BusinessWest

Bulkley Richardson Stakes Out New Ground

John Pucci has amassed a considerable record in white-collar crime. No, not that kind of record.
Specifically, he prosecuted criminal cases for the government as chief of the U.S. Attorney’s Office in Springfield before moving into private practice as a partner at Fierst, Pucci & Kane in Northampton.
For Bulkley, Richardson and Gelinas, the Springfield-based law firm that brought him on board as a partner earlier this year, his experience on both sides of white-collar-crime and other specialties make him a valuable asset. As part of his role, he’ll handle federal tax-evasion cases, public-corruption claims, and cases involving companies and individuals under pharmaceutical investigation — but, this time, fighting for the defense.
“It’s an enormous advantage for a practitioner in the white-collar crime arena to have worked inside government, because you really get a feel for how and why cases are prosecuted, where the fault lines are in terms of evaluating the case, and how the bureaucracy works — and doesn’t work,” Pucci said.
“Dealing internally with the IRS and FBI is a bit of an art form which takes years to learn,” he added. “When you come to the defense side, you have an ingrained sense of how the government is evaluating the same documents you’re looking at for a client.”
Pucci’s not the only new attorney at Bulkley Richardson. He actually hired Andrew Levchuk at the U.S. Attorney’s Office 20 years ago, “and we find ourselves back here, together, in 2012 by virtue of a collection of circumstances that were surely unforeseeable when I hired him,” Pucci told BusinessWest.
Levchuk, who also joined the firm earlier this year, most recently worked for the U.S. Department of Justice, serving as deputy chief of the Human Rights and Special Prosecutions Section of the Criminal Division.
“I had spent part of my time in Washington as senior counsel at the computer crime and intellectual property section, and we worked on computer issues like data theft and data privacy, and also worked with international groups focused on those issues,” he told BusinessWest.
“That’s now a big issue here in Massachusetts and across the country,” he added. “Massachusetts has very strict data-privacy and data-protection regulations that apply not only to large institutions, but medium-sized businesses as well. In addition, these are very important concerns for health care clients.”
Pucci — who also brought to Bulkley Richardson his associate at Fierst, Pucci & Kane, Lizette Richards — is happy to be reunited with Levchuk. “By chance, we had a discussion, and Andy was interested in coming here.” Pucci said. “I told him he’d be a great addition, and at my suggestion, he came down to talk to the folks here, and here we are.”

Ahead of the Curve
Here they are, indeed — along with a diverse assemblage of fellow attorneys. As a law firm that traces its roots back to the 1920s and has grown to a roster of 45 lawyers with a wide diversity of specialties, Bulkley Richardson doesn’t want to stand pat, instead always considering what the current trends are in law, and trying to meet them, said Sandy Dibble, chair of the firm’s executive committee.
“Our size is incidental to what we are and what we can do,” he said, noting that it’s actually a relatively small firm when compared to some metropolitan and international firms.
The company expanded into Boston 10 years ago, an office that has thrived while focusing largely on representation of financial institutions. No one, Dibble said, could foresee the scope of the crisis that engulfed the financial-services industry in 2008.
“That turmoil has produced lots of litigation for banks. We represent mutual funds and most major banks. We rarely do foreclosures, but we do defend banks and other financial institutions when they’re sued,” he explained. “Banks like Sovereign, Bank of America, Citizens, JPMorgan Chase are big clients, and we do work for them in multiple states in New England through the Boston office. We have good lawyers out there, and it has been very successful.”
Bulkley Richardson has also seen plenty of growth in its health care specialty, particularly at a time when local and national health-insurance reform, and generally increasing compliance demands, require skilled legal aid.
“That’s a hugely active field from a legal perspective, with a tremendous amount of new legislation at the state and federal level, lots of new regulation, lots of new regulatory activity among the clients we represent,” Dibble said — among them Baystate Health and several other hospitals in Western Mass.
“We’re certainly not the only law firm representing these clients, but we do work with them in various areas of expertise,” he continued. “We do a lot of work involving government and how to structure organizations, how to manage them so they have a high level of compliance and ethical behavior. We also interact with the government agencies that supervise health care institutions.”
Among its other strengths, Dibble said, the firm handles plenty of litigation work and boasts a strong business and corporate practice, ranging from the purchase and sale of businesses and real estate to representing nonprofits and foundations in all facets of their operations; from drafting contracts for construction projects to that aforementioned advisory role for health care institutions.
Those efforts included handling financing for Baystate Medical Center’s $296 million expansion project. “That was a pretty challenging undertaking because we were putting it together right at the time the economy was collapsing,” he said. “So we were happy to be able to get that accomplished.”
The firm also represents many individual clients, including business owners and public figures; Bill and Camille Cosby are among the firm’s valued longtime clients, Dibble said.
Not every specialty thrives at any given time, he noted — for example, commercial real estate work has experienced an overall decline in the past few years. “Diversity is helpful to a firm, which is why we’ve made some significant additions, bringing in some additional resources in areas we weren’t as strong in.”

