Thomas F. Maffei quoted in Massachusetts Lawyers Weekly

December 26, 2017

Thomas F. Maffei, of counsel in the firm’s Litigation Department, was quoted in Massachusetts Lawyers Weekly on December 21, 2017.  Maffei was quoted in the sidebar of an article entitled, “ABA issues opinion on web research, adjudicative facts,” which discusses judges researching for information online during the trial of a case.

From the article:

Opinion’s hypotheticals offer useful fodder

Attorneys agree that perhaps the most helpful piece of ABA Formal Opinion 478 is the hypotheticals that walk through the proper handling of common situations.

For example, the first hypothetical involves a judge overseeing an overtime case who becomes skeptical of defense counsel’s claim that the plaintiff could not have worked more than 40 hours a week because his client’s restaurant is open only for breaks and lunch during the work week and not on weekends. The judge consults websites such as Yelp and Google Maps, which indicate that the restaurant is open from 7 a.m. to 10 p.m., seven days a week.

What the judge should have done is ask the parties and their counsel to provide admissible evidence as to the restaurant’s hours of operation, the opinion says.

While agreeing with that assessment, Boston attorney Thomas F. Maffei said one of the other hypotheticals gave him some pause. It involves a social-media-savvy lawyer-turned-judge who wants to use his online skills to probe the parties and their out-of-state lawyers in a complex, multi-party case.

While online research to gather information about a juror or party in a pending or impending case is clearly independent fact research prohibited by Model Rule 2.9(C), the ABA opinion calls the scouting of the lawyers a “closer question.” It likens such exploration as the equivalent of a judge cracking open a legal directory like Martindale Hubbell to determine, for instance, whether the lawyer is authorized to practice in the jurisdiction.

But even an online source as seemingly benign as the Board of Bar Overseers’ website opens the door to additional information, Maffei noted. If a judge sees that an attorney has a disciplinary history, that may well affect the judge’s handling of the case before him, he suggested.

Obviously, if an attorney has been disbarred or suspended and should not be before him at all, the judge needs to know that. But if the sanction is merely a reprimand for being overly aggressive, for example, it would likely influence the judge in an improper way, he said.

“You’re injecting into the case something that is not material at all or relevant to the issue,” he said, adding that such information “probably doesn’t belong in a judge’s psyche.”

Maffei also paused on the last hypothetical, in which a judge searched the court’s electronic files to determine whether a party is or had been the subject of other judicial proceedings. The ABA opinion states that a judge can judicially notice the factual existence of court records but not the truth of allegations or findings therein. Sealed documents also clearly should not be reviewed, the ABA adds.

But Maffei said just knowing that a plaintiff is a serial filer of lawsuits could have a prejudicial effect on the judge’s thinking, even if he does not dive deeper into the merits of the cases.