND COMMITTEE FOR PUBLIC COUNSEL SERVICES CHIEF COUNSEL ANTHONY J. BENEDETTI, BOSTON GLOBE, JANUARY 13

Benedetti was quoted by the Globe in a piece about a report released by the Governor’s Commission to Study Compensation of Assistant District Attorneys and Staff Attorneys for the Committee for Public Counsel Services (CPCS).

Jury selection in Tsarnaev trial When a judge is asking questions in a voir dire, that aura, that superiority that a judge has impacts the way in which a prospective juror responds.

MBA PAST PRESIDENT RICHARD P. CAMPBELL WBUR, JANUARY 15

Campbell was interviewed by WBUR for a story on jury selection in the trial of accused Boston Marathon bombing suspect Dzhokhar Tsarnaev.

‘Solve It 7’: stove scare

Medical malpractice law The hospital did the right thing.

My client felt really good about it.

MBA TREASURER JEFFREY N. CATALANO, WASHINGTON POST (VIA KAISER HEALTH NEWS), JANUARY 20

Catalano was quoted in a story about a recently enacted medical malpractice law in Massachusetts, which provides a faster and more open process for injured patients.

Cameras in the courtroom

They shouldn’t delay. Somebody could get injured, somebody could lose their life, so in this case, the company should rectify the situation immediately.

MBA PRESIDENT-ELECT ROBERT W. HARNAIS WHDH TV (CHANNEL 7), JANUARY 8

In this segment of “Solve It 7” Harnais provided legal analysis on the case of a faulty stove that was emitting dangerous levels of carbon monoxide.

Health information technology While we need to guard against alarm fatigue and information overload for clinicians, driving adoption of these tools from a consumer perspective may make their use more palatable to individuals and may aid the health care sector in achieving the elusive goal of promoting prevention — changing behavior that exacerbates risk factors for chronic disease, as opposed to the 'I'll take a pill for that' mindset.

MBA MEMBER DAVID HARLOW, PRINCIPAL OF THE HARLOW GROUP LLC, iHEALTHBEAT, JANUARY 5

Harlow was one of 12 experts featured by iHealthBeat, a national online publication published by the California Healthcare Foundation, in a piece on health IT progress and disappointments in 2014 and what to expect in 2015.

Where available, news clips — including audio/video — can be found on our website at www.massbar.org.

I always have that concern that if it's not done circumspectly and with respect, and by people who know what they're talking about ... you run the danger of making the public the judge and jury when they don't have all the same information as the judge and jury. It causes problems.

MBA PRESIDENT MARSHA V. KAZAROSIAN EAGLE TRIBUNE, JANUARY 25

Kazarosian was quoted in the Eagle Tribune in a story about televised courtroom proceedings in highprofile cases. Cameras are not allowed in federal court cases such as the upcoming trial of accused Boston Marathon bomber Dzokhar Tsarnaev.

MASSACHUSETTS LAWYERS JOURNAL | MARCH 2015

8

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BAR NEWS Calendar of Events THURSDAY, MARCH 12

WEDNESDAY, APRIL 1

Alimony Roundtable:

MBA Monthly Dial-A-Lawyer

Moving Along the Pathway From

Program

the Alimony Reform Act of 2011

5:30-7:30 p.m.

5-7:30 p.m.

Statewide dial-in #:

MBA, 20 West St., Boston

(617) 338-0610

MONDAY, MARCH 16

THURSDAY, APRIL 2

Voir Dire Training:

Survive and Thrive:

Learn from the Experts

Tips of the Trade

1-5 p.m.

6-8:30 p.m.

MBA, 20 West St., Boston

MBA, 20 West St., Boston

MONDAY, MARCH 16

WEDNESDAY, APRIL 8

Mock Trial Elite 8/

Feed Your Mind:

Final 4 Competition

The MBA’s Legal Lunch Series

9 a.m.-5 p.m.

Effective Motions to Dismiss

Worcester Courthouse

12:30-1:30 p.m.

225 Main St., Worcester

MBA, 20 West St., Boston

WEDNESDAY, MARCH 18

WEDNESDAY, APRIL 8

Mock Trial Elite 8/

MBA’s A View from the Bench

Final 4 Competition

Series: Clerks’ Tips for Success

9 a.m.-5 p.m.

4:30-6:30 p.m.

Boston

MBA, 20 West St., Boston

WEDNESDAY, MARCH 18

THURSDAY, APRIL 9

Recent Patent Law Developments

Workers’ Compensation Alphabet

at the U.S. Supreme Court

Soup

Noon-3 p.m.

3-6 p.m.

MBA, 20 West St., Boston

MBA, 20 West St., Boston

THURSDAY, MARCH 19

THURSDAY, APRIL 9

Practicing with Professionalism

Closely Held Corporation

9 a.m.-5 p.m.

Litigation: Trends, Traps and

University of Massachusetts

Trouble Avoidance

School of Law – Dartmouth

4:30-6:30 p.m.

333 Faunce Corner Road,

Mintz, Levin, Cohn, Ferris,

North Dartmouth

Glovsky & Popeo PC 1 Financial Center, Boston

John B. Glynn, Esq. 25 Braintree Office Hill Park, Suite 408 Braintree, MA 02184 781-356-1399

jbglynn@glynnmediation.com www.http://glhrlaw.com/john-b-glynn

THURSDAY, MARCH 26 House of Delegates meeting

THURSDAY, APRIL 9

4-6 p.m.

Speed Networking with a Twist

Courtyard by Marriott –

5:30-7:30 p.m.

Marlborough

MBA, 20 West St., Boston

75 Felton St., Marlborough

ADR

AVIATION L AW

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AVIATION LAW ANTHONY TARRICONE,

N O R T H vs. S O U T H

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Gamble or be

THURSDAY, MARCH 26

TUESDAY, APRIL 14

Financial Exploitation of Elders &

36th Annual Labor and

Undue Influence

Employment Law Spring

Noon-4 p.m.

