{UAH} Response to Serufusa: update on lawsuit (relevant laws)

Mr Serufusa,

Below is a summary of my arguments on the two objections. If Ms Shultz actually told you that there is no case that supports my positions (on deadlines and duo role), please tell her to the law again and show her the cases below:

1. Tracking Order Deadlines:The requirements of Standing Order 1-88, including compliance with tracking orders, are permitted only where they are "not inconsistent" with the Massachusetts Rules of Civil Procedure. see Sullivan v. Iantosca, 409 Mass. 796, 800-02 (1991) (allowing amendment of the complaint outside the time provided in the tracking order because of Mass.R.Civ.P. 15's provisions that leave to amend should be "freely given").

2. Rule 3.7 (a) of the Massachusetts Rules of Professional Conduct":

KEVIN BRIDGEMAN vs. DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT & another.

471 Mass. 465 (2015)

Rule 3.7 (a) of the Massachusetts Rules of Professional Conduct states, in relevant part, that "[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where … disqualification of the lawyer would work substantial hardship on the client". In Smaland Beach Ass'n, Inc. v. Genova, 461 Mass. 214, 219-226 (2012) (Smaland), the court stated that "[t]he primary purpose of the rule is 'to prevent the jury as fact finder, from becoming confused by the combination of the roles of attorney and witness.' " Id. at 220, quoting Steinert v. Steinert,73 Mass. App. Ct. 287 , 291 (2008). See comment [2] to rule 3.7 ("A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof").

Weighing against these benefits is the substantial countervailing fact that rule 3.7 (a) "carries with it the severe consequence of stripping a party of chosen counsel." Smaland, supra. See Commonwealth v. Perkins,450 Mass. 834 , 853 & n.15 (2008) (a party generally enjoys right to be represented by counsel of own choosing).

In Smaland, 461 Mass. at 225,  the court noted that rule 3.7 (a), by its plain language, prohibits a lawyer from acting as both an advocate and a necessary witness "at trial." There, the court analyzed the prohibitions of rule 3.7 (a) in the context of a lawyer-witness's pretrial representation of his clients and concluded that "an attorney considered to be a necessary witness may participate in pretrial proceedingss, though it would be particularly prudent first to secure client consent after consultation." Smaland, supra at 226. The court determined that such a reading of rule 3.7 (a) "adheres to its text and fulfils its underlying purposes." Id. During pretrial proceedings, concerns about potential jury confusion, cross-examination of a lawyer-adversary, and the appearance of impropriety "are absent or, at least, greatly reduced, because there will be no jury that might become "confused by the combination of the roles of attorney and witness." Steinert, 73 Mass. App. Ct. at 291. To the extent that the attorney witness may be in the position of having to comment on his own credibility, the judge is amply able to make the necessary credibility determinations without being swayed by any improper considerations. see Kevin Bridgeman, 471 Mass. 465, at 489. (2015).

 

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