The Family Resolutions Specialty Court: A Community-Based Problem-Solving Court For Families in Conflict in Hampshire County

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by Hon. Linda S. Fidnick

Voice of the Judiciary 

Traditional adversarial litigation can be ineffective in meeting the needs of families who are experiencing divorce or separation. Litigation may be an ultimately productive method for resolving conflicts between strangers — someone wins, someone loses, and the parties never see one another again.  How profoundly different family cases with children are!  Parents usually come to court at a complicated and painful time.  Anger, mistrust, fear, grief  —  powerful emotions grip them.  Yet, despite the demise of their personal relationship, parents must (and should) continue as parents.  The more effectively they can work together, the easier it is for their children.   Typically parents will need to continue to address one of the many unanticipated, yet inevitable, changes to their lives or the lives of their children after the case has concluded.  Unfortunately, the traditional court process gives them no tools to resolve their disputes on their own.

The Hampshire Division of the Probate and Family Court is committed to finding better ways to help families through the court process.  Our initiatives include a parent education program for divorcing parents that was expanded to include “For the Children” for never-married parents; “Only One Childhood,” an educational program for mid-conflict parents; a mediation program; and a program that provides attorneys for children.  These programs have inestimably benefited the many families of Hampshire County.  In this article I discuss a recent program developed by the Hampshire Probate and Family Court that has shown much promise: the Family Resolutions Specialty Court.

Starting in 2014, a group of Hampshire County-based professionals, including among others, Mike Carey, the Register of Probate, Pam Eldridge, Chief Probation Officer, Noelle Stern, Judicial Case Manager, Hon. Gail Perlman, former First Justice, Kathy Townsend, mediator, and Marsha Kline Pruett, Professor at the Smith College School for Social Work, began to meet and talk about ways to provide families with an alternative to the traditional court process within the court itself.  The Family Resolutions Specialty Court (“FRSC”) is the result.  Loosely based on a process that was developed in Australia’s family court, the FRSC has the following goals: to reduce conflict in cases involving children, to keep court proceedings child-focused, to give parents tools via mediation and the assistance of a clinically trained child specialist to address the problems facing their own family, and finally, to increase all parties’ satisfaction with the court process.  We hoped that the FRSC would be more humane and more efficient than traditional family litigation, and ultimately give parents the ability to communicate well enough to obviate the need for repeated returns to court.  We also created an FRSC Advisory Board comprised of a wide variety of professionals in the community.  FRSC is available in most cases involving children. It has been used in initial divorces, complaints for modification, and complaints for contempt, whether the parents have counsel or are self-represented.

FRSC serves traditional and non-traditional families of all socio-economic backgrounds with children of all ages.  FRSC is voluntary.  Initially, both parents must opt in to the program. Either parent may opt out at any time.  If a parent opts out, the case returns to the traditional court process and a different judge is assigned.  Once the parties opt in, a probation officer completes an intake and screening.  This initial assessment includes meeting with the parties and counsel to explain how FRSC works.  If a significant history of domestic violence exists or one or both parents do not have the capacity to participate meaningfully, the family will be screened out.  Once the family is screened in, its members are assigned a support team consisting of the family consultant (a mental health professional who remains involved with the case until resolution), an attorney for the children, a probation officer, and a mediator.

The family consultant conducts a guided interview to assess the family’s strengths and challenges and discusses various parenting arrangements.  What is unique about this step is that the first in-depth conversation about the parenting plan comes to the parents from a mental health and developmental perspective, rather than a legal one.  The parents are then referred to mediation.  During this confidential process, issues requiring resolution are identified and parents are provided with tools to resolve future conflicts informally.

Next, a court conference is held.  The parents, their counsel, the children’s attorney, the family consultant, the probation officer, and I attend. We sit at a table with the parents near me and facing each other.  The parents bring photographs of the children.  I ask each parent what his or her hope is for the outcome for themselves, for the children, and, importantly, for the other parent. Although parents are encouraged to speak directly to me, rather than by representations of counsel, attorneys are critical to the FRSC.  Lawyers help participants understand their rights and obligations, identify relevant issues, ensure complete disclosures, and counsel clients to participate in a meaningful way.  We use a problem-solving approach. The rules of evidence are suspended. Information is shared freely. The process is open and transparent. If a participant raises a concern that information is being withheld or misrepresented, he or she can request that the case be transferred back to the traditional court process.

At the court conference, we identify the resolved and contested issues, the information needed to determine the outcome of the contested issues, and outline the next steps. As a community-based court, we discuss whether referrals to parent education, substance abuse treatment, family counseling, or early childhood intervention may be helpful to the family.  If so, the probation officer is key in referring members of the family to appropriate community agencies.  The FRSC team members work with the family between conferences.  The parents may choose to meet with the mediator, the family consultant, the probation officer, or attorney for the child in any combination and as often as needed.  Court conferences are scheduled at appropriate intervals until all issues are resolved. The goal is resolution by agreement.  However, if necessary, I will make a decision, either on a temporary basis or as a final judgment, if the parents are unable to agree.

Because of the attention to the case by all professionals involved from the very beginning, even the most complex case concluded in seven months, half of the time standard in the traditional track.  This has been one of the unexpected, but greatly appreciated by the litigants, benefits of participating in FRSC.

The following are some comments of parents from their exit surveys:

             “I now have much more contact with my children than when we began. . . . We have been able to agree on many issues that we did not agree on before.”

            “FRSC helped ensure my child was enrolled in a high-quality pre- [kindergarten]  program which has transformed our entire family’s quality of life and gave our child a strong foundation at a time when he was most vulnerable to instability.”

       “This process was very beneficial to myself as a parent and was minimally stressful. . . .   It has helped me to learn to never speak poorly of her dad in front of her . . . We fight almost never now and seem to be more understanding towards each other. . . . I would STRONGLY recommend this process to anyone getting divorced who have children.  I  hope this becomes the standard.”

“I have learned a tremendous amount through the programs associated with FRSC both as a parent and individual. . . . [FRSC] has helped to make me the best father I can possibly be. . . . We still have a long way to go but I am hopeful that in eliminating much   of the negativity that typically surrounds divorce, it will allow us to become great co-parents.  Truly life changing.  I hope this continues and that all divorces with children can    be done in this manner.”