Keeping Secrets
Among those is corporate data security, one of Levchuk’s strong suits.
“Five years ago,” he said, “the big data-security issues involved large computer networks and hacking into banks of health care institutions, and by people seeking to obtain personal information which they could then use to steal identities, credit-card numbers, and so on.
“Now,” he continued, “that has evolved into data theft from a variety of other devices. We all walk around with handheld computers; that’s what smartphones are. Think about the data a smartphone contains. And from an employer’s perspective, think about the data that employees send and receive on smartphones, and you can see how security is now a major issue. Breaches can lead to serious civil liability — and occasionally criminal liability — so it’s important that companies have the right policies in place and get up to speed on these issues.”
For his part, Pucci said he’s built up a strong résumé of complex civil and complex criminal cases, but, having gotten to know Dibble and others at Bulkley Richardson, “I was desiring to make a change and get into a larger environment, a richer environment. I had a discussion that led to my decision to come here. There had not been a white-collar practice here for at least a decade, maybe never.
“This firm is an ideal place for us to settle into because it’s got a lot of rich history,” Pucci continued, as Levchuk nodded agreement. “It’s been here 80 years, which means it’s got a solidity to it and a sense of permanence. It’s got a lot of depth in its resources; just from among the lawyers who walk the hallways, you can get an answer to almost any question in any area, which is helpful.
“And on the service side,” he added, “we employ people who don’t exist in a smaller firm without our resources, and that allows you to lawyer instead of having to manage. Back in my old firm, as co-managing partner, I spent a lot of time managing issues and day-to-day problems, not practicing law. This is a great environment to practice law.”
That distinction is important, he said, for clients who, in many cases, are facing one of the more difficult situations in their life.
“It’s very important that we as lawyers keep in mind that our clients have a problem, and we should try to be problem-solvers,” Pucci said. “And the problem-solving process, working through the legal system, is a complex matter. Here, all our essential focus is on being a lawyer.”
But Dibble was quick to add that the firm’s attorneys are dedicated to helping people outside of work, too.
“We have a lot of people on the boards of dozens of organizations, people who volunteer their time, and we as a firm contribute financially to a lot of organizations,” he said. “That’s important to our culture. We want our people to recognize that we’re all part of a community — especially in a smaller city like this. That’s not to say that people in big cities don’t take part, but in a place like this, there aren’t so many people available to help out that you can skip it.”

Building a Case
With the Great Recession hopefully fading, Dibble said, Bulkley Richardson is hoping to build on a very strong 2011 — which followed a slightly-off 2010 — as it continues to diversify and grow.
“It’s a very competitive market out there; there are some very good firms in Western Mass. and some very good lawyers,” he said. “But the competition is not just local; there’s also a lot of competition from Boston and New York firms, national and international firms, who would like to do some of the work we do.”
And have been doing for more than 80 years.

