With which court do I file my civil action, the Massachusetts Superior Court, the Massachusetts District Court, or the Small Claims Session?

1 October 2014

One of the first decisions that a plaintiff has to make after they decide to file suit is which court in Massachusetts to file their case in.  This is not as easy as one may think in many cases.

There are some general rules.  Superior Court has jurisdiction over cases involving $25,000 or more.  Mass. Gen. Laws c. 212 § 3.  District Court has a procedural limit of no more than $25,000.  Notice that I switched from the word jurisdiction to “procedural limit.”  This is because if a case is filed in the District Court that involves over $25,000.00 it can still go forward in the District Court, unless, the defendant properly objects, or, less likely, the judge independently removes the case.  Sperounes v. Farese, 419 Mass. 800, 804-07 (2003).  (Debt collectors frequently sue for over $25,000 in the District Court and hope there is no objection.).  The case can be dismissed based on the procedural limit, but the District Court has jurisdiction the whole time.  Id.  If the case stays in the District Court the District Court is empowered to issue judgment for any amount, including one over $25,000.  Id.  This difference in procedural amount is one reason the Superior Court is perceived as a “higher court” but they are both trial courts for the most part.

Another traditional distinction relates to equity jurisdiction.  Equity, as opposed to legal, or at law, relief.  This distinction goes back to English history that had courts of law and courts of equity (a.k.a. courts of chancery), each having different and distinct powers.  Generally, a court of equity has the power to order someone to do something or not do something, a court of law has the power to order money damages.

In Massachusetts, the Superior Court has traditionally been the court with equity jurisdiction, but in recent history the law changed in Massachusetts to provide the District Court equity power in cases that had a legal component/claim to it.  Mass. Gen. Laws c. 218 § 19C.  It also appears that one can bring a claim that normally could only be brought in the Superior Court if they also bring a claim that is permitted in the District Court in the same case.  Ravnikar v. Bogojavlensky, 438 Mass. 627 (2003).

As with most of the law in Massachusetts, there are exceptions to the general rule.  For example, there are some special circumstances where the Superior Court has exclusive jurisdiction, even if money damages are sought.  Some are: 1) actions under the Massachusetts Tort Claims Act; 2) claims against Massachusetts; 3) claims under the Massachusetts Civil Rights Act; and 4) actions for negligence involving alcohol.  Mass. Gen. Laws. c. 258; c. 212 § 3; c. 12 § 11H; c. 231 §60J.

There are also rare exceptions where the District Court has equity jurisdiction even though there is not a money damages (at law) component to the case.  Some subjects are: 1) sanitary code/unfit buildings; 2) lead paint poisoning prevention; 3) appeals from zoning boards; and 4) illegal entry onto land.  Mass. Gen. Laws c. 219 §19C; c.111 § 198; c. 40A § 17; c. 184 § 18.

Making matters more difficult, there are also myths that circulate about what types of claims have to be brought where.  One you will often hear is that defamation actions may only be brought in Superior Court.  This is not true.  Ravnikar v. Bogojavlensky, 438 Mass. 627 (2003).  The district court is the proper court for defamation actions in Massachusetts.  Id.  It is true that defamation cases are not permitted in the small claims session that is technically a part of the District Court, which may be the bit of truth the myth is based on.

With respect to the small claims session, its jurisdictional limit was recently raised to $7,000!  Discovery is available, but rare to occur.  The rules of evidence are relaxed, such as hearsay is generally admissible.  It is a much faster moving court, with decisions taking months, rather than the years sometimes that can pass before you can obtain a judgment in either the Superior Court or the District Court.

In the event that you file in the wrong court, the court may transfer it.  It can also be a signal that you have not done your homework before filing your case.  For these reasons, it is important to file your case in the right court.  If you need legal help in deciding what court is appropriate for you claim, feel free to give this office a call.

I have been warned not to waive my attorney-client privilege during my civil lawsuit, what does that mean?

1 September 2014

To understand the importance of the attorney-client privilege, initially, one must understand what information a party is generally entitled to during a lawsuit/litigation.  Generally, the other party is entitled to what you say to others about the facts of the lawsuit.  This needs to sink in because people are used to the world where another person cannot get information about communications they have with another unless someone tells them.  This is better known as the secret.  Well, in litigation, a party has the right to compel (that means require them with the force of law) to divulge the communications under what is called “Discovery” in a lawsuit.  In Discovery, parties have to share information, whether they like it or not, that is sought and reasonably calculated to lead to the discovery of admissible evidence.  Mass. R. Civ. P. 26(b)(1).  (This means, in general, there are no secrets and this is one reason why lawsuits are sometimes not filed.)  So, if you blab to your best friend about the lawsuit, generally, the other party gets to know what you said.  This can be quite damaging to a party’s interests in a lawsuit and there are an infinite amount of scenarios one can imagine where disclosure can be damaging.

   

Now let’s turn to what the privilege is and what its purpose is.  The attorney-client privilege is a legal right to withhold the content of communications between people, in this case communications between an attorney and a client, which would otherwise be discoverable.  The privilege only exists when there is: 1) a communication; 2) made between privileged persons; 3) in confidence; 4) for the purpose of seeking, obtaining, or providing legal assistance to the client.  On the federal level a similar formula for the attorney-client privilege has been cited: 1) where legal advice of any kind is sought 2) from a professional legal advisor in his capacity as such; 3) the communications relating to that purpose; 4) made in confidence; 5) by the client; 6) are at his instance permanently protected; 7) from disclosure by himself or by the legal advisor; 8) except the protection be waived.  US v. Mass. Inst. of Tech., 129 F3d 681, 684 (1st Cir. 1997).