Thus far, FRSC has succeeded in every aspect of its purpose.  Children have a voice from the very beginning, which focuses their parents on the primacy of continuing to raise healthy children despite the marital or relationship dissolution.  For those separating and divorcing parents who choose the process, they were able to come to closure in half the time (or less) than allotted for cases under our time standards.  The families who have benefited from FRSC have been from all walks of life in our county: people from all manner of socio-economic, religious, health status, gender-identified, and educational backgrounds have benefited from it.  Our hope is that the FRSC model will be the default process for all families experiencing divorce and separation throughout the Commonwealth.

Judge Fidnick is the First Justice of the Hampshire Probate and Family Court.

 

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60 is the New 50: A Look at Age-Based Legislation Through the Eyes of a Reluctant ‘Elder’

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by Hon. Linda E. Giles

Voice of the Judiciary 

Age-based criteria are entrenched in Massachusetts law.  I have found over two dozen statutes providing for sixty-or-over age classifications, on matters ranging, inter alia, from the Department of Elder Affairs’ definition of “elderly person” as an individual sixty years of age or over, G. L. c. 19A, § 14; to the Department of Labor Standards’ provision of an extra day of family and medical leave to care for an “elderly relative,” i.e., one at least sixty years of age,  G. L. c. 149, § 52D; to the right to a speedy civil trial for sixty-five-year-olds,
G. L. c. 231, § 59F; to enhanced penalties for various crimes against the person of victims sixty or sixty-five years of age and older, G. L. c. 265, §§ 13K, 15A, 15B, 18, and 19 and G. L. c. 266, §§ 25 and 30; to the right of tenants aged sixty or more to a six-month stay in summary process proceedings, G. L. c. 239, § 9; and to the entitlement of “aged” persons sixty-five years or older to receive state supplementary payments from the Department of Transitional Assistance, G. L. c. 118A, § 1.

Perhaps I am not the most impartial arbiter on the subject of age-based legislation.  As a sexagenarian fast approaching mandatory retirement age and acutely aware that Vermont judges do not need to retire until ninety (and federal judges not at all), I confess to being a reluctant “elder.”  Moreover, some may argue that any attack on ageism in the law may be a “Trojan Horse” that could open the floodgates to subverting age-based benefits and entitlements.  Nevertheless, I question the arbitrariness and effectiveness of many older-age-specific laws and issue a clarion call for the legislature to re-examine them.[1]  (Youth age classifications, e.g., the Juvenile Court cut-off age of eighteen when compared to the drinking age of twenty-one, G. L. c. 119, § 58; G. L. c. 138, § 34A, also are worthy of scrutiny but beyond the scope of this article.)

The battle for this not yet over-the-hill individual seems uphill at first.  Some forms of age discrimination are undeniably necessary and reasonable, e.g., compelling children but not adults to be educated, or allowing adults but not children to vote.  Age-based laws also are well-settled and plentiful.  The federal Age Discrimination in Employment Act of 1967 (ADEA), which prevents age discrimination against persons forty years of age or older, is celebrating its fiftieth anniversary this year.  Over forty years ago, the constitutionality of age-based classifications was enshrined in the United States Supreme Court’s holding in a Massachusetts case, Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976); in Murgia, the Court concluded that uniformed state police troopers facing mandatory retirement at fifty did not constitute a suspect class for purposes of equal protection analysis.  Over the past several decades, there has been a proliferation of legislation aimed at protecting “elders,” commonly defined as sixty-five or older, from abuse, neglect, and discrimination.

To be sure, protecting vulnerable senior citizens from abusive or unfair treatment is a laudable government interest.  Furthermore, “[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific.”  McGinnis v. Royster, 410 U.S. 263, 270 (1973), quoting Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70 (1913).  Even so, chronological age has served as an arbitrary, overbroad, and expedient proxy for more relevant but difficult-to-quantify characteristics, such as frailty, vulnerability, or need.  Older adults are subjected to disparate treatment on the basis of stereotyped assumptions about their abilities and disabilities; and protections for “elders” are premised on the inaccurate pigeon hole that they are impaired cognitively or are physically- or decisionally-challenged.  Policy-makers lump older individuals into age-based, monolithic categories (e.g., middle-old, old, the oldest) without account for very real differences among the age cohorts.  Cf. Kenneth F. Ferraro, “The Evolution of Gerontology as a Scientific Field of Inquiry,” Gerontology:  Perspectives and Issues 13, 13-33 (3rd ed. 2007).  As the average life expectancy has increased to 78.8 years, Centers for Disease Control and Prevention FastStats – Deaths and Mortality, and one in five over age sixty-five in Massachusetts is still working, “1 in 5 over 65 still on the job,” Boston Globe, June 12, 2017, elderly status, widely assumed to start at age sixty-five, has become an increasingly poor predictor of physical and mental limitations.  Centers for Disease Control and Prevention, Quickstats:  Estimated Percentage of Adults with Daily Activity Limitations by Age Group and Type of Limitation – National Health Survey, United States.  Accordingly, fixed age thresholds for classifying people as old, which do not take into account improvements in health and longevity, seem increasingly anachronistic.

Furthermore, some protections for “elderly” persons, albeit well-intentioned, may not be so benign.  For example, a mandatory reporting system in Massachusetts requires individuals in nineteen specified occupations, including physicians and nurses, to report suspected abuse of “elderly persons” sixty years of age or over to the Department of Elder Affairs.  G. L. c. 19A, §§ 14, 15.  Mandated disclosures under the law may implicate the release of the alleged victim’s privileged medical information, which, if done without that “elder’s” consent, would undermine his/her right to informational privacy.  At least one legal scholar has argued that age-specific legislation may violate the civil rights of older adults and has called for expanding the scrutiny of age-based classifications from rational basis to intermediate.  See Nina A. Kohn, “Rethinking the Constitutionality of Age Discrimination:  A Challenge to a Decades-Old Consensus,” 44 U.C.Davis L.Rev. 213 (2010); Nina A. Kohn, “Outliving Civil Rights,” 86 Wash.U.L.Rev. 1053, 1058-59 (2009).  In yet another context, health care systems sometimes rely on age-based classifications to deny older adults the right to obtain certain medical procedures regardless of need.  Although doctors routinely tell patients over sixty-five that they are not good candidates for organ transplants, Johns Hopkins’ investigators have found that older adults can enjoy excellent transplant outcomes in this day and age.  See Dorry L. Segev, M.D., Ph.D., et al., “Candidacy for Kidney Transplantation of Older Adults,” Journal of the American Geriatrics Society, Vol. 60, Issue 1 (January 12, 2012).