Joseph Bednar can be reached at bednar@businesswest.com

New Legislation Could Set the Stage for a New Policy in Massachusetts

Last year, Connecticut became the first state to pass legislation requiring employers to provide paid sick leave to employees. The law, which went into effect on Jan. 1, 2012, requires most employers with 50 or more employees to provide paid sick days to their service workers, i.e. employees who regularly deal with the public.
Similar pieces of legislation have made their way up Beacon Hill over the last few years, but none have garnered enough support to raise eyebrows. However, with the new Connecticut law gaining national attention, Massachusetts may be more likely than ever to pass paid-sick-leave legislation.

Earned Paid Sick Time
Last month, paid-sick-leave supporters introduced their latest version of the bill to the state Legislature. The bill, titled “An Act Establishing Earned Paid Sick Time,” tracks analogous legislation proposed in previous years.
The law would require all employers with more than 10 employees to provide a minimum of 56 hours of paid sick leave to their employees on an annual basis. Employers with six to 10 employees would be required to provide at least 40 hours of paid sick leave, and the smaller ‘mom and pops’ with fewer than six employees need only give 40 hours of unpaid sick time.
Employees would accrue one hour of paid leave for every 30 hours worked. They would also be entitled to carry over unused leave into their next year of employment. However, even if employees were able to carry over some unused sick leave, they would not be entitled to take more than their annual allotment during any given calendar year.

Define ‘Sick Time’
The proposed legislation would allow employees to use paid sick leave for a variety of reasons.  First, they could use it to care for their own physical or mental illness that requires that they either stay home or seek professional medical care. This would permit usage for everything from the common cold to serious health conditions requiring a stay in the hospital.
Employees would also be able to use paid leave to attend routine medical appointments for themselves or for their children, spouse, and parents. Paid leave could also be used to care for an ill family member. Finally, employees could use the leave to address psychological, physical, or legal effects of domestic violence.

Prove It
In the ’80s classic Ferris Bueller’s Day Off, Matthew Broderick is able to pull off a legendary sick-day scheme that begins with faking an illness. Will Massachusetts employees be able to follow in his footsteps?
The newest version of the legislation gives employers the right to request ‘reasonable documentation’ only when an employee is out for more than a day. This is more favorable to employers than earlier versions of the bill, which allowed a request for documentation only for absences of three days or greater. Still, it doesn’t take Ferris Bueller to realize that single-day trips to Fenway Park or the beach under the guise of an illness may go unnoticed.

Compliance
The good news is that employers who already provide paid sick leave under a PTO, vacation, or other leave policy will not need to change their policies if they already provide the requisite amount of leave and permit carryover as designed under the proposed legislation.
The current form of the bill would consider any such policy to be in compliance with the law.  However, the paid-leave policy must permit the employee to use time for the reasons listed above, and documentation requirements can be no more demanding than specified in the law.

Going Forward
Naturally, the legislation has drawn praise from workers’ rights groups and criticism from business advocates. Supporters of the proposed law argue that employees should not have to sacrifice their health for wages. They also claim that paid sick leave would reduce the spread of communicable diseases among coworkers and to business customers.
Opponents are quick to point out that these benefits come at a price. The National Federation of Independent Business (NFIB) estimates that mandatory paid leave will cost Massachusetts nearly 12,000 jobs over the next several years, with smaller businesses bearing the brunt of the losses.
Finally, it’s important to remember that mandatory paid sick leave is only proposed legislation in Massachusetts. The bill has several hurdles to leap before it could be fully voted on by the Legislature and put before the Governor for passage. Still, paid sick leave legislation is something to keep track of in 2012.

John Gannon is an associate with Skoler, Abbot & Presser, P.C. He received his juris doctor, cum laude, from Western New England University School of Law; (413) 737-4753; jgannon@skoler-abbott.com

