impeachmentbyevidence movingforward

By Kimberly E. Winter

As I begin mytenure as presi-dent ofTheMas-sachusetts Acad-emy ofTrialAttorneys, I amreminded that Ihave been in-volved with

MATA throughout my entire legalcareer in one capacityor another.I have watched

MATA evolve into alarge association with astrong state and feder-al legislative agenda that strives tokeep both consumers and their fami-lies safe.MATA’s members are un-paralleled in their collegiality andcommitment to education and thesharing of information that enhances

the practice of all of our members.Some of my greatest friends and

mentors are past presidents ofMATA.These leaders encouraged meto be involved with MATAmanyyears ago and I remain grateful forthat invaluable advice. It is their hardwork and the many achievements ofeachMATA president through theyears that are responsible for MATA’sfoundation, which we continue tobuild on today.

MATA works torepresent the rights ofconsumers every-where, and in doingso, the organizationhas become global. It

is my intention in the comingmonths to include the voices of allof MATA’s members statewide andutilize their needs, input and vision

It is easy to findMATAmembersto extol the importance and value ofthe listserve in helping to better rep-resent our clients.A fewmonths agoI was wondering whether membersconsidered the listserve alone as jus-tifying in economic terms the cost ofMATAmembership.

Annual membership dues rangefrom $50 for lawyers admitted less thana year to $475 for lawyers who havebeen practicing for more than 10 years.When doing contingency fee work

it is sometimes challenging to pindown the dollar value of saved time,but it usually means time available towork on another contingency feecase. For purposes of time valuation,I used the Committee for PublicCounsel Services’published rates for

attorneys’fees in non-murder cases— $50 to $60 per hour. (No, I’m notkidding). Even at this absurd rate,nine hours of time saved by the list-serve would pay for the most expen-sive MATAmembership.With this preface, consider the

following:

John Yasi:“I could legitimately attest to the

fact that I must save at least 200hours of my time and associates timea year by accessing information fromthe listserv. It may well be more.”

Charlie Murray:“The listserve is invaluable for pro-

viding me and other MATAmem-bers with practical tips, scholarly

November 2010 | Vol. 4, No. 2

A Supplement to Massachusetts Lawyers Weekly

By Jason R. Markle

Impeachmentof a witness in acivil matter byevidence of priorcriminal convic-tions is permit-ted in Massachu-setts pursuant toG.L.c. 233 §21

and the Massachusetts Guide toEvidence §609. Such impeach-ment, however, is limited intime and scope in accor-dance with §21. Further-more, the use of priorconvictions for im-peachment purposes issubject to the discretion ofthe trial judge, whomustcarefully weigh the proba-tive value of the priorconvictions against the danger ofunfair prejudice that may resultfrom the admission of such evi-dence.The use of such impeach-ment is a powerful tool for civil liti-gators because, as the SJC hasheld,“a witness’s earlier disregardfor the lawmay suggest to the factfinder similar disregard for thecourtroom oath.”Commonwealth v.Harris, 443Mass. 714, 720 (2005)(internal quotations omitted).

GenerallyPrior convictions of a witness are

admissible in evidence to affect hiscredibility, except as follows:

First, the record of his con-viction of amisdemeanor shallnotbe shown for suchpurposeafter fiveyears fromthedateonwhichsentenceonsaidconvic-tion was imposed, unless hehassubsequentlybeenconvict-ed of a crime within five yearsof the time of his testifying.Second, the record of his

conviction of a felony upon

which no sentence was im-posed or a sentence was im-posed and the executionthereof suspended, or uponwhich a fine only was im-posed, or a sentence to a re-formatoryprison, jail,or houseof correction, shall not beshown for such purpose afterten years from the date ofconviction, if no sen-tence was imposed,or from the date onwhich sentence onsaid conviction wasimposed, whether

the execution thereofwas sus-pended or not, unless he hassubsequently been convictedof a crime within ten years ofthe time of his testifying. Forthepurpose of this paragraph,a plea of guilty or a finding orverdict of guilty shall consti-tute a conviction within themeaning of this section.Third, the recordof his con-

victionof a felonyuponwhicha state prison sentence wasimposed shall not be shownfor such purpose after tenyears from the date of expira-tion of the minimum term ofimprisonment imposedby thecourt, unless he has subse-quently been convicted of acrime within ten years of thetime of his testifying.Fourth,therecordofhiscon-

viction for a traffic violationuponwhichafineonlywas im-posed shall not be shown forsuch purpose unless he hasbeen convicted of anothercrimeorcrimeswithinfiveyears

of the time of his testifying.For the purpose of this sec-

tion,any period duringwhichthe defendant was a fugitivefrom justice shall be excludedin determining time limita-tions under the provisions ofthis section.G.L.c. 233 §21. Impeachment in

this manner dates back at least 148

years inMassachusetts. See Com-monwealth v.Hall, 86Mass. 305, 306(1862), citing St. 1852, c. 312 §60.Althoughmost cases which ad-

dress the issue of impeachment byprior criminal convictions arethemselves criminal in nature, suchimpeachment is permissible in civilmatters. See e.g.,Brilliante v. R.W.Granger & Sons, Inc., 55Mass.App.Ct. 542, 545-546 (2002);Walter v.Bonito, 367Mass. 117, 122-23(1975).Additionally, the trial judge’sdiscretion to admit or exclude priorconvictions applies equally to par-ties and other witnesses alike.Com-monwealth v.Manning, 47Mass.App. Ct. 923, 923 (1999).The“admission of evidence of a

prior conviction is subject to the ex-ercise of reviewable discretion bythe trial judge.”Commonwealth v.Maguire, 392Mass. 466, 470 (1984).A trial judge’s admission of priorcriminal convictions for the purposeof impeachment,without consider-ation of his or her discretion, is re-versible error.Commonwealth v.Ruiz,

Listserve pays forMATAmembership

Moving forward,giving back

Continued on page 5

PRESIDENT’SMESSAGE

Impeachment by evidenceof prior criminal convictions

Continued on page 8

Continued on page 11

©iStockphoto.com

By Paul J. Scoptur andCarrie R. Frank

Focus groups are basically a form of marketresearch, a technique that has been used bymajor corporations for many years. Before anew toothpaste is put on the market, before anew car is rolled out, before a studio releases amajor newmovie, they conduct focus groups ofconsumers.Trial consultants do the same thing,using“consumers”as surrogate jurors.They usethese focus groups to conduct pre-suit and pre-trial research and discovery.

Why do lawyers use focus groups?Focus groups are extremely useful in many

respects. First and foremost, preparing for thefocus group itself forces the lawyer to learn thecase from the other side. In order to defeat thedefense landmines, you need to knowwhatthey are.Only by looking at the case from thedefense perspective can you identify the land-mines and prepare rebuttals to them.Secondly, it helps us to prepare: prepare for

discovery, prepare for settlement discussionsand ultimately prepare for trial.Thirdly, they help identify important issues

in the case.We as lawyers often believe thatcertain issues are important, when in fact theyare not.There is“lawyer-proof”and then thereis“juror-proof.”Lawyers often overlook issuesthat we think are unimportant or put undueemphasis on what we think is important—“lawyer-proof”— as opposed to what is im-portant to the jury.We can use focus groups toidentify what is and is not important to the ju-rors who will hear the case.They help identifynew ideas, good ideas and bad ideas in the ap-proach of the case.They are also important inhelping us establish the theme or themes of thecase.Oftentimes, they help identify what wecan and will use as exhibits in trial or what ju-rors think of our witnesses and experts.We conducted a focus group on a nursing

home case.The resident of the nursing homewas there because of a broken hip. She devel-oped severe pressure sores and ultimately died.It was alleged that the nurses and aides at thehome were not assessing and turning her ap-propriately. Her daughter, the plaintiff, waswith her constantly at the nursing home.Manyinsights were gathered through the focus groupbut two stand out.

