It is not unusual for a plaintiff to have the ability to choose from at least two states when deciding the venue of a litigation. In such situations, many automatically choose to file suit in their home state, without giving much thought to potential advantages or disadvantages beyond having a home field advantage and/or forcing their adversary to travel long-distance. While the substantive law applicable to an underlying dispute often is the same no matter where suit is brought (although even this is far from a hard and fast rule), below are three reasons why Massachusetts might be an attractive choice for your next lawsuit.
1. Trustee Process Attachments
Leverage can be determinative in a litigation, and what could generate more leverage than freezing your adversary’s bank account? While this may seem incredible, plaintiffs in litigation in Massachusetts routinely have the opportunity to do so through a mechanism called a “trustee process attachment.” Under Rule 4.2 of the Massachusetts Rules of Civil Procedure, all a plaintiff needs to establish to obtain a trustee process attachment is a likelihood of success on the merits of its claim. If a judge is convinced of this, she almost certainly will issue a trustee process attachment up to the amount of the likely recovery. In fact, as long as the bank has at least one branch within Massachusetts, a defendant’s funds are attachable even if the branch used by the defendant is in another state. Further, some judges even issue trustee process attachments on an ex parte basis, i.e., without the defendant even having an opportunity to oppose the request for such relief.
2. Real Estate Attachments
Massachusetts law also allows for the attachment of real estate. Like trustee process attachments on bank accounts, the only essential requirement for a real estate attachment is showing a likelihood of success on the merits of the claim. If you can establish this, a judge has the authority to order that a writ of attachment issue up to the amount of likely damages. The plaintiff then records the writ in the appropriate registry of deeds. While the defendant still can use the property in any way he wants, the property cannot be sold, refinanced or further encumbered in any way. Thus, while not usually as significant as a freeze on a bank account, a real estate attachment can generate substantial leverage in certain cases, and at least provides partial or complete security so that, if you prevail, there will be resources to satisfy the judgment.
3. Pre-Judgment and Post-Judgment Interest
Remember the days in the ’80’s and ’90’s when interest rates were 9%, 10%, 11% or even more? Well, if you are a plaintiff in Massachusetts, those days never ended. Under Massachusetts law, a plaintiff is entitled to pre-judgment and post-judgment interest at the rate of 12% per annum. As such, if you are awarded $200,000 in damages after having litigated for three years, another $72,000 will be added onto your judgment. Further, if the defendant appeals (or simply does not satisfy the judgment immediately for some other reason), your $272,000 judgment will accrue an additional 12% in interest ($32,640) per year until that judgment is satisfied. Talk about a good investment!
While commencing an action in Massachusetts is not always the right choice, if you have the option to sue here, don’t forget to evaluate the potential benefits of the three tactics discussed above.