Maybe it is time to rethink the cavalier use of imperfect age-based criteria in our laws, starting with our very definition of “old age.” After all, population experts have concluded that sixty really is the new fifty.  See, e.g., W. Sanderson, S. Scherbov, “Faster Increases in Human Life Expectancy Could Lead to Slower Population Aging,” PLOS ONE (April 2015).  A number of research demographers have suggested that policymakers focus less on chronological age and embrace measures based on prospective age, i.e., the expected remaining years of life for a given age range.  See W. Sanderson, S. Scherbov, “Rethinking Age and Aging,” Population Bulletin vol. 63, no. 4, Population Research Bureau (December 2008).  Prospective age is a population-based concept that takes into account improvements in health and life expectancy which the static concept of chronological age does not.  Id.  Perhaps Oliver Wendell Holmes, Jr., one of Massachusetts’ greatest native sons, had the notion of prospective age in mind when, at the age of sixty-three, he quipped, “[o]ld age is fifteen years older than I am.”  In the humble opinion of this purported “old ager,” truer words were never spoken.

[1] The opinions I express are my own and do not reflect the view of the Massachusetts Superior Court.  Though I recommend legislative reform, I of course will continue to follow the law as it exists.

Judge Linda Giles has served as an Associate Justice of the Superior Court since 1998. She is an adjunct professor of law at Suffolk University Law School and a member of the Board of Editors of the Boston Bar Journal. Judge Giles is a graduate of McGill University and New England School of Law.


“Dramatic Change in the Administration of Justice”

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by Jonathan S. Williams

Voice of the Judiciary Guest Contributor

The members of the Boston Bar Association know that Massachusetts is in the midst of dramatic change in the administration of justice. Both necessity and opportunity are playing a part. Leaders in all three branches of government are looking more imaginatively at the forms and substance of justice than at any time since the days of Gideon and of the demurrer. An animating principle in the Trial Court’s thought is a strategic focus on the “user experience.” Looking through the public’s eyes demands that we reduce barriers to access, reduce unnecessary delays, and ensure that court action seeks to address underlying causes of legal conflict where possible. Specialty courts, alternative dispute resolution, opioid response, and justice reinvestment reforms are engaging everyone. Technology offers new kinds of opportunities to make court more accessible and efficient. It has dramatically changed law practice, and the public’s appetite for new technologies to engage their justice system electronically has never been greater.

My predecessor Harry Spence wrote last winter about the strength of the unique Massachusetts court governance model put in place in 2012. It pairs Trial Court leadership in myself and Chief Justice of the Trial Court, Paula Carey. She brings deep judicial knowledge and experience leading on matters of judicial policy and innovation. My job is to maintain and increase our administrative capacity to manage change. My varied preparation in North Carolina includes years of private law practice and years of state government administration in the justice field. It is a familiar challenge to take responsibility for finance, human resources and technology at a judicial system’s statewide scale. And over the past two years I was deeply engaged at looking at the future of North Carolina’s courts—and realized that state courts across the nation face the same necessities and opportunities. What drew me here is that the Massachusetts Trial Court today is action-oriented and is already deeply engaged in change.

If you are the managing partner of a large law firm, or manage your own solo practice, you know that few decisions weigh more heavily than workforce and technology investments. Likewise for the courts our workforce and our technology are fundamental to our success.

Workforce.

The work of every court employee is becoming more interesting and more demanding. One reason is the growing diversity of the communities we serve. To meet that need we are recruiting to broaden the diversity of our workforce, and helping new and current employees to expand their cultural appreciation and competency. This is a natural and necessary element of our strategies to reduce the influence of bias—implicit or explicit, whether based in race, ethnicity, religion or gender—in administering justice.

We not only need to do it, but talented potential employees expect us to model and support our core value of equal justice under the law. Today 23% of our employees are from minority groups compared to 24% of the state’s population in the last census. We need to continue targeted outreach in our recruiting so that talented minority candidates don’t overlook the justice system as a personally and professionally rewarding career in public service, and know that no avenue within the justice system is closed to them.

The nature of work in the courts is changing too, meaning we need to recruit for higher skills than ever. Technology will free our employees from much of the drudgery of managing the tide of paper, and allow more time to interact with and serve the public. Our facilities staff supports advanced energy management and other technologies, and maintains both historic and modern architectural properties. Professionalizing Court Security to counter contemporary risks has involved creating a formal academy that graduated its seventh class this summer, and recently achieved national accreditation as a law enforcement training program. We are supporting our workforce overall with more and more training. Working with our unions, we have made continuing education a core piece of Trial Court employment, almost doubling the number of attendees in the past four years.

Caring for our current employees and urgency in recruiting and hiring a talented new generation of employees are both critical to the strength of our justice system.

Technology.

We all recognize the gap that has opened between court technology and the consumer technology demonstrated in the experiences of retail, finance, and health care. We are playing catchup but have made some wise strategic choices in technology that are beginning to pay off.

The creation and implementation of MassCourts retired 14 separate systems built in-house, designed with different philosophies and architectures dating back to the 1980’s. This change required two tough strategic choices. The first tough choice: stop hiring and retaining staff for continuous custom software development, and instead outsource the new IT case management system to a vendor specialized in court applications. Our in-house staff is focused on the infrastructure, service delivery, and better understanding the evolving needs of the courts. The second tough choice: close down the old systems completely and move all the old data into a completely modern database and middleware platform. Massachusetts chose this harder course and completed the major turn just 20 months ago. MassCourts will continually evolve not only to help manage the work of the courts now but to enable new ways for the courts to get their business done.

E-filing has just begun racing forward toward this future. On the criminal side tens of thousands of Electronic Applications for Criminal Complaint are being e-filed by police this calendar year. Civil e-filing is now rolling out, this year receiving thousands of pleadings and attachments, and more than 4,500 attorneys have enrolled. More and more the bar will be able to save time and client money by e-filing without running to the courthouse and managing snail mail, following the lead of our appellate courts. Inside the courthouse we will look to use e-filings to reduce reliance on paper, and enable judges and litigants to access and work with their documents both remotely and online.