A strong argument wasmade against thedaughter for not assessing hermother for pres-sure sores.Obviously, she was not a nurse, yetthere were people in the focus groupwhowerevery critical of her for, in effect, not performingthe services that she had hired the nursing hometo do. In fact, there were a few people who feltshe should have turned hermother to inspectfor sores even though hermother was there fora broken hip!This was an interesting issue thatwe had not thought about until that time.The second aspect dealt with a theme.There

was a strong plaintiffs’member of the focusgroup.He gave us many arguments with whichwe could arm pro-plaintiff jurors but he alsogave us a theme.His theme was that just be-cause the daughter was constantly there, didn’tmean she was entitled to a lesser level of care.(It also rhymed.) Other jurors gravitated to thistheme, and it resonated even with some of theanti-plaintiff members.

Why don’t lawyers use focus groups?Here are the top 10 reasons lawyers don’t do

focus groups.1) I have all the proof I needAgain, there is lawyer-proof and there is

jury-proof, and the lawyer proof that you needto get to the jury and the proof that the juryneeds to find in your favor are often very differ-ent. If you do not know the difference betweenjury-proof and lawyer-proof, you will miss criti-cal evidence and testimony in your case.What-ever those holes are in your proof that you havenot learned and discussed at trial will be filledin by your real jury.This is called the filling de-fect.You won’t like the answers the jury fills infor you at trial.The only way to learn what thatjury proof is, is to talk to a focus group… ortwo or three.2) Focus groups are too expensiveLawyers say they cannot afford to run focus

groups.You spend money on experts, exhibitsand on other aspects of the case, but you won’tspend money on what is likely the most criticalinformation gathering project you can do re-garding the presentation, framing, sequencingand ultimately the success of your case. Focusgroups can be much more cost-effective thanyou think. If you have a small case, considerworking with several other attorneys with simi-lar cases and share the expenses.We are bothtrial consultants and trial lawyers. Because ofthat, we are often willing to work on a partial ortotal contingent fee, which is a cost on the file,not a fee split.This minimizes the upfront costof the focus groups. If you consider a cost ben-efit analysis, focus groups are one of the bestinvestments you can make.3) I know how to talk to a juryWe all went to law school and learned how

to think like lawyers. Unfortunately, your typi-cal juror does not think or talk like you do.Yourwords must resonate with the jury and be re-membered.Your analogies must be relatable tothe jury.Your themes must make sense.Youmust be understandable.Will the jury remem-ber and understand“preponderance of the evi-dence?”Not likely. But will they understandand remember that your burden of proof is thatthe evidence be“more likely than not?”Or thatyour damages are the“harms”and“losses”suf-fered by your client?These phrases didn’t come from lawyers;

they came from focus groups.We often use“legalese”or have other technical terms associ-ated with the case.We have found that juriestune out this language, and that will affect onyour case.You must find the themes and catchphrases that the jury will remember and theones that will hit home with their own experi-ences and beliefs.Frank Luntz is a Republican consultant. He

was instrumental in developing the Contract

withAmerica that Newt Gingrich made fa-mous.He has written a book,“WordsThatWork,”which is essential reading for anylawyer. He came up with“gaming”instead of“gambling,”“death tax”instead of“estate tax.”His key point is simple: It’s not what you say,

it’s what people hear.And focus groups tell uswhat they hear, remember and believe.(By the way, one of the greatest themes ever

came from a focus group. Johnnie Cochran did-n’t come up with“If it doesn’t fit, you must ac-quit.”That came from a focus group.)4) I’ve been doing this for yearsYou have also been driving a car for years,

but you wouldn’t buy one without test-drivingit or having a mechanic check it out.The focusgroup is the“test drive”or the“mechanic”foryour case. Every case has landmines, thingsthat will blow up your case.The focus groupparticipants let you knowwhat those land-mines are.More importantly, they can tell you

22 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS NOVEMBER 2010

PRESIDENT

Kimberly E. Winter, Esq.

SECRETARY

J. Michael Conley, Esq.

PRESIDENT-ELECT

Andrew M. Abraham, Esq.

IMMEDIATE PAST PRESIDENT

Chris A. Milne, Esq.

TREASURER

Timothy C. Kelleher III, Esq.

EDITOR-IN-CHIEF

J. Michael Conley, Esq.

PUBLISHERS/EDITORS

Paul D. Dullea, Esq.

Sheila Sweeney

PRINTING AND PRODUCTIONMassachusetts Lawyers Weekly

What are focus groups anyway?

Paul J. Scoptur is a trial consultant and triallawyer in Milwaukee, Wis. He has helped clientsrecover over $100 million over his career. Visitwww.plaintiffslaw.com and www.paulscoptur.com.You can reach Paul at [email protected] R. Frank is a trial consultant and trial

lawyer in Boulder, Colo., with a master’s degree insocial work. She has helped clients win countlessdollars during her career. Visitwww.lawcolorado.net and contact her at [email protected].

©iStockphoto.com/Matej Michelizza

Continued on page 9

NOVEMBER 2010 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 33

By Roger T. Manwaring

A real estate purchaseand sale agreement almostalways provides that if thebuyer fails to fulfill his orher obligations, all depositsshall be retained by theseller as liquidated dam-ages and that this shall bethe seller’s sole and exclu-

sive remedy at law or in equity. But are the seller’s damages always limited to

the deposit?What if the deposit is unreasonablysmall in comparison to the sale price, or the sell-er’s claims against the buyer arise not from thebuyer’s breach of the sales contract, but from thebuyer’s intentional wrongdoing or breach of tortduties which exist independently of the P&S? Inthese circumstances the seller may be entitled todamages exceeding the deposit. Suppose that the owner of a commercial

property enters into negotiations to sell theproperty to a corporation that currently occu-pies the property under a lease.The owner isnot a sophisticated businessperson, having ac-quired the property by inheritance and havinglittle other commercial experience.After the initial lease term expires, the own-

er/lessor continues to accept the same rent on amonth-to-month basis, even though the leaseprovides that the tenant corporation must payextra rent if it holds over after expiration of theinitial term.He does so because he expects torecoup any lost rent in the proceeds from theeventual sale.The negotiations continue foryears and lead to the execution of a P&S whichlists a purchase price of $2.2 million but re-quires a deposit of only $1,000.The closing is to

occur one year from the date of the P&S. Inpreparation for the sale of the building, theowner/lessor spends $100,000 on repairs nec-essary to make the building saleable.After the closing date in the P&S is extended

for a number of additional years, during whichthe corporation continues to pay reduced rent,the corporation notifies the owner/lessor that itintends to move elsewhere and will not com-plete its purchase of the building.The P&Scontains a liquidated damages provision limit-ing the seller’s damages if the buyer “fails tofulfill buyer’s agreements herein” to the amountof the deposit.Liquidated damages provisions are

