the proposals of Chief Justice Connolly by Massachusetts

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									      ~                         m:rial QI:ourt of tbe QI:ommon\nealtb
                                    J!\ifitrirt {lCourt J!\epartment

                                            Administrative Office
                                         Two Center Plaza, Suite 200                     TEL: (617) 788-8810
Lynda M. Connolly                                                                        FAX: (617) 788-8985
                                           Boston, MA 02108-1906
   Chief Justice                                                                         TTY: (617) 788-8809




                                                  April 17, 2007

    Honorable John M. Greaney
    Supreme Judicial Court
    John Adams Courthouse, Suite 2200
    OnePembertonSquMe
    Boston, MA 02108

    DeM Justice Greaney:

            This letter will serve as a response to your correspondence of MMch 16, 2007, regMding
    the decision of the Rules Committee of the Supreme Judicial Court on amending Mass. R. Civ.
    P. 52 as it applies in the District Court.

            In your letter you described the Committee's decision to amend the rule to require District
    Court judges to make written findings of fact and rulings of law in District Court jury-waived
    cases "only upon request of a party and only if the requesting pMty submits proposed findings
    and rulings." You asked that this depMtffientsubmit a proposed amendment to Rule 52 that
    would reflect the Committee's decision. You also mentioned one specific element of the
    amended rule: "We would require such proposed findings and rulings to be submitted [to the trial
    court] no later than seven days after hearing or trial."

            In response to your request, I am enclosing two versions of an amended Rule 52. Both
    versions include a requirement (modeled on Rule 52(a) of the Rules of Domestic Relations
    Procedure) that a pMty requesting judicial findings and rulings must do so by means of a written
    motion filed before final Mgument. Both drafts provide identical details regulating the format
    and manner in which the proposed findings and rulings must be submitted. Both drafts also
    repeal Mass. R. Civ. P. 64A, which would be rendered unnecessary by the Committee's decision,
    thus eliminating the currently required formula involving the so-called "warrants" request for
    ruling. Both drafts also make changes in the Mass. Rules of Civil Procedure reflecting the Rule
    52 amendments. I have taken the liberty of providing suggested "Reporter's Notes" for each
    draft, and hope these may be helpful.

            The only difference between the drafts occurs in Rule 52(c)(I) and involves the time limit
    for the submission of proposed findings and rulings. Version number 1 includes the seven-day
    provision mentioned in your letter. Version number 2 would require the pMty filing a motion for
    judicial findings and rulings to submit his or her proposed findings and rulings "with said motion
or within such additional time as the court may allow." Version 2 is the preferred approach.

      I have reviewed the matter with members of the District Court Administrative Committee
and Appellate Division, and respectfully offer the following reasons for our preference.

         1.     In most cases which advance to trial in the District Court, a judge sitting jury-
waived i~ in the best position to render a judgment at the completion of the trial. In cases that are
fact-dependent, the judge's assessment of the evidence, testimonial and otherwise, is at its most
acute at the close of trial. Analogizing to the submission of requested instructions in jury cases
and the so-called "charge conference," it is at this point when the efforts of counsel to persuade
the judge with regard to factual findings and applicable law will be most appropriate. In fact, in
the District Court we encouragejudges to avoid any unnecessary delay between the close of trial
and rendering judgment. Moreover, if the parties are given seven days after trial within which to
file proposed findings and rulings whenever a timely motion has been filed, it is likely that in
many cases a trial judge who is otherwise prepared to renderjudgment at the conclusion of the
trial will be compelled to wait for the seven-day period to expire only to be informed later by the
clerk's office that no proposed findings and rulings have, in fact, been filed.

       This situation contrasts with the common occurrences in Superior Court, where the
complexity of the issues, the number of witnesses, the duration of the trial, and other factors
often militate toward a passage of time between the close of trial and the court's rendering
judgment. In this context, the post-trial filing of proposed findings and rulings is practical and
appropriate.

         2.      More often than not a District Court judge sittingjury-waived will be assigned to
sit in a different court after the conclusion of a trial. Thus, in addition to diminishing their
usefulness, the post-trial submission of proposed findings and rulings can raise a logistical issue;
they must be maintained in the case file, but copies must also be forwarded to the trial judge who
may now be sitting in a different location. These realities would contribute further to the
potential for delay in rendering judgment.