Conference

Massachusetts School of Law

11:30 a.m.-5 p.m.

500 Federal St., Andover

Suffolk University Law School, 120 Tremont St., Boston

FRIDAY, MARCH 27 Mock Trial State Championships 10 a.m.

Faneuil Hall 1 Faneuil Hall Square, Boston

Certain!

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855 Boylston St. Boston, MA 02116 Case Evaluation | Full Neutral Panel d7 . 3Have 1 2 8 . 8 8 8 8 Settled It! Tel (617) 424-9100 www.northeastmediation.com Fax (617) 424-9120It! We Could Have Settled Case Evaluation | Full Neutral Panel E-mail: atarricone@kreindler.com www.northeastmediation.com Dennis J. Calcagno, esq www.kreindler.com

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Case Evaluation | Full Neutral Panel

CONTINUED ON PAGE 9

Real-time webcast available for purchase through MBA On Demand at www.massbar.org/ondemand.

FOR MORE INFORMATION, VISIT MASSBAR.ORG/EVENTS/CALENDAR

MASSACHUSETTS LAWYERS JOURNAL | MARCH 2015

BAR NEWS ANNUAL DINNER

Continued from page 1 Journal. He is the immediate past president of the National Trial Lawyers Association.

Mark Geragos has represented some of the most prominent figures in the world. His client list has included former Congressman Gary Condit, former first brother Roger Clinton, Grammy Awardwinning artist Chris Brown, platinumselling artist Kesha Sebert, Nicole Ritchie, hip hop stars Nathaniel “Nate Dogg” Hale and Sean “Diddy” Combs (aka Puff Daddy), Usher Raymond and former heavyweight champion Mike Tyson.

Geragos is a legal analyst for CNN and has regularly appeared as both guest and legal commentator on the “Today Show,” “Good Morning America,” “Dateline NBC,” “Larry King Live,” “Greta Van Susteren’s On the Record,” “60 minutes,” and “48 hours,” and has lectured extensively and authored numerous articles and law review publications on the subject of media and the law. Geragos authored Mistrial: An Inside Look at How the Criminal Justice System Works... and Sometimes Doesn’t, which won the grand prize at the 2014 Los Angeles Book Festival and was a bestseller.

■

9

EXPERTS&RESOURCES CONTINUED FROM PAGE 8 WEATHER

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Would You Know A

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617- 426 -2558 For info on brain injury litigation, visit

www.kolpan.com

L AW YER A SSISTANCE

Young lawyers volunteer at Greater Boston Food Bank

The Young Lawyers Division hosted an MBA Volunteer Night at the Greater Boston Food Bank on Feb. 4. Fourteen volunteers sorted 3,825 pounds of food, which will provide approximately 3,122 meals to those in need. Thank you to all who participated!

■

BE THE FIRST TO KNOW.

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MASSACHUSETTS LAWYERS JOURNAL | MARCH 2015

10

EXPERTS&RESOURCES CONTINUED FROM PAGE 9 MEDIATION

MEDIATION

BAR NEWS Mock Trial Championship set for March 27

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• Facilitator • Fact Finder

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Join the Massachusetts Bar Association for the final round of the MBA’s 2015 High School Mock Trial Program competition on Friday, March 27, at 10 a.m. in the Great Hall at Faneuil Hall in Boston.

If you would like to attend, please R.S.V.P. to mocktrial@massbar.org or call (617) 338-0570 by March 18. The winning team will secure the state championship and advance to the national competition in Raleigh, North Carolina, May 14-16.

■

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CONTINUED ON PAGE 11

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MASSACHUSETTS LAWYERS JOURNAL | MARCH 2015

Member Spotlight

Harnais receives Community Service Award from Norfolk County bar

11

EXPERTS&RESOURCES CONTINUED FROM PAGE 10 AAD 2"x4" colorTad SURE Y L1:Layout BONDS1 3/19/10 2:19

A.A.DORITY

SURETY BONDS Since 1899

From left to right: Norfolk County Treasurer E. Pamela Salpoglou, President Joseph P. Hurley III, MBA President Marsha V. Kazarosian, MBA Vice President Christopher A. Kenney, SJC Associate Justice and Keynote Speaker Margot Botsford, MBA President-elect and Community Service Award Honoree Robert W. Harnais, MBA Secretary Christopher P. Sullivan and MBA Vice President John J. Morrissey. Photo by Amy Kelly.

The Bar Association of Norfolk County honored Massachusetts Bar Association President-elect Robert W. Harnais with the MBA’s Community Service Award on March 4 at the Neighborhood Club in Quincy. MBA President Marsha V. Kazarosian presented the award to Harnais and spoke about all he has done for the MBA and the community.

“We give this award to attorneys who have made important public service contributions to their communities, and to publicize the fact that members of the legal profession are caring, involved individuals, who are eager to use their legal skills for the betterment of society,” said Kazarosian. “That is what Bob exemplifies. He is truly a caring, empathetic, involved and sincere human being.”

Harnais has volunteered his service to the MBA for many years. An MBA officer since 2011, Harnais has been a member of the MBA’s House of Delegates since 2006

and is a member of the MBA’s Executive Management Board. He has also served as co-chair of the MBA’s Crime Lab Task Force and chair of the MBA’s Diversity Task Force.

In addition to his MBA involvement, Harnais is a past president of both the Massachusetts Association of Hispanic Attorneys (MAHA) and the Hispanic National Bar Association, and remains highly involved with both organizations. Last October MAHA presented Harnais with its 2014 Leadership Award. Harnais also received the Quincy Bar Association’s Alfred P. Malaney Award, also known as the “Man of the Year” Award, for distinguished legal services.