usually enforced.A liquidated damages provision in a P&S

will usually be enforced as long as, at the timethe contract was executed, actual damageswere hard to predict and the amount of liqui-dated damages was a reasonable prediction ofthe actual damages which might result frombreach of the contract. In NPS, LLC v. Minihane,451 Mass. 417 (2008), the Supreme JudicialCourt explained that “Whether a liquidateddamages provision in a contract is an unen-forceable penalty is a question of law [and] theburden of showing that a liquidated damagesprovision ….”Id. at 419-20.A liquidated damages provision “should be

enforced, so long as it is not so disproportionateto anticipated damages as to constitute a penal-ty.” Id. at 420. To be enforceable, a liquidateddamages provision must satisfy two require-ments: “first, that at the time of contracting theactual damages flowing from a breach were dif-ficult to ascertain; and second, that the sumagreed on as liquidated damages represents a‘reasonable forecast of damages expected to oc-cur in the event of a breach.’”Id. The NPS Courtnoted that because there is no “bright line” sep-arating a valid liquidated damages provisionfrom which functions as a penalty, the facts ofeach case must be examined. Id.Is a liquidated damages provision an

unenforceable penalty where the deposit is unreasonably small in comparison to the purchase price?

In the hypothetical outlined above,$1,000 in liquidated damages representsonly 0.045 percent of the purchaseprice,which the seller would have re-ceived had the contract been per-formed.Can the seller argue thatthe liquidated damages provision isan unenforceable penalty becausethe amount of the damages speci-fied is unreasonably and

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I approve the above ad to appear in Lawyers Weekly on __________________________according to their stated terms and conditions at a rate of $ ______________________

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Please sign and return a copy of this ad by Wednesday 3pm.FAX (617) 451-7326

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Liquidated damages in a P&S

©iStockp

hoto.

com/Alex

Slobod

kin

Continued on page 8

Roger T. Manwaring is an attorney at Barron &Stadfeld in Boston.He concentrates in civil litiga-tion with an emphasis on legal research and writ-ing.Manwaring is senior researcher for the Barron& Stadfeld Legal Research and Writing Service(www.barronstad.com/research.html), serving at-torneys in private and corporate practice.He can bereached at [email protected].

By Paul D. Dullea

“Tell me and I’ll forget;show me and I may re-member; involve me andI’ll understand.”

Chinese Proverb

I am relatively new toMATA. In my short time, Ihave been impressed by the

caliber and dedication of our members. As an at-torney and someone who has spent time inclassrooms, I know that lawyers can make effec-tive teachers; with trial lawyers, even more so. Trial lawyers must research, prepare and

present complicated facts and concepts to

judges and jurors. The success ofMATA members demonstrates that our lawyersare some of the best teachers around and knowhow to communicate effectively with courts,lawmakers and citizens.Although a good attorney can help a juror

understand the facts and underlying law of acase, what else do jurors learn from their expe-rience with the court? Do jurors become more

appreciative of our system? Do theyleave the courthouse with a better un-derstanding of the importance of the civiljustice system and the role that plaintiffs’lawyers have played in developing our

body of law? If our neighbors do notend up with a better image of thecivil justice system after serving on ajury, what can we do to change that?Jury duty is the only opportunity

lawyers have to show most people theimportance of our legal system and involvethem in the system. It is a rare opportunity toreshape attitudes that have been bombarded bywell-funded attacks on the civil justice system.Imagine the shock jurors experience when theysee that plaintiffs’ attorneys do not fit the stereo-types that critics of the tort system promulgatethrough multimillion dollar campaigns and

“think tanks.” To see a MATA member advocat-ing for an injured individual who would other-wise be all alone in the process is a powerfulimage.Trial attorneys are their own best ambassa-

dors. Demonstrating dedication to individualclients and protecting the public interest shouldspeak for itself. However, we know this is notenough when tortfeasor-rights groups workaround the clock, spending millions trying toundo a system that has served Americans wellfor over 200 years. For that reason, MATAmembers will continue to show their best inMassachusetts courtrooms and through com-munity education efforts. MATA gives us the collective voice to help

the public understand the importance of ourcivil justice system — case by case, juror by ju-ror, and person by person.


Teach your jurors well

DISPUTERESOLUTION LLC

Paul Dullea is the executive director of MATA.

©iStockphoto.com

Regional GovernorsEdward C. Bassett

Jonathan A. Karon

John P. DiBartolo

Arthur F. LicataGerard J. DiSantiMichael NajjarSimon DixonAndrew NebenzahlChris DodigA.J. O’DonaldDavid P. DworkGregg J. PasqualeAndrew FischerDonald Pitman

Donald Gibson

Richard J. Rafferty, Jr.

Ronald Gluck

Frank Riccio

Saba Hashem

Morton J. Shuman

Michael Hugo

John J. Stobierski

Martha E. Howe

Karl W. Topor

Paul F. Wynn

Non-Regional Governors C. William Barrett

Susan Friery

Leo V. Boyle

Stanley D. Helinski

Alice B. Braunstein

Brad Henry

Marc L. Breakstone

David J. Hoey

Jeffrey Catalano

John Morrissey

Scott J. Clifford

Jodi M. Petrucelli

Kathy Jo Cook

Michael R. Rezendes

E.Steven Coren

Earlon Seeley Jr.

Robert A. DeLello

John E. Studley

Kimberly A. Dougherty

AAJ GovernorsFrederick N. Halstrom

Douglas K. Sheff

Edwin L. Wallace

AAJ Delegates

Marianne C. LeBlanc

Michael K. Gillis

Terrence Parker

Presidential AppointmentsPhillip J. Crowe Jr.

Donald R. Grady, Jr.

George E. Foote

Nance Lyons

Charlotte Glinka

Andrew C. Meyer, Jr.

Annette M. Gonthier-Kiely

Lloyd Rosenberg

Sara Trezise

Past PresidentsCharles W. Barrett Jr.

Michael E. Mone

David R. Bikofsky

Kathleen M. O’Donnell

Robert V. Costello

Alan S. Pierce

Walter A. Costello Jr.

Camille F. Sarrouf

Warren F. Fitzgerald

Steven H. Schafer

Michael K. Gillis

Douglas K. Sheff

Frederic N. Halstrom

Neil R. Sugarman

Patrick T. Jones

Paul R. Sugarman

Marsha V. Kazarosian

Anthony Tarricone

Paul F. Leavis

Edwin L. Wallace

Mary Jane McKenna

Valerie A. Yarashus

James F. Meehan (retired)

Board of Governors


memoranda, forms, and critiques on judges,mediators, arbitrators and opposing counsel.Although it is difficult to calculate time savingsin hours, I estimate it is in the area of 20 to 30hours annually for me.”

Lloyd Rosenberg:“In a given year, 25 to 50 hours. The value is

$7,000 - $14,000 based upon my current hourlyrate.”

Steve Coren:“I estimate the listserve saves me over 50

hours of research and phone per year. It is trulya great resource.”

Owen McGowen:

“I find the resource very valuable and wouldestimate it saves me at a minimum 15-20 hoursper year.”

