Former BLS judge says session dying

Retired Judge Allan van Gestel is raising concerns about the future of the Massachusetts Superior Court business session he helped build, putting the judges who are now running the session on the defensive.

In an opinion piece submitted to Massachusetts Lawyers Weekly, van Gestel says the state’s Business Litigation Session is “withering” and cites the court’s decision to replace a single justice who presided year-round over the original session with two judges who each sit for six months at a time. The change took effect earlier this year.

Van Gestel, who served as the BLS’s first sole justice and spent seven years on the highly regarded business forum, also suggests that judges who have recently sat on the session are not setting firm or timely trial dates and are taking too long to issue decisions.

His views are based on conversations with attorneys who appear in the business session and have had contact with him through his work as a JAMS mediator. Many of those lawyers are leaving the BLS for private arbitration or attempting to transfer their cases to federal court or other jurisdictions that have better resources, he writes.

Describing his controversial op-ed as a “cry from the heart,” van Gestel says he wants to incite the bar, Legislature and court administrators to take action and save the BLS before it is too late.

“This is not the time to let it fade away or slip back to business as usual in the old Superior Court,” he writes in the piece.

Van Gestel’s attempt to rally the troops has ruffled the feathers of some Superior Court judges, including Chief Justice Barbara J. Rouse, Judge Judith Fabricant, who currently heads the BLS, and her recently retired predecessor, Judge Margaret R. Hinkle.

Rouse, who was “very surprised” by van Gestel’s op-ed, said the issues he raises about the session are unfounded and that van Gestel, retired for more than three years, is out of touch with the court.

“There are many things here which are simply not founded in facts, and it’s regrettable that I think there’s a suggestion that they are,” she said. “When we’re in a particular endeavor, sometimes we tend to favor the recollection of how it was when we were there.”

Half a judge

While a single justice oversaw the original Business Litigation Session up until this year, a second overflow session has operated for years with two judges who alternate positions every six months.

Van Gestel riled some of his fellow judges in 2006, when he spoke out against having split sessions in a 20-page memo to court officials. The practice, he said, would hinder the BLS’s ability to function effectively.

Six-month assignments prevent the alternating judges from staying on every case from beginning to end, and “the lack of continuity seriously interferes with the firm-trial-date concept that has worked so well in the BLS1 Session,” he wrote at the time.

“They’re effectively saying that you get 50 percent of a judge,” van Gestel told Lawyers Weekly. “For six months out of the year, if your case is assigned to any one of those judges sitting in a criminal session, you can’t have a trial.”

Thomas F. Maffei, a well-known Boston business litigator at Griesinger, Tighe & Maffei and a past president of the Massachusetts Bar Association, agreed that the session is better served by a non-circuit judge.

“I do share the concern, as someone who’s up there a lot,” he said, adding that he believes judges would stay longer in the sessions, which involve intensive research and writing, if they had more resources.

The founder of Boston’s Campbell, Campbell, Edwards & Conroy, Richard P. Campbell, also prefers having a judge who is dedicated to the business session.

“The essential purpose of the Business Litigation Session was to have a single justice take the cases in and monitor them from beginning to end,” said Campbell, incoming president of the MBA. “There’s a greater opportunity for a judge to have a complete view of a case and manage it from beginning to end in a speedy way that brings about justice.”

Robert J. Kaler, a partner at McCarter & English in Boston who has tried cases in the BLS, said the elimination of a full-time single justice position is “seriously damaging” to the forum.

An architect of the BLS, retired Massachusetts Superior Court Chief Justice Suzanne V. DelVecchio said she crafted the session around the belief that it would be overseen by a judge who stays on the session for at least one year.

“That was a concern when I set it up that this would happen,” she said, referring to the split session.

Even if a BLS judge takes his cases with him at the end of a six-month rotation and sits in the same courthouse as the BLS, “it may not be the best way to handle it,” DelVecchio said. “You can’t really hold trials, and scheduling motions is difficult.”

‘Unduly alarmist’

During a black-tie dinner earlier this month for the New England Fellows of the American College of Trial Lawyers, van Gestel took the floor and aired his grievances about the state of the BLS.

Among the attendees that evening was Robert J. Muldoon Jr., chairman of the BLS Advisory Committee, which collects feedback on the session from the bar. Muldoon said he was bewildered by van Gestel’s remarks and the op-ed that followed.

“What he reports is inaccurate,” said Muldoon of Boston’s Sherin & Lodgen. “I think if he reviewed current operations as they are on the ground, he’d find a large number of things that counter what he alleges or states in the [piece].”

The two-judge session has actually worked well, according to Fabricant, Hinkle and Rouse. They say judges may temporarily step away from the business session, but they hold onto the cases that they are intimately familiar with and continue to have hearings, even trials, if necessary, on those cases.

“So the lawyers have no lack of access, even when the judge is outside the session,” Fabricant said.

Dismissing van Gestel’s assertion that attorneys cannot get firm trial dates in the business session, Rouse said the dates have become more predictable since van Gestel’s departure.

“When you look at the information comparing 2007 with 2010, both sessions in 2010 tried more cases than the two sessions in 2007,” Rouse added. “So we try more cases and have firmer trial dates.”

The pre-trial discovery process and court costs in the BLS also have become more streamlined since the court launched a voluntary pilot project in January 2010 that limits discovery based on the magnitude of the claim at issue, Rouse said.

“We continue to think of more innovative ways to make sure that we are doing our best, that we have maintained the high standards of excellence which Judge van Gestel set at the outset,” she said.

Meanwhile, Donald R. Frederico, president of the Boston Bar Association, said he had not heard other business attorneys criticizing the session, as van Gestel claims, and stressed that his experiences with the session have been positive.

“My impression is that the bar is generally satisfied with the Business Litigation Session. It is a forum where, in my experience, cases move quickly, and the judges are very good about setting trial dates and sticking with them,” said Frederico of Greenberg Traurig in Boston. “I was very surprised by the criticisms in the [op-ed].”

Paul T. Dacier, executive vice president and general counsel of EMC in Hopkinton, Mass., one of the largest employers in the state, echoed Frederico’s confusion.

“I don’t know where he’s coming from,” Dacier said. “I think that the Business Litigation Session has been functioning well and the new changes are fine. … I think Judge van Gestel’s comments are unduly alarmist.”

‘Stir up the world’

Van Gestel said he expected and is not bothered by the bristly response to his views. He said his aim was to spark a dialogue about the state of the BLS and the courts, as the judiciary struggles to cope with severe budget cuts.

“They might call me a cranky old man, but I don’t care,” he said. “Every time I or someone else says, ‘Jeez, it’s not going so well,’ it’s not a criticism of everyone in the court; it’s trying to stir up the world.”

While she adamantly disagrees with van Gestel’s unflattering public assessment of the business session, Rouse said she supports his underlying message demanding more money and resources for the court system.

“The one thing I think … that we certainly do agree with is the call for additional funding for the courts,” she said. “That is something we would like to see everybody get behind.”