Tag Archives: amicus brief

More than a Job: Clerk of the Commonwealth Fran Kenneally


Last week, the Administration of Justice and Litigation Sections sponsored a special lunchtime discussion with the new Clerk of the Commonwealth, Francis V. Kenneally.  Clerk Kenneally is new to this post, but not to the work it entails, having previously served as the third assistant and later first assistant Suffolk County Clerk.  Prior to serving as an assistant clerk, he practiced law in Maryland and Washington, D.C. and worked as a solo general practitioner in Quincy at the Kenneally Law Offices.  He also served as a court-appointed mediator in Quincy District Court.

He is still adjusting to his new role, noting the major difference between being a county court clerk and Clerk of the Commonwealth was the shift from a job that was “100% legal” to one that is “100% administrative.”  Clerk Kenneally relishes his new responsibilities.  While he enjoyed the role he played with county court cases, he is just as passionate about helping lawyers and managing the full court’s caseload – the crux of his new position.

To that end, Kenneally spoke about new initiatives and improvements the courts are implementing.  In April, the trial and appellate courts began a pilot e-filing project, which has been years in the making.  Although there is no definite time table, the system will be gradually carried out in the following phases:

  1. District Court in Worcester for civil cases
  2. Brighton Division of the Boston Municipal Court for civil cases
  3. Probate and Family Court in Essex for uncontested divorces
  4. Appeals Court panel cases
  5. SJC applications for direct and further appellate review

The system will be similar to the federal court PACER system, except that e-filed documents will be reviewed by the clerks before they appear on the docket.  Participation in the pilot program will be voluntary and will require a nominal convenience fee in addition to any applicable filing fee.

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Kenneally also spoke about the SJC’s pilot program on rebuttal time – permitting appellants to reserve no more than five minutes for rebuttal at the outset of oral arguments.  The court implemented the pilot program for the February and March sittings of the full court.  Kenneally researched all state rules and statutes and discovered that Massachusetts was the only state without rebuttal at oral argument.  During the pilot he estimated that attorneys requested rebuttal time in 85 to 90 percent of cases, and he thought the court found it helpful but is uncertain whether rebuttal will become a permanent part of oral argument in the future.

After answering a number of audience questions, Clerk Kenneally gave some advice and provided practice tips which would be helpful to the lawyers and, in turn, assist the court in its review of matters scheduled for argument.

Include lower court decisions and relevant statutes in your addendumMass R.A.P. 16 requires the addendum to contain pertinent lower court findings or memoranda of decision and the relevant statutes, rules, and regulations.  The Justices rely upon compliance with the rule when reviewing briefs in preparation for oral argument.  Audience members were curious whether the addendum should include all the statutes cited in the brief, or most, or only the most important ones.  Clerk Kenneally said to err on the side of over-inclusion, but noted that it was a judgment call for lawyers.  He welcomed anyone with further questions to contact his office about specific cases for further guidance.

Keep briefs brief.  The required page limit for briefs is 50 pages, but Kenneally has seen briefs over 70 pages.  While he knows that at times a longer brief is necessary from the lawyer’s perspective, the rule states that a motion to exceed 50 pages will not be granted except for extraordinary reasons.  Again, he explained, if lawyers have specific concerns with respect to their case, they are welcome to call him.

Submit amicus briefs earlyMass R.A.P. 17 permits the filing of amicus briefs either by leave of the appellate court or a single justice granted on motion or at the request of the appellate court.  The court has often relaxed the rule’s prescribed time for filing amicus briefs to two weeks before the first day of sitting in which the case is scheduled for argument.  Nonetheless, amicus briefs are often untimely filed despite the relaxed application of the rule and are at times received well within two weeks of the first day of the sitting.  The earlier the court receives these amicus briefs, the more helpful they may be.

Clerk Kenneally ended by noting he is a firm believer in getting to work early, staying late, working on the weekend if needed, and even checking and responding to work email messages after court hours.  He is determined to answer any attorney questions or concerns in a timely manner and encourages attorneys to reach out if they have something to ask or say.  He even encouraged us to include his contact information here:

Fax: (617) 557-1145

Phone: (617) 557-1188

Email: francis.kenneally@sjc.state.ma.us

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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13 for ’13

As 2013 draws to a close, here’s a timeline of 13 things we’re thankful for this year.

1) Diversity.  We tried to live up to our illustrious history of diversity and inclusion this year at the BBA.  From amicus briefs defending marriage equality and affirmative action to the Beacon Award, we reasserted our commitment to expanding fairness for all.  This year we released our Diversity and Inclusion Timeline highlighting key events in our history that helped shape our community. 