It is clear that for those using the listserve itcan offset the costs of membership so as to ef-fectively render free all of the other benefits ofMATA membership. Moreover, if the savedtime is used well, listserve participation makesMATA membership directly profitable.Of course, we were reminded by Scott Gold-

berg and Michael Poulos that the most impor-tant time savings may be when we are under thegun in a trial and need some quick feedbackwithout spending hours of original research.Tom Bond sums up the combination of tan-

gible/intangible benefits he derives from MATAlistserve as follows:

1) Expert witness information — in-cludes information about experts to hire aswell as cross examination material for de-fense experts2) Judge information— judge’s practices

concerning voir dire, pet peeves, and othervaluable information3) Defense counsel information— Are

they obstreperous, cooperative, have a trackrecord?4) Pleadings— sample complaints, inter-

rogatories, document requests, memoranda5) Case evaluation—access to the best

plaintiff’s lawyers in the commonwealth withwhom you can consult as to their thoughtsconcerning case merits and value6) Resources— I have loaned and bor-

rowed projectors, screens, skeletons, charts andgraphs.7) Court information— Which county is

best for which kind of case? Federal or statevenue, and the advantages of each?The value of this listserve is inestimable. In

light of that, any plaintiff’s lawyer in this com-monwealth who belongs is really doing a serv-ice to his or her clients.

Listserve pays for MATA membershipContinued from page 1

Amicus Committee chair

J. Michael Conley

Education Committee chair

Rhonda Maloney

Federal Legislation Committee chair

Douglas K. Sheff

Fundraising Committee chair

Paul Leavis

Key Person List Committee chair

Gary W. Orlacchio

MATA Journal Editor

J. Michael Conley

Membership Committee chairs

Kathy Jo Cook

Stanley D. Helinski

State Legislation Committee chairs

Timothy C. Kelleher III

Jeffrey Catalano

Jonathan A. Karon

Auto Section chair

Michael Najjar

Medical Negligence Section chair

Frank J. Riccio

New Lawyers Section chair

Brendan Carney

Workers’ Compensation Section chair

John J. Morrissey

Women’s Caucus chairs

Kimberly A. Dougherty

Lauren Barnes

MATA Committee & Section chairs

Our Purpose is to build a strong reputation based on loyalty and trust with each and every customer. Our focus is to deliver a quality product created by tailoring a solution that fits your needs, not ours. Our results...with a passion to exceed expectation on each project we strive to earn the respect of our clients and our competition.

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The following firms have committed to giving a percentage of their fees to a MATA reservefund to ensure the longevity of the organization and continued ability for MATA to preservethe rights of your clients and succeed in obtaining its mission of keeping Massachusetts families safe. The goal of the Guardians is one year’s budget in reserve.

Baker & Abraham

Cooley Manion Jones LLP

Epstein, Lipsey & Clifford

Feinberg & Alban, PC

Law Offices of John B. Flemming

Karon & Dalimonte

Kazarosian Law Offices

Kenney & Conley

Leavis & Rest, PC

Meehan, Boyle, Black & Bogdanow, PC

Alan S. Pierce & Associates

Sheff Law Offices

Sugarman

If you are interested in participating in this program or would like more information onprogram specifics, please contact Paul Dullea at the MATA office.

MATA Guardians

Join MATA now. Apply online at www.massacademy.com


MATA hosted its 18th Annual Golf Tourna-ment on Flag Day, June 14, at The WollastonGolf Club in Milton. A portion of the proceeds from this event

were donated to USO-New England, whichworks with the national USO offices to assistthe military and their families. We were fortunate to have a jacket with the

USO logo generously donated as a tournamentgift by the Boston law office of Crowe & Mul-vey. Tournament players included the captainand first officer U.S.S. Constitution as well as anumber of representatives from the U.S.Marines, Navy, Army and Air Force. On every level, the 2010 tournament was

one of the most successful MATA has everhosted. The attendees and golfers at the awardsdinner were entertained by Dave Russo, a localprofessional comedian and a finalist on the E!Channel reality series “The Entertainer,” as wellas the recipient of the Best New Comic Awardat the Boston Comedy Festival. We thank Davefor donating his time to both the USO andMATA.

MATA holds 18th annual golf tournament

I WANT TO JOIN MATA! Membership dues below are for July1, 2010 – June 30, 2011

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MATA has developed partnerships with the followingcompanies. Their services have been determined to be of the highest

quality and cost beneficial for our members. Their generous support ofMATA helps us to complete our mission. Please consider using themwhenever possible. More detailed information can be obtained on ourwebsite at www.massacademy.com or through the MATA office.

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MATA held its 20th Annual Meeting andDinner at The Newton Marriott in Newton onMay 19. The 2010 MATA award recipients represent-

ed a prestigious group that included MATApast President Douglas K. Sheff, who receivedthe President’s Award for Excellence in Advo-cacy; David M. Biggs, assistant clerk magistratefor Plymouth Superior Court, who was pre-sented with the award for Excellence in Court-room Management; and Superior Court JudgeJanet L. Sanders, who received the Judicial Ex-cellence Award. MATA also presented longtime member and

former MATA governor Albert J. Marcotte withthe Lifetime Achievement Award and recog-nized Michael Mone Jr. with the CourageousAdvocacy Award. In addition, MATA honored MATA past

President Anthony Tarricone with a specialOutstanding Leadership Award, while outgo-ing MATA President Chris A. Milne presentedincoming President Kimberly E. Winter withthe traditional MATA President’s Gavel to closethe award presentations.

MATA celebrates 20th annual meeting


to continue to grow our organization in all di-rections. To that end, I have begun speaking to vari-

ous bar associations in all parts of Massachu-setts and will continue to do so during thecoming year. I want MATA members to knowthey belong to an inclusive organization thatrecognizes the different needs and areas of in-terest to individual members, and we will workto meet those needs and interests. As we move forward I would also like to

continue our great tradition of giving back toour community. In past years, MATA has do-

nated to a number of charities, including TheInn-Between, a crisis home for women andchildren, The Italian Home for Children andThe Home for Little Wanderers. For the past 20years, MATA has made large contributions oftoys to the U.S. Marines’ “Toys for Tots” pro-gram during every holiday season. A commit-tee of young lawyers that I chaired began theoriginal “Toys for Tots” program for MATA and Iam thrilled that it has continued each year. Itspeaks to the commitment of MATA membersand their belief in helping others. Last year MATA began what I believe is an

important tradition in giving a percentage of

the profits from two MATA events to worth-while charities. The MATA Annual HolidayCelebration donated some of the event pro-ceeds to a group that provides much-neededmedical care for people in the remote villagesof Nicaragua. The MATA 2010 Golf Tournament donated

some of its proceeds to the New EnglandU.S.O., which helps families of people current-ly serving in the military. I believe both eventswere enhanced by the decision to donate someof the proceeds to a charity and I think it is es-sential for MATA to continue to do so.I am proud that we as trial lawyers believe in

giving back — in all aspects of life. As MATAmoves forward I think we must continue to viewgiving back a part of who we are and what wedo every day. As trial lawyers we work to keeppeople safe, help those who have suffered harmand give consumers a voice in the courthouse. As an organization, I believe that it is critical

that we continue defining who we are by bothlooking forward to the future and giving backto those in need. I am proud that my col-leagues have honored me by electing me to bethe president of MATA. I look forward toworking with the MATA leadership, staff,members, other bar associations and our com-

Continued from page 1

Moving forward, giving back

disproportionately low in comparison with thedamages which the parties should have antici-pated the seller would suffer (the loss of thepayment of the sale price)?The answer is not entirely clear.The 1st U.S.

