Editor: How were you selected to serve as co-chair of the Boston Bar Association's Committee on the Superior Court Circuit System?
Birnbach: At the time I was selected, I had recently come off chairing the Boston Bar Association's litigation section, where I spent two years listening in monthly meetingswith representatives of the litigation section, so I had an understanding of the issues concerning the bar. Also, my practice in complex civil litigation representing technology companies and venture capital clients on issues ranging from securities to intellectual property disputes has required constant contact with both the federal courts and the state's Superior Court system. I believe that my professional experience and service on the litigation section is what led to my selection.
Editor: How are judges selected in Massachusetts?
Birnbach: The governor appoints a Nominating Commission made up of individuals of the highest integrity and independence that considers those who would like to become judges. Last year Governor Romney came up with new criteria in order to insert further blindness into the process because there were concerns over the years that connections mattered more than the candidates. The commission carefully reviews each candidate in order to secure the best people for the bench.
Editor: Are there any advantages to the current circuit court system that benefit others besides the judiciary?
Birnbach: Attorneys mentioned the ability to have different judges serving at different stages of the case as a potential advantage. For example, if an attorney knows that the judge currently hearing his case is harsh on sentencing, he may attempt to delay sentencing for a month so that another judge handles the sentencing. Although that practice may benefit the individual attorney's case, our task force did not consider forum shopping a benefit to the entire system.
Editor: I understand that under the current system a single case could be heard by as many as nine judges.
Birnbach: That is what our two year statistical analysis showed us. The Superior Court has a wide variety of cases ranging from those requiring a lot of pretrial attention to those that do not. Most attorneys would agree that the cases that do not require a lot of pretrial attention do not suffer as much from judicial rotation. On the other hand, the cases that do require a lot of pretrial attention do suffer greatly from constant rotation.Even cases with fewer pretrial hearings would benefit from the increased consistency of one judge hearing the case, and from the greater predictability in case management and trial dates.
Editor: What are the three major deficiencies caused by the frequent rotation of judges?
Birnbach: The first one I would mention is the significant amount of time that is lost during each rotation. There is down-time both at the beginning of a session where the judge needs to set a new schedule and get up to speed on the new cases and at the end of a judge's tenure in a session. Without this constant reshuffling the judge could use the time on the bench judging or off the bench writing or working. The other two problems would be the lack of accountability and the inefficiency that it creates. Judges spend a small amount of time in each rotation (as little as one month) so it is difficult to benchmark their performance. Also, because the judges are aware that they will not see a case through to its conclusion, there is no incentive to manage a docket efficiently. I would not suggest that judges are looking to escape their duties.The Task Force has a high opinion of its state's judges, but it is human nature to underperform when there is no monitoring system in place.
Editor: What harms come about as a result of the seniority rule?
Birnbach: There are two things that come to mind. The first is that the most junior judges cannot adequately gain experience and training. They are often the ones bounced around every month because the senior judges get to choose their sessions and the junior ones are constantly shifting from one seat to another. The other disadvantage is that the system prevents judges from serving in those courts that are most suited for their abilities. For example, some come from a criminal law background and others from a civil law background. The current system does not take their backgrounds into account.The Chief Justice has used discretion at times; the clearest example is the office of the regional administrative justice (RAJ) where someone can serve only if the Chief Justice believes that they would be suited for the position.
Editor: Have there been some attempts made to improve the system?
Birnbach: There have been attempts over the years. Recently Chief Justice Suzanne DelVecchio expressed a desire to encourage judicial teaming in the coming year. Judicial teaming is a process where teams of two, three or four judges are formed to rotate among the same sessions for a period of time. For example, you could have two judges rotating between a criminal and civil session for six months. So after six months in the criminal session you would move to the civil session and when that six month period is over, you would go back to the criminal session where you began. The point of judicial teaming is that you have a team of judges that continue to follow each other into the same sessions. This provides the judges with the variety of cases they seek and the system with some refreshing change, but it also allows for greater consistency in terms of judicial management style, and it provides for some accountability because a judge is less likely to leave behind incomplete work for a teammate. While this process would be an improvement to the current system, it does not alleviate all of the concerns that the Task Force had.