Since 2007, Harnais has served as a member of the Race and Ethnic Advisory Board for the Massachusetts courts. Harnais is chairman of the Braintree Planning Board and enjoys being a football official in his spare time.

■

Snapshots from around the MBA

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MassBar ski-LE members gathered for a group shot at the top of Wachusett Mountain Ski Area.

MBA members hit the slopes for inaugural ski-LE

The Massachusetts Bar Association hosted its first MassBar ski-LE on Thursday, Feb. 26. The event combined legal education with a fun afternoon of skiing and networking at Wachusett Mountain Ski Area.

Following breakfast, faculty members Scott Goldberg (program chair), Brendan G. Carney, Steven Coren and Alan Klevan led a law practice management-themed discussion about ways to increase efficiency and profits while maximizing work time. Then, after a lunch buffet, the attorneys suited up and hit the mountain for a “bluebird” afternoon of skiing. Several members of the group also met up for some après-ski networking in the lodge.

A great mix of new and seasoned practitioners took part in the MBA’s inaugural slope-side event. One member wrote afterward: “Thanks … for a great program and a wonderful afternoon of skiing and après ski. I enjoyed it very much and hope the MBA will do it again.”

■

Contact Rich Ofsthun.

(617) 896-5307 rofsthun@thewarrengroup.com

MASSACHUSETTS LAWYERS JOURNAL | MARCH 2015

12

J

oin

FOR YOUR PRACTICE

U

s

Lawyers Concerned for Lawyers

Despite practice success, feeling like a parenting failure

2015

Annual Dinner THURSDAY, MAY 7 THE WESTIN BOSTON WATERFRONT 425 SUMMER ST., BOSTON Reception: 5:30 p.m. • Dinner: 7 p.m.

KEYNOTE SPEAKER

Q:

M ARK J. GE R AGOS PRINCIPAL, GERAGOS & GERAGOS, APC

2015 MBA PRESIDENT’S AWARD

HOUSE SPEAKER ROBERT A. DeLEO (D-Winthrop)

MBA CHIEF JUSTICE EDWARD F. HENNESSEY AWARD

HON. DENNIS J. CURRAN Associate Justice Massachusetts Superior Court

Presentation of THE OLIVER WENDELL HOLMES JR. STUDENT SCHOLARSHIP and the

2015 ACCESS TO JUSTICE AWARDS

REGISTRATION INFORMATION AND SPONSORSHIP OPPORTUNITIES: WWW.MASSBAR.ORG/AD15 (617) 338-0530

I am a 51-year-old woman who has, over the years with my law partner, built a rather successful and well regarded general legal practice in Central Massachusetts. I’ve had some tendency toward depression for many years, but past therapy and an ongoing prescription for Prozac have been fairly effective. This week, however, I have been unable to get anything done, even to prepare for an important case. I can’t get my mind off the fact that my college-age daughter is barely talking to me, and chose to stay at school rather than come home for winter vacation. Something seems to have happened at school to trigger this, but I don’t know what it is. When she came home for Thanksgiving, she seemed to want to do nothing but sleep and use social media, and I pushed her to do something more constructive, so in part she may be avoiding a replay of that tug of war. My daughter and I were always very close — she has lived with me since her father and I divorced a decade ago — and I always prioritized her, through various crises and adolescent turmoil, over my work. But I can’t seem to get through to her this time, and now I’m just feeling like a total failure, like my past efforts have not amounted to anything. It’s hard to even ask my partner to fill in for what I can’t seem to do — his kids are doing fine as far as I know, and he’s the kind of person who has no comprehension of depression.

A:

To begin with your last point, it’s certainly seems to be true (since we hear if so often) that people who have been fortunate enough not to experience significant depression often think that one has only to “pull oneself up by the bootstraps.” While a certain amount of self-pushing, such as involvement in activity and exercise even when motivation is hard to come by, is helpful in improving mood, people need to understand that when one is drowning in depression, an extended hand will probably be more helpful than advice to swim harder. Our website (LCLMA.org) has a number of links to resources and articles that are informative on depression in general and specifically in lawyers. And it does seem likely that you’ll need to ask your partner for help on the work that currently faces you — just as he would do if symptomatic from a condition that he does understand, like cancer or arthritis.

If you are not currently in therapy, this is a good time to return, and not because your reaction is unique — most parents as devoted as you have been would have a hard time coping with what sounds like a fairly sudden alienation from their child — but because it’s so stressful. Your daughter is certainly dealing with something (could be so many things), and expressing it partly by turning her anger toward you. For what it’s worth, it may be because you have been such a stable, solid figure that she feels safe enough to do so, but of course it’s still painful to withstand. For you to go from feeling hurt and disappointed to a sense of total failure, however, is a “cognitive distortion” in the direction of inappropriate self-blame, not to mention the implicit belief that her current perspective will last indefinitely, which is unlikely. With your parental support, she’s been able to get through past personal challenges and into college. As you examine and reshape the kinds of thoughts that contribute to your sinking mood, you can remind yourself that your daughter’s life, moods and choices are going to unfold largely in ways that are not within your control. It’s time to take care of yourself, as well; and when she’s ready to talk, you’ll be ready to listen.

Questions quoted are either actual letters/emails or paraphrased and disguised concerns expressed by individuals seeking assistance from Lawyers Concerned for Lawyers. Questions for LCL may be mailed to LCL, 31 Milk St., Suite 810, Boston, MA 02109; emailed to email@lclma.org or called in to (617) 482-9600. LCL’s licensed clinicians will respond in confidence. Visit LCL online at www.lclma.org.

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Snapshots from around the MBA

Chief Justice of the Trial Court Paula M. Carey (center) speaks to attendees about District Court practices at the Jan. 30 Bench-Bar Meeting in Brockton.

PHOTOS BY JEFF THIEBAUTH

From left: Plymouth District Attorney Timothy J. Cruz, MBA President-elect Robert W. Harnais and Chief Justice of the District Court Paul C. Dawley at the Brockton Bench-Bar Meeting.