The ability to pay many obligations online is being added to MassCourts over the next few months. It might sound odd at first, but we don’t want you or your clients coming to court to pay an outstanding fine or probation charge. Or more exactly, we want you to pay from wherever is most convenient. We do want you coming to court to accomplish something meaningful to advance your case or issue to resolution. We don’t want you or the public to spend time and money away from work, arranging child or parent care, finding transportation, and standing in security and cashier lines just to make a payment.

Digital recording of court proceedings has been in place for years in all but Superior Court criminal sessions; we have now finished installing or upgrading this technology in almost 300 of 429 courtrooms throughout the Commonwealth in all court departments. This latest generation technology supports two great changes for the bench and the bar: audio recordings can be streamed the next day remotely online, and production of official transcripts for most cases is being cut from 90 days to 30 days.

And over the past several years we have added more and more video connectivity. In the first six months of this year there were approximately 3,000 video events including jail-to-court arraignments, court-to-court probation hearings and emergency protection hearings, and even law office-to-court civil motions hearings to save counsel driving across the state for brief matters.

My confidence in our ability to do these things is immense. I have been visiting courthouses and meeting employees who are eager to share the initiatives they have undertaken. I have met scores of our new employees across all job types, and we are attracting great young people and mid-career movers. I have reviewed workforce diversity statistics and workshop reports that show our employees gaining capacity to work with diverse communities. I have visited a District Court that runs every small claims calendar with no paper files in the courtroom, and I have sat in on a Superior Court session where a judge in one county held court by video for probationers and counsel in another county. I see our e-filing numbers climbing every month. In other words, the action and engagement in change that drew me to the Massachusetts courts is being demonstrated every day.

The Supreme Judicial Court appointed Jonathan Williams to a five year term as Court Administrator for the Massachusetts Trial Court as of May 1, 2017. Williams previously served as the Senior Deputy Director of the North Carolina Administrative Office of the Courts. He has almost thirty years’ combined experience in government and in private law practice.


Changing the Culture: Making Civil Litigation Reform Work Through Superior Court Rule 20 and Standing Order 1-88(F)

starkeyby Hon. Douglas H. Wilkins

Voice of the Judiciary

The Courts are committed to the “just, speedy, and inexpensive determination of every action.”  Mass. R. Civ. P. 1.  Hopefully, that does not come as a surprise.  I fear, though, that many lawyers, parties and clients assume that there is little or nothing they can do about a “system” they may perceive as inflexible, expensive and inefficient.

Not so.  With leadership from Chief Justice Gants, the trial courts have adopted new rules and initiatives, effective this year, to reform the civil justice system.  The goal is to make the courts more responsive to user needs, less expensive, more efficient, less time-consuming, and a superior forum for resolving disputes as compared to, for instance, arbitration.

In the Superior Court, lawyers, parties and clients must play a central role, if our reforms are to work.  Effective January 1, 2017, Superior Court Rule 20 and a Pilot Project for case management conferences (Standing Order 1-88(F)) give them significant input into scheduling, timing of settlement and ADR, eliminating unnecessary steps, streamlining discovery and trials, and addressing other common sources of delay.  Those initiatives reflect the work of an ad hoc committee, which included a cross-section of bar members, law professors and judges, chaired originally by now-retired Superior Court Judge Raymond Brassard and now by Superior Court Judge Bruce Henry.

Adopting these rules was the easy part.  Implementation is harder.  We realize that we are trying to change the culture.  For some reason, when I talk to bar groups, I hear mixed messages.  For instance, there seems to be a desire for more Rule 16 case management conferences, but a reluctance even to request them.  Apparently, there is a sense that judges won’t grant a Rule 16 conference; or that making the motion requires substantial motion practice, instead of simply asking for the conference.  If my assessment is correct, then both the bench and the bar – perhaps with urging from clients and insurers – may want to rethink some of the existing assumptions and “traditional wisdom” about what other participants in the system are thinking.  General counsel and other in-house counsel of any public or private entity that finds itself regularly involved in litigation also has a significant interest in reducing costs by asking trial counsel to use these new rules.

We have tried to make it as easy as possible for lawyers and parties to do so. A standard Rule 20 motion appears, in a fillable PDF, on the Superior Court’s web site.  The motion may be joint or contested.  You don’t have to think up (or fight about) an agenda; the form motion already contains one.  Notices for Pilot Project case management conferences are already being sent by court clerks in employment, real estate, construction, products liability cases and, upon request, in other case categories.  Preparation for these case management conferences includes filling out a case management report (Standing Order 1-88, Appendix A) and exchanging a demand and response.

The forms and Rule 20 itself list a wide and self-explanatory menu of options, too long to discuss in this article.  The nature and benefits of most of these options are probably self-explanatory.  If the Court approves an individual track (schedule) for your case, then the one-size-fits-all deadlines of Standing Order 1-88 no longer apply to that case.  See Amended Standing Order 1-88(B)(2) (“Individual Track”)

It may be useful, though, to mention one option that can address a common concern – issuance of written findings in bench trials.  The current process starts with a potentially costly and time-consuming need for the parties to prepare detailed proposed findings of fact.  After the trial, the parties often ask to submit additional findings to conform to the evidence. That takes more lawyer hours and additional time. The judge may need significant time to issued detailed findings, particularly where exhibits and testimony are voluminous and a transcript is not immediately forthcoming.  All the while, the judge is probably ready to decide the case at the close of the evidence.  And yet, the detailed written findings required by Rule 52(a) often are not worth the expense, effort and delay.  Unless there is some actual need for detailed written findings for appeal purposes (or otherwise), the parties will save significant legal expense by having the judge issue a decision in a form that is the same or similar to the “verdict slip” in a jury trial, perhaps after a conference to specify the rules of law the judge will apply.

Superior Court Rule 20(h) tries to address these problems.  It allows the parties to agree to waive detailed written findings, in which case Superior Court Rule 1-17 requires the judge to issue the equivalent of a special jury verdict.  At the same time, these rules recognize the parties’ right to complete Rule 52(a) written findings if they wish.  You will be seeing this option offered in new standard forms for final pretrial conferences and in the standard pretrial order for jury-waived cases.  The parties can also explore this option during pilot project case management conferences.

This example illustrates a larger point.  The current time standards were adopted in 1988 as Standing Order 1-88.  While there have been some amendments since then, the basic tracking order deadlines still set standards by case category.  Standard deadlines have worked well to reduce the huge backlog that existed 30 years ago.  The time has come, however, to customize case management and avoid unnecessary costs and delay that standardization can cause.

