Mass Law Blog

Parties are invited to cite to the Proposed Rules, whenever appropriate, in briefs and memoranda submitted. Proposed Massachusetts Rules of Evidence (Supreme Judicial Court, December, 1982)
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The provisions contained in this Guide may be cited by lawyers, parties, and judges, but are not to be construed as adopted rules of evidence or as changing the existing law of evidence.
Massachusetts Guide to Evidence, Section 1.1  (Supreme Judicial Court, November 2008)
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History does not repeat itself, but it does rhyme
Mark Twain
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On November 24, 2008, the Massachusetts Supreme Judicial Court issued a press release stating that “The Supreme Judicial Court and its Advisory Committee on Massachusetts Evidence Law today announce the release of the Massachusetts Guide to Evidence. The Supreme Judicial Court recommends the use of this Guide.”  The press release quotes Chief Justice Margaret Marshall, who states: “This new Guide will make the law of evidence more accessible and understandable to the bench, bar and the public.

Anyone reading this with some historical perspective has to wonder, and here’s why.

The Federal Rules of Evidence(FRE) were enacted into law in 1975, after ten years of preparation.  This was a very big deal – it codified centuries of “common law” of evidence – judge-made law that could vary from court to court. It had taken almost 40 years from the enactment of the Federal Rules of Civil Procedure for these evidence rules to be codified.  The FRE motivated many states (whose evidence laws are independent from the federal rules and from each other) to adopt some version of the FRE, often with modifications, but with enough uniformity that a lawyer going from state A to state B could be confident that the vast majority of the rules would be identical or similar.  Forty-two states have adopted evidence rules based on the federal rules.

Only eight states have failed to do so and, no surprise, Massachusetts is one of them.

But, it hasn’t been for want of effort.

In 1982 the SJC rejected a proposed codification of evidence law (what would come to be referred to as the Massachusetts Proposed Rules of Evidence, or the “Proposed Rules”), stating that the Proposed Rules would require coordination with the Legislature to modify state statutes, that the Proposed Rules departed too much from the FRE, and that adoption would restrict the development of common law rules of evidence (the latter being the whole point, one might argue). (See Handbook of Massachusetts Evidence, Section 1.1).  However, the SJC invited litigants to cite the rules, and for that reason the Proposed Rules have been a factor in Massachusetts evidence law for the last 26 years.

In fact, it became common practice for lawyers and judges to use three bodies of law to support evidentiary arguments – the common law, the Federal Rules, and the Proposed Rules.  And so, in Massachusetts, the law of evidence advanced in a patchwork manner, with trial judges and the appellate courts adopting some  rules from either source, rejecting others, and no one quite sure what body of law would be persuasive in a particular instance. The authors various evidence treatises were kept busy trying to keep track of these developments, so lawyers didn’t have to untangle this mess.

Of course, nothing is forever, and there’s no reason why the Massachusetts courts should be hindered by efforts that are now ancient history.  And so, it came to pass that in 2006 the SJC established an advisory committee to develop a “Guide” to evidence, leading to the SJC’s endorsement of the Guide to Evidence in November 2008.

While the Guide is not statutory law in Massachusetts (and therefore is not strictly “binding”  on the courts), it appears that everyone involved in its creation and endorsement has decided that it is an accurate statement of the law, at least at this time.  Therefore, it is the “most” persuasive statement of the law on any topic of evidence, at least for the time being.  Of course, not being statutory law, any judge or court can chose to disregard it – in fact, a future SJC could easily rule that a particular provision of the Guide (or even the entire Guide) is no longer useful, and relegate the document to the legal dust bin.

However, at least for the present, the Guide to Evidence should be the first (but not the last) place any lawyer with an evidentiary question should go to get a handle on the law.  Hopeful, the Proposed Rules are now obsolete, and lawyers can ignore them, but I wouldn’t count on it.

A link to the Guide to Evidence is here (html version on state court web site).

If you’re a federal district court, that is.

