Ooops, They Did It Again?

In my last post, I expressed my growing concern that the recent proliferation of unpublished opinions issued by the Massachusetts Appeals Court pursuant to Rule 1:28 had the potential to mislead judges and lawyers because the necessarily abbreviated recitation of the facts might not clearly illustrate the applicability of the governing legal principles.  James v. Amlani, another decision issued the same day as the Bodden v. Nicholson opinion that prompted my last post, did nothing to allay those concerns.

The plaintiff in James brought a claim against his dentist, alleging that a foreign object he had swallowed during a dental procedure had caused a perforation in his intestine.  Unfortunately for the plaintiff, however, the size and description of the object eventually retrieved during surgery to repair his intestinal perforation did not match anything used during the dental treatment.  In fact, the description of the object sounded suspiciously like a toothpick that the plaintiff admitted to using while at home.

Clearly, this is a case that could quite simply and properly have been decided on the basis that there was no credible evidence that the foreign object in question was either used by the dentist or was ingested during the dental procedure.  Unfortunately, the court went much further, holding that the trial judge properly excluded an entry in the plaintiff’s later medical records that stated, “might have swallowed dental filling, and apparently, although not explicitly, reasoning that this statement had “bearing on the question of liability” and was not related to medical history or treatment.

The court clearly had ground to exclude the statement as speculative and unduly prejudicial under Section 403 of the Massachusetts Guide to Evidence.  But its unfortunately choice of grounds may serve to confuse future judges and lawyers.  A doctor treating a patient with an intestinal ailment would clearly be interested in whether the patient might have ingested a foreign object, and if so, what that object might be.  Was the object toxic, sharp, large or small?  Was the ingestion intentional?  And in answering these questions the challenged statement would clearly be relevant to diagnosis and treatment–yet the court’s opinion suggests otherwise.

More concerning is the court’s off-hand suggestion that the disputed entry was inadmissible as having “reference to the question of liability,” as provided by General Laws, Chapter 233, Section 79.  That exception, shared by both the hospital records statute, G.L. c.231 s.79, and the statute making a death certificate admissible as prima facie evidence of cause of death, G.L. c.46 s.19, has been the subject of much misguided advocacy by defense counsel, who seek to preclude the admission of anything even remotely helpful to the plaintiff by reference to that phrase.  In fact, as a review of the case law demonstrates, the thrust of that provision is to exclude an opinion related to legal, rather than factual liability.  Perhaps the best illustrative case is Wadsworth v. Boston Gas Co., 352 Nass. 86 (1967), in which the Supreme Judicial Court rejected the defendant’s argument that the words “illuminating gas” should be redacted from medical records and as the cause of death.  The Court stated, “[w]here the words have reference to the injuries of the deceased, they are admissible, even though incidentally they may have some bearing on the question of liability….   The recital of injury or death from inhalation of illuminating gas, standing alone, does not impute fault or freedom from fault to anyone. It may designate the chemical agent which produced the physical result, but it does not narrate the event or chain of events which caused the illuminating gas to escape. ”

The James court’s abbreviated discussion fails to acknowledge the distinction recognized in Wadsworth, and once again raises the potential that a decision originally intended to be brief and applicable only to the parties before the court may be used as support for a departure from established law.   The Appeals Court cannot be expected to write a full opinion in each case decided under Rule 1:28, and in truth, most of those cases do not warrant such attention.  But the combination of the summary treatment of the facts and the law, combined with the permission to cite the result, creates a real danger that these opinions will be used in a manner never intended by their authors.

The Mischief of 1:28 Decisions

As every law student quickly learns, the appellate decisions of a particular jurisdiction are an important source of legal precedent.   We were all taught in law school to analyze these decisions and to find factual similarities and differences by comparing the reported case to our own.  In this way, we could either argue that the reported case was similar to our case, and therefore controlled the outcome–if we liked that result–or that it was distinguishable from our case–and therefore a different rule of law should apply.

We also learned how to find pertinent law, originally through a complicated process of leafing through the many volumes that used to line the walls of every law office, and later by computer searches through legal data bases like Westlaw and Lexis.  Not every decision was published in these case books; some cases were not deemed important enough to warrant publication.  These unreported decisions were supposed to be only for the benefit of the parties involved, and were not supposed to be cited as binding precedent in other cases.  In Massachusetts, these were known as 1:28 decisions, named after the appellate rule that permitted the Appeals Court  to decide that a case was a “no brainer” one way or the other–either there was “no substantial question of law presented,” or that there was a “clear error of law” involved.  A three-judge panel would write a short opinion that would go only to the parties, and the case would be decided on that basis.

