what if a ma lawyer misuses rule 33

by Ms. Antonia Turcotte 7 min read

What is Rule 33 of the Federal Rules of Criminal Procedure?

Jun 27, 1974 · Rule 33(a)(4) provides that if answers or objections to the interrogatories still have not been received and 40 days have expired from the date of service of the final request for answers, the interrogating party may file a written application (under the former procedure, referred to as a reapplication) for final judgment for relief or dismissal.

What is Rule 33 (B) (2)?

Rule 33 is amended to provide that an interrogatory is not objectionable merely because it calls for an opinion or contention that relates to fact or the application of law to fact. Efforts to draw sharp lines between facts and opinions have invariably been unsuccessful, and the clear trend of the cases is to permit “factual” opinions.

What are the changes made to rule 33 after publication?

Rule 33. New Trial (a) Defendant's Motion. Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment. (b) Time to File. (1) Newly Discovered Evidence.

How long does it take to respond to a rule 33 response?

Attorney Log In Lawyers.com Discuss Your Legal Issue Ask a Lawyer Legal Malpractice i am aware of an attorney who misuses his attorney priveleges of accessing court documents in cases unrelated to him for laughs

How many interrogatories are allowed by court rule in Massachusetts?

thirty-interrogatoryThe Massachusetts thirty-interrogatory limit, GL c. 231, § 61, has been adopted, with one important modification: the permitted thirty interrogatories may be divided into "sets", provided that the total number of interrogatories served may never exceed thirty.Aug 1, 2009

What are discrete subparts of interrogatories?

An interrogatory's subparts are to be counted as separate and discrete subparts "if they are not logically or factually subsumed within and necessarily related to the primary question." Madison v.Mar 23, 2012

What are contention interrogatories?

Under the Federal Rules and parallel state rules, litigants may use what are called "contention interrogatories" to explore adversaries' factual support for their legal contentions. Courts normally regulate the timing of those, generally prohibiting litigants from using that tactic too early in the discovery process.Aug 12, 2015

What options are available to the requesting party should the responding party refuse to answer an interrogatory?

Sanctions are available under Rule 37 if the responding party fails to properly and completely answer the interrogatories. Normally the courts are reluctant to grant sanctions unless efforts have been made by the parties to resolve the problem.

Can interrogatories have subparts?

Subparts to an interrogatory should be counted as separate interrogatories unless “they are logically or factually subsumed within and necessarily related to the primary question.” Safeco of America v.

Can federal interrogatories have subparts?

Rule 33(a)(1) of the Federal Rules of Civil Procedure provides that "[u]nless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts." The question is what constitutes just “one” interrogatory.Jun 30, 2008

What is a legal contention?

Contention means any suit, litigation, judicial or administrative proceeding, claim, arbitration, criminal prosecution, formal investigation, demand letter, warning letter, notice of violation or notice of alleged liability, penalty or fine.

Are contention interrogatories allowed in California?

Thus, contention interrogatories are permitted, despite work product doctrine, because the statutes and case law permit them.

How do you respond to a discovery request in Texas?

A party must respond to written discovery in writing within the time provided by court order or these rules. When responding to written discovery, a party must make a complete response, based on all information reasonably available to the responding party or its attorney at the time the response is made.

What is Rule 33 of the Federal Rules of Civil Procedure?

Rule 33(d) states that a party electing to respond to an interrogatory by providing electronically stored information must ensure that the interrogating party can locate and identify it “as readily as can the party served,” and that the responding party must give the interrogating party a “reasonable opportunity to ...

How do you avoid discovery in a divorce?

Cost-Effective Divorce: Avoiding Discovery Non-ComplianceGather Important Financial Documents and Statements.Provide ALL Documents Requested.Be Prompt Responding to Discovery Requests.Have Every Statement for Retirement Accounts.Nov 11, 2021

What happens if defendant does not respond to discovery?

Failure to discover may result in judgement being given against the defaulting party in the main action. Documents, which may harm a litigant's case, must be ascertained as soon as possible to limit any damage that may be caused. Discovery to a large extent reduces the 'surprise' element.

What is the duty of a lawyer to disclose the client's intent to commit perjury?

[11A] In the defense of a criminally accused, the lawyer’s duty to disclose the client’s intent to commit perjury or offer of perjured testimony is complicated by state and federal constitutional provisions relating to due process, right to counsel, and privileged communications between lawyer and client. Rule 3.3 (e) accommodates these special constitutional concerns in a criminal case by providing specific procedures and restrictions to be followed in the rare situations in which the client states his intention to, or does, offer testimony the lawyer knows to be perjured in a criminal trial.

What is a lawyer who represents a client in an adjudicative proceeding?

A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including , if necessary, disclosure to the tribunal.

What is the role of an advocate in an ex parte proceeding?

[14] Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision ; the conflicting position is expected to be presented by the opposing party. However, in any ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision. Rule 3.3 (d) does not change the rules applicable in situations covered by specific substantive law, such as presentation of evidence to grand juries, applications for search or other investigative warrants and the like.

What are the duties of paragraphs a and b?

The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding including all appeals, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6 .

When can an assertion be made in an affidavit?

However, an assertion purporting to be on the lawyer’s own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry.

What is ex parte in court?

In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

What is the duty of an advocate in an adjudicative proceeding?

A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client’s case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate’s duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding is not required ...

What is the second sentence in Rule 33?