Know Your Options When Incorporating Your Small Business

The majority of companies begin as modest businesses owned by a sole proprietor or partnership, and often it is not until the company has grown do owners consider incorporating the venture. Whether small or large, all businesses can benefit from incorporating, but the most basic reason for considering a change in the business structure boils down to managing potential risk.
Incorporation is the act of forming a new legal entity (business structure) that provides certain business, tax, and legal advantages to its owners. The separate legal entity can own property, pay taxes, sign binding contracts, and, most importantly, protect its principals from many types of liability.
When deciding to incorporate, the following advantages should be considered:
• Limitation of Liability: The main advantage to creating a business entity is the limitation of liability faced by principals of the business. If a business is run as a sole proprietorship, the business owner assumes all liability, but when the business is a separate legal entity, an individual principal’s or investor’s liability is limited to the amount he has invested. In contrast, as a sole proprietor, your personal assets can be seized to pay the debts of the business.
• Raising Money Can Be Easier: Business entities can borrow or incur debt and can sell shares, which can make it easier to obtain capital for your business to develop.
• Deductible Expenses: Business entities may be subject to advantageous rules for business expenses.
• Protection of Trade Names: While not conclusive, the registration of your business-entity name with the secretary of state will provide additional protection against another business with an identical or similar name.
• Additional Credibility: A business entity may have more credibility with potential clients.
• Continuation of the Business: A business entity may continue to exist even beyond the death of a principal.
There are a variety of business entities that a business owner may use, and each provides specific legal and tax advantages and disadvantages. These include:
• Sole Proprietor: A sole proprietorship describes a simple business structure that is owned by an individual. Many smaller businesses operate as sole proprietorships; however, as mentioned above, one of the major disadvantages of this structure is that the owner is personally responsible for all legal and financial liabilities. A business-related lawsuit or IRS tax audit can place the owner’s personal assets at risk of seizure. Further, all business income is taxed as personal earned income by the owner. Though an owner may choose to use a trade name (also known as a d/b/a), there is no legal separation of the owner from the business.
• General Partnership: A general partnership allows two or more parties to share in the liability and profits of a company. Those parties can be comprised of corporations, individuals, other partnerships, trusts, or any combination thereof. Advantages of a general partnership include its ease of establishment and its ability to use the financial and managerial strengths of all partners. The disadvantages of a general partnership include the unlimited liability faced by the partners for the legal and financial liabilities of the business; that liability caused or incurred by one partner leaves all partners vulnerable to seizure of business and sometimes personal assets; and that one partner is able to commit the partnership to obligations without approval from the other partners.
• Limited Partnership: The limited partnership (LP) business structure creates a separate legal entity that involves one or more general partners and one or more limited partners. The limited partners typically invest capital in the business and are limited in their liability proportional to the amount of capital they invest. The general partner controls the operation of the partnership and is personally liable for its obligations and debts. (A corporation is often placed in the general-partner position in order to absorb the liability.)
A majority vote of the voting partners, unless specified otherwise by a written agreement, can change who serves as general partner. When a limited partner is sued personally and a judgment is issued, that limited partner’s interest in the limited-partnership entity is protected from seizure, as are any assets held by the limited partnership. Because of this protection, the limited partnership can be effective in shielding assets from creditors.
• Limited-liability Partnership: A limited-liability partnership (LLP) is most often employed in professional practices such as law, accounting, and architecture. This type of separate legal entity allows for liability protection for all general partners, as well as management rights. In most cases, the limited-liability partnership provides for the same limited liability found in a corporation. For tax purposes, the limited-iability partnership is a flow-through entity like a partnership.
• Limited-liability Company: The limited-liability company (LLC) combines the limited-liability benefits of a corporation and the tax benefits of a sole proprietorship (though one can choose to have the LLC taxed as a corporation). In an LLC, the owners are referred to as members. When the LLC is sued, its status as a separate legal entity can protect the individual members from liability. When the members are sued personally, the LLC and its assets are protected from being seized by creditors of the members. Because of these benefits, a limited-liability company is a popular choice of business entity for a wide variety of objectives.
• Corporation: Depending on a number of factors, a corporation can choose to file taxes either as a C corporation (where taxes are paid by the corporation) or as an S corporation (where income is passed through to the owners and is taxed on them individually). A corporation can choose to be an S corporation if it has fewer than 100 shareholders and all shareholders are U.S. residents. As a C corporation, there is no limit on the number of shareholders; additionally, C corporations can deduct employee medical expenses and insurance costs.
Once you have created a business entity, you will also need to request a federal employee identification number (FEIN) from the IRS. With a FEIN, your business will be able to open a bank account. Maintaining the company’s bank account separate from other business or personal accounts is crucial to avoiding a determination that funds have been ‘co-mingled.’ Updates with the secretary of state will be required at least annually, and more often if changes are made. Depending on the type of work being conducted, additional licenses or certificates may be required from the state or municipality where your business operates.
Remember, your business is ever-growing and changing. It is always a good idea to seek the assistance of a responsible tax professional and a qualified business attorney who can offer practical answers to your questions.