The answer? You need something not every federal district has. The Eastern and Southern Districts of Texas have them. The Northern District of California has them. The Districts of Pennsylvania (Western), Georgia (Northern) and Illinois (Northern) have them. In fact, so many U.S. District Courts have them that its getting difficult to keep up. Like so many things in life, at first its an advantage to have them, and eventually it becomes necessity.

And now the U.S. District Court for the District of Massachusetts has them.

What are they? Local procedural rules that apply only to patent cases. Local patent rules recognize that patent cases present legal, technical and discovery issues that call for specialized handling. In most jurisdictions these rules require early claim identification and invalidity defenses, attempt to schedule early claim construction (by the Court or by stipulation of the parties) and generally attempt to speed up the patent litigation process. After all, plaintiffs tend to seek out jurisdictions where they can get to trial as quickly as possible, since delay only increases expenses, while speed tends to lead to settlements.

Frankly, the Massachusetts local patent rules appear on the weak end of the spectrum – they focus entirely on the initial Local Rule Rule 16.1 statement to the court, and require the parties to propose a schedule for disclosure of infringement claims and invalidity defenses, address issues associated with claim construction and tutorials for the Court (somewhat common in patent suits), and address various discovery-related issues. By contrast, the Patent Rules in the Eastern District of Texas (which attracts a great deal of patent litigation), sets strict requirements that far exceed the Massachusetts rules.

It’s unlikely that that the Massachusetts patent rules will turn Massachusetts into a hotbed of patent litigation, but you’ve got to start somewhere. Perhaps this will prove to be the first step toward rules that will turn Massachusetts into the “rocket docket” so admired by plaintiffs lawyers and feared by defendants.

An effort to collect links to the various local patent rules is on the New York Intellectual Property Law Association site here.

The FTC’s decision to seek Supreme Court review in this case was widely expected, but nevertheless, it’s interesting to see that the FTC in fact did what many antitrust practitioners hoped it would do. For background on this matter, see this posting from May of this year, which discusses the background of this case in some detail. Additional posts discussing various aspects of Rambus are here, here, here and here. The D.C. Circuit decision that is the subject of the appeal is here.

The FTC typically dedicates a page to its significant cases, and the FTC Rambus web page is here. The FTCs cert petition is here. However, the FTC doesn’t put briefs of its opposing parties on its site, so you have to look elsewhere for those documents. Rambus provides some of those documents on its site, here, and we expect to see Rambus’ opposition posted there in due course.

Not surprisingly, the FTC’s petition for certiorari argues that standard-setting is a ubiquitous and important economic activity, and that the D.C. Circuit’s decision leaves aspects of that process in legal limbo, due to a conflict with another circuit and a misreading of Supreme Court precedent. The FTC also suggests that this case is an opportunity for the Supreme Court to address the thorny issues of causation and competitive harm under Section 2 of the Sherman Act.

The “Questions Presented” section of a cert petition is always important, since it is intended to summarize, in very few words, the key issue that the petitioner thinks will interest the Court in accepting the appeal. To be effective, the Questions Presented must be both concise and persuasive. The Questions Presented in the FTC petition are as follows:

1. Whether deceptive conduct that significantly contributes to a defendant’s acquisition of monopoly power violates Section 2 of the Sherman Act.

2. Whether deceptive conduct that distorts the competitive process in a market, with the effect of avoiding the imposition of pricing constraints that would otherwise exist because of that process, is anti-competitive under Section 2 of the Sherman Act.

This will be a very closely watched and hard fought petition, with many amicus briefs on either side of the issue. Acceptance rates by the Court are always in the single digits, but this case presents important issues of national economic policy, and therefore it’s reasonable to think that the odds in favor of Supreme Court review are much higher than average.

Ian Rogers’ delivered the keynote speech at the GRAMMY Northwest Music Tech Summit in early November.

As you spend the next two days discussing the future of the music business, I’d like to challenge you to consider a different perspective, IMHO the only perspectives that matter, that of the artist and the fan. I see news about the health of the music industry as defined by the stock price of WMG or quarterly earnings of UMG, Sony, and EMI every day. What I don’t see, apart from a few articles on Radiohead and Nine Inch Nails, is an update on how the world is changing from the artist point of view. But I tell you, when I talk to managers and artists they feel it, they feel an ability to take their careers into their own hands, to redefine what success means for them, and that is the emergence of the new music business. Continue reading ….