Circuit Court of Appeals recently indicated thatunder Massachusetts law, a liquidated dam-ages provision can be challenged as an unen-forceable penalty on the ground that it under-estimates actual damages. In Kunelius v. Townof Stow, 2009 WL 3720925 (1st Cir. 2009), thedeposit was about 2 percent of the purchaseprice.The court noted that it was far less thanthe 5 percent, which Massachusetts courtshave held to be reasonable as a matter of law.2009 WL 3720925, *12.While acknowledging that the weight of au-

thority rejected such an argument, the court not-ed that both the SJC in Kelly v. Marx, 428 Mass.877 (1999), and the Massachusetts Appeals Courtin Howard v. Wee, 61 Mass. App. Ct. 912 (2004),had left open the possibility that a liquidateddamages provision could be set aside for under-estimating actual damages. 2009 WL 3720925,*12.Although the Kunelius court ultimately heldthat the argument had been waived in the casebefore it, it clearly believed that the argument wasa viable one. 2009 WL 3720925, *12.The Kunelius court acknowledged that the

Appeals Court in Howard held that a deposit of$1,000 on a purchase price of $480,000 (2.08percent) was reasonable and a liquidated dam-ages provision was, therefore, enforceable.Ac-cording to the court in Kunelius, however, theHowardCourt had stressed that the deposit inthat case was only meant to cover a period of 11days. In Howard, although the court held $1,000in liquidated damages was not “unreasonablylow under the circumstances,” it appeared to ac-cept the possibility that, under appropriate cir-cumstances, liquidated damages could be solow as to be unenforceable under Kelly.In the hypothetical situation outlined above,

the deposit was intended to cover a period ofup to one year. Further, the $1,000 deposit inthis case represented a far smaller percentage(0.045) of the sale price than the deposit in

Howard. It would be difficult to argue that thisdeposit was a “reasonable forecast of damagesexpected to occur in the event of a breach.”Thus, the seller may have a viable argument

that the liquidated damages provision is unen-forceable and that he is entitled to recover ac-tual damages on all of his claims. But seeNASCO, Inc. v. Public Storage, Inc., 1995 WL337072 (D. Mass. 5/20/95) (holding that a liqui-dated damages provision can only be a penaltywhen it is an overestimate of actual damages,not when the liquidated damages are too low).If the liquidated damages provision in

the P&S is not a penalty, it may still be un-conscionable and therefore unenforceable.Even if a liquidated damages provision is

not a penalty, it may still be unconscionableunder the circumstances. In NASCO, the U.S.District Court for the District of Massachusettsadopted the opinion of a U.S.Magistrate whonoted, that “Under Massachusetts law, uncon-scionability may be raised as a defense to theenforcement of a contract or any of its clauses… If the contract involves the sale of goods,the unconscionability provision of the [UCC]will apply directly; if it does not, the same pro-vision will apply by analogy.”1995 WL 337072,* 4.The comment to §2-718 of the UCC, con-cerning liquidated damages, provides,

a term fixing unreasonably large liqui-dated damages is expressly made void as apenalty. An unreasonably small amountwould be subject to similar criticism andmight be stricken under the section on un-conscionable contracts or clauses [UCC 2-302] (Emphasis added). The NASCO court, reviewing Massachu-

setts case law and the Massachusetts UCC,outlined factors relevant to a determination ofunconscionability.“The principle is one of pre-vention of oppression and unfair surprise …and not of disturbance of allocation of risksbecause of superior bargaining power.”1995WL 337072, *4.After noting that “Uncon-scionability is to be determined as a matter oflaw” (Id.) and “is to be determined as of thetime of the making of the contract,” (Id.) thecourt listed factors affecting whether a con-

tract is unfair or oppressive: In determining whether a practice is un-

fair or oppressive, the court may take intoaccount a myriad of factors, such as the com-mercial sophistication of the party claimingunconscionability; whether such party wasrepresented by counsel; whether the clausewas obscure or buried in fine print, or, con-versely, whether it was out on the table andthe subject of active negotiation; the fre-quency with which clauses of the type chal-lenged are used in analogous situations;whether the relationship between the par-ties was arms length or quasi-fiduciary;whether there was a gross disparity betweenthe value of the consideration given and re-ceived; and whether the party seeking to en-force the challenged provision took unfairadvantage of the other party’s weakness,vulnerability, or dependency, or used unfairor improper means to place the other partyin such position.

1995 WL 337072, *4-5. (Emphasis added). Seealso: Waters v. Min. Ltd., 412 Mass. 64 (1992),Zapatha v. Dairy Mart, Inc., 381 Mass. 284(1980); NaviSite, Inc. v. Cloonan, 2005 WL1528903, *8-9 (Mass. Super. 5/11/05); Sosik v.Albin Marine, Inc., 16 Mass. L. Rptr. 398, 2003WL 21500516, *7 (Mass. Super. 2003).As the foregoing quotation indicates,

whether a liquidated damages provisions isunconscionable will depend on the uniquefacts of each case.In our hypothetical, the seller was not a so-

phisticated business person and it might be ar-gued that the type of liquidated damages clauseappearing in the P&S is not frequently used.Al-though its language is common, the extremelysmall amount of the liquidated damages pro-vided is unusual. Similarly, the seller might ar-gue that there was “a gross disparity betweenthe value of the consideration given and re-ceived,” in that the $1,000 deposit is grossly in-sufficient as liquidated damages given that thesale was to be for $2.2 million and the depositand was not to occur for up to one year. If theseller was not represented by counsel when ne-gotiating the P&S, that would further support a

finding of unconscionability, as would a findingthat the parties never discussed or negotiatedthe liquidated damages provision.Even if a liquidated damages provision is

enforceable, it arguably does not precludethe seller from bringing suit for breach of atort or statutory duty owed by the buyer tothe seller independent of the P&S contract.Even if a liquidated damages provision is

valid and enforceable, it arguably does not barall claims by the seller against the non-perform-ing buyer.A seller can reasonably argue that theliquidated damages provision limits only the re-covery of damages on claims arising from thebuyer’s breach of the contractual duty to per-form.The seller could further argue that a liqui-dated damages provision does not preclude orlimit claims based on breaches of duties owedby the buyer (the corporation in our hypotheti-cal) to the seller independent of the contract.Under such an interpretation, the seller in

our hypothetical could sue the corporation forfraudulent misrepresentations, breach of fidu-ciary duty, other tortuous conduct, or a tort-based violation of 93A (breach of a statutoryduty), so long as the elements of those claimswere otherwise established.The conclusion that a liquidated damages

provision governs only contract-based claimsis supported by the language of the provisionitself where, as in the hypothetical, the provi-sion purports to apply if the buyer “fails to ful-fill buyer’s agreements herein.” Such languageindicates that the liquidated damages provi-sion applies only to claims arising from breachof contractual duties.Massachusetts cases imply such a limitation.

In two cases a party has moved to apply a liq-uidated damages provision only to a breach ofcontract claim and not to tort and 93A claimsasserted in the same case. In each case, thecourt has done so. In one case (NASCO, 1995WL 337072) the court entered partial summaryjudgment leaving the tort and 93A claimsstanding. In the other, the court applied theliquidated damages provision only to the con-tract claim and disposed of other claims on


Liquidated damages in a P&S

Continued on page 9


the fixes to them. Your client has one day in court and you

have one chance to present the best case forthem. Wouldn’t it be better if you test-drive itfirst? Aren’t we at our best when we have thechance to practice? A focus group lets you ex-periment with your presentation sequence,your analogies, your themes, your sequencing,and see if your exhibits say what you wantthem to.Focus groups let you get a “dry run” on your

case. Focus groups give you the chance to losewithout a real jury so that you can find yourlandmines and fix them before they come tolight in the jury room. Wouldn’t you rather hearabout a problem with your case while you stillhave the chance to fix it?5) The case will probably settleLet’s face it: Most cases end in settlements.

