What are the Basics about Litigation in Massachusetts?:

  • Criminal Cases – Remedies are incarceration or monetary fine or penalty.
  • Civil Cases – Remedies are money damages or injunctive relief (i.e. a directive to do something or stop doing something).
  • Types of Lawsuits You as an Individual or Small Business May Face:
    • Torts (civil, as opposed to criminal, wrongs)
      • Negligence (car accidents, slip & falls, dog bites, anything accidental)
      • Intentional (defamation & libel, false imprisonment, fraud, misrepresentation)
      • Products liability (injury resulting from defective products)
    • Breach of contract (includes collections cases)
    • Breach of warranty
    • 93A (consumer v. business, business v. business)
    • Someone else’s lawsuit (you get involved as a witness or source of documents)
    • Bankruptcy
    • Divorce and Post-Divorce Actions (a civil matter)
  • Corporations and LLCs MUST be represented in court by an attorney, even small claims.
  • Do you want to sue? Rule 1: Think! Do not act emotionally because someone has angered you. Rule 2: Apply strict cost-benefit analysis. Is it worth it, both money-wise and reputation-wise? Rule 3: Call your attorney.
  • You’ve Been Sued. Rule 1: Do not panic! It happens. Rule 2: If insured for the claim, notify your insurer immediately. Rule 3: Call your attorney.
  • If You Have Insurance to Cover a Claim:
    • Notify your insurer immediately. Otherwise, you risk no coverage for lack of notice.
    • You will be provided with both a defense (a lawyer) and the means to pay for the judgment (up to the limits of the coverage)
    • If the claim is for catastrophic injury seeking damages beyond the limits of coverage, also hire a private attorney to defend you on the excess claim.
    • Sometimes, depending on the nature of the claim, insurer may defend you under a “reservation of rights”, meaning it will provide a lawyer for defense but may not pay any damages. Hire a private attorney as well.
    • Unless a catastrophic injury is involved, usually cases are resolved within the coverage of your insurance, so no out-of-pocket loss to you but for your deductible.
  • Small Business Lawsuit Avoidance:
  • Written contracts for all jobs/sales !!!!!; can be one page, but with all essential details and scope of services.
    • Make sure any reservations or exceptions are “conspicuously” displayed on the contract.
    • Be careful how you represent the wonders of your product, service or yourself – dissatisfaction can lead to breach of warranty and misrepresentation claim.
    • Be careful of wording of express warranties.
    • Golden Rule Stuff: Be flexible, decent to people and open to compromise, albeit while keeping to your standards and integrity. Goes back to whether a lawsuit is worth it, not just monetarily but to the business’ reputation.
  • Other Considerations w/ Litigation:
  • Litigation is expensive, frustrating and often takes a long while to resolve.
  • If you have a lot of collections work, ship it out to a local collections law firm.
  • Fees: $250 per hr. and up in this area + advance of up to $5000+.
  • fees are usually NOT recoverable as damages (American rule).
  • In contingent fee cases, fee is 1/3 but no advance from you. You are liable for expenses, and some of that may be pay as you go.
  • Use of contingent fee arrangements is very limited.
  • If You are Subpoenaed to Testify at a Deposition or Trial or Produce Documents:
  • No subpoena can be ignored! Even if you are not party to the case.
  • Contact your attorney immediately. You want to respond to the subpoena thoroughly, but also not do anything wrong, such as violate an employee’s privacy.
  • Often, your personal testimony is not needed if the documents requested are certified properly for evidentiary purposes.
  • Gen. Laws c. 93A:
  • Officially, exists to punish “unfair and deceptive business acts and practices”
  • If to be used by a consumer, must be proceeded by a 30 day demand letter.
  • In a business-to-business dispute, no prior demand letter is required.
  • Mere breach of contract ≠ a 93A violation. It has to reach a higher level of “scurrilousness” or “rascality”.
  • However, a mere breach of warranty is a 93A violation.
  • Judge makes the finding, even if a jury trial.
  • Double or triple damages + atty. fees can be awarded.

