The Fiduciary Litigation Session

Bob ORegan_102x126by Robert J. O’Regan

Heads Up

There is good news that a second courtroom will shortly expand the Fiduciary Litigation Session of the Probate and Family Court.  This is a pilot program under Standing Order 3-17 (as amended) for complex probate and trust cases.  The FLS gives lawyers and judges a solution to the problem that these complex cases seem to not receive the time or attention that they require in the regular sessions of the overwhelmed Probate and Family Court.

Modeled after the successful Business Litigation Session of the Superior Court, the FLS allows for the transfer of complex contested cases and a narrow band of uncontested cases from courts in Essex, Middlesex, Norfolk, Plymouth, and Suffolk Counties.  It provides capacity, improved case management, and specialized expertise for the most difficult portions of the caseload within the court’s historical jurisdiction.  Cases that qualify for transfer must be non-routine and include will contests, determination of heirs, interpretation of instruments, removals and appointments of fiduciaries, contested fiduciary accounts; and equity actions alleging breaches of fiduciary duty, seeking instructions, and to determine title.

For some time, the probate bar in particular has expressed a sense of frustration that these cases often languish on the crowded dockets of the Probate and Family Court.  As the court’s jurisdiction and responsibilities expanded, particularly after enactment of the equitable division statute and expansion of protective proceedings, the resources in the Probate and Family Court did not keep pace.  Probate and Family Court judges now take the bench with more experience in areas other than probate and trust law.  These have combined to create an impression that matters involving will contests, trust interpretation, and fiduciary accounts are dry academic exercises to be taken up as a last resort.  More than just helping to clear the caseload, the FLS demonstrates the court’s understanding that ongoing trust and estate disputes prevent closure after the death of family members, and that beneficiaries are harmed by delayed (or blocked) distributions or fiduciary misconduct.

These are reasons why transfer into the FLS is intended to be simple and quick. Only cases in which all parties have counsel are eligible.  Transfers can be initiated by the session judge or an attorney, and virtually all requests have been granted.  A key pivot point in the process is that the session judge must recommend the transfer.  Transfers are completely administrative, require no hearing, and are not appealable.

A simple on-line form on the court’s website starts the process. The instructions are clear and easy to follow.  Joint applications are encouraged.  Argument and attachments of court filings are prohibited.  Applications should point out why the expertise and case management advantages of the FSL will move the case to settlement or disposition more effectively.  Objections are due ten days from service of an application.  They should point out why the case is not complex and raise potential conflicts with a transfer.   Both applications and objections must be sent to the session judge and office of the Chief Justice of the Probate and Family Court.  If the session judge recommends transfer, it is then screened by the FLS judge.  To date, only three transfer requests have been screened out at this stage.

Pending motions or assigned trial dates in a case will likely not affect whether a transfer request is allowed, but rather how it is managed in the FLS.  If the issues straddle probate and equity dockets, discovery is mired down, multiple experts or medical evidence will be required, or several days of trial time are unavailable in the session within a reasonable time, the case should be considered for a transfer request.

Because the FLS is intended to promote best case management practices, the standing order requires a case management conference to be held within thirty days after the transfer.  The conference will develop a plan to resolve the case efficiently using any tools available such as ADR, pre-trial procedures, and trial schedules.  If the case arrives in the FLS with pending motions, hearing dates will likely be set then for quick disposition.  Litigants can expect a clear, firm scheduling order to result from the initial conference.

Improved file and time management steps are emphasized by the FLS.  Inter-county assignments cause headaches with file maintenance and docketing, but not with the FLS.  Under the Standing Order, all filings are to be made directly to the FLS session, and manages docketing with the originating court electronically.  To the extent feasible, the FLS uses conference calls and videoconferencing when an in-court appearance is unnecessary.  E-mail for notifications, service, and filings also speeds up the process.

Reception for the FLS has been very positive.  Lawyers need not be concerned that a session judge may take offense at a request to transfer a case to the FLS.  To the contrary, an unscientific survey of judges and court staff shows that session judges generally welcome these applications.  A goal is to make it available state wide within the foreseeable future.

Robert J. O’Regan is a partner with Burns & Levinson, LLP.  He is past co-chair of the BBA Fiduciary Litigation Committee and past president of the Massachusetts Probate and Family Inn of Court.



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