Attorneys often believe that they don’t need toconduct focus groups because the case will set-tle. But doing focus groups two weeks beforetrial is probably two weeks too late. It is equallyas important to learn about your case to pre-pare for settlement conferences as it is for trial.It is imperative to learn the catch phrases thatjurors use to describe your case so that you canincorporate them into your deposition ques-tions. And how about learning what a jury re-ally thinks of the opposing side’s case and ex-plaining that at a settlement conference? Youwill always have the upper hand when youtruly understand what a jury thinks of the en-tire case.

6) I had a professional prepare my exhibitsStudies show that lawyers spend hun-

dreds of hours working on a case to get itprepared for trial: writing and practicing anopening statement, crafting the killer cross-examination. Yet lawyers often spend littletime thinking about and creating the exhibitswe use to explain the case, or, even worse,delegate the task to someone who does notknow the case well. Focus groups can describe what they want

to see and critique exhibits with a “fresh eye.”Focus groups will always help tweak the ex-hibits you have started so that they are thebest they can be and send the right messageto the jury. 7) I already have the “smoking gun”

discoveryToo often, we have heard focus group partic-

ipants ask for specific testimony or documentsthat they believe they need to determine thecase or award significant damages and thelawyers don’t have it. Why? Because they wait-ed until discovery was closed before running afocus group. In any significant case, focusgroups should be conducted while there is stilltime to send out discovery requests or lock indeposition testimony. Focus groups conductedduring the pre-trial phase provide the oppor-tunity to send discovery requests to the oppos-ing side, obtain the documents and informa-tion that is important to the jury’s decision andask the right questions at depositions. 8) I know my case better than anyone

Except maybe the opposing counsel, be-cause they are running focus groups.The factis, you don’t know what you don’t know. Dur-ing recent focus groups, the lawyer told us thathe learned more about his case in the two fo-cus groups we ran than he had with his ex-perts during the entire pre-trial phase. Focusgroup participants say some amazing thingsand every time, it is a surprise to find out whatthey think. Issues that we think are important or will be

easily handled at trial may not be so clear tothe focus group. Discussions of things we thinkare irrelevant (alcohol usage, or lack thereof, ina car crash case is one example) often areraised within minutes of the focus group delib-erations. Questions or assumptions about rou-tine documents like a police report are not soroutine to focus group members. Much of thepre-trial phase is spent trying to obtain andlearn the information in possession of the oth-er side. Interrogatories are sent, depositions aretaken, documents are reviewed and analyzed.Why would we then fail to conduct focusgroups and allow the other side to be the onlyone with the knowledge? To create a levelplaying field, you must learn what the otherside knows, and the other side knows to runfocus groups. 9) That evidence will never come inMaybe, maybe not. But sometimes you find

out you want it in so you can explain it to thejury, as opposed to having the jury make up ananswer you don’t like. In a recent case, thelawyer wanted to exclude facts concerning why

the client was in prison. It was evidence thatclearly could be kept out. But we found outthat the “juror” reasons for him being in jailwere a lot worse than the real reasons. Whenthe focus group was presented with the realreasons, they were less harsh on the plaintiff.In fact, some felt sorry for him. You need toknow how to handle these issues and the oth-er points that you think will never come intoevidence but that the jury wants to knowabout. Questions left unanswered are prob-lems for you. 10) I’ve been doing it this way foreverTimes change. What worked 10 years ago

doesn’t work today. Jurors have biases andattitudes, including personal responsibility,anti-plaintiff, suspicion, anti-lawyer and“stuff happens.” We need to use focus groupsto find out how to use these biases and atti-tudes in our favor, not against us. Psychologyplays a major role in decision making. Byhearing the psychology of the focus group“juror” we can structure and sequence ourcase for the real juror.

ConclusionThe bottom line is that focus groups should

be run so that you know the best way to pres-ent your case to the people that really mattermost: the jury. Focus groups should be run be-fore discovery is started and before structuringyour trial presentation. That way, you willknow who they want to hear from, what theywant to see and what the “juror” proof is. Onlythen are you ready to win in today’s climate.

What are focus groups anyway?Continued from page 2

other grounds. Carroll v. Barberry Homes, Inc.,1999 WL 1204020 (Mass. Super. 10/22/99). In addition, language from two other Mas-

sachusetts cases implies that a liquidated dam-ages provision, even when it purports to pro-vide the vendor’s sole remedy, limits only thevendor’s contract based claims, and has no ef-fect on claims based on non-contractual du-ties. In 24 Mass. L. Rptr. 487, 2008 WL 4635856(Mass. Super. 9/30/08), the court held that aliquidated damages provision in a real estateoffer to purchase precluded the vendors claimsfor violation of c.93A and breach of thecovenant of good faith and fair dealing.Thecourt essentially held that the vendor couldnot evade the liquidated damages provision byexpressing its contract claims in non-contrac-tual language:“Genesis gave up its right toseek damages in excess of the amount of thedeposit, and attempting to use non-contractu-al language in its claims does not change thefact that the agreed-upon sole and exclusiveremedy is liquidated damages.” Id. at *2.The implication is that if the claims had been

for an independent wrong, not simply for non-performance of the contract, the liquidateddamages provision would not have applied tothem. See also Showstead v. Holzman, 2004 WL1109820, *2 (Mass. Super. 4/7/04) (holding thatclaims for estoppel and breach of the covenant

of good faith and fair dealing arose from thecontract and were barred by liquidated damagesprovision.“The seller cannot circumvent [theliquidated damages provision] by calling hisbreach of contract action by a different name”).Courts from other jurisdictions have been

more explicit. In Kona Hawaiian Assoc. v. The Pacific Group, 680

F.Supp. 1438 (D. Hawaii. 1988), the court stated: Finally, KHA asserts that, if in effect and

enforceable, the liquidated damages clauseprecludes a suit for damages only on thecontract causes of action. Here, KHA is cor-rect. The clause is unambiguous and waivesdamages for breach of contract. A waiver ofthe parties’ right to recover for the torts ofnegligent or intentional misrepresentationcannot be inferred absent some evidencesupporting that interpretation …Accordingly, the liquidated damages

clause prohibits KHA from recovering dam-ages in excess of $400,000 for its breach ofcontract claim only. The tort causes of ac-tion remain unaffected as to the damagesactually incurred after the date of any mis-representation or omissions which can beproven at trial.