MBA partners with Trial Court for Bench-Bar meetings

The Massachusetts Trial Court’s District Court Department, in partnership with the Massachusetts Bar Association and local county bar associations, is currently holding a series of bench-bar gatherings across the commonwealth to facilitate increased dialogue between judges, clerk magistrates, chief probation officers, local practitioners and other court personnel.

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ComCom hosts Korean Delegation

The Intellectual Property Practice Group of the Complex Commercial Litigation Section sponsored a mediation/arbitration training program on Feb. 19, for a Korean delegation through the International IP ADR Center of Seoul, Korea. The delegation included senior judges, business people and professors who are engaged in building ADR capacity for Korea.

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CARe: an alternative to medical malpractice litigation B Y J E F F R E Y C ATA L A N O A N D LISA BUCHSBAUM

JEFFREY N. CATALANO

In 2012, the Massachusetts Alliance for Communication and Resolution following Medical Injury (MACRMI) was formed from a coalition of partners — teaching hospitals and their insurers, patient safety and advocacy groups, and statewide organizations — dedicated to improving the medical liability system.

An unprecedented partnership between the Massachusetts Bar Association (MBA), Massachusetts Academy of Trial Attorneys (MATA) and Massachusetts Medical Society (MMS) led to significant reforms allowing MACRMI to embark on its mission to implement and study a Communication, Apology and Resolution (CARe) approach to adverse events in health care facilities.

The CARe approach, modeled after programs at institutions like the University of Michigan Health System and Stanford Hospital and Clinics, promotes early resolution in cases of avoidable medical injury. Under this model, when unanticipated adverse outcomes occur, patients and their families are provided full disclosure of what happened, what it means for the patient medically, what will be done to prevent the error from

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Israel Deaconess Medical Center in the Center for Healthcare Delivery Science. Buchsbaum manages the Communication, Apology and Resolution approach to adverse events at BIDMC. She also manages the Massachusetts Alliance for Communication and Resolution following Medical Injury, which promotes the use of the CARe process throughout the commonwealth.

happening again, thereby improving patient safety and, where appropriate, a sincere apology and adequate and fair compensation. In cases where financial compensation is deemed appropriate, patients are encouraged to consult an attorney to advise them of their rights and to evaluate the fairness of any offer.

During the last three years, MACRMI members have been working tirelessly to develop sample policies and procedures to guide and support institutions implementing the CARe program.

Most recently, the MBA and MACRMI partnered to develop best practices for attorneys representing patients and health care providers in resolution of medical injury using the CARe approach. These tools and additional resources for patients, clinicians, admin-

istrators and their attorneys are free and accessible through the MACRMI website at macrmi.info.

In January 2015, the MBA and MACRMI co-sponsored an interactive forum at the MBA to educate attorneys on MACRMI’s mission and the CARe approach. The forum provided an opportunity for attorneys to get information about how the CARe program works in Massachusetts, hear from attorneys that have participated in the process, understand the benefits of the program for attorneys and their clients, and have their questions answered by a panel of experts on the topic. Attorneys from across the state, including many prominent plaintiffs’ medical malpractice attorneys, attended the event, and it proved to be a resounding success.

The evening began with Dr. Alan Woodward, former MMS president, presenting the background and accomplishments of MACRMI. Dr. Kenneth Sands, chief quality officer at Beth Israel Deaconess Medical Center (BIDMC), provided a history of the program and the current results of its implementation at the pilot sites in Massachusetts.

The six pilots include BIDMC, Beth Israel Deaconess Milton, Beth Israel Deaconess Needham, Baystate Medical Center, Baystate Mary Lane, and Baystate Franklin. Dr. Sands revealed many facts and data with regard to the impact of the CARe program on resolving cases early and the progress that has yet to be made. The transparency of information was impressive and consistent with a key tenet of the CARe program — transparent communication.

A panel of both plaintiff and defense attorneys followed. It was led by a successful plaintiff’s attorney from Michigan, George Googasian, who spoke of the benefits of a well-known Disclosure, Apology and Offer (DA&O) program in that state. He shared examples of recent cases resolved using the CARe-like approach and convincingly dispelled notions that such programs are a “wolf in sheep’s clothing,” or an attempt to short-change patients by offering them money at the early stages of their injury when they are most vulnerable.

With 14 years of experience working on cases using the CARe-like approach, Googasian believes that it’s a giant step forward in the legal and medical communities. Jeffrey Catalano, a plaintiffs’ attorney and MBA representative on MACRMI’s committee, emphasized the necessity of such programs to improve patient safety efforts. In particular, how CARe encourages healthcare providers to disclose errors and learn from their medical mistakes. Defense

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attorney Kevin Giordano discussed the importance of having the defense bar buy in to this program. He expressed that his support for this program comes from his belief in a good healthcare system, and promoting a trusting and good patient-provider relationship. He encouraged plaintiffs’ attorneys to also be open-minded to resolving these cases collaboratively, fairly and expeditiously because it is the right thing to do.

Patient advocate and Executive Director of Medically Induced Trauma Support Services (MITSS), Linda Kenney, spoke of the importance of appreciating both the health care provider’s and patient’s emotions when a medical error occurs and the need for early healing for both parties, which the CARe program facilitates.

All panelists repeatedly emphasized that the participation of the attorney for the patient is highly encouraged in order to ensure that the process works fairly. In particular, the attorney’s role is to make sure that the settlement is sufficient to take care of the patient’s comprehensive past, present and future needs. The attorney is also there to ensure that the terms of the settlement agreement are fair and to assist with exploring and negotiating any medical liens that may subtract from the settlement offer.