As computer databases became more accessible, parties began to cite 1:28 decisions more frequently, even though they weren’t supposed to do so.  And eventually, the Appeals Court changed the rule prohibiting citation of unpublished decisions, holding in Chace v. Curran, 71 Mass. App. Ct. 258 (2008), that unpublished decisions after February 25, 2008 could be cited “for their persuasive value but not as binding precedent.”

Unfortunately, although the unpublished decisions were in fact widely available–now even being published on the court’s website–the manner of their preparation and their rather cursory treatment of the issues remained the same.  These opinions are not circulated to the entire court before publication, and often contain only a brief statement of the underlying facts.  Thus, a 1:28 decision may represent only a minority view on the court, as it has not been reviewed and approved by any judges except the three who decided the case.  But more troubling, the facts as stated in the opinion may be so incomplete as to mislead readers about the basis for the decision.  Since these decisions were supposed to be issued only in clear-cut cases, the court often spends little time explaining the law and its application to the facts.  But without such an explanation, it may seem that the court “got it wrong” or that the law is not what it has been previously stated to be.

The danger is that a party unfamiliar with the underlying facts of a case will cite a 1:28 decision to a judge in a different case who, likewise unfamiliar with the facts, will misinterpret its scope and effect,  Even worse, a party familiar with the underlying facts through direct involvement in the case may take advantage of the court’s brevity to argue for an unintended application of the case.

I had originally been a strong supporter of the change in citation policy established by the Chace case.  But more recently, I’ve been concerned that these decisions have an enormous potential for misuse and mischief.  A couple of decisions this past week raise that ugly spectre in a big way, and I’ll talk about them next week.

Ooops, Forgot Something

In most trials, the administration of the oath to witnesses is an invariable part of the routine that precedes their testimony.  Counsel announces the name of the next witness, the witness comes forward, stops near the clerk’s desk, and the clerk administers the oath.  The witness takes the stand, and the first question is posed.  Occasionally, the clerk will be absent from the courtroom, tending to other duties, and the judge will administer the oath.

But what happens when the oath is omitted?  A recent unpublished opinion from the Appeals Court answered that question, at least in part.

In Commonwealth v. Way (Appeals Court, 2/13/2014), the court deviated from the routine of administering the oath to each witness immediately prior to his testimony, in favor of the perfectly acceptable procedure of swearing the witnesses as a group at the beginning of the trial.  Unfortunately, no one noticed that the child victim and both her parents–all of whom would be witnesses–were out in the hall at the time, and thus did not take the oath.  They subsequently testified before the omission was noticed.

The prosecutor then realized the error, and properly brought it to the court’s attention.  The trial judge conferred with counsel, and then told the jury that the witnesses had inadvertently been permitted to testify without having taken the proper oath.  The witnesses were then recalled, took the oath, and were asked by the judge if the testimony they had already given was “the truth, the whole truth, and nothing but the truth.”  Each affirmed that it was, and the trial continued, resulting in a conviction.

Only then did the defendant complain that the procedure–agreed to by his counsel–violated his rights.  He argued that the timing of the oath is essential, and must be given before the testimony, in order to impress upon the witness the solemn obligation to tell the truth.  An after-administered oath, he claimed, was simply asking the witness to make a self-serving affirmation of his truthfulness.

The Appeals Court wasn’t impressed.  The Court reasoned that the defendant’s counsel had made a reasonable tactical judgment that it was better to have an after-administered oath than to have the witnesses forced to repeat their testimony before the jury.  Having failed to object to the trial judge’s solution at the time, the defendant could not later complain.

But the Court did leave open the question of whether a retroactive oath was permissible in the face of a contemporaneous objection.  The clearly better practice, if there is any question, would be to have the witness testify anew.  A similar problem arises in the more common situation where the testimony begins while the court reporter is absent from the courtroom, or more recently, before the court’s recording system is activated.  In that case, there is little choice but to have a do-over.

Jurors and Fairness

A recent opinion from the Appeals Court provides a strong reminder of the restrictions on the use of peremptory challenges to strike jurors based on race, ethnicity, gender or religious preference.  In Commonwealth v. Povez, the court reversed a second-degree murder conviction, finding that there was doubt as to whether the prosecutor’s proffered reason for challenging a Hispanic juror was genuine.

Challenges to the impermissible use of peremptory challenges most often arise in criminal appeals, but the principles apply with equal force to civil cases.  The Povez decision succinctly outlines the procedure judges and lawyers should follow in situations where there is a question with respect to the use of a challenge.