Michael S. Gove is an associate with Springfield-based Cooley, Shrair, P.C.; (413) 735-8037; mgove@cooleyshrair.com

Keeping Personal Information More Private Than Victoria’s Secret

Despite the irony, a Victoria’s Secret catalog provided stimulus for lawmakers to include Title V into the Gramm-Leach-Bliley Act (GLBA), which regulates financial institutions’ ability to disclose customers’ personal information, and also provides customers with a small measure of control by allowing them to opt out of information sharing under certain circumstances.
Rep. Ed Markey introduced Title V. But the measure’s connection with Victoria’s Secret arose from Rep. Joe Barton’s personal experience when he began receiving catalogs from the lingerie company at his home in Washington. On its face, this does not sound like an unusual circumstance, except for the fact that neither he nor his wife had purchased any items from Victoria Secret at the Washington address.
Barton barely spent money in Washington at all, and his credit union was the only business that had his Washington address. While outraged at the concept that his personal information had been sold, Barton had a second and perhaps more pressing worry. He was troubled by the notion that his wife might believe he’d purchased lingerie items for other women in Washington. Barton’s concern was especially valid for a politician in the capital city, but unfortunately his experience is not unique.
The reality is that people regularly receive similar unsolicited catalogs and advertisements.  How do businesses obtain personal information from people they have never done business with before? Financial institutions may be profiting by selling personal information they collect from their customers, including their names, addresses, Social Security numbers, bank balances, and financial account numbers.
If you are not sufficiently alarmed yet, this might help. Another scandal that prompted Title V of the GLBA occurred when Charter Pacific Bank of Agoura Hills, Calif. sold an Internet-porn operation access to a database of approximately 3 million credit-card numbers. The porn operation then engaged in an illegal scheme that entailed charging customers for visits to a porn Web site that the customers had not ordered. In fact, many of the customers did not even own a computer.
Ultimately, the Federal Trade Commission won a $37.5 million judgment against the porn operation. The court found that approximately 90% of its annual ‘sales’ of about $49 million were derived from illegal charges.
Although I have shamelessly attempted to lure readers with mentions of sexy lingerie and scandals, the intent of this article is actually to provide a general overview to individuals as to how and when they should protect certain personal information possessed by financial institutions, and to provide financial institutions with some insight into GLBA compliance. Obviously this article is limited in scope and cannot be viewed as a comprehensive report of the entire law on this matter; consult a lawyer for specific legal advice.
What businesses are affected by GLBA, and who is protected? More than just banks are impacted — the law applies to financial institutions that are significantly engaged in financial activities, some of which are automobile dealers that finance or lease to customers, credit-counseling services, financial advisors, collection-agency services, mortgage lenders or brokers, and retailers that issue their own credit cards, among many others.
Consumers and customers are protected by this law. Their rights and protections depend on the distinction between the two. However, for the purposes of this article, the main focus will be on a ‘customer,’ i.e. an individual who has consumed the financial institution’s product or service to be used mainly for family, household, or personal use, and who has a relationship with the financial institution.
What are a financial institution’s obligations? Such a business is generally required to provide its customers notice of its policies and practices regarding sharing non-public personal information (NPI). Examples of NPI include the contents of a loan application, Social Security numbers, and account balances and histories. A financial institution must provide notice to its customer at the time it establishes a relationship with the customer, and then annually for so long as the relationship continues.
The contents of the notice must include the financial institution’s sharing policies and practices and the NPI it collects. If it intends to disclose NPI, the notice must also indicate whether such disclosure is permitted by a GLBA exception, the type of NPI it intends to disclose, and a description of the parties to whom NPI will be disclosed.
What rights does the customer have? While there are many exceptions, a financial institution generally may not disclose NPI to a non-affiliated third party unless it provides the customer with a reasonable method and opportunity to opt out of such sharing. (Note that GLBA does not prohibit sharing NPI with affiliates.) The financial institution’s opt-out notice must provide the customer with an explanation of his or her right to opt out within a certain time frame, and provide a reasonable means to do so. The notice should include, for instance, a toll-free telephone number or detachable form with mailing instructions. Provided adequate notice is given, a financial institution may share a customer’s NPI if the customer fails to opt out within the delineated time — say, 30 days, for example.
Certain exceptions enable financial institutions to share NPI with non-affiliated third parties without providing an opportunity to opt out. For example, a financial institution may disclose the NPI to a third-party service provider of the financial institution to market its products and services. Other permitted disclosures include those necessary to administer or enforce a transaction with the customer, maintain or service the customer’s account, or comply with federal, state, or local laws, or those pursuant to the Fair Credit Reporting Act.
GLBA does not provide customers with a private right of action against financial institutions for violations. Various federal agencies, such as the Federal Trade Commission, are responsible for enforcement. Therefore, customers must be proactive if they wish to protect their information by reviewing papers provided by their financial institutions and taking affirmative action to opt out if that choice is available.