Lawyers frequently ask me whether judges will be receptive to Rule 20 motions to change existing tracking orders.  Will judges seriously entertain requests for case management and settlement conferences and actually consider reasonable limitations on motions, discovery and the like?  I know that some will.  In fact, in April, 2016, the Superior Court judges unanimously adopted the very rules that contemplate those motions and requests.  It is also true that the past few years have seen an unusually high number of new Superior Court appointees, whose views and practices may not conform to past assumptions about case management from the bench.  To be sure, the rules respect the discretion of individual judges to make the ultimate decision, so there will be individual variation in rulings on motions and requests.  But it can’t hurt to ask.

Judge Wilkins is an Associate Justice of the Superior Court, Chair of the Superior Court Rules Committee, and a Member of the Superior Court Ad Hoc Committee on Civil Litigation Reform.


Can Judges Tweet? Judicial Ethics in the Social Media Age

fosterby Hon. Robert B. Foster

Voice of the Judiciary

The rise of social media has created questions for judges that would not have occurred to anyone ten or fifteen years ago. May a judge have a Facebook page? Must judges delete their Linked-In accounts after being appointed to the bench? Is it possible to use a Twitter account consistent with the Code of Judicial Conduct? These three questions are a modern twist on the dilemma judges have always faced: how does a judge maintain the integrity, independence, and impartiality of the judiciary without losing all contact with the world about which the judge is asked to pass judgment?

The answer to these questions starts with the Code, most recently revised effective January 1, 2016. The Committee on Judicial Ethics (CJE) is the SJC-appointed body charged with interpreting the Code and answering specific questions about the Code’s application. Much of its work consists of letter opinions, issued in response to judges’ questions. In 2016, the CJE issued letter opinions answering these three questions yes, no, and yes, but only under certain conditions that ensure that the judge acts online consistently with the Code.

The first letter opinion concerns judges’ use of Facebook. For the few people left who are unfamiliar with it, Facebook is an online social media platform. Participants create a page about themselves on which they can post news and personal information. Importantly, Facebook members “friend” other members, so that they can see their friends’ posts and their friends can see theirs, and can comment on or indicate they “like” others’ posts. In the letter opinion, the CJE set forth some of the provisions of the Code that use of Facebook implicates. These include Rule 1.2, requiring judges to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary” and to avoid even the appearance of impropriety; Rule 1.3, which bars the abuse of the judicial office to advance the personal or economic interests of the judge or others; Rule 2.3, barring bias, prejudice or harassment; Rule 2.4, requiring judges not to permit personal, financial, or political interests or relationships to influence or appear to influence their judgment; Rule 2.9 against ex parte communications; Rule 2.10 against judicial speech on pending matters; Rule 2.11 on disqualification; and Rule 4.1 prohibiting judges from participating in political and campaign activities. All these are swept up in Rule 3.1, “which provides that a judge must conduct all extrajudicial activities in a manner that does not interfere with Code principles and provisions.”

Applying these provisions, the CJE found that judges could use Facebook, even identifying themselves as judges, so long as they do not do things like comment on pending matters, make political or commercial endorsements or comments, do anything that looks like an ex parte communication or suggests that anyone is in a position to influence the judge, or post anything that conflicts with the dignity of judicial office. Moreover, a judge must not “friend” any attorney who might appear before the judge. In short, the CJE reminded judges that Facebook is public, and any comment, and even any “like” of another person’s post, is a public communication that must be made within the strictures of the Code.

The next letter opinion concerned a judge’s use of Linked In. Linked In is a kind of professional Facebook, a “business-oriented social networking site.” Applying the principles set forth in its Facebook letter opinion, the CJE stated that the Code allows the use of Linked In so long as the judge is “not . . . connected with any attorney who is reasonably likely to appear before the judge.” The judge must not only avoid connecting with such attorneys, but must also disconnect with any attorneys with whom the judge is currently connected.

The last of the three letter opinions concerns a judge’s use of Twitter. As the CJE quite cogently explains, Twitter is a social network that permits users to post “tweets” of up to 140 characters, plus images or videos. “Twitter is meant to be shared; users follow selected other users.” A user’s homepage includes a “feed” that displays tweets from the Twitter accounts the user is following. A user can post selected tweets from the feed, a practice known as “retweeting.” Importantly, “[u]nless the user indicates otherwise, the act of retweeting generally suggests that the user endorses the views expressed.” A user’s tweets and retweets show up on the feeds of the user’s followers, and are also publicly available to anyone who visits twitter.com.

The letter opinion addresses how a current judge uses Twitter. It begins by reiterating the Code provisions implicated by the use of social media that the CJE discussed in its Facebook opinion. It repeats that judges are not barred from using social media, so long as that use is consistent with the Code. It goes on to note, however, that use of Twitter raises some particular issues. The Twitter account in question identifies the user as a judge, and “when a judge is posting publicly as a judge, the judge must be exceptionally cautious” because “the public may perceive the judge’s communications to have the imprimatur of the courts.” Therefore, in general “a public, unrestricted Twitter account of an identified judge may be used only for informational and educational purposes.” Specifically, a judge may share upcoming and past bar events and news of general interest to the bar, report on case decisions of the SJC or other courts, and advise lawyers on trial practice. The judge must be careful, however, not to do so in ways that appear to compromise the judge’s impartiality or demonstrate a personal bias or opinion for or against a person or a political issue. The letter opinion also reminds judges that these considerations also apply to retweets, and to the list of other Twitter accounts that a judge follows, as all of these are public.

As the CJE recognizes, it does no good for a judge to withdraw completely from society. Judges must maintain contact with the world that they are asked to judge; they must have some understanding of the social circumstances of the people who appear before them. Thus, judges are entitled to have friends, to have conversations at parties, to attend public and social events. The caveat is that they must do so within the confines and requirements of the Code and in a way that does not call into question their fairness and impartiality or that of the judiciary. Social media in their various forms are an amplification of the direct social contacts and interactions of a judge. Social media make it possible for a judge to interact with friends over a far wider range than in person. The big difference is that these interactions are far more public than a conversation at a dinner party. The simple rule for judges who use social media is to keep this in mind and not to say anything on Facebook or Twitter that they could or would not say in any other public setting.

