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Archive for the ‘Procedure and Evidence’ Category

Massachusetts Adjusts Its Trial Rules Allowing Lawyers to Argue for Specific Awards

Posted on: April 23rd, 2015 by admin

DOLLAR SIGNMassachusetts has modernized its rules governing attorney argument as to specific damage awards at trial – but only in Superior Court.  Newly amended M.G.L. chapter 231, section 13B, has opened the door for juries to consider specific requests for damage sums which are sought by an aggrieved or injured plaintiff.

Prior to this amendment, plaintiffs’ counsel in Superior Court civil trials were prohibited from arguing that their clients were entitled to a specific award when it came to intangible damages like those awarded for emotional distress, pain and suffering, the loss of use or function of a body part, or punitive damages. Massachusetts jurors were expected to determine damage amounts, if any, based on their life experiences.  This often left juries without guidance as to unfamiliar or esoteric concepts of value without any direct assistance or argument from counsel.  Juries were left to determine what damage sums the evidence supports and the law allows given the nature and extent of a breach or injury.

With the recent implementation of the new law all this changed.  Now “in a civil action in the Superior Court, parties, through counsel, may suggest a specific monetary amount for damages at trial.”  Freed to advocate for their clients as to remedies, plaintiff’s counsel may now provide juries with argument geared at suggesting specific awards for damages in cases involving financial recovery.

As with all argument at trial, there are risks.  Attorneys may well suggest damage figures that are far lower than a jury would have ordinarily awarded.  Alternatively, a jury might find an advocate’s recommendations exaggerated and artificially high award recommendations may undermine a lawyer’s credibility in the eye of the jury.  This may well impact their assessment on the merits of liability.  Of course, leaving the damages assessment entirely up to the jury is also a danger in that ordinary jurors considering large money figures might well minimize damage awards based on their personal life experiences, biases against run-away jury awards or preconceived notions association with the personal perceptions or misconceptions of a profit motive by the lawyers.

Massachusetts’ new law also changes the manner in which defendant’s counsel may wish to respond to claims for specific damages.  Attorneys defending civil cases in the Superior Court should consider attacking inflated or unrealistic damage suggestions.  Of course, a liability defense aimed at preventing a damage assessment altogether will remain a focus in most cases for defense counsel.  In most cases, including when liability is clear, defense counsel must be prepared to argue and advocate for their client’s own view on damages, including presenting a rational view on the scope and extent of injury or damage to the plaintiff.  For example, Defendants routinely highlight the role of any pre-existing injury or allude to evidence of plaintiff’s failure to mitigate their damages.

As attorneys in Massachusetts wrestle with this new law at the Superior Court level, Bennett & Belfort PC will keep you updated as to trends and developments in this rapidly evolving area of trial practice.  Should you have any questions on this or any other employment legislation, please feel free to contact Bennett & Belfort P.C.


Posted on: February 2nd, 2015 by admin

Deposition Up CloseOn Wednesday, January 21, 2015,  Partner, Todd J. Bennett, joined colleague Scott Heidorn of Bergstresser & Pollock P.C., to speak about taking and defending depositions for the Massachusetts Bar Association’s “Feed Your Mind: Legal Lunch Series.”  The monthly lunch series, hosted by the Massachusetts Bar Association’s Civil Litigation Section and Young Lawyers Division, provides civil litigators of all experience levels with an opportunity to discuss selected areas of law and exchange ideas in a collegial setting.  Attorney Bennett and Attorney Heidorn co-led a lively, informative conversation on such topics as the rules on taking and defending depositions; how to prepare deposition questions;  the proper ways to put forth objections and respond to improper objections from opposing counsel; and the merits of different styles of questioning.


Discoverability of Social Networking: Who Gets to See What You Tweet, Post, and Pin?

Posted on: May 10th, 2013 by admin No Comments

Social Networking content remains in a constant state of flux with respect to its discoverability and introduction in litigation within Massachusetts.  Indeed, the law in this area, within the Commonwealth, is in flux and developing in a piecemeal case-by-case manner.  It is illustrative to turn to a couple of very recent out of state decisions that exhibit a clear divergence in legal analysis based on similar facts in understanding the competing issues at hand.   

Both of those cases build upon the Court’s analysis in EEOC v. Simply Storage Mgmt., LLC, 270 F.R.D. 430 (S.D. Ind. May 2010), where an Indiana court allowed a Defendant access to Social Networking content, but also placed some limitations on such discovery.  It is illuminating to examine two courts’ differing interpretations of the same case.

In Mailhoit v. Home Depot U.S.A., Inc., 285 F.R.D. 566 (C.D. Cal. Sept. 7, 2012), a federal court in California reviewed an employment discrimination case, where the plaintiff claimed that she suffered severe mental and emotional distress as a result of the defendant’s alleged sex discrimination.  Id. Accordingly, defendant sought broad discovery of the content of plaintiff’s Facebook account, arguing that such content was likely relevant because, “in this day and age, many communications between friends and/or about an individual’s emotional state are communicated via social media.”  The requested discovery closely resembled the discovery requested in Simply Storage.  See Mailhoit, 285 F.R.D. at n. 4.

In Mailhoit, the California court acknowledged that the content of social networking sites may be discoverable, but noted that several courts have found that “the Federal Rules do not grant a requesting party ‘a generalized right to rummage at will through information that [the responding party] has limited from public view,’” and further concluded that “while a party may conduct discovery concerning another party’s emotional state, the discovery itself must still comply with the general principles underlying the Federal Rules of Civil Procedure that govern discovery.”  See Mailhoit, 285 F.R.D. at 571.