The program concluded with a fruitful question and answer session facilitated by plaintiff’s attorney Anthony Agudelo, the forum’s moderator. The panel of experts thoughtfully answered a number of questions from the audience, such as how the process affects the National Practitioner Data Bank reporting requirements and what criteria is used to qualify attorneys to represent patients using the CARe approach.

The forum was universally well received, as evidenced by written and verbal comments following the presentations. Everyone was very interested in the program and invested in future efforts to make it work. As the first phase of an effort to solicit the collaboration of all attorneys, it was a tremendous success. It is encouraging to learn that attorneys, healthcare providers and insurers can find a common ground when it comes to trying to prevent avoidable medical errors and to providing assistance to those who are injured. Although the road ahead is still long, it promises to be well-paved.

The seminar is available to view through MBA On Demand by visiting massbar.org.

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Practice pointers prevent potentially painful pitfalls B Y N I C H O L A S D . C A P P I E L L O A N D PA U L J . K L E H M

Attorneys in Massachusetts are faced with strict notice requirements in a wide variety of tort actions. There are many statutory provisions to know, and failure to fulfill any critical notice provision could be fatal to a client’s claims.

Furthermore, there are exceptions and remedies to know should your client fail to comply with a particular notice provision. The following (non-exhaustive) survey of some of the notice requirements might serve as a handy reference when a potential client calls.

Bringing a dram shop action is not as simple as filing a case against the appropriate defendant(s) within the appropriate timeframe and then initiating discovery to determine whether a defendant knew that a patron was intoxicated and/or who was at fault for over-serving a patron. Under Massachusetts law, the plaintiff must specify, with particularity, the claims against each dram shop defendant, and the basis for those claims, in a supporting affidavit setting forth evidence that the defendant dram shop defendant knew or reasonably should have known that it was serving alcoholic beverages to an intoxicated person.1

NICHOLAS D. CAPPIELLO is a partner at the firm of Lubin & Meyer PC. Cappiello dedicates his practice to medical malpractice and general liability litigation. He has secured several multimillion dollar settlements for injured clients in both Massachusetts and New Hampshire, and has contributed to several record-setting jury awards in both Massachusetts and New Hampshire.

The supporting affidavit must be either: 1) attached to the complaint at the time of filing; or 2) filed within 90 days after the filing of the complaint. The rationale behind the requirement is to weed out frivolous and non-meritorious claims at the outset in an effort to reduce liability insurance costs for establishments that serve alcohol. The practical effect for dram shop plaintiffs and their attorneys is that they need to have all their ducks in a row when they file suit, because the consequences for failing to comply with the affidavit requirement include dismissal. By statute, the dram shop defendant is entitled to file for sum-

PAUL KLEHM is a civil litigation attorney who is a member of the MBA’s Civil Litigation Section Council. He is a partner in the Andover law firm of Krasnoo, Klehm & Falkner LLP, and he is the immediate past president of the Lawrence Bar Association. Klehm handles business disputes, civil rights and personal injury matters.

mary judgment if the plaintiff fails to file the supporting affidavit within the prescribed timeframe.

While it is obviously advisable to comply with affidavit requirement within the 90 days required by statute, the court has the discretion to enlarge the time in which to file the affidavit.2 Therefore, failure to file the affidavit within the statutory time period may not be fatal to the case if the proper motion is filed and the court allows the motion.3 But again, this requires the attorney to be aware of the affidavit requirement and to take affirmative steps to preserve the client’s rights by moving to enlarge the deadline.

M.G.L. c. 231, § 60L

In November 2012, a new statute went into effect requiring medical malpractice plaintiffs to provide the defense with six months’ notice of their intent to file a claim before actually filing the claim. The notice requirements are very specific and failure to comply could result in dismissal of the claim. There also some very important exceptions to the notice letter requirement, as well as some practical considerations that are not explicitly addressed by the statute.

First, the notice letter must identify the defendant, set forth the factual basis for the claim, explicitly set forth the standard of care required of the defendant, the plaintiff’s specific allegations of the defendant’s deviation(s) from the standard of care, what the defendant should have done to comply with the standard of care, the causal connection between the negligence and injuries and damages. The notice letter must also list any other potential defendants who were negligent and the fact that, they too, are receiving a notice letter.

Second, after serving the letter on the defendant, the plaintiff must wait 182 days before filing. Within 56 days of giving notice to the defendant, the plaintiff must give the defen18

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Attorney-conducted voir dire begins in Massachusetts ERIC P. FINAMORE

B Y E R I C P. F I N A M O R E

An enactment by the Legislature during the past calendar year reflects several profound changes underway in civil trial practice before the Superior Court. Chapter 254 of the Acts of 2014 authorizes attorney-conducted voir dire examination of prospective jurors during the empanelment process, as well the suggestion to the jury of a specific monetary amount for damages at trial. The brevity of the statutory language belies the tireless efforts of the advocates, including the past and present leadership of the Massachusetts Bar Association, who brought about the changes. It also barely hints at the breadth of the change in practice, or at the adaptive process which will be required of most Massachusetts attorneys who, unless they have practiced in other jurisdictions as well, will be unprepared for implementation of the statute.

The Massachusetts court system has long been criticized for its restrictive approach to jury voir dire, which largely limited assessments of prospective jurors’ impartiality to the vital statistics disclosed on the mandatory juror

practices civil litigation in Boston. He is the managing member of Weston Patrick, PA, and a member of the Massachusetts Bar Association’s Civil Litigation Council.

questionnaire and in the responses to the statutory questions asked by the trial judge. Attorney-conducted voir dire has not been part of the civil trial court culture, and for most attorneys, in most cases, voir dire has not been a meaningful, substantial part of trial preparation.

In this respect, trial practice in Massachusetts is undergoing a significant change. Effective Feb. 2, 2015, M.G.L. c. 234, Sec 28(1) provides: In addition to whatever jury voir dire of the jury venire is conducted by the court, the court shall permit, upon the request of any party’s attorney or a self-represented party, the party’s attorney or self-represented party to conduct an oral examination of the prospective jurors at the discretion of the court.