2) Taking it to the Top.  We started the year off right by advocating for trial court funding with the head of the executive branch, Governor Deval Patrick.  For the first time we sat down and spoke directly to Governor Patrick and his legal staff about this important issue. 

3) Walk to the Hill.  In late January, we proudly participated in the 14th annual Walk to the Hill with 650 lawyers.  Our members used their advocacy skills by speaking to legislators and staffers on the impact civil legal aid funding has in Massachusetts.  We  helped secure $13 million in civil legal aid funding for Fiscal Year 2014.  Please join us for Walk to the Hill 2014, scheduled for Thursday, January 30th.  We hope you’ll join us.  (More information here and here)

4) Protecting Attorney Ethics Consultations.  We were pleased that the SJC ruling reflected a lot of the same thinking as our amicus brief in RFF Family Partnership v. Burns & Levinson, by applying attorney-client privilege to a lawyer’s consultation with in-house ethics counsel.  This issue was an important one for all of our members who practice in law firms, large or small, and for their clients.  The ruling gives lawyers the requisite peace of mind to consult in-house ethics counsel to make sure they act in accordance with the state’s ethics and professional conduct guidelines.

5) Some Clarity on Decanting.  We sought guidance through an amicus brief in Richard Morse, Trustee v. Jonathan A. Kraft et al. This case addressed, for the first time in Massachusetts, a trustee’s power to transfer the assets of one irrevocable trust to another for the same class of beneficiaries. The brief argued in favor of this power, called “decanting,” and urged the court to recognize that it is inherently held by trustees.  The SJC ruled favorably with respect to Morse’s petition, but declined to recognize decanting as an inherent trustee power.

6) BBA Statewide Task Force.  In April, we created the Boston Bar Association Statewide Task Force to Expand Civil Legal Aid in Massachusetts.  Chaired by past-president J.D. Smeallie, the Task Force features 27 diverse leaders in the state’s legal community from law firms, in-house counsels, academia, the judiciary, legislative, and executive branches, and legal services organizations.  The Task Force is making significant progress in quantifying and assessing both the civil legal aid services currently provided in the state and the needs not being met.

7) Legal Services Discussion.  Jim Sandman, President of the Legal Services Corporation (LSC) joined us at the BBA over the summer to talk about the current state of LSC funding, reinforcing the need for bi-partisan support and the importance of connecting with the business community. President Sandman emphasized that legal services is not a social safety net or a poverty relief program.  Legal services are necessary to ensure access to justice for all 

8) Defense of Marriage Equality.  This summer, we celebrated the Supreme Court’s rulings upholding marriage equality in the cases of U.S. v. Windsor and Hollingsworth v. Perry.  Reaffirming our longstanding advocacy efforts for marriage equality, we joined a coalition of other bar associations, civil and human rights groups, and public interest and legal services organizations that signed onto the briefs.  (Read the briefs here and here)

9) Amending the UCC.  On July 1st, Governor Patrick signed into law “An Act making amendments to the uniform commercial code covering general provisions, documents of title and secured transactions.”  We collaborated with the Massachusetts Bar Association and the Massachusetts Bankers Association to get this bill before the House and Senate for their final approval.  While this law didn’t make big news, it will remove needless obstacles that small businesses run into when trying to secure credit.

10) Paula Carey named Chief Justice of the Trial Court.  We cheered when Paula Carey, former Chief Justice of the Probate and Family Court began her post as Chief Justice of the Trial Court this summer.  We look forward to working with her and Court Administrator Harry Spence as the trial court implements its strategic plan.   

11) Judicial Pay Raise.  At long last, the legislature passed a judicial pay raise – an essential step to continuing providing the high quality justice residents of Massachusetts expect and deserve.  Before this legislation, Massachusetts ranked 48th in the nation in judicial compensation. 

The $30,000 raise will take effect in two equal installments; the first increase will be effective January 1, 2014 and the second increase will be effective July 1, 2014. 

12) A Step in the Right Direction for Mandatory Minimum Sentences.  In August, U.S. Attorney General Eric Holder unveiled a Justice Department proposal to reduce mandatory minimum sentences for nonviolent drug offenses, something that the BBA continues to work on at the state level.  Repealing mandatory minimum sentences for low-level drug offenses is sensible, fiscally responsible, and more protective of public safety.  Repealing mandatory minimum sentences also returns to judges the discretion they need to dispense fair and effective justice.

13) Juvenile Justice.  This summer, the state enacted “An Act expanding juvenile jurisdiction.”  This law, raising the age of jurisdiction for juvenile courts from 17 to 18 years old, was unanimously supported by the BBA Council.  The change moved Massachusetts in line with the majority of other states and, according to researchers, will give minors a greater chance of becoming productive members of society.