        3.       On the positive side, requiring counsel to submit proposed findings and rulings
before closing argument, subject to a grant of additional time by the court, is likely to enhance
the level of trial advocacy. This requirement (which, if approved, would be referenced in our
Pre-trial Orders) would tend to enhance trial preparation. The seven-day provision may provide a
temptation to procrastinate and is unlikely to improve the quality of proposed findings and
rulings, should counsel choose to submit them.

        4.      The proposed requirement for filing proposed [mdings and rulings with the
motion and before closing argument (subject to the court's discretion to allow more time)would
not constitute an unfair limitation on counsel. As long as this requirement were clearly
understood (again, we would add it to our form Trial Order), counsel would be in a position to
prepare such proposed findings and rulings simultaneously with trial preparation and in
preparation for the closing argument their filing would immediately precede. The proposed
provision also allows for an extension of time in appropriate circumstances. This procedural
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requirement would merely continue the approach under the current rule which requires that
requests for rulings be submitted before closing argument.

         In summary, I submit that the approach to providing a time requirement for the filing of
proposed findings and rulings in the District Court that is reflected in the second version of an
amended Rule 52 would be more effective and consistent with the reality and pace of District
Court civil practice and would not impose any unfair hardship or limitation on the rights of the
parties.

        Regardless of which version the Committee may chose to approve, the District Court
bench is grateful for the opportunity to have provided our views and to submit these draft
amendments to Rule 52. I remain available for further discussion if that would be considered
helpful.

                                                        Respectfully,

                                                        c4rL~
                                                        Lynda M. Connolly
                                                                          ::2
                                                        Chief Justice of the Distri Court
                  Proposed Amendments to the Massachusetts Rules of Civil Procedure
                   regarding Findings of Fact and Rulings of Law in the District Court

                                                Version No.1
                                                April 17, 2007

          1. Massachusetts R. Civ. P. 6 (b) is amended by striking the phrase "Rule 52 (b)" and
  substituting-therefor the phrase "Rule 52."

          2. Massachusetts R. Civ. P. 41 (b) (2) is amended by striking the phrase "Rule 52 (a)" and
  substituting therefor the phrase "Rule 52."

          3. Massachusetts R. Civ. P. 52 (c) is amended to read:

          (c) District Court: Effect.

                   (1) In all actions tried upon the facts without a jury, except as otherwise provided in Rule
  65.3, the court may shall upon written motion made by any party prior to final argument find the facts
  specially and state separately its conclusions of law thereon. provided that such party submits proposed
  findings of fact and rulings of law no later than seven days after the conclusion of triaL or such
  additional time as the court may allow. Judgment shall be entered pursuant to Rule 58. Findings of fact
  shall not be set aside, unless clearly erroneous, and due regard shall be given to the opportunity of the
  trial court ta judge of the credibility of the witnesses. If an opinion or memorandum of decision is filed.
  it will be sufficient if the findings of fact and conclusions of law appear therein. Findings of fact and
  conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion
  except as provided in Rule 41 (b) (2).

                   (2) Proposed Findings of Fact and Rulings of Law. Proposed [mdings of fact shall be
  labeled as such. and set forth in numbered paragraphs. each of which shall be limited as far as
  practicable to a concise statement of a single factual matter. Proposed rulings of law shall be labeled as
  such. and set forth in numbered paragraphs. each of which shall concisely present a single issue oflaw.
  Each proposed ruling of law shall also concisely state the relevant principle of law and be supported by
  appropriate legal citation. Proposed findings of fact and rulings of law shall not be set out in the same
  paragraph: a proposed ruling of law may refer by number to a specific finding offact. but such finding
, shall be set forth as a separate proposed finding of fact. The court may strike proposed findings or
  rulings that are unintelligible. redundant or unreasonable in length. and may permit the revision and
  resubmission thereot: The court shall not be required to make a finding or ruling as to any fact or legal
  issue not raised by a party as a proposed finding or ruling.