Hon. Robert B. Foster is an Associate Justice of the Massachusetts Land Court.  Before his 2011 appointment, he practiced with Rackemann, Sawyer & Brewster, P.C.  He is a graduate of Haverford College and Harvard Law School.


Virtually There: e-Filing Becomes a Reality in the Massachusetts State Courts

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by Hon. Maura S. Doyle, Francis V. Kenneally, Joseph Stanton and Kim J. Wright

Voices of the Judiciary

In the spring of 2014, the Massachusetts Judicial Branch contracted with Tyler Technologies, Inc., to pilot e-filing through Tyler’s Odyssey File and Serve platform.  Although the Federal PACER system is well established, it is not available to states, necessitating that Massachusetts develop its own system.  Three departments of the Trial Court, and each of the appellate courts, designated certain case types – and in the case of the Trial Court departments, pilot locations – for their respective e-filing pilots.  Over the next 18 months, pilot court personnel teamed with the Courts’ Judicial Information Services Department and Tyler Technologies to establish both a general e-filing system for the Judicial Branch and specific systems tailored to each pilot court’s particular filing requirements.  After extensive testing and training of volunteer attorneys for each pilot court, attorneys who regularly filed pilot case types in those pilot courts were invited to e-file.  The e-filing system allows a user registered with Tyler to remotely upload a pdf for a court filing in a specific case, select the appropriate court description of the filing from a dropdown menu, electronically serve it on other parties, and file it electronically with the court, generating an appropriate entry on the docket and a link to the pdf in the court’s document management system, without any paper original or duplicate being filed.  Tyler charges a modest convenience fee for civil filings that the courts can waive for indigent parties and government filers.

Beginning in the fall of 2015 and continuing through the spring of 2016, the various pilots were conducted on a phased basis.  In June 2016, participants conducted an assessment of the pilots, toward a decision whether to proceed with Tyler beyond the pilots to full implementation.  Attorneys were asked specifically for input on the registration process, the value of any assistance received from the vendor and specific questions about the e-filing process, including adding service contacts, serving documents through the Odyssey File and Serve, uploading pdfs and making payments.

Overall, responses to the survey were positive.  The overwhelming majority of attorneys indicated that they did not encounter problems in registering as a filer, found filing cases to be “easy” or “moderately easy,” had little difficulty uploading PDF documents, and did not encounter problems with making a credit card payment.  Comparatively modest concerns were identified for adjustment and improvement during continued implementation.  Based on the positive results of the assessment, the Supreme Judicial Court, the Appeals Court and the Trial Court decided to move forward with Tyler Technologies and expand e-filing.

A Closer Look

Appellate Courts

Before describing the current – and future – state of e-filing in the Appellate Courts it is worth taking a brief look back at the foundation the Courts built over the past decade, in preparation for e-filing.  During that time, the Courts have adopted a number of paperless practices, including:  scanning decision-related documents (e.g., briefs, transcripts, and record appendices); coordinating with the Trial Court for production of transcripts in PDF; adopting standing orders for court notices and filings by e-mail; permitting electronic signatures and service; encouraging Judges and court personnel to utilize PDFs and electronic editing features in their daily work, and equipping them with the necessary software and hardware to do so; storing PDFs in the Courts’ document management system for access by all court personnel; electronic distribution of, and remote access to, case documents by Justices; and, within the Appeals Court, reducing the number of required paper copies from 7 to 4.  Briefs in non-impounded cases scheduled for argument are made available to the public on the Courts’ website.  For the past year or two, the overwhelming majority of judges on the Appeals Court, and a majority of the Justices on the SJC, have prepared for, and participated in, oral argument working exclusively from PDFs on an iPad, and iPads also are used by staff attorneys and other personnel to assist in their paperless practice.  The Reporter of Decisions electronically edits and publishes the Courts’ opinions, and has transitioned to a completely paperless release of advance sheets.

In addition, the SJC for the Commonwealth has transmitted briefs and transcripts to the U.S. Supreme Court via cloud-based technology.  Within the SJC for Suffolk County, more than 3,000 annual petitions for admission to the bar are scanned and electronically stored, before being digitally reviewed by the Board of Bar Examiners, single justice decisions are electronically transmitted upon request, and most written communication between counsel and the clerk’s office occurs by email.  More than 4,000 annual filings of required bar admission data from law schools and the National Conference of Bar Examiners, formerly in hard paper copies, now are filed in digital format and are stored in the court’s case management system, and partial electronic processing has led to a reduction by more than fifty percent in hard copy paper filings incident to requests for Certificates of Admission and Good Standing.  Finally, the Appeals Court stored over 17,000 pdfs of court filings in 2016.

In sum, the paperless foundation and experience developed over the past decade has prepared the Appellate Courts for the advent of electronic filing.

The Supreme Judicial Court for the Commonwealth launched its e-filing pilot on November 2, 2015.  For the first time, attorneys e-filed applications for direct and further appellate review, a significant departure from past practice where the appellate rules require 18 paper copies – on average over 1000 pages per application. The build-up to the launch required extensive planning by the clerk’s office and assistance from attorneys, civil and criminal alike, who beta-tested and provided critical feedback that led to improvements in the e-filing system.  On  October 14, 2015, Clerk Kenneally conducted a free e-filing seminar sponsored by MCLE and attended by hundreds online and in Boston.  MCLE continues to offer the archived program free of charge on its website. Perhaps the most telling statistic to illustrate the success of e-filing to date is the high rate of attorney participation particularly in light of national averages where e-filing is not mandatory.  Tyler Technologies, the project’s e-filing vendor, estimates that participation rates in states where e-filing is not mandatory is about 15%.  The clerk’s office for the Commonwealth presently has an estimated 80% participation rate that has led to substantial savings in time and money for attorneys who no longer have to worry about the burden of printing paper, delivering applications, and rushing to the courthouse by closing time.  For the Justices of the Supreme Judicial Court, accustomed to reviewing over 100 paper applications monthly, e-filed versions are now loaded onto iPads that provide portability and ease of use.  At present, expansion from applications to briefs and appendices in full court cases is under review and the clerk’s office hopes to offer further relief from paper production in the future.