The added second sentence in the first paragraph of Rule 33 conforms with a similar change in Rule 26 (a) and will avoid litigation as to when the interrogatories may be served. Original Rule 33 does not state the times at which parties may serve written interrogatories upon each other. It has been the accepted view, however, that the times were the same in Rule 33 as those stated in Rule 26 (a). United States v. American Solvents & Chemical Corp. of California (D.Del. 1939) 30 F.Supp. 107; Sheldon v. Great Lakes Transit Corp. (W.D.N.Y. 1942) 5 Fed.Rules Serv. 33.11, Case 3; Musher Foundation, Inc. v. Alba Trading Co. (S.D.N.Y. 1941) 42 F.Supp. 281; 2 Moore's Federal Practice, (1938) 2621. The time within which leave of court must be secured by a plaintiff has been fixed at 10 days, in view of the fact that a defendant has 10 days within which to make objections in any case, which should give him ample time to engage counsel and prepare.

Why was Rule 33 amended?

The language of Rule 33 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

What are the grounds for objecting to an interrogatory?

The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure. (5) Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections. (c) Use.

How many interrogatories can a party serve?

Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26 (b) (1) and (2). (2) Scope. An interrogatory may relate to any matter ...

What is the purpose of revision?

Purpose of Revision. The purpose of this revision is to reduce the frequency and increase the efficiency of interrogatory practice. The revision is based on experience with local rules. For ease of reference, subdivision (a) is divided into two subdivisions and the remaining subdivisions renumbered.

What is subdivision C?

The Committee is advised that parties upon whom interrogatories are served have occasionally responded by directing the interrogating party to a mass of business records or by offering to make all of their records available , justifying the response by the option provided by this subdivision. Such practices are an abuse of the option. A party who is permitted by the terms of this subdivision to offer records for inspection in lieu of answering an interrogatory should offer them in a manner that permits the same direct and economical access that is available to the party. If the information sought exists in the form of compilations, abstracts or summaries then available to the responding party, those should be made available to the interrogating party. The final sentence is added to make it clear that a responding party has the duty to specify, by category and location, the records from which answers to interrogatories can be derived.

Why was Rule 33 amended?

The language of Rule 33 has been amended as part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.

What is the new rule for a new trial?

Rule 33 (b) (2) has been amended to remove the requirement that the court must act within seven days after a verdict or finding of guilty if it sets another time for filing a motion for a new trial. This amendment parallels similar changes to Rules 29 and 34. Further, a conforming amendment has been made to Rule 45 (b) (2).

What are the amendments to the first two sentences?

The amendments to the first two sentences make it clear that a judge has no power to order a new trial on his own motion, that he can act only in response to a motion timely made by a defendant. Problems of double jeopardy arise when the court acts on its own motion. See United States v. Smith, 331 U.S. 469 (1947). These amendments do not, of course, change the power which the court has in certain circumstances, prior to verdict or finding of guilty, to declare a mistrial and order a new trial on its own motion. See e.g., Gori v. United States, 367 U.S. 364 (1961); Downum v. United States, 372 U.S. 734 (1963); United States v. Tateo, 377 U.S. 463 (1964). The amendment to the last sentence changes the time in which the motion may be made to 7 days. See the Advisory Committee's Note to Rule 29.

What is the 7 day rule?

Courts have held that the seven-day rule is jurisdictional. Thus, if a defendant files a request for an extension of time to file a motion for a new trial within the seven-day period, the court must rule on that motion or request within the same seven-day period.

What is a defendant's motion?

(a) Defendant's Motion. Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment.

How long does it take to file a motion for new trial?

The Advisory Committee changed the proposed amendment to require that any motions for new trials based upon newly discovered evidence must be filed within three years, instead of two years, from the date of the verdict. The Committee also incorporated changes offered by the Style Subcommittee.

Representations by A Lawyer

  • An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client’s behalf, and not assertions by the lawyer. Compare Rule 3.1. However, an assertion purporting to be on the la…
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Legal Argument

  • Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(2), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction that h…
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Offering Evidence

  • Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows to be false, regardless of the client’s wishes, except as provided in Rule 3.3(e). This duty is premised on the lawyer’s obligation as an officer of the court to prevent the trier of fact from being misled by false evidence. A lawyer does not violate this Rule if the lawyer offers the evidence for the purpo…
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Remedial Measures

  • Having offered material evidence in the belief that it was true, a lawyer may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer’s client, or another witness called by the lawyer, offers testimony the lawyer knows to be false, either during the lawyer’s direct examination or in response to cross-examination by the opposing lawyer. In such …
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Perjury by A Criminal Defendant

  • [11A]In the defense of a criminally accused, the lawyer’s duty to disclose the client’s intent to commit perjury or offer of perjured testimony is complicated by state and federal constitutional provisions relating to due process, right to counsel, and privileged communications between lawyer and client. Rule 3.3(e) accommodates these special constitutional concerns in a crimina…
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Preserving Integrity of Adjudicative Process

  • Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence or failing to disclo…
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Duration of Obligation

  • A practical time limit on the obligation to rectify false evidence or false statements of law and fact has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.
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Ex Parte Proceedings

  • Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in any ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The o…
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Withdrawal

  • Normally, a lawyer’s compliance with the duty of candor imposed by this Rule does not require that the lawyer withdraw from the representation of a client whose interests will be or have been adversely affected by the lawyer’s disclosure. The lawyer may, however, be required by Rule 1.16(a) to seek permission of the tribunal to withdraw if the lawyer’s compliance with this Rule’s …
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