                  (3) Proposed Ruling of Law on Su(ticiencv of Evidence. A party may request a ruling that
  the evidence is sufficient as a matter of law to permit a general finding in the requesting party's favor. or
  insufficient as a matter oflaw to permit a general finding in the opposing party's favor. in substantially
  such language.

         4. Massachusetts R. Civ. P. 54 (a) (1) is amended by striking the phrase "Rule 52 (a) and (b)"
  and substituting therefor the phrase "Rule 52."

          5. Massachusetts R. Civ. P. 64A is repealed.
                Proposed Amendments to the Massachusetts Rules of Civil Procedure
                 regarding Findings of Fact and Rulings of Law in the District Court

                                              Version No.2
                                              April 17, 2007

        1. Massachusetts R. Civ. P. 6 (b) is amended by striking the phrase "Rule 52 (b)" and
substituting therefor the phrase "Rule 52."

        2. Massachusetts R. Civ. P. 41 (b) (2) is amended by striking the phrase "Rule 52 (a)" and
substituting therefor the phrase "Rule 52."

       3. Massachusetts R. Civ. P. 52 (c) is amended to read:

       (c) District Court: Effect.

                (1) In all actions tried upon the facts without a jury, except as otherwise provided inRule
65.3, the court may shall upon written motion made by any party prior to final argument find the facts
specially and state separately its conclusions of law thereon. provided that such party submits with said
motion. or within such additional time as the court may allow. proposed findings of fact and rulings of
law. Judgment shall be entered pursuant to Rule 58. Findings offact shall not be set aside, unless clearly
erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of
the witnesses. If an opinion or memorandum of decision is filed. it will be sufficient if the findings of
fact and conclusions of law appear therein. Findings of fact and conclusions of law are unnecessary on
decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41 (b) (2).

                (2) ProTJosed  Findings of Fact and Rulings of Law. Proposed findings of fact shall be
labeled as such. and set forth in numbered paragraphs. each of which shall be limited as far as
practicable to a concise statement of a single factual matter. Proposed rulings of law shall be labeled as
such. and set forth in numbered paragraphs. each of which shall concisely present a single issue of law.
Each proposed ruling of law shall also concisely state the relevant principle of law and be supported by
appropriate legal citation. Proposed findings of fact and rulings of law shall not be set out in the same
paragraph: a proposed ruling of law may refer by number to a specific finding of fact. but such finding
shall be set forth as.a separate proposed finding of fact. The court may strike proposed findings or
rulings that are unintelligible. redundant or unreasonable in length. and may permit the revision and
resubmission thereof. The court shall not be required to make a finding or ruling as to any fact or legal
issue not raised by a party as a proposed finding or ruling.

                (3) Provosed Ruling of Law on Sufficiency of Evidence. A party may request a ruling that
the evidence is sufficient as a matter of law to permit a general finding in the requesting party's favor. or
insufficient as a matter of law to permit a general finding in the opposing party's favor. in substantially
such language.

       4. Massachusetts R. Civ. P. 54 (a) (1) is amended by striking the phrase "Rule 52 (a) and (b)"
and substituting therefor the phrase "Rule 52."

        5. Massachusetts R. Civ. P. 64A is repealed.
                                         Reporter's Notes

         Rule 52 has been amended to require judicial findings and rulings in District Court jury-
waived cases on any issues raised by a party by means of proposed findings and rulings. Given
the volume and nature of the District Court civil caseload, this change appropriately imposes an
initial burden on counsel to raise the issues on which a judicial finding or ruling is sought. This
approach ensures that the court will be required to make findings and rulings only in those cases
in which counsel wishes to initiate action necessary to ensure a basis for possible appeal.

       The amendment also repeals the "request for ruling" procedure, former Rule 64A, which
required the court merely to allow or deny a proposed ruling of law, but not make its own ruling,
and exempted the court from any requirement to make findings of fact.

        The new amendment also eliminates the formula formerly required in Rule 52 for making
a "warrants" request, that is, a request that a fmding is required as a matter of lawfor the
requesting party or against an opposing party. Under the amendment, the issue of the legal
sufficiency of the evidence may be raised by a party and ruled on by the court without reference
to the often confusing "warrants" terminology.

								
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