In January, 2016, the Supreme Judicial Court for the County of Suffolk initiated its e-filing pilot, encompassing all bar docket cases filed on and after January 1, 2016.  This required extensive training of the staff at the Clerk’s Office, Office of Bar Counsel and the Board of Bar Overseers (BBO).  Because bar discipline actions are initiated by only two entities, the Office of Bar Counsel and the BBO, all such actions are now filed electronically.  Any responsive pleadings that are not e-filed are scanned by the County Clerk’s Office, thereby making all pleadings entered in any bar docket cases filed on or after January 1, 2016, entirely electronically available.  In 2017, Clerk Doyle will be implementing the e-filing of petitions for admission to the bar on motion and, thereafter, petitions for admission to the bar by examination.

Among all the Courts, e-filing is perhaps furthest along at the Appeals Court.  The Appeals Court launched its e-filing pilot in March 2016, allowing attorneys to initiate and file most documents electronically in civil, non-impounded panel appeals, without any paper original or duplicate filing.  The court has since expanded its program to include criminal appeals, self-represented litigants (SRLs), andimminently, the single justice (“J”) docket (e.g., interlocutory petitions).  The Appeals Court now accepts electronic filing of nearly every type of document from attorneys and SRLs in all non-impounded cases, with no paper required.  Thus, briefs, record appendices, transcripts, motions, status reports, and payment of entry fees may be filed electronically.

Attorneys and SRLs are enthusiastic and e-filing at high percentages, with participation tripling over the winter as several hundred e-filings are submitted monthly.  E-filed briefs already exceed the number of paper briefs filed each month and the parties–including CPCS and government filers–are saving significant costs by not providing multiple paper copies of record appendices.  To file and serve electronically, filers first need to become familiar with new procedures and software programs.  Creating a PDF with optical character recognition, merging a word-processed brief with a scanned addendum into a single PDF, or creating an e-filing account and identifying service contacts for each submission involve new steps–but once completed are easily reproduced the next time.  The Appeals Court’s website provides detailed e-filing explanations and user guides about the court’s procedure and format requirements.

Upon entry of every new case in all three appellate courts, the clerk’s office notifies the parties in writing about the availability of e-filing and includes information on how to become a registered user and to view information on e-filing, including court rules and training videos, through Tyler Technologies.   The Clerk’s Offices in all three appellate courts also provide daily telephone assistance to e-filers and have held several public training seminars.

The Appellate Courts’ e-filing programs have increased access to justice by providing SRLs the opportunity to e-file and substantially reducing their copying and shipping costs.  Further, indigent parties may obtain waiver of e-filing related costs.  Additionally, the Clerks’ Offices provide a public computer with a scanner where any litigant or attorney can scan and e-file documents.  In addition, the Appeals Court has launched a pilot program allowing Trial Courts to electronically transmit the assembly of record on appeal, and the SJC and Appeals Court send electronic notices of orders and decisions to lower court clerks, judges and counsel (in the case of the SJC for Suffolk County, Bar Discipline orders and decisions similarly are sent electronically to the Board of Bar Overseers, the Office of Bar Counsel, respondent, and counsel).

Trial Court

The Trial Court piloted the program at three separate courts – Worcester District Court in September 2015, the Brighton Division of the Boston Municipal Court (BMC), and the Essex Division of the Probate and Family Court in early 2016.  The Quincy District Court became an additional site in March 2016.  In the District and Boston Municipal Courts, the pilots included civil case types, while the Probate and Family Court designated Estate Cases to be e-filed.

For the past several months all Trial Court departments have been actively engaged in planning expansion and implementation, with the pilot court departments taking the lead.  In those departments, the expansion includes additional case types and locations.  Over the next six months, the District Court and BMC will work to provide e-filing for all civil cases, including small claims and supplementary process in all locations.  The Probate and Family Court will expand to all locations and will increase available case types from the designated Estate Matters to Divorce complaints filed pursuant to G. L  c. 208, § 1B, and adult  guardianship matters.

The expansion of e-filing in these departments will be done through a series of phases beginning in the spring and continuing throughout the year until the opportunities for e-filing are available at all of those court locations throughout the state.  The expansion is being planned by geographical regions in order to provide attorneys with the opportunity to use the electronic filing in the various courts they frequent.  In March, Probate and Family Court locations in Bristol, Norfolk and Duke Counties and District Courts in Fall River, Attleboro, Taunton, New Bedford, Edgartown Brookline, Dedham, Stoughton and Wrentham all went live.  The second phase, scheduled for early May, will bring e-filing to Probate and Family Courts in Plymouth, Barnstable and Nantucket, and District Courts in Barnstable, Falmouth, Orleans, Nantucket, Wareham, Brockton, Hingham, Plymouth, Milford and Uxbridge.

Plans are also underway to expand e-filing to the Land, Housing and Superior Court Departments.  Implementation teams are meeting and plans for intricate code set up and integration and testing are in place.  A comprehensive effort to train employees across the state is planned and Tyler Technologies will provide materials and free training opportunities for the bar.

The Superior Court pilot will offer e-filing for all tort actions.  The Superior Court will begin by piloting the process in Middlesex and Barnstable Counties and then expand to the remaining County locations.

The Housing Court pilot will make e-filing available in Small Claims and Summary Process matters.  The initial pilot site will be the Boston Housing Court.

The Land Court is in the early planning stage but its singular location will ensure a quick roll out once set up, testing and training is completed.

Tyler Technologies has also provided the Trial Court with access to its online guided interview tool, Odyssey Guide and File, for self-represented litigants.  The Guide and File technology provides the opportunity for the Trial Court to improve Access to Justice for self-represented litigants through the creation of on line interviews that populate the court form that will eventually be e-filed into the system.  The first such interview technology has been designed for use in Small Claims actions.  The Trial Court also plans to use this tool to develop a similar instrument for Summary Process matters, another case type of interest to a large percentage of self-represented litigants.

Interim Electronic Filing Rules for Pilot Courts were approved by the Supreme Judicial Court in February 2015 with accompanying Standing Orders in each of the pilot court departments.  As the courts move ahead with the expansion of e-filing, proposed amendments to the interim rules, and adoption of Rules of Electronic Filing Procedure, are posted for public comment until May 31, 2017, and thereafter will be submitted to the SJC for approval.

The Trial and Appellate Courts have established a listserv to provide updates and information as e-filing progresses.  If you would like to receive periodic updates on e-Filing as they become available, you are welcome to join the e-filing news list serve.  To join, just send an email to efilenews-join@jud.state.ma.us

The e-filing pilot courts appreciate the efforts of the court personnel, the Judicial Information Services Department, Tyler Technologies, and participating attorneys in establishing the e-filing system.  The Judicial Branch welcomes the commencement of electronic filing in the Massachusetts state courts, and invites you to begin e-filing at efilema.com.