Id. at 1450. (Emphasis added).In HGN Corp. v. Chamberlain, Hrdlicka, White,

Johnson & Williams, 642 F.Supp. 1443 (N. D. Ill.1986), the court held that a lender, having re-

covered liquidated damages under a loan agree-ment, was not precluded from also recoveringtort damages for fraud: “HGN can recover theentire loss occasioned by the Firm-Farrell fraud.That measure of damages is not automaticallycontrolled by Agreement’s liquidated damagesprovision …” Id. at 1450-51. (Emphasis added).Id. at 187-88. (Emphasis added, footnote refer-ences omitted). See also Lewis v. Methodist Hos-pital, Inc., 326 F.3d 851, 854 (7th Cir. 2003) (citingBetter Foods, infra, for the proposition that onecannot avoid a liquidated damages clause mere-ly by casting a suit for breach of contract as atort claim); Johnson v. Orkin Exterminating Co.,Inc., 746 F.Supp. 627, 631-32 (E. D. La. 1990)(same); Fireman’s Fund Ins. Co. v. Morse SignalDevices, 151 Cal. App. 681, 198 Cal. Rptr. 756(1984) (same); Better Foods Markets, Inc. v. Ameri-can Dist. Tel. Co., 40 Cal.2d 179, 253 P. 2d 10(1953); Orkin Exterminating Co. of South Fla. v.Clark, 253 So. 2d 884, 885 (Fla.App. 3 Dist.,1971) (same); Lenny’s, Inc. v. Allied Sign Erectors,Inc., 170 Ga.App.706, 318 S.E.2d 140 (1984);Woodhull Corp. v. Saibaba Corp., 234 Ga.App.707, 712-13, 507 S.E.2d 493, 497-98 (1998) (liq-uidated damages provision prevented plaintifffrom recovering in tort any damages he couldhave recovered in contract, but where the dam-ages in tort and contract are not duplicative andwhere separate transactions supported recoveryunder the tort and contract theories, there could

be separate recoveries); Wells v. Stone City Bank,691 N.E. 2d 1246, 1249 (Ind. App. 1998) (onecannot avoid a liquidated damages clause mere-ly by casting a suit for breach of contract as atort claim); Eden United, Inc. v. Short, 653 N.E.2d126, 132 (Ind. App. 1995) (holding that plaintiff’srecovery for tortious interference should not beoffset by liquidated damages obtained forbreach of contract); Bremerton Central Lions Club,Inc. v. Manke Lumber Co., 25 Wash. App. 1, 604 P.2d 1325 (1979) (holding that liquidated dam-ages clause did not bar suit for separate tort ofconversion). In our scenario, if the corporation’s conduct

went beyond merely breaching the P&S, andinvolved fraudulent misrepresentations, breachof fiduciary duty, other tortuous conduct or atort-based violation of 93A, then the liquidateddamages provision of the P&S arguably wouldnot limit recovery on those non-contractualclaims.When faced with a P&S or other contract

containing a liquidated damages provision, it isworth asking whether the liquidated damagesare grossly unfair under the circumstances and,therefore, unenforceable. Even if the clause isenforceable, consideration should be given towhether the breaching party’s conduct consti-tutes an independent tort, as well as a breachof contract. If so, the liquidated damages provi-sion may not limit the available damages.



Holiday Celebration December 9, 2010 - 6:00 pm

Boston Harbor Hotel– Wharf Room

Join friends and colleagues for an evening of Holiday Merriment!

Dinner– Complimentary Bar– New Live Band!-Live Auction - Toys for Tots Collection

A portion of the proceeds will benefit a local charity (to be announced soon)

Massachusetts Academy of Trial Attorneys Invites you to join us for dinner and dancing, mixing and

mingling at the

* All Sponsors receive two tickets and will be listed in advertisements and reminders for the event, as well as on signage at the party and in the MATA Journal insert in Lawyers Weekly (deadline Nov. 22nd)

Yes I will Attend the MATA Holiday Celebration!

Individual Tickets- $125.00:___ Tickets for a couple-$200.00___ Group Of five- $550.00___ Dinner Sponsorship*-$1,500.00___

Sponsor Name:___________________________ Phone:_______________ Address:________________________________________________________Payment Information: ___AMEX ___ M/C ___VISA ___CHECK Credit Card #:___________________ Sec.Code:____ Exp.Date____ Signature:_______________________

Please Return to: MATA, 20 Burlington Mall Rd, Suite 230, Burlington, MA 01803

Ph: (781)425-5040 FAX: (781) 425-5044 Email: [email protected]

A portion of the proceeds will benefit “Birthday Wishes,” a 501(c) organization whose mission is to bring birthday parties to homeless children in shelters throughout Massachusetts.


400 Mass. 214, 215 (1987). But see Common-wealth v. Bly, 444 Mass. 640, 653 (2005) (holdingthat a trial judge is not required to exercise dis-cretion in the absence of an objection or motionin limine).In order to impeach a witness by a prior

criminal conviction, the conviction must beproven by the introduction of a court record orcertified copy thereof.Commonwealth v. Puleio,394 Mass. 101, 104 (1985).There is no longer arequirement that counsel seeking to impeach awitness prove that the witness had counsel orvalidly waived counsel in connection with theprior conviction.Commonwealth v. Saunders,435 Mass. 691, 695-96 (2002) (“presumption ofregularity” applies), overruling Commonwealthv. Cook, 371 Mass. 832 (1977). Additionally,G.L.c. 233 §23 overrides §21 in that a partywho calls a witness, including an opposingparty, is prohibited from impeaching that wit-ness’s character by evidence of prior criminalconvictions.Walter at 122-23.Pursuant to §21, it is “the fact of the conviction,

and the nature of the crime committed, that canbe considered on the issue of credibility.”Com-monwealth v. Eugene, 483 Mass. 343, 352 (2003).The sentence imposed for the prior conviction isinadmissible because it “does not logically addanything to an assessment of the witness’s credi-bility.”Id. at 352-53. Furthermore, once the recordof a witness’s prior conviction has been used toimpeach him, “the conviction must be left unex-plained and thus the proponent of the witnessmay not undertake in rehabilitation of the wit-ness to show the circumstances of the convic-tion.”Commonwealth v. Maguire, 392 Mass. 466,471 n. 10 (1984) (internal quotations omitted).But see Commonwealth v. McGeoghean, 412 Mass.839, 843 (1992) (“When, however, . . . cross-ex-amination goes beyond simply establishing thatthe witness is the person named in the record ofconviction, the proponent of the witness may, inthe judge’s discretion, properly inquire on redi-rect examination about those collateral mattersraised during the cross-examination.”).Although the use of prior convictions is gen-

erally limited to five years for misdemeanorsand ten years for felonies, §21 also permitsotherwise time-barred convictions to be re-vived for the purpose of impeachment if thewitness was subsequently convicted of a crimeduring the five or ten years, respectively, priorto the witness’s testimony.For example, if a witness in a civil matter has

two felony convictions, the first occurringtwenty years prior to his testimony and thesecond occurring only five years ago, §21 per-mits the latter conviction to revive the formerconviction for the purpose of impeachment attrial. See e.g., Saunders at 693-94. Furthermore,in limited situations, prior convictions whichare otherwise inadmissible under § 21nonetheless may still be admissible if relevantto the witness’s credibility, Commonwealth v. Ja-cobs, 6 Mass. App. Ct. 867, 868 (1978) (evidenceof a prior conviction was admissible where thedefendant put the prior conviction in issue by

repeatedly denying having any prior criminalrecord), or probative of a fact at issue, Care andProtection of Frank, 409 Mass. 492, 494-95(1991) (convictions of operating under the in-fluence and possession of a controlled sub-stance which were outside the scope of §21were admissible and relevant on the issue of amother’s parental fitness).