The New Economy – it takes full advantage of the Digital Revolution. It’s open to innovation, not just in IT but in robotics, clean energy, biotechnology, and nanotechnology. It supports a low-cost, low-carbon energy system. It takes advantage of opportunities offered by globalization. It accommodates regional growth in a balanced manner.

And yes, as was true in 1999, 2002 and 2007, in 2008, once again, Massachusetts ranks first, by a significant margin. The full report – The 2008 State New Economy Index, from the non-profit The Information Technology and Innovation Foundation — leaves no question about this. The states at the top of this index are “leading the United States’ transformation into a global, entrepreneurial and knowledge- and innovation-based New Economy.” And yes, let me repeat lest your attention has wandered, we are first, first, first. (n.b.: Washington is second, and Mississippi last).

Quoting from Cringley’s most recent column -

The U.S. CTO – at least this FIRST U.S. CTO – will be the buyer-of-cool-stuff-in-chief for the entire nation.

I would make a better buyer-in-chief than almost anyone else because of two important characteristics in my warped personality: 1) I would be immune to special interest groups so this wouldn’t turn into another National Information Infrastructure boondoggle, and; 2) yet as a true enthusiast I would buy with such reckless abandon that I’d easily fulfill the economic stimulus needs while spewing money widely enough to guarantee at least a few good technical investments for the nation. . . .

We need someone with just enough savvy to know good technology, enough independence to make the right decisions, and crazy enough to do it all 24/7 right out in public so that vaunted “transparency” we keep talking about yet never see can be proved to be more than just a modern myth.

I’m the man for that job.

AND I can use the work.

That’s because December 15th will mark my last column for PBS,

After 11 years and more than 600 columns I’ll be moving-on, perhaps into that big CTO job in Washington, but then maybe not. This is my decision, not that of PBS, which has been nothing but good to me these many years. . . .

Full column here.  More on Marks and Cringley here.

Linux.com, one of the leading open source software web sites, recently interviewed my partner, Andy Updegrove, and wrote a very complementary article (part of its Portrait Series). The article focuses on Andy’s involvement with open source software, and also touches on many highlights in Andy’s career, including the role he played in the creation of the MIT License in the early ’90’s (one of the first, and most popular open source software licenses). Andy had drafted that license for our client, the X Consortium, and it was only years later that he realized that the license had been adopted by many open source projects, eventually becoming known as the MIT License. The interview also includes his views on open source and open standards (where he has played a significant role), his work as counsel to the Linux Foundation, and several other highlights of his career.

A link to the article is here.

… courtesy of Jeffrey Toobin -

The current Supreme Court is the first court in U.S. history where all nine judges are federal appeals court judges. The court that decided Brown v. Board of Education in 1954 had only one justice who had been a judge of any kind on any court anywhere (Associate Justice Sherman Minton).

OK, OK, this is not my blog post title. It’s the title of a post by Professor D. Daniel Sokol over at the Antitrust & Competition Law Policy Blog. He provides ten reasons in support of this statement, but undermines his argument (which I hope is at least a bit facetious), by stating that tax law is second. (Not, not, not.)

Of course, he shows what a nerd (wonk?) he is by not only listing the ten reasons from 1 to 10 (rather than in reverse, à la David Letterman), but failing to inject even the slightest bit of humor into his post. Antitrust lawyers aren’t known for their sense of humor or for humility.

As an antitrust aficionado myself, I am inclined to agree with him. I certainly did when I was in law school.

Are state forensic laboratory reports prepared for criminal prosecutions testimonial evidence? If they are, they are subject to the Confrontation Clause of the U.S. Constitution (“in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him”), and the lab technicians behind them may be challenged under cross examination. If not, well ….