2013 was a significant year.  Here’s looking ahead to a great 2014!  Happy holidays!

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Enhancing your BBA Government Relations Experience

When it comes to public policy, transparency and early communication among stakeholders are of utmost importance.  We can always do a better job communicating.  We need to keep our members up to date and educated, especially when it comes to the history and process of the BBA’s public policy positions.

At the same time, communication with BBA Steering Committee sections is especially important.  Reach out and let us know how we can improve our communication – we’d love to hear from you.  Right now our weekly blog is a good place to find out what we are currently working on and thinking about in the area of government relations.  Starting with our next Public Policy Update, which will be sent out Friday December 20th, all Section Steering Committee members will have the benefit of seeing what items are coming up on the Council’s agenda as well as other legislative activities or events of interest. 

Here are some ways you, as members, can also help us improve our public policy process: 

Early input – If you spot an emerging public policy issue, let us know either directly or through your Section Co-Chairs.  We may know if another BBA Section is thinking about the same issue.  We will also do our best to keep you up to date on issues that other Sections are working on.  Please share with us any suggestions for keeping communication efficient as public policy evolves.   

One recent example of how issue spotting and early input was effective was the amicus brief that the BBA filed in Morse v. Kraft.  The Trusts and Estates Steering Committee had discussed “decanting,” an issue trusts and estates practitioners have long wanted clarified or changed.  Lawyers who advise trustees, as well as lawyers who serve as trustees, have faced significant uncertainty regarding the validity of actions taken or advice given in connection with this issue, and the Morse case was the first time it was taken up by the Supreme Judicial Court.

Therefore, the Steering Committee drafted a proposal to the Amicus Committee asking that the BBA weigh in with a brief.  The Amicus Committee recommended that the BBA Council file an amicus brief.  The proposal was approved, the brief was written by eight members of the Steering Committee, and the BBA filed it in late March

Stay involved – make personal connections and if you can, attend monthly meetings and programs.  While this may be tougher to work into your schedule than other forms of communication, we have observed many impressive discussions on an array of complex legal and political topics that were made possible because people took the time and effort to meet face-to-face.  In addition, this will give you access to the most up-to-date information.  The professional networking, personal friendships, and snacks are all bonuses to this rewarding experience.  Be one of the people who makes BBA news instead of reading about it.

Stay involved, stay engaged, participate, and, when in doubt, give us a call

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Full Circle On Fisher

On Wednesday, September 11th, the College & University Law Section sponsored “Diversity in Higher Education: The Legal Landscape after Fisher v. University of Texas,” a discussion of compliance and strategic planning issues for academic institutions.  This program comes just over a year after the BBA filed an amicus brief in Fisher v. University of Texas in the wake of the U.S. Supreme Court’s ruling.

In Fisher v. University of Texas, the U.S. Supreme Court vacated and remanded the Fifth Circuit Court of Appeals decision for failing to apply strict scrutiny in reviewing the University of Texas’s race-conscious admissions policy.  The case featured Abigail Fisher, a white woman who was denied admission, alleging that the University of Texas discriminated against her on the basis of race in violation of the Fourteenth Amendment’s Equal Protection Clause in its admissions decision.  The Court’s ruling in effect upheld race-conscious admissions, but also muddied the waters.

The BBA’s amicus brief in Fisher highlighted the value of race-conscious admissions policies.  The brief specifically focused on the need for a diverse pipeline of students for law schools and for the entire legal community.  The BBA’s brief warned that:

until the composition of the legal profession more closely resembles that of the public whose interests are at stake, the perception will remain that the legal system is entrusted to and accessible to the white majority above all others.  Not only does that perception undermine the legitimacy of the judicial system, it further discourages participation by people of color, creating a self-perpetuating cycle of exclusion.

This week’s program provided attorneys with an opportunity to discuss the intricacies of Fisher and also its implications.  It changes how courts review affirmative action policies and creates compliance challenges for educational institutions.  Fisher put universities and race-conscious admission programs on alert.  Three major compliance challenges for colleges and universities are:

  • establishing a quantifiable interest in the educational benefits of a diverse student body;
  • proving that “workable, race-neutral alternatives” will not suffice; and
  • demonstrating that consideration of race is narrowly tailored. 

And with that, it all came full circle.  From amicus brief, to Supreme Court decision, to informational program, the BBA stayed on top of this important issue. 

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
Comments are disabled for this blog. To submit your comments please e-mail  issuespot@bostonbar.org



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