The purpose of the attorney-client privilege is simple, “it encourages disclosures by client to lawyer that better enable the client to conform his conduct to the requirements of the law and to present legitimate claims or defenses when litigation arises.  Id.  See Upjohn Co. v. US, 449 U.S. 383, 389-90 (1981).  In layman terms, it allows a person to speak to their attorney and obtain legal advice without the worry what is said will be used against them.

The focus of this post is on waiver, which generally is the intentional relinquishment of a right, and in the context of the attorney-client privilege is doing something to give up the protection or not doing something to ensure it exists (which should be referred to as forfeiture, but to conform to slippage in legal parlance we will continue to refer to it as waiver).  One way you can waive the privilege is simply to blab what you said to your attorney or what he said to you, which is simple enough to understand.  XYZ Corp. v. US (In re Keeper of Records), 348 F.3d 16, 22 (1st Cir. 2003).  So, don’t talk about a lawsuit when you are involved in one at the cocktail party, at the gym, or at the water cooler at work.

Another way one can possibly waive their attorney-client privilege is to bring a third party into a meeting with your attorney.  It is common for a person to bring a third party to a meeting with an attorney without realizing or having any thought that there could be a danger in doing so.  It should be understood, that the presence of the third party generally defeats the attorney-client privilege.  That means, having a meeting with your lawyer with a third party present, the communications are not protected.  (This does not include agents of the lawyer, like a paralegal of the law office.) There can be exceptions found where the attorney-client privilege continues even when a third party is in the meeting.  US v. Mass. Inst. of Tech., 129 F3d 681, 684 (1st Cir. 1997) (noting and citing to other decisions ruling that information shared with “secretaries, interpreters, counsel for a cooperating co-defendant, a parent present when a child consults with a lawyer” were still privileged despite the presence of the third party); Deloury v. Deloury, 22 Mass. App. Ct. 611, 613 fn.1 (1986) (noting presence of grown daughter for “moral support” in contemplation of filing a divorce proceeding did not waive attorney-client privilege). 

 

The legal question appears to center around the client’s intent that the communication was to be confidential, but that subjective intent alone may not be found to be “sufficient.”  US v. Mass. Inst. of Tech., 129 F3d 681, 684 (1st Cir. 1997).  It appears to the author from the case law that the question of whether the attorney-client privilege is waived by the presence of a third party in a meeting with an attorney is almost decided on a case-by-case basis because who “closely related persons” are and whose presence is “vital” or “appropriate” to a consultation can be debatable.  Id.

Needless to say, the case law on the subject is mixed and it is not always legally clear whether the presence of a third party will waive the privilege.  This means, instead of creating an issue the other side can argue in its favor and taking the risk that a court many months from a meeting with your attorney determines that the attorney-client privilege does not exist because there was a third party in the room, the safer move is to never enter a meeting with an attorney with any third party present. 

   

In the event that you are involved in a lawsuit/litigation or are facing one and have concerns over the attorney-client privilege or other concerns, feel free to give this office a call.

I am facing a motion for summary judgment in Massachusetts, what is it and what should I do?

9 August 2014

A motion for summary judgment is a way a party to litigation moves (asks) a court to grant it judgment (they win) prior to a trial on the merits (where people testify in court, etc).  It is typically filed after the discovery period of litigation has ended.  That means it is filed after the parties have shared the documents and information (facts) they were required to according to the rules of civil procedure.  The standard language that you will find in most motions for summary judgment is basic enough to relay what the motion is all about, that is usually something like this: summary judgment is appropriate as materials show that there is no genuine issue as to any material fact and the [plaintiff/defendant] is entitled to judgment as a matter of law.  The procedural rule permitting a motion for summary judgment is Rule 56 of the Massachusetts Rules of Civil Procedure.

Overall, the other party is arguing that, based on the facts established, or at least not reasonably disputable, that if you applied the law to these facts, it would win.  It is also saying that there is no reason for a trial and its concomitant time and expense.  Of course, a judge would decide this motion as only a jury is assembled for a trial. 

We will break down some of the parts.  One part is that the moving party is saying that there is no “genuine” issue over material facts.  It means that a party cannot dispute something based on a position or opinion that is too speculative or simply wishful thinking unsupported by the facts.  It has been described “an issue of fact is ‘genuine’ if the record [facts established in case] taken as a whole could lead a rational trier of fact to find for the moving party.”  Brooks v. Peabody & Arnold, LLP, 71 Mass. App. Ct. 46, 50 (2008).  This means the judge will place himself in the position of a hypothetical “trier of fact” [which means either a judge or jury that would decide the matter at trial] and consider whether any rational fact finder could rule the other way.  In other words, to allow the motion is to say, no reasonable person would think this fact is not established.

The other important question is whether all the “material” facts are established.  This means that there could be a genuine dispute over a fact, but it is not a “material” fact.    A moving party “need not prove that no factual disputes exist, only that there is no genuine dispute over a material fact.”  Town of Norwood v. Adams-Russell Co, Inc., 401 Mas. 677, 683 (1988).  The moving party is saying all the material facts, the facts that matter, are established.  It has been described that a fact is material only if it might provide a basis for a fact finder to find in favor of the nonmoving party.  Jenzabar, Inc. v. Long Bow Group, Inc., 82 Mass. App. Ct. 648, 649 (2012).  It has also been described that a fact is material if it has a bearing on the outcome of the case.  Jupin v. Kask, 447 Mass. 141, 145-46 (2006).  There are many other important issues, such as timing and evidence, when facing a motion for summary judgment that must be addressed.

Simply put, a motion for summary judgment is serious business.  If allowed, it will end the case or if it is a partial motion for summary judgment, decide at least a part of the case.  If the motion is not allowed, a trial is necessary. 

If you are facing a motion for summary, you are facing what could be the end of the road; essentially, it is now or never on whether you will obtain help.  If you need help, feel free to give this office a call.