Editor: Do judges in teaming arrangements communicate with each other so that they are aware of what they have in their dockets?
Birnbach: The state ethical rules prevent judges from talking about the merits of their cases.Thus, the lack of continuity of knowledge is a distinct disadvantage even if judges are part of a team. They can confer about administrative matters such as scheduling or length of trial. Those conversations would hopefully increase efficiencies, but there is no substitute for having one judge hear a case from beginning to end. In cases that have a great deal of pretrial attention from a judge, a single judge would get to know quickly if someone were less than forthcoming in terms of delays or continuances. When you have judges that change, attorneys are freer to abuse the system because a new judge may not know thatan attorney was the cause of the previous three delays. In teams it would help if the judges could discuss this issue and let the incoming judge know that they should not grant any more continuances to the abusing party. However, this is a somewhat gray area since it could be claimed that such judicial conferring goes to the merits of the case.
Editor: Please describe the pilot program suggested by the Task Force?
Birnbach: In addition to our suggestion that teaming be implemented system-wide, we proposed one pilot program. The pilot program is not meant to be implemented system-wide because we recognize that there are vast differences between different locations, and one plan will not work perfectly everywhere.
The pilot is meant to be in a county where you have at least two sessions that are similar. We recommended taking six sessions overall out of the 73 courtrooms across the state. Four would be civil and two would be criminal. A judge would serve for two years in those six sessions. At the end of the two years, we would compare his or her performance with that of six similar sessions using the current rotation system. We would examine some of the metrics measured in courts throughout the country - time to disposition, number of motions resolved, and things of that nature. But we would also recommend looking at the more subjective criteria, such as satisfaction with quality of justice, a very difficult concept to measure. We want to combine the objective statistics and the subjective measurements and look at them after two years to see if there is a difference. The program is intended to test our theory that longer durations would make more sense to the system. We believe the resource savings to the system will be tangible, and that one and two-month rotations should be a thing of the past.
Editor: Do these recommended changes require additional funds or legislative action?
Birnbach: No, it is all within the discretion of the Chief Justice of the Superior Court.
Editor: Would the Task Force replace the county system with smaller units?
Birnbach: As to judicial management only, we suggested replacing the county system where the Chief Justice currently manages 83 superior court judges. We think that it makes sense to have a managerial structure based on units as any organization does, whether it is a university with departments and department chairs or a company with divisions and division heads. The structure that the Court chooses is up to the Court, the party best suited to decide how it would work. We recommended a possible mechanism to help the Chief Justice get information. The structure we came up with was judicial districts whereby judges rotated within those districts simply to give some continuity to that management process because it is difficult for an RAJ to attempt to manage judges when those judges change every month. You need the managerial level to give the judges some structure so that information can travel between the judges and the Chief Justice. We are not suggesting a hierarchy where the judges report to the RAJ - the judges are all equal.The RAJ's role is to provide information and disseminate it.Their role is not meant to impede judicial independence, but to provide a way for the court to examine itself and keep track of the goals it sets.
Editor: What is the prospect of any of these suggestions being adopted?
Birnbach: I do not think that it is hopeless because the Supreme Judicial Court has been very vocal about its desire to implement managerial change within the system. It is discouraging that not a lot has happened yet. Chief Justice DelVecchio has started to encourage teaming and longer sittings in some of the counties. I do not want people to conclude that is enough. The Chief has appointed another committee, co-chaired by Cheryl Cronin, to review the circuit system, look at what we have done and come up with some recommendations.There have been endless reports over the years and I think that it is time for action.
Editor: Is there anything that you would like to add?
Birnbach: I hope that the issues get some attention and that our recommendations get implemented in one way or another. The Task Force just desires that the court implements the idea and the spirit behind our proposals. We are not wedded to any one specific proposal.
Published May 1, 2004.