Relying on the Simply Storage decision (from Indiana), the Court in Mailhoit showed reservations about vague Facebook discovery requests.  Ultimately, the Mailhoit Court granted defendant’s request for social media, but limited it to only communications between Plaintiff and current or former Home Depot employees, and communications which referred to her employment at Home Depot or the lawsuit.

In Reid v. Ingerman Smith LLP, 2012 WL 6720572 (E.D.N.Y. Dec. 27, 2012), which is a sexual harassment lawsuit from a federal court in New York, the plaintiff sought a large amount of emotional distress damages for allegedly inappropriate treatment from her boss.  The defendant filed a motion to compel discovery concerning the plaintiff’s social media accounts.   The defendant argued that public postings on the plaintiff’s Facebook account contradicted her claim of mental anguish, and therefore any private postings and photographs might contain information relevant to the plaintiff’s state of mind.  The plaintiff argued that she had an expectation of privacy with respect to her social media accounts and that the court should not require her to produce private information.  While the court agreed that the plaintiff had some expectation of privacy, it explained that this expectation did not shield most communications from discovery with a reference to the aforementioned Simply Storage case, stating:

While plaintiff is correct that disclosure of her personal social media account may raise privacy concerns, such a consideration is more “germane to the question of whether requested discovery is burdensome or oppressive and whether it has been sought for a proper purpose” rather than to affording a “basis for shielding those communications from discovery.”

See Reid, 2012 WL 6720572 at *2.

            In the same way that social media networking is always evolving, so, too, is the law surrounding it.  Both potential plaintiffs and defendants need to be aware that social networking content may contain critical information relating to civil litigation, and therefore information should be posted with great care to any social networking sites, blogs, list-serves or other quasi-public on-line communities.

OOOPS! Court Cautions that Accidentally Disclosed Emails May be Admissible

Posted on: March 10th, 2011 by admin No Comments

In a Massachusetts Superior Court decision, issued at the end of 2010, Charm v. Kohn, 27 Mass. L. Rptr. 421, 2010 WL 3816716 (Mass. Super. 2010), the Court ruled that an email that a client intended to send only to his lawyer, but which was accidentally sent to opposing counsel, was not admissible evidence.  However, the Court warned that such accidental communications could lead to this type of evidence being admissible evidence in the future. 

Counsel for Mr. Kohn emailed Charm’s attorney, with a carbon copy (cc) to Kohn’s co-counsel, and a blind copy (bcc) to his client, Mr. Kohn.  Upon receiving the email, Kohn inadvertently selected the “reply all” feature to respond, intending only to communicate to his own attorneys, but accidentally copied opposing (Charm’s) counsel as well.  Less than a half-hour later, Kohn’s counsel emailed Charm’s attorney, requesting that he delete Kohn’s email.  Charm’s attorney refused to do so. 

Generally, communications between attorneys and their clients are privileged and cannot be admitted into evidence.  The purpose of the privilege is “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.  The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon lawyers being fully informed by the client.” Upjohn Co. v. United States, 449 US 383, 389 (1981).

However, communications that are intended to be shared with third parties are not protected by the  attorney-client  privilege.  Commonwealth v. Noxon, 319 Mass 495, 543-544 (1946).  A difficulty arises when these communications are accidentally revealed to an opposing party who is clearly not an intended recipient.  In accidental disclosure cases, the information is only privileged if the client and attorney took reasonable steps to preserve confidentiality.  Therefore,  the issue for the Court in the Charm case was whether or not Kohn and his attorney took reasonable steps to preserve the confidentiality of their email communications.

There was some evidence that Kohn and his attorney did not act reasonably.  Several months earlier, Kohn had communicated to opposing counsel in the same, accidental manner.  Arguably, Kohn should have been more careful given his prior slip ups.  Additionally, given Kohn’s prior “reply all” mistake, Kohn’s counsel might have known that there was a foreseeable risk that Kohn would again hit the “reply all” feature.  Lastly, Kohn apparently did not attempt to resolve the dispute-, perhaps through a motion for protective order-, until Charm attempted to introduce the email into evidence in support of its motion for summary judgment. 

Judge Fabricant appeared to recognize how commonly such a mistake occurs and instead, focused on the obvious unintentional nature of the communication with Charm’s counsel in excluding the evidence.  Furthermore, the Court found it compelling that Kohn’s counsel wasted little time in immediately informing Charm’s counsel of the mistake. 

The opinion indulged “human fallibility” in this instance, but cautioned that Kohn “should not expect similar indulgence again.”  The court warned that  the parties “and others, should take note: Reply all is risky.  So is bcc.  Further carelessness may compel a finding of waiver.” 

Clients and attorneys alike should be cautious when communicating electronically to avoid carelessness that can result in disclosure of confidential information.  Some information technology professionals advise that the BCC option be ‘hidden’ in e-mail software and, instead, copies get forwarded separately.  While sending multiple emails takes a bit more time, it can prevent a recipient from accidentally selecting the ‘reply all’ feature and unintentionally communicating sensitive information to unauthorized individuals.  As e-mail dissemination glitches are increasingly publicized through reported cases, other  courts may, in the future, be far less understanding and may ultimately find waiver of this long-established privilege.

* Bennett & Belfort, P.C., wishes to thank our intern, David J. Mattern, for his work on this entry.