This was the issue before the Supreme Court on November 10th, when Massachusetts Attorney General, Martha Coakley (wiki page here) argued for the Commonwealth in Melendez-Diaz v. Massachusetts.  It’s worth noting that for the most part, state attorneys general (who are essentially administrator/politicians) rarely represent their states before the Supreme Court, although it’s not entirely unheard of.

Lyle Dennison on ScotusBlog summarized the arguments as follows:

Justice Anthony M. Kennedy’s reputation as a “swing” vote in the Supreme Court is well known, and frequently validated. It is not often, though, that the tendency to swing is evident as early as the oral argument in a case. But on Monday, in the space of an hour, Kennedy saw the case of Melendez-Diaz v. Massachusetts (07-591) from two entirely different perspectives. In the end, though, Massachusetts seemed to be on the losing end of his switch. Seemingly somewhat exasperated with each side, Kennedy’s patience wore thinnest when the Massachusetts attorney general was at the lectern.

The case, at its core, is simple: is a crime lab report a form of testimony, so that the prosecution may not use it at trial to buttress its case unless the technician or chemist who prepared it is at the trial to defend the test results under cross-examination?

Kennedy initially saw a potential problem if the Court were to answer yes to that question. He foresaw ”a very substantial burden” on the prosecution and on the courts, and told counsel advocating for confrontation that he was significantly underestimating the impact. But, as the hearing moved along, Kennedy saw as “a very important point” that California has not experienced such a burden and “gets along all right” with summoning lab analysts to the stand with some frequency. He faulted the two lawyers arguing against confrontation for lacking a rationale that would keep the prosecution’s use of unexamined lab reports in check. . . .

Jeffrey L. Fisher, the Stanford law professor arguing for the right to confront the lab chemists, had the significant benefit of Justice Antonin Scalia’s seemingly unqualified support. Scalia, who has made himself the chief protector of the Confrontation Clause, was ready to bolster Fisher’s argument at critical points, repeatedly making the point that crime lab reports are drawn up precisely to link physical evidence to the accused, and to support the prosecution’s case.

There were only a couple of points on which Fisher was significantly pressed. Justice Kennedy, aside from worrying over the potential impact on courts and trials, suggested that even if lab chemists had to show up for trial to defend their reports, they might not have much to say that could be of aid to the defense, so why call them? Justice Samuel A. Alito, Jr., echoed Kennedy, wondering whether Fisher was “arguing for an empty exercise.” And Justice Ruth Bader Ginsburg indicated that, if a chemists’ testimony was so potentially valuable to the defense, it could call the chemists to the stand on the defense side of the case.

Fisher sought to deflect Kennedy’s points by saying that having the right of confronting a lab technician was not producing heavy burdens where that practice actually exists. To Kennedy and Alito, he argued that confrontation would not be “fruitless” and should be available to defense counsel who deems it of potential value. To Ginsburg, the professor said that leaving it to the defense to summon the chemists would be to shift the burden of making a case from the prosecution to the defense. “It is the prosecution’s duty to put on witnesses” to make its case, he said.

Massachusetts Attorney General Martha Coakley had trouble from the outset drawing distinctions between eyewitness testimony for which confrontation is required and crime lab reports, as Justice David H. Souter, along with Scalia, pushed the point. She also failed to impress with a key point both in her brief and her oral argument: the Court has never had a confrontation case involving a lab report.

Before long, Justice Kennedy was stressing to Coakley the arguments he said she had to be making, and mildly chastized her when she did not do so. When he asked her to comment on why California was not having problems with confronton over lab reports, she at first responded that California was one of 35 states supporting Massachusetts in the case (only to have Chief Justice John G. Roberts, Jr., point out that she was in error on that). Then she said she had no information on California, but contended that confrontation of the kind would be “an undue burden” in Massachusetts.

As she was preparing to close, the Chief Justice asked for Coakley’s reaction if a lab test report was the central issue in a case, she said it would be “a bad strategic decision” to rely only on a report of that kind. But Kennedy sharply retorted: “That’s a non-reason.”

Of course, as all lawyers learn, you can rarely determine the outcome of a case based on the comments of judges from the bench, so Martha Coakley may pull off a win in what is likely to be her first and last appearance before the Supreme Court.