What constitutes unfair prejudice?The SJC has noted that impeachment of a

witness by a prior criminal conviction is permis-sible based on the theory that “[o]ne who hasbeen convicted of a crime is presumed to be lessworthy of belief than one who has not been soconvicted.”Harris at 720, quoting Brilliante at545.The admission of evidence of a prior con-

viction, however, “particularly a conviction of acrime not involving the defendant’s truthfulnessand one closely related to or identical to thecrime with which the defendant is charged, maywell divert the jury’s attention from the questionof the defendant’s guilt to the question of thedefendant’s bad character.”Maguire at 469.As such, prior to admitting evidence of prior

criminal convictions for the purpose of im-peachment, a trial judge is required to carefullybalance the probative value of the evidenceagainst the unfair prejudice which the evi-dence may have on the jury.Commonwealth v.Brown, 451 Mass. 200, 202-03 (2008). Further-more, in order to blunt the potential for unfairprejudice, appropriate limiting instructions arerequired if prior convictions are admitted forthe purpose of impeachment.Commonwealth v.Leno, 374 Mass. 716, 718-19 (1978).Although the SJC has, on rare occasions,

placed its own “judicial gloss” on § 21, the courthas generally shied away from adding to or de-tracting from the words of that statute.Thus,the court has determined that issues such asthe quantity and nature of admissible priorconvictions are generally a matter for the Leg-islature, not the courts. Brown at 204 (“As withthe number of convictions, the Legislature hasnot included a limitation on the type of convic-tions that can be used for impeachment.”).The court has, however, stated on numerous

occasions that a paramount factor in determin-ing whether to exclude evidence of prior con-victions is whether the prior crimes and thepresent accusations, whether criminal or civil,have a “substantial similarity.” Commonwealth v.Little, 453 Mass. 766, 773-74 (2009); Brown at203 (“[i]t is at least difficult, if not impossible,to show an abuse of discretion in the absenceof a substantial similarity between the offenses

being tried and the prior convictions.”).This reasoning, which is generally more ap-

propriate in criminal trials, is based on the the-ory that “no defendant should be convicted of acrime by proof of his reputation or propensityto commit similar crimes.”Commonwealth v.Fano, 400 Mass. 296, 303 (1987). But see Com-monwealth v. Crouse, 447 Mass. 558, 565 (2006)(even the use of prior convictions to impeachthat are substantially similar to the crimecharged may be justified in the absence of oth-er prior convictions with which to impeach adefendant’s testimony.”)Other factors which may be considered by a

trial judge include whether the prior convic-tions involve crimes implicating truthfulness,Maguire at 469; whether the witness has otherprior convictions which could be used to im-peach him, Commonwealth v. Whitman, 416Mass. 90, 95 (1993); whether the judge con-ducted the required balancing test, Common-wealth v. Paulding, 438 Mass. 1, 12 (2002);whether the judge provided the appropriatelimiting instructions, Commonwealth v. Walker,401 Mass. 338, 346 (1987); and the extent towhich the impeaching party referred to theprior convictions in closing argument, Id.

Of particular importance among these lesserfactors is whether the prior conviction involves acrime implicating truthfulness and, in turn, thenature of the crime itself.An issue which is oftenhotly contested during litigation is whether crimeswhich provoke significant animosity among soci-ety, such as driving under the influence or crimesinvolving sexual misconduct, should be admissi-ble for the purpose of impeachment.On one hand, the SJC has determined that

crimes which do not involve truthfulness shouldreceive more scrutiny so as to avoid diverting thejury’s attention from the questions of guilt orfault to the question of a witness’s bad character.Maguire at 469.On the other hand, the court hasalso held that “convictions relevant to credibilityare not limited to crimes involving dishonesty orfalse statements.”Commonwealth v. Smith, 450Mass. 395, 407 (2008). Furthermore, the courthas held on separate occasions that crimes suchas driving under the influence and those of asexual nature may be admissible for the purposeof impeachment.Commonwealth v. Stewart, 422Mass. 385, 387 (1996) (driving under the influ-ence of alcohol); Maguire at 471-72 (open andgross lewdness and lascivious behavior).Finally, should a trial judge exclude a prior

criminal conviction on the grounds of unfairprejudice, counsel for the impeaching partyshould request that the judge redact the natureof the prior offense and permit impeachmentwith the mere fact of conviction of “a felony” or“a misdemeanor.”See Commonwealth v.Kalhauser, 52 Mass. App. Ct. 339, 342 (2001).

Obtaining prior criminal convictions of a witnessInquiries about prior criminal convictions and

pending charges are standard in most litigators’interrogatories and at depositions.There are,however, procedures available to counsel to ob-

tain information about prior criminal convic-tions which go beyond merely requesting anadmission directly from the witness.Most no-table among these procedures is seeking a courtorder directed to the Criminal History SystemsBoard or the commissioner of probation. Inpractice, it is far easier and more efficient to seeka court order directed to the former. See Strongv. American Drug Stores, Inc., 14 Mass. L. Rptr.353 (Mass. Super. 2002) (Agnes, J.).Pursuant to G.L.c. 6 §172, the CHSB has the

authority to disseminate criminal offenderrecord information (CORI) to “agencies and in-dividuals where it has been determined thatthe public interest in disseminating such infor-mation to these parties clearly outweighs theinterest in security and privacy.” See generallyBellin v. Kelley, 435 Mass. 261 (2001). In accor-dance with §172 and 803 C.M.R. §3.04, CHSBhas established a General Grant of Accesswhich provides that “[a]ttorneys of record mayreceive CORI in civil litigation, administrativehearings, and criminal cases for witness im-peachment or trial strategy purposes. This gen-eral grant of access requires an approved mo-tion from the court.” See www.state.ma.us/chsb (Criminal Offender Record Information– CORI > General Grants of Access to CORI >Justice and Court Activity). Upon receipt of theCORI, counsel will still be required to obtain acertified copy of the criminal convictions in orderto use them for impeachment purposes at trial. Of note, counsel should be aware that the

Legislature recently overhauled the laws govern-ing CORI. See St. 2010, c. 256 §§2-37. As of May2012, when most substantive changes take ef-fect, the agency overseeing CORI will be re-named the Department of Criminal Justice In-formation Services. The new law generally placesgreater restrictions on the access to CORI.Underthe amended law, however, the commissioner ofthe DCJIS appears to have greater authority toprovide access to CORI under the public interestexception of § 21 (under the new law, § 21 willno longer require a determination by the com-missioner that the public interest clearly out-weighs the interest in security and privacy).

ConclusionImpeaching a witness in a civil matter with a

prior criminal conviction is a powerful weaponfor any civil litigator, not only at trial, butthroughout settlement negotiations.As such,counsel should carefully follow the applicablestatutory and evidentiary rules in order toguarantee admission of the prior conviction attrial.This is particularly true in a disputed lia-bility case where the credibility of the parties isparamount. In such a case, impeachment witha prior criminal conviction could amount to thedifference between winning and losing.

Impeachment by evidence of prior criminal convictionsContinued from page 1

Jason R. Markle is a MATA member and an at-torney at Keches Law Group in Taunton, where heconcentrates his practice on personal injury litiga-tion and appellate matters. For additional informa-tion, contact him at [email protected], orvisit his firm’s website at www.kecheslaw.com.

Although the SJC has, on rareoccasions, placed its own“judicial gloss” on § 21, thecourt has generally shied awayfrom adding to or detracting fromthe words of that statute.

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