That the court “shall” permit examination seems to indicate that the request must be allowed as a matter of right, but the sentence ends with the qualification that the questioning shall be permitted “at the discretion of the court.” The effect of these seemingly-contradictory provisions remains to be seen. However, the effect of the statute is clear: counsel in Superior Court cases must be prepared for the advent of conducting (and opposing) voir dire questioning of prospective jurors in a civil case.

The Supreme Judicial Court Committee on Juror voir dire is expected to promulgate permanent procedures governing the jury voir dire permitted by this statute. In the meantime, Superior Court Standing Order 1-15, adopted on Dec. 5, 2014, will be the governing procedure and all practitioners will have to be intimately familiar with its provisions and its implementation. This article is not intended to substitute for a thorough knowledge of the provision, much less for practical training, but seeks only to mention several pertinent characteristics of concern to the practitioner.

Motion and opposition. First, Standing Order 1-15(C)(1) provides that any attorney (or pro se party) who

seeks to examine prospective jurors in a civil case must serve and file a motion requesting leave to do so under the procedure of Superior Court Rule 9A. The motion must be filed no later than the earlier of the final trial conference or fourteen days prior to the date scheduled for trial. Therefore, active preparation for the questioning of prospective jurors must begin at least several months before trial. This represents a substantial change in trial preparation.

In previous practice, when requests for voir dire could often be filed on the day of trial, neither counsel nor the court received advance notice of such requests, and questions could be formulated at the last minute. Under the new procedure, opposing counsel will have had an opportunity to oppose the requests, and the court will have had opportunity to rule on the motion, all before the beginning of trial.

Substance of the motion. The standing order requires that the motion identify “generally” the topics of the questions the moving party proposes to ask the prospective jurors. The motion must also include proposed language for the brief explanation of the pertinent principles of law which is required to be

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the juror to prejudge any issue in the case, to make a commitment to support a particular result, or to do anything other than remain impartial and follow the court’s instructions.

• That require a juror to guess or speculate about facts or law.

• That would tend to embarrass or offend jurors or unduly invade jurors’ privacy Standing Order 1-15(C)(4) (b).

These subparagraphs of the standing order offer guidance to the practitioner about the types of questions or topics to avoid listing in the motion. Particularly in subparagraphs (4) and (5), the order dispels any impression that the voir dire process is an opportunity to “pre-try” a case to the venire, or to create impressions or sympathies which will help the client during the course of the trial.

While skillful questioning may inevitably lead to impressions or beliefs on the part of the prospective juror, the standing order indicates that the court will disapprove topics or questions obviously designed to achieve such a result.

Similarly, according to subparagraphs (2), the court should disapprove questions about a juror’s religious or political views or affiliations and even opinions regarding matters of public policy. It might be supposed that some of those views would naturally affect a juror’s ability to render a fair and impartial verdict, and may not be clearly distinguishable from the “experiences” or “preconceptions” which are explicitly approved under paragraph (C)(4)(a). Is a potential juror’s belief that there are too many high damage awards in civil cases a “preconception … relating to the nature of the claim” about which questioning is permissible? Or is it an opinion on a matter of public policy, on which no questions should be asked? Counsel will have to become adept at walking the line between the approved and disapproved categories described by the standing order.

Attorney voir dire questioning.

Following its ruling on the motion, the court is directed by the standing order to conduct its own explanation of the empanelment process and of the case and to conduct questioning of potential jurors, which by the terms Section (C) (5) appear to encompass the statements and questions with which practitioners are already familiar. As a result of that process, the court will assemble a panel which it finds to be indifferent and able to serve. Only after the trial judge has found an individual juror indifferent and able to serve do attorneys have the opportunity to question that person, either individually or as part of the venire panel, and only to the extent that questioning has been authorized by the court’s action on the parties’ motions.

The standing order provides for both individual and panel questioning. First, the judge may require that questioning be conducted of each prospective juror individually, outside the presence or hearing of other jurors. Standing Order 1-15(C)(6)(a). On the basis of the responses to their questions, the parties may assert challenges for cause at that time. If the juror is not excused for cause the judge may require the exercise of any peremptory challenge at that time, or the judge may seat the juror subject to the parties’ later exercise of peremptory challenges.

Next, upon request of a party, the trial judge may permit counsel to question jurors as a group in a “panel” voir dire procedure. Standing Order 1-15(C) (6)(b). The panel must consist of at least

the number of jurors that will be seated for trial. Jurors to whom questions are addressed in this form may be identified on the record by juror number only. After completion of panel questioning the parties may assert challenges for cause and the court may allow counsel opposing the challenge the opportunity to conduct further questioning of the juror.

These provisions make it clear that, despite the guidance provided by the standing order and the prescription of the statutory enactment, much about attorney-conducted voir dire will be left to the discretion of the trial judge. From the form and substance of the questions and topics, to the manner in which the questions are posed, to the timing of peremptory challenges, each trial judge

will have discretion to structure the process as he or she sees fit, with due regard to the nature of the case, the parties and counsel in the courtroom and the judge’s own preferences and comfort level.

The allowance of attorney-conducted voir dire is a welcome and long-sought improvement in Massachusetts civil procedure. It brings Massachusetts civil practice more closely into line with the majority of jurisdictions which permit it. It will assist the efforts of the courts and litigants to seat fair and impartial juries. Practitioners in this commonwealth must now learn its uses and limits, in order to employ it toward its commendable objectives. Superior Court Standing Order 1-15 is an illuminating first step, and a valuable tool, in that process. ■

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given by the court prior to the questioning under the provisions of Standing Order 1-15(C)(5)(b). Taken together, these provisions require counsel to submit the topics of proposed questions, along with an explanation of the legal elements of the claim or defense which might justify those topics. The topics identified shall be interpreted to include reasonable follow-up questions. Standing Order 1-15(C)(2).

