Lawyers with little or no experience in the Massachusetts Supreme Judicial Court may not be familiar with the two routes to review by the SJC, and how the chances of obtaining review can differ significantly between the two procedures. An application for direct appellate review, sometimes abbreviated as DAR, asks the SJC to hear a case before it has been heard and decided by the Appeals Court. An application for further appellate review, sometimes abbreviated as FAR, asks the SJC to review a case that has been decided by the Appeals Court. One fact that some Massachusetts lawyers do not know is that the SJC tends to review more cases on DAR than it does on FAR.
Direct Appellate Review: Rule 11 of the Massachusetts Rules of Appellate Procedure explains the procedure for seeking direct appellate review. Any party can apply for DAR within 20 days after an appeal is docketed in the Appeals Court. The rule requires that the appeal present: “(1) questions of first impression or novel questions of law which should be submitted for final determination to the Supreme Judicial Court; (2) questions of law concerning the Constitution of the Commonwealth or questions concerning the Constitution of the United States which have been raised in a court of the Commonwealth; or (3) questions of such public interest that justice requires a final determination by the full Supreme Judicial Court.” Not every appeal satisfies one or more of these criteria, but if your case does, you may have a strong case for obtaining direct appellate review. The SJC has tended to allow applications for DAR at a substantially higher rate than applications for FAR. An application for DAR is allowed if two or more justices of the SJC, or a majority of the justices of the Appeals Court vote to grant DAR. But if your case potentially qualifies for DAR, you are not required to seek it – you may allow the case to proceed through the Appeals Court and, if you do not prevail there, seek FAR. If an application for DAR is denied, that does not preclude seeking FAR, although it might signal that the SJC is not likely to hear the case on FAR.
Further Appellate Review: Further appellate review is governed by Rule 27.1 of the Rules of Appellate Procedure. An application for FAR must be filed within 20 days after the date of the rescript of the Appeals Court. The standard is not as narrow – “[s]uch application shall be founded upon substantial reasons affecting the public interest or the interests of justice.” An application for FAR will be allowed if three justices of the SJC or a majority of the justices of the Appeals Court vote in favor of FAR. This requires one more vote on the SJC than an application for DAR. In practice, FAR is allowed more sparingly.
Strategic Considerations: If your case arguably fits the requirements for DAR, strategy and cost may factor into deciding whether to seek DAR. If there is Appeals Court precedent helpful to you, it may be preferable to have your case heard first in the Appeals Court where the panel will be feel more bound by that court’s precedent, even if it is not directly on point, as opposed to the SJC, which can do what it pleases with the lower court’s precedents. The Appeals Court is often perceived as less inclined to make new law or take the law in a new direction. If, however, the case or the issue presented is important enough that it seems likely the SJC will hear the case on FAR, or you need the court to take the law in a new direction, you may be better off seeking DAR so that you save your client the considerable cost of briefing and arguing the case twice, and reach a final result sooner. Another strategic factor is that if your case is heard by the SJC, you know who your panel will be, as the full SJC hears the case, unless there is a recusal. On the Appeals Court you could be assigned many different possible panels.
It is relatively rare that an appellee will seek DAR, although the rule permits it. When you have won in the trial court, you rarely want to present the appellate issue(s) as novel or of broad public interest in an application for DAR. One exception is where you know the case is likely headed to the SJC one way or the other, and your client would rather achieve finality sooner.
For Massachusetts lawyers not familiar with the intricacies of DAR and FAR, consulting appellate counsel may be helpful in developing the best appellate strategy for your case.