What is the Basic Terminology of Civil Litigation in Massachusetts?:

  • Plaintiff: the one bringing the suit.
  • Defendant: the one being sued.
  • Complaint: the document that starts a lawsuit and sets out initial claims.
  • Answer: the initial response to the Complaint.
  • Counterclaim: when, as part of the Answer, the Defendant brings a claim against the Plaintiff.
  • Crossclaim: when a party brings a claims against a co-party on the same side of the case, usually a defendant bringing a claim against a co-defendant.
  • Third Party Complaint: when, as part of the Answer, the Defendant brings a claim against a 3d party whom the Plaintiff did not name, claiming that the 3d party also has a responsibility for Plaintiff’s claimed loss.
  • Discovery: tools available to discover information about the other side’s case prior to trial.
  • Motions: requests for interim relief or actions to be given or ordered by the court while case is pending.
  • Summary judgment: a decision made by the judge alone without trial, deciding on the issue of law only because there are no disputes as to the facts.
  • Trial: the culmination of the case where the case is decided by judge (bench trial) or jury.
  • Claims at law: claims made within a Complaint the basis of which are within statutes or regulations.
  • Claims at equity: claims made within a Complaint the goal of which is to do what is right, fair and equitable based, usually, on precedents.
  • Damages: the loss suffered by the Plaintiff, usually expressed monetarily.
  • Equitable relief: seeking not money damages but an order to do or not do something (injunction or restraining order).
  • Subject Matter Jurisdiction: the ability of a particular court to hear the type of case.
  • Personal Jurisdiction: whether a court can hear a case against a particular individual or corporation.

What is the Court Structure for Civil Lawsuits in Massachusetts?:

State:

  • Small Claims: $7500 claim limit (although 93A damages can be added); no injunctive claims; no juries; clerk hears case in first instance, not a judge; limited appeal rights.
  • District Court: usually for claims $25,000 and under; can have juries, but less common, usually juries of 6; no injunctive claims.
  • Superior Court: claims over $25,000; cases seeking injunctive relief; juries common.
  • Land Court/Probate & Family Court/Housing Court: limited subject matters; no juries.

Federal:

  • US District Court: cases involving solely Fed. law or regulations, larger monetary cases or cases involving out-of-state parties (although you can sue an out-of-state party in state court if jurisdictional requirements met).
  • US Bankruptcy Court: most claims against an individual or business who has filed are resolved here; filing automatically “stays” (stops) all other litigation in all courts unless and until the “stay” is lifted. Stays commonly lifted in foreclosure cases.

What is the Process for Civil Appeals in Massachusetts?:

  • An appeal is the process by which the decision of a lower trial court is reviewed by a panel of appellate judges, the result being the decision will be affirmed, reversed or modified.
  • Most Mass. trial courts, but for small claims, have an appeal process to the interim level court, the Appeals Court, or the highest court in the Commonwealth, the Supreme Judicial Court.
  • For some appeals of civil District Court decisions, the District Court has an Appellate Division, where the case will go before heading to the higher appellate courts.
  • Municipal permitting appeals, when leaving the level of the town board, usually begin in the court system in the trial court first, either Superior Court or Land Court, and from there may go to the higher appellate courts.
  • Overturning a civil case on appeal is very difficult! What is required is either an evidentiary mistake at trial, an error of law (not of fact), or a significant breach of the trial judge’s discretion where discretion can be exercised. Usually issues of fact cannot be revisited unless the subject matter is subject to appellate review “de novo” (new) review.

What is Administrative Law?:

  • Administrative law is not part of judicial branch of government per se, but nevertheless an adjudicatory process.
  • Definition: the body of law that derives from the quasi-judicial procedures and interpretive decisions of administrative agencies.
  • The primary role of administrative agencies is to make rules, regulations and procedures. However, they also have a judicial-like role in being the initial interpreters of the meaning of their rules and regulations and the propriety of their decisions.
  • An administrative law process is found within the Federal bureaucracy and in most, if not all, state bureaucracies. In Massachusetts municipal permitting, we call the authority of those boards to be “quasi-judicial”.
  • A common feature of this law is the principle of “exhaustion of remedies”, meaning that when you are dealing with an administrative agency, you have to go thru its adjudicatory process before you can “appeal to” or access the law courts.
  • Administrative law judges are usually the final decision-makers in the administrative adjudicatory hierarchy.