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Business Litigation Session Year in Review: BLS Not Immune from Impact of Severe Budget Cuts

At the June 22, 2010 Business Litigation Session Year in Review, the reports delivered by the three BLS Justices all had a common theme: the BLS is overwhelmed. Justices Hinkle, Neel and Fabricant spoke at the Boston Bar Association sponsored event last month and informed practitioners that they are becoming significantly more selective in the number and type of cases they will accept into the BLS. The three justices, who together decide which cases they will accept into the session, are declining a larger percentage of cases than in previous years, in large part because the Court's resources are stretched beyond their limit. Acceptance into the BLS is purely discretionary; do not bother filing a motion for reconsideration of the denial of the request for acceptance. Such motion will be summarily denied The Justices will deny admission where it appears that the requesting party is engaging in venue shopping.

You also should not expect immediate attention in the BLS. As of June 22, 2010, Justice Hinkle, the BLS Administrative Justice, reported that summary judgment hearing dates are being scheduled for October, and trial dates are being assigned approximately one year from now. Trial dates in the BLS, however, are firm. If you are assigned a trial date, it is not a theoretical date or a date on which multiple cases are scheduled for trial. Accordingly, when agreeing to the trial date, counsel should understand that he or she is informing the Court that all witnesses and counsel are available for trial.

Justice Hinkle also reported that cases involving restrictive covenants, which traditionally have been accepted into the BLS, are now being shifted to the regular Suffolk County civil sessions. The limited time and resources of the Court in part account for this trend. In addition, however, the Justices believe that the case law on restrictive covenants is now developed to the point that other Superior Court sessions are equally suited to administering predictable justice, and can do so more swiftly. On the other side of the spectrum are intellectual property disputes and class actions, both of which comprise a greater percentage of accepted cases than in years past.

If you are able to get into the BLS, one way a litigant may be able to get greater and more expedited attention is to voluntarily submit to the BLS's pilot program designed to reduce discovery costs. The pilot program, which is in effect for cases filed in 2010, is a voluntary program in which the parties agree to limit discovery, including electronic discovery, so that it is proportional to the magnitude of the claims at issue in the case. To date, about twenty cases are being administered through this program. Justice Hinkle said that she gets more involved in these cases from the outset by giving them extra care and she will also more promptly respond to discovery disputes if and when they arise.

You will get an excellent judge in the BLS. You just might not get the Court's attention as soon as you would like, unless you and your counterpart are willing to be more creative on managing discovery.