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The Good Old Days?

The nostalgia pull is so strong that in almost every realm people look back and feel times were better. I can get nostalgic as much as anyone but a serious look at the way civil cases were practiced is not one which deserves great nostalgia. Many practitioners will say that attorneys were nicer to one another. That may be but the camouflage that surrounded the way cases were developed often led to unfair and surprising results.

Let me speak to Massachusetts. Keep in mind that there were no time standards until 1988, which meant that your case could linger, far more than it would under today’s fairly aggressive standards. There were no depositions until 1966. There were no Rules of Civil Procedure until 1974. Provisions regarding out-of-court audio/visual testimony from experts to be used in court did not come into effect until 1981. Prior to that, obtaining testimony from experts was pretty onerous given their frequent unavailability. The hearsay rule was not amended to allow medical reports to come into evidence until 1988. Finally, only in the last two years do we have an official guide to Massachusetts evidence. Previously, in 1982, the Supreme Judicial Court rejected a proposed codification of evidence law despite the Federal Courts’ having a codification in 1975 as did many states.

The upshot of all this is that a case lingered and lingered and often would be tried with much less known by the party with the burden of proof: the plaintiff. Accordingly, I’m not sure that I would want to turn the clock back a few decades in my personal injury practice.

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