The Honorable Maura S. Doyle is the elected Clerk of the Supreme Judicial Court for the County of Suffolk, an attorney and a member of the Supreme Judicial Court’s Standing Advisory Committee on Civil and Appellate Rules, Information Technology Steering Committee for the Appellate Courts, and Standing Advisory Committee on Professionalism.

Francis V. Kenneally is clerk of the Supreme Judicial Court for the Commonwealth and is an attorney admitted to practice in Massachusetts, Maryland and the District of Columbia.

Joseph Stanton is Clerk of the Massachusetts Appeals Court.  He serves on numerous Trial Court and Supreme Judicial Court committees, including as co-chair of the e-filing rules subcommittee.

Kim J. Wright is the Senior Assistant for Judicial Policy in the Executive Office of the Trial Court working closely with the Chief Justice of the Trial Court and the Court Administrator to ensure the integration and coordination of judicial policy planning and initiatives. She is a graduate of Suffolk Law School.


First Court Administrator Reflects on Five Years of ‘Collaborative Partnership’

spence_harryby Harry Spence

Voice of the Judiciary Guest Contributor

In the last three and one-half years, Chief Justice Paula Carey and I have established that collaborative leadership of the Trial Court, a Massachusetts peculiarity, can work. Perhaps more important, the judges and staff of the Massachusetts Trial Court have convincingly demonstrated that they are anxious to modernize the judicial system. The result has been that together we in the Trial Court have accomplished considerable modernization of the system, and have set the stage for even more dramatic progress in coming years. I approach the end of my five-year term as Court Administrator with a great deal of confidence that the Trial Court will continue to improve the delivery of justice in future years, despite the near certainty that the competition for state resources will grow increasingly desperate in the foreseeable future.

It is important to recognize that prior to the reform legislation of 2011, there was little chance that the operations of the Trial Court could improve. Most important, Massachusetts had never granted to the Judicial Branch the most elementary condition of good management: the power to hold employees accountable for their performance. Until 2011, every employee of the Trial Court had lifetime tenure and could only be terminated “for cause”—violation of the law or “moral turpitude,” whatever that might mean. The Trial Court had 8000 employees in 2007 because if an employee performed his or her tasks poorly, the Court’s only option was to hire another employee to do the recalcitrant employee’s work.

In addition, the Massachusetts judicial leadership, unusually among their colleagues nationally, had rarely taken advantage of a statutory provision permitting the hiring of a court administrator.  The Massachusetts judiciary had a court administrator, reporting to the Chief Justice for Administration and Management (CJAM), from 1978 to 1992. Since that time, no CJAM had elected to appoint a court administrator.  This choice was extremely rare among judicial leadership nationally.

The reform legislation of 2011 profoundly changed all that. The new statute eliminated the “for cause” provision, providing instead that an employee of the Trial Court could be terminated so long as the termination was not “arbitrary or capricious.” Additionally, the hiring of a court administrator was no longer optional with the Trial Court leadership, but became a mandatory appointment of the Supreme Judicial Court.  The Court Administrator was to partner with the renamed Chief Justice of the Trial Court in the leadership of the Trial Court.

It was obvious from the outset that the successful implementation of the new governance structure required above all that there be no daylight between the Chief Justice and the Court Administrator. That necessary condition was facilitated by the staggered appointments of the Court Administrator and the Chief Justice. With staggered appointments, the Supreme Judicial Court can confer with whichever of the two is an incumbent on the appointment of his or her partner. This greatly increases the likelihood that the requisite chemistry between the partners will prevail.

In theory, each of the two partners has a clearly defined domain: judicial policy for the Chief Justice and management and administration for the Court Administrator. In reality, of course, the great majority of issues confronting the leadership of the court are a complex tangle of judicial policy and administration. The opportunities for territorial dispute are legion. Recognizing this, Chief Carey and I resolved upon a flexible joint leadership in almost all matters. In essence, neither of us would make a decision that the other wasn’t fully supportive of—a resolve that could prove either liberating or paralyzing.  In short order, it became clear that our shared values, our common posture towards risk, and, soon enough, our genuine friendship and pleasure in each other’s colleagueship assured that the resolve was liberating.

In fact, the relationship between the Chief Justice and the Court Administrator is simply a microcosm of the entire court system: the relationship requires constant negotiation about power and authority. That negotiation, which quickly became easy second nature to the two of us, is symptomatic of the entire system. For the allocation of power and authority in the system is so complex; so ridden with independent, statutory mandates, often held by persons with lifetime tenure; so fraught with vetoes; that progress in the system depends on the ability of its protagonists to deliberately and consistently put mission before ego and power in the thousand microtransactions that move the system.  Never have I encountered an organization that requires such maturity and forbearance from so many actors.

And so the relationship between Chief Justice and Court Administrator models exactly the qualities that must be emulated throughout the system. It is the creation of a culture of collaboration and comity that is the primary work of the leadership team. The structure only works if all parties extend trust and respect to all others.  For example, when I arrived at the Trial Court, I was struck by the constant reference to the “war between the clerks and the judges.” There is much evidence that the system has put that largely mythical conflict behind it. We need to move beyond all the old myths of internal conflict.

If the court system is to nurture a culture of genuine collaboration, it must constantly emphasize that the effective delivery of justice is a team activity, which requires that every actor in the system carry out his or her assigned task to the best of their abilities. That belief permeates the Judiciary today: the work of the custodian in a courthouse contributes as surely to the dignity of the proceedings as the work of a judge.

Forty thousand people in Massachusetts enter a courthouse every day, coming with their most acute fears, their fondest hopes, their most aggravated controversies, their most profound conflicts. That their thousands of conflicts and controversies get resolved day in and day out with so little crisis or public furor is nothing short of astonishing—and it is an extraordinary credit to our judges, our clerks and their staffs, our Probation Service, our security staff, and innumerable others who operate this system. I retire honored to have served with such persons and confident that they will continue to exercise the moral qualities necessary to the progress already evidenced in the work of the past four years.

Harry Spence, Massachusetts’ first Court Administrator, oversees a $630 million budget, 6,300 court staff and 100 court facilities, in concert with the Trial Court Chief Justice.