Articles XII and XV of the Massachusetts Constitution guarantee the right to a trial by jury, but the choice of whether to exercise that right is a strategic decision that often depends upon the facts and circumstances of a case. A case where the judge serves as fact-finder is referred to as a bench trial or a jury-waived trial. When choosing between a jury trial and a bench trial, lawyers and their clients must first evaluate factors like the strength and complexity of the legal claims and defenses, the makeup of the parties, and the location of the trial. The identity of the trial judge may also be a consideration for a party deciding whether to proceed with a jury trial or a bench trial.
Massachusetts General Laws Chapter 93A, § 2 ("Chapter 93A") states: "Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." From that simple statement, numerous acts and practices can serve as the basis for a suit alleging a violation of c. 93A. Under the definitions of Chapter 93A, any person involved in trade or commerce, including corporate persons, can sue and be sued for violating the statute.
A recent SJC decision illustrates the unfortunate position in which a party may find itself when it fails to file an appeal but finds itself before an appellate court nonetheless as a result of an appeal filed by the opposing party. In Town of Athol v. Professional Firefighters of Athol, Local 1751, 470 Mass. 1001 (2014), the Supreme Judicial Court considered arguments that arose when town of Athol unilaterally raised the co-payments paid by members of a firefighters' union for medical services. After the union filed a grievance, alleging that the town's action had violated its collective bargaining agreement, the matter proceeded to arbitration. An arbitrator determined that changes to health insurance benefits were mandatory subjects of collective bargaining and the town had violated the collective bargaining agreement by making the changes unilaterally. The arbitrator required the town to return the co-payments to their original amounts and to "make union members whole for economic losses" incurred as a result of its improper action. The town appealed the arbitrator's award, filing a complaint in the Superior Court.
The Land Court Department of the Massachusetts Trial Court exists, in part, because issues involving title, easements, and the various other rights in property are complex enough that judges with special expertise are preferable.
"The litigation process is -- or should be -- a search for the truth."
The Massachusetts Rules of Civil Procedure govern almost all civil cases in Massachusetts state courts. Next year, new amendments to the Rules will take effect, significantly impacting the discovery process for many state lawsuits. Most of the new amendments govern the exchange of electronically stored information (e.g., email messages), and have received much attention recently from lawyers and legal publications alike. Another aspect of the amendments, however, has received less attention to date: the formalization of procedures providing for the return of privileged material that has been inadvertently disclosed.
How should counsel and parties prepare for the mediation of a business litigation case? For counsel, the process of mediation requires an entirely different mindset and style than he or she is accustomed to in court proceedings. In fact, a common mistake that inexperienced practitioners make is to prepare for mediation as though it were an adversarial court proceeding. Counsel should resist those natural impulses and instead focus on what the client needs to make the most of the opportunity presented at the mediation - that is, to get a good settlement.
As a foreign attorney representing a party whose business dispute is governed by Massachusetts law, you might want to learn about the rights available under the consumer protection statute in Massachusetts, M.G.L. c. 93A. Massachusetts General Laws c. 93A, § 2 (a) makes unlawful any "[u]nfair or deceptive acts or practices in the conduct of any trade or commerce." This prohibition is "extended to those engaged in trade or commerce in business transactions with others similarly engaged" by M.G.L. c. 93A, § 11.