However, the standing order also provides that the trial judge may require counsel to submit the specific language of the proposed questions for pre-approval. The standing order does not specify whether follow-up questions, allowed for identified topics, are also allowed where the specific language of the questions has been submitted for approval. It seems logical to suppose that the reasonable follow-up should be allowed in virtually all instances. However, the same concern which caused the court to require pre-approval of specific questions could cause the court to restrict the questioning to only the approved language.

Court action on the motion. After the parties’ submissions, the standing order requires the trial judge to “approve” or “disapprove” the topics of questions or the specific language of the proposed questions. Standing Order 1-15(C)(3).

The order also provides detailed guidance on the types of questions which should be generally approved, and those which should be generally disapproved.

Standing Order 1-15(C)(4)(a), (b).

Questions that should generally be approved are described in paragraph (C) (4)(a), and include those questions inquiring about: (1) the prospective juror’s background and experience pertinent to the issues expected to arise in the case and whether and how such background or experiences might influence the juror in the case, (2) preconceptions or biases relating to the identity of the parties or the nature of the claims or issues and (3) the prospective jurors' willingness and ability to accept and apply pertinent legal principles as instructed.

The standing order does not say that the three subcategories of paragraph (C)(4)(a) constitute an exhaustive list of questions or topics likely to be approved. However, these subjects seem to encompass the broad types of concerns that counsel will have in the process of seating an impartial jury and they are a fair summary of the types of concerns which have heretofore been raised during the empanelment process in any civil case.

The standing order also enumerates, in a somewhat longer list, questions which are likely to be disapproved. They include questions: • That duplicate the questions on the statutory confidential juror questionnaire.

• Regarding the prospective juror's political views, voting patterns, party preferences, religious beliefs or affiliation, reading or viewing habits, charitable giving, opinions on matters of public policy, hobbies or recreational activities or regarding insurance.

• Regarding the deliberation in or outcome of any trial in which the prospective juror has previously served as a juror.

• Purporting to instruct jurors on the law.

• That make arguments on any issue of fact or law; that tend to indoctrinate or persuade; that encourage the juror to identify with a party, victim, witness, attorney or other person or entity, or to send a message; or that encourage

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PAINFUL PITFALLS

Continued from page 15 dant access to all relevant medical records, including executed authorizations allowing the defense to obtain those records. The statute gives the defense up to 150 days to respond to the plaintiff’s notice letter. If the defendant fails to respond to the plaintiff’s notice letter and the plaintiff ultimately prevails at trial, then the plaintiff is entitled to interest dating back to the date of the notice letter rather than the date the complaint was filed. However, the additional interest is not automatic. To preserve the right to the additional interest, the plaintiff must notify the court in the complaint “or by any other means” that the defendant failed to respond to the notice letter.4 There are a number of additional considerations to the timeframes set forth in the statute. First, the plaintiff need only provide 90-day notice to a defendant if 182-day notice has already been given to another healthcare provider. In other words, the plaintiff is only required to give 90-day notice to a defendant before moving to amend an existing complaint to add a defendant. Likewise, if during the pendency of the 182-day waiting period, the plaintiff discovers the identity of another potential defendant, then the plaintiff must serve that additional defendant with a notice letter and has to wait 90 days, not 182 days, before filing against that defendant.

Another important exception to the notice letter requirement centers around the proximity to the statute of limitations or the statute of repose. A plaintiff is not required to serve a notice letter if the claim is filed within six months of the statute of limitations or within one year of the statute of repose. Therefore, a practical consideration for plaintiff’s counsel is whether to serve

a notice letter at all if the six month mark to the statute of limitations, or the one year mark to the statute of repose, is approaching, or whether to wait until either of those dates arrives so that suit can be filed without the need to serve the notice letter. On the other hand, there may be advantages to serving the notice letter if liability is clear because it is possible the notice letter will prompt pre-suit settlement discussions.

While the statute of limitations and statute of repose exceptions are relatively straightforward in the event of a new case that has not yet been filed, the statute does not expressly set forth the inter-connection with the doctrine of relation back and whether the notice letter is required in the event that a plaintiff seeks to amend the complaint to add a defendant to an existing lawsuit more than three years after the cause of action has accrued. While the argument certainly exists that the plaintiff is exempt because they are within six months of the statute of limitations, an argument can also be made that the statute of limitations is irrelevant given the doctrine of relation back (assuming there are no statute of repose considerations), and therefore the plaintiff is required to provide the 90-day notice set forth in the statute.

There is also no notice requirement if there was no reasonable way for the plaintiff to identify the individual defendant before filing suit. For instance, if the medical records do not identify the negligent individual or entity, and there was no reasonable way to ascertain his/her identity pre-suit, then a notice letter is not required.

Lastly, within the 182 day period, the plaintiff may file the case at any time after receiving written notice from the defense denying the claim.

The statute lays out all of the require-

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ments in detail. This overview is not meant to include an exhaustive list of the requirements, but instead an illustration of the current procedural constraints and prerequisites to filing for medical malpractice in Massachusetts. Failure to comply with the notice requirements may be grounds for dismissal of the claim.

M.G.L. c. 84 When a new client calls with a personal injury claim caused by snow and ice conditions, or from a defect in a public way, counsel must quickly assess whether the claimant must give notice under M.G.L. c.

84 within 30 days of the date of injury in order to preserve the claim. Counsel must review the statute carefully, and, further, should look for other potential defendants, especially to the extent that certain claims against a municipality or the commonwealth may be subject to relatively small monetary limits.