Attorney Lina Alexandra (Alex) Hogan is an associate at Shatz, Schwartz and Fentin, P.C. She concentrates her practice in the areas of business law, business litigation, and bankruptcy law; (413) 737-1131.

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That’s the Message from a Recently Honored Trial Lawyer

John Bagley, a Springfield-based civil-litigation specialist recently elected to the American College of Trial Lawyers, describes himself as a “major advocate of the jury system.” And he speaks from experience when he says that those who fear the jury because of perceptions that panels are sympathetic to plaintiffs and can’t grasp complex testimony don’t have all the evidence in such matters.

John Bagley says he understands completely why many business owners, doctors, and health care providers are wary about putting their legal fate in the hands of a jury.
The headlines in large-font type announcing seven- or eight-figure jury awards to injured plaintiffs constitute one of the main causes of such apprehension, he said, adding quickly that these are few and far between, though they still linger in peoples’ minds. But there are also widely held perceptions about juries being sympathetic to injured parties, he continued, and the belief that jurors are not able to grasp complex testimony.
But Bagley, an attorney with Springfield-based Morrison Mahoney, LLP, said statistical evidence would indicate otherwise. In medical-malpractice cases he’s taken to a jury, 90%, have been won by the defendant — “and the national numbers are not far from that,” he noted — and in most civil jury trials involving personal injury, the jury finds for the defense.
“Every once in a while, when there’s a large plaintiff’s verdict, that gets the front page, that gets the headlines,” he continued. “And yes, there are jury verdicts that make you scratch your head; it’s an imperfect system, no doubt about it. But for those of us who do this every day of the week, the results from juries are very good.”
So good, in fact, that plaintiffs’ lawyers are the ones pushing matters to alternative dispute resolution — arbitration or mediation. “They’re so disappointed with jury trials; that’s a big reason more and more cases are going to arbitration, and that cuts against what people think.”
But Bagley has more than stats with which to make his case for taking matters to a jury when it’s appropriate to do so. There’s also his own experience in the courtroom, a track record that recently earned him entry into the American College of Trial Lawyers, a distinction earned by roughly 1% of the total lawyer population of any state or province.
On the occasion of his election to the ACTL, Bagley talked at length with BusinessWest about that honor, courtroom etiquette, and how lawyers should be conducting themselves — and especially about juries and under what circumstances they represent the best option for a defendant. And for that exercise, he used both hypotheticals and some trials from his extensive portfolio.
That list includes something he refers to simply as “the cement-mixer case.” It involved the driver of one of those heavy vehicles who struck a very experienced 30-year-old bicyclist out for his daily 50-mile ride, resulting in permanent brain damage to the extent that his elderly parents became his caregivers.
“When he [the cyclist] testified, the jurors were sobbing; he was probably the most compelling witness I’ve ever seen,” said Bagley, adding that, despite that testimony, and with the help of an eyewitness, he was able to convince the jury that the incident occurred in the travel lane and not the wide breakdown lane, the key toward attaining acquittal. “The jury that was crying during testimony found for the defense.”
There are many other examples that provide more evidence about why defendants should put their faith in the jury system, said Bagley, noting quickly that, while it’s not always the best option — it consumes more time, is more expensive, and is public, while arbitration and mediation are private — it’s one that shouldn’t be quickly dismissed.
“A lot of clients make decisions on fear,” he explained. “People say, ‘we have to settle this case because we’ll never get a fair shot from a jury.’ That’s wrong. If I had a simple message for people, it would be, ‘don’t fear the jury.’”