The constitutional prohibition against the use of peremptory challenges to exclude members of protected classes from a jury was recognized in Commonwealth v. Soares, 377 Mass. 461, cert. denied, 444 U.S. 881 (1979), and Batson v. Kentucky, 476 U.S. 79 (1986).  Since then, many cases have reviewed judicial decisions allowing or denying particular challenges, and the procedure is well-established.  When counsel for a party believes that an opponent is systematically excluded members of protected classes from a jury, counsel may ask the judge to make a preliminary finding of discrimination, and to demand that the opponent proffer a neutral, non-discriminatory reason for challenging the juror.  Over the years, the law has become refined so that, when racial and ethnic minorities are scarce, even a single challenge can constitute a “pattern” that warrants explanation.

Once the issue is raised, the trial judge is obligated to make a finding of whether a prima facie case of improper exclusion has been shown, and if such a finding is made, require the party seeking to exercise the challenge to state a reason for the challenge.  The judge must then rule on whether the reason is adequate.

Povez focuses on the judge’s assessment of the prosecutor’s proffered reason for challenging one of two Hispanic jurors on the venire.  Past cases have established that the explanation met be clear, reasonably specific, and personal to the juror.  For the most part, “gut feelings” or hunches will not suffice, nor will stereotyped assumptions based on the juror’s group affiliations–even if those affiliations are not based on race, gender or ethnicity.

But as Povez reminds us, even an explanation which is clear, specific and personal will not automatically pass muster.  In addition, the trial judge must find it to be genuine–that is the true reason for the challenge, and not a pretext to conceal discrimination.  And that’s where the prosecutor foundered.  The judge expressed her doubts that the explanation–that the juror’s father worked as a janitor in the federal courthouse, and thus might have “inside information” about court procedures in state court–was genuine.  Nevertheless, she permitted the prosecutor to exercise the challenge.

The Appeals Court reversed, finding a conflict between the judge’s expression of doubt that the reason was genuine and her allowance of the challenge.  Given her finding that she did doubted the genuineness of the prosecutor’s explanation, the trial judge needed to explain why she nevertheless permitted the challenge.  In the absence of such an explanation, the Appeals Court felt constrained to reverse the conviction.  Fueling the reversal was the court’s clear skepticism that the juror’s father’s janitorial position in a different court house had anything to do with the challenge.

The decision is one that the Commonwealth’s courts can and should be proud of, as it expresses the need for juries free of even an appearance of impropriety.  Otherwise stated, it is important that the process of jury selection not only be fair, but appear fair.  The court is to be commended for reinforcing this message.

Read the decision in Commonwealth v. Povez here

Appellants, Beware

“The company plans to appeal the verdict.”

Many news stories about jury verdicts end with this statement.  For many clients and lawyers, it’s a face-saving way to end an interview, promising to carry on with the fight, rather than conceding defeat.  Yet, the successful pursuit of an appeal is far more complicated than the statement implies.  Burdened with many procedural requirements, and with a low chance of success, an appellant [the losing party in the trial court] has an uphill battle ahead.  In the vast majority of cases, the appellate courts are empowered only to review legal rulings, and not to change a jury’s decision on the facts.  And a clear legal error usually results in reversal only if it is likely to have changed the outcome of the case.  All told, nearly 80% of appellate decisions affirm–agree with–what happened in the trial court.

But the road to an appellate decision is fraught with peril for the appellant, as demonstrated by a recent decision from the Massachusetts Appeals Court.  The process starts with the filing of a notice of appeal–usually within 30 days of the end of the case–which is required to identify specifically all of the parties involved and the judgment or order appealed from.  But then the real work starts.

The detailed Massachusetts Rules of Appellate Procedure lay out a series of steps the parties must follow in order to insure that the appellate court has everything it needs to decide the case.  These include ordering (and paying for) the transcript, identifying the issues to be raised on appeal, and listing the documents to be included in the appendix.  All of these steps have time limits, and failure to follow the prescribed procedures can result in dismissal of the appeal.  And when it comes time to prepare the brief and appendix, there are many more technical requirements that must be followed.

And that’s exactly what happened to the appellant in Dry Dredge Systems, Inc. v. Jay Cashman, Inc., a 1:28 decision issued by the Appeals Court on January 3, 2014.  The appellant, having properly filed its Notice of Appeal, then apparently neglected to order the transcript or otherwise obtain an approved statement of the evidence for many months.  When no good explanation for the delay surfaced, the court dismissed the appeal.

What became of the Dry Dredge case is what often happens when a losing party, still stinging from a recent defeat, threatens an appeal.  Over the ensuing weeks, months, or years, the reality of the situation, and the expense and unlikely success of an appeal all begin to sink in, and the putative appellant loses the stomach for further battle.  And many of these threatened appeals simply die on the vine, long before they are included in the court statistics that show only a 20% success rate!

The moral of Dry Dredge and similar cases is that a party who truly intends to pursue an appeal to its completion needs to comply fully with the applicable rules.  The basic requirements are available here, but do change, and so counsel should check to make sure that no amendments have occurred.