Pursuant to M.G.L. c. 84, §15, an individual injured by defect on a public way may seek damages, generally limited to a maximum of $5,000, from the municipality or person by law obligated to repair the defect. The defect must be the sole cause of the injury — neither the claimant nor any third party can be a cause, in part, of the injury.5 M.G.L. c. 84 provides the only remedy against a municipality and the commonwealth for personal injuries or damages from a defect or want of repair upon a way.6 A claimant seeking to recover for bodily injury or property damage (but not for wrongful death) from defects upon a way must give notice in writing to the municipal authority or quasi-municipal authority, like the Massachusetts Bay Transportation Authority or the Boston Water & Sewer Commission, within 30 days of the date of injury. M.G.L. c. 84 §§ 15, 18.7 The 30-day limitation on notice and the three-year statute of limitations mandated by M.G.L. c.

84 §18, also apply to personal injury claims brought against the commonwealth for defects causing an injury on state highways, for which the limit of recovery is only $4,000. See M.G.L. c. 81, §18. The defendant must receive the notice within the 30 days.

Chapter 84 also deals with snow and ice claims. A claimant must give appropriate notice to a municipality or person obligated by law to maintain a way for injuries caused by snow and ice claims within 30 days.8 A municipality will not be liable for any injury on a public way caused by snow or ice if the area was “otherwise reasonably safe and convenient for travelers,” which appears to mean that snow and ice, without some accompanying defect, is not enough to demonstrate the liability of a municipality.9 The failure to give notice for a snow and ice claim to a municipality is not a defense unless the defendant can show prejudice from the lack of notice.10 Since the statute allows for 30 days to give notice to the defendant, during which time weather conditions change daily (thereby changing the condition of the snow and ice), a defendant may have difficulty demonstrating prejudice.

When a claimant suffers an injury from snow and ice on private property, M.G.L. c. 84 §21, which includes a 30-day notice provision, applies. While there is some confusion regarding whether the claimant must provide timely notice to a private landowner, the prudent claimant will deliver a notice letter within 30 days, or as soon thereafter as possible.11 Under §21, the private landowner will have to show prejudice in order to assert lack of notice as a defense.

The written notice must include the claimant’s name and full address, and the time, place and cause of the injury or

damage. M.G.L. c. 84 §§18, 19. The notice needs to describe the location with sufficient detail so that the defendant may identify the location and conduct an investigation.12 If the injured person dies within the initial 30 days, then the notice must be given within 30 days of the appointment of the personal representative, and, if the minority or physical or mental incapacity of a person renders the giving of notice within 30 days impossible, then the time for sending the letter is tolled until the disability is ended.13

Other Personal Injury Claims The following section discusses personal injury claims against the MBTA, which do not arise from defects in a public way or snow and ice claims. When first contacted by the client regarding a claim against the MBTA, counsel must take care to determine which statutory scheme applies to the claimant’s set of facts.

From 1964 to 2009, claimants were required to commence personal injury actions against the MBTA within two years after the date of injury or death. See M.G.L. c. 161A, §38. In 2009, the legislature removed the two-year statute of limitations for claims against the MBTA and expanded the term “public employer” under M.G.L. c. 258 to include the MBTA.14 As a result, the presentment requirements of c. 258 now apply to tort claims against the MBTA (other than claims for defect in a public way and snow and ice claims), and claimants must send a proper letter within two years of the accrual of the cause of action.

If the MBTA has not responded to the claim within six months, the claim is deemed to be denied.15 Once the claim is denied, the claimant may commence an action against the MBTA, keeping in mind that the claimant must file the action within three years of the accrual of the cause of action.16 A claimant who fails to make presentment within two years may be able to extend the deadline for making presentment (and the statute of limitations) under the discovery rule if the claim is inherently unknowable.17 The minority or mental incapacity of the claimant generally does not toll the time for presentment, although the statute of limitations may be tolled on that basis.18 ■ 1.

See Courtemanche v. Beijing Restaurant, Inc. , 490 F.Supp.2d 107, 110 (1st Cir. 2007) and Cimino v. Milford Keg, Inc., 385 Mass. 323, 327-28 (1982).

2.

See Croteau v. Swansea Lounge, Inc., 522 N.E.2d 967, 969-970 (1988)

3.

See Beijing Restaurant, Inc., 490 F.Supp.2d 107, 110 (1st Cir. 2007), and Cimino v. Milford Keg, Inc., 385 Mass.

323, 327-28 (1982) (although supporting affidavit not filed within 90 days, failure to file the affidavit was not fatal to the plaintiff’s case).

4.

M.G.L. c. 231, § 60L (h)

5.

Carroll v. City of Lowell, 321 Mass. 98, 100 (1947).

6.

See Ram v. Town of Charlton, 409 Mass. 481, 485 (1991).

7.

See Wolf v. Boston Water & Sewer Commission, 408 Mass. 490, 492 (1990).

8.

M.G.L. c. 84 §18.

9.

See M.G.L. c. 84 §17; Intrilligator v. City of Boston, 395 Mass. 489 (1985).

10.

M.G.L. c. 84 §18.

11.

There may be no requirement to give notice of a snow and ice claim to a private landowner, see Perry v. Medeiros, 369 Mass. 836, 843 n. 5 (1976), but the wiser course is to serve the notice within the thirty days. See 37A Mass.

Prac., Tort Law, §21.9 (3d ed.).

12.

See M.G.L. c. 84 §20.

13.

See M.G.L. c. 84 §19.

14.

See M.G.L. c. 161A §38; M.G.L. c. 258 §4.

15.

M.G.L. c. 258 §4.

16.

Id; see also M.G.L. c. 260 §2A.

17.

See Krasnow v. Allen, 29 Mass.App.Ct. 562, 567 (1990); Heck v. Commonwealth, 397 Mass. 336, 340 (1986).

18.

M.G.L. c. 260 §7; see George v. Town of Saugus, 394 Mass. 40, 41 (1985) (minority); Heck, 397 Mass. at 339 (mental incapacity).

MASSACHUSETTS LAWYERS JOURNAL | MARCH 2015

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