Court of Opinion
Bagley told BusinessWest that, generally speaking, movies and television have done a disservice to the legal profession — in many ways. Chief among them, he believes, is the way lawyers are portrayed in the courtroom.
“In most television dramas, the trial lawyer is portrayed in a stereotypical way as the guy who’s screaming at witnesses, banging on the counsel table, and getting in near-fisticuffs with his opponent,” he noted. “That’s not the real world; in fact, a lawyer who conducts himself that way is doing a disservice to his client, in my opinion.
“And when I say this, I certainly don’t suggest that I’m a pushover,” he continued. “The point is that, when I’m in court, I’m able to get my point across, including some very difficult cross-examination of some opposing witnesses, in a very firm way and successful way, but without some of the theatrics that many associate with trial lawyers.”
That was some of the commentary Bagley offered when asked about his election to the ACTL and what it says to him. He said the honor means not only that he’s spent a lot of time in the courtroom — and successfully representing his clients — but also that he’s maintained the highest standards of “ethics, professionalism, civility, and collegiality.”
“From the first trial I’ve ever had, I’ve felt that the way to conduct yourself as a trial lawyer is to be a zealous advocate for your client,” he said, “but at the same time, be very respectful to your adversary — and the court. I’m almost 30 years as a lawyer, and I look back at it and say the way I’ve conducted myself has served me well, because my reputation, I believe, is for being a straight shooter, someone who doesn’t act in an underhanded way. Although I’m as competitive as the next guy and my goal is to win every case, I’m not going to compromise myself to get there. And I think that’s what the American College is all about.”
Chronicling his career, Bagley said he had the good fortune to start with a Worcester-based firm that had a very busy civil-litigation practice, and one of the partners had the “courage” to assign some trials to him.
“I was trying jury cases as a first-year lawyer, and, needless to say, I was making my fair share of mistakes, but learning from them,” he recalled. “The cases I started on weren’t the biggest cases in the world with a lot at stake, so the partners knew that these were ones that I could handle and have some success. But I had to get a number of cases under my belt before I really felt comfortable.”

Mounting Evidence
Today, many lawyers simply don’t get enough experience to become comfortable, he went on, adding that this is a matter of concern for the ACTL, which is conducting moot-court programs at law schools to provide some training. “Lawyers today, on the civil side, don’t try anywhere near as many cases as they did in the past,” said Bagley. “If you took a poll of young lawyers, less than 15 years by the bar, even those that practice civil litigation, and asked them how many jury trials they’d handled, they’d say, ‘less than five.’ By the time I was 15 years past the bar, I had tried probably 50 cases.
“Think of what this means to clients,” he continued. “The next generation of lawyers just isn’t getting enough experience in court.”
This phenomenon is a product of the times, part of a new “culture,” as Bagley called it, one in which plaintiffs and defendants, and especially their legal counsel, would prefer to settle things before a mediator or arbitrator.
And there are many good reasons to take those routes, he continued, adding that he’s done so with many of his clients, because there is, in many cases, a lot of value in those options, especially binding arbitration, which he described as a substitute to a jury trial.
“Arbitration serves an important need, and for the right case, it’s the right way to go,” he said. “But it’s not always the preferred way. In going to arbitration, what you’ve done, and the client has done, is waive your right to a jury trial, and also waive right of appeal. With arbitration, you have one person deciding the matter instead of having a jury trial where the decision makers are an impartial jury of 12 people in state court or six people in federal court, with a judge whose sole responsibility is to referee the case, make sure only admissible evidence is considered by the jury, and make sure the case is conducted in accordance with the rules of procedure and the rules of evidence.
“You have all of that in a jury trial,” he continued, “and you’re giving it all up with arbitration; you have a single person acting as judge and jury.”
And in many cases, arbitrators do not rule completely in favor of one party or the other (something a jury must do), he continued, adding that such decisions, which often amount to settlements, can have consequences, especially for a doctor facing a medical-malpractice charge.
“Arbitrators are known, when they make a decision, to play Solomon — the phrase is ‘split the baby,’” Bagley explained. “And that’s not good for a doctor, because any finding less than a defense verdict gets reported, and if you have several settlements, that could impact malpractice rates.”

Making a Case
While there are also obvious issues with a jury trial, Bagley said, including the additional expense and the public nature of such matters, there is statistical and anecdotal evidence suggesting that parties are often better off talking to a jury than they are to one individual.
As a prime example, he pointed to a recent Boston Globe exposé revealing that many of the judges in one court have rarely, and, in some cases never, ruled in favor of the prosecution in bench trials involving DUI cases — although he quickly stated and restated his great respect for judges while doing so.
“That’s a scary thought,” he said of the lopsided rulings in favor of defendants. “And you’re not going to get that with a jury, in my opinion.”
Elaborating, he said most of his medical-malpractice cases involve people with very serious injuries, and many of them are wrongful-death cases. “These are cases where, if they find for the plaintiff, we’re talking seven-figure recovery.
“So there’s going to be a lot of evidence that’s going to engender sympathy,” he continued. “I’ve had cases with several members of the juries crying during testimony, and I’ve gone on to win the case. The magic of the jury is that somehow, while one individual may be tugged by the emotional heartstrings, collectively, the 12 won’t; that’s what I believe happens.”
With that, he returned to the cement-mixer case, adding that it’s a perfect example of how juries are able to put their emotions aside, digest often-complex testimony, and render a verdict based on the available evidence.
“We got into some very intricate engineering testimony, formulas and calculations, and they were able to handle it,” he said, adding that the sole liability issue in the case was whether the collision occurred in the travel lane or the breakdown lane. “The driver testified that the collision occurred in the travel lane when the bicyclist swerved in front of him; I knew the jury would take that with a grain of salt, especially considering the poor plaintiff could not remember the accident and could not tell his side of the story.
“That case was decided by expert witnesses and accident-reconstruction experts, and we were able to put together a more convincing case in that the accident, by the skid marks, the damage to the vehicle, and damage to the bike, had to have occurred in the travel lane. The jury grasped all that testimony and didn’t let sympathy for the victim cloud the issues.”
To further promote his case for the jury system, he cited another trial he was involved with, this one concerning a major national retailer accused of wrongful termination in the matter of an employee with a blood disease who believed that more accommodations should have been made for that illness.
“My client’s store manager was an ex-Marine, tough guy, used some colorful language at times,” said Bagley. “So we have a nice, 60-year-old lady with a blood disease on one side, and a tough, ex-Marine manager on the other. It sounds like no contest for the employee.
“It was a very sympathetic case; the jury seemed to be very much on the plaintiff’s side based on its body language,” he continued. “But we won the case, and the jury determined, by their answer to the special verdict, that the employer had not discriminated against her. There’s a jury doing, in my opinion, what it’s required to do, which is put aside the sympathy and decide the case on the facts.”

Final Arguments
Bagley said that, more often than not, he has to sell his clients on the idea of taking their case before a jury.
And that sell is often a hard one because of some preconceived notions, as well as the obvious drawbacks. He believes defendants should be more willing to buy into the concept, if the circumstances permit and the lawyer in question has the requisite courtroom experience and acumen.
Fear of the jury is pervasive, he concluded, but the evidence points to the fact that, in many cases, the system works as it was intended to.

George O’Brien can be reached at obrien@businesswest.com