Probate and Family Court

by Hon. John D. Casey

Voice of the Judiciary

I have always considered it an honor to be a part of the Probate and Family Court, first as a practicing attorney, and then as a judge. Now as Chief Justice, I more fully realize and appreciate the special nature of this Court and its judges and staff. I have met with people from every division to discuss my vision for the Court, and, in the process, have learned about their hopes for and commitment to the Court. On a daily basis, the judges and staff rise to the challenges of working in a court that interacts with people during some of the most difficult times in a person’s life.

The Probate and Family Court is different than the other Trial Court departments. Domestic relations litigation and probate litigation are unique in that each case involves a family situation or dynamic and has the potential to span years. In most cases, the parties must continue to interact with each other during and after difficult litigation. Because of this, litigants require compassion and must be treated with dignity and sensitivity. Many need to be educated on court processes because they do not have attorneys to explain what they will encounter and what is expected of them.

The mission of the Probate and Family Court is to “deliver timely justice to the public by providing equal access to a fair, equitable and efficient forum to resolve family and probate legal matters and to assist and protect all individuals, families and children in an impartial and respectful manner.”  Since the economic downturn of 2008-2009, the ability of the Court to accomplish this mission has been severely strained. In the ensuing years, the Court relied on judges and staff to go above and beyond, and so many did. In addition, the bar volunteered to help in various ways, such as the Lawyer of the Day program, bar association conciliation programs, and Attorneys Representing Children (ARC) programs, to name a few. The challenges for the Probate and Family Court were noted by Chief Justice Ralph Gants in his State of the Judiciary address in October 2017 when he stated, “The burdens we place on our Probate and Family Court judges are simply not sustainable; we need to reimagine how we do justice in our Probate and Family Court.” To that end, different groups worked toward creative solutions for case management and staffing, while Chief Justice Gants and Chief Justice of the Trial Court Paula Carey advocated for additional funding for the Probate and Family Court at the State House. In the fiscal year 2019 budget, the Court received additional funds to address the specific needs of the Court – the need to hire sessions clerks and legal research and writing staff, the need for case management triage, and the need for alternative dispute resolution resources. I am proud to report that as a result of these additional funds, the Probate and Family Court has taken steps to start the reimagination of the Court, as Chief Justice Gants envisioned.

As part of this process, the Court set a goal of having one sessions clerk for each judge, so that judicial case managers and assistant judicial case managers could then spend their time outside of the courtroom working on case management. With the additional funds, the Court met that goal, hiring sessions clerks throughout the Commonwealth. In addition, three law clerks and two research attorneys have been hired. The Court now has eleven law clerk positions and seven research attorney positions dedicated to assisting the judges with their legal research and writing.

With regard to case management, I plan to solidify and build on ideas that have been discussed for many years. First, I want to emphasize to all staff, judges, and attorneys that every case is not the same, and should not be treated the same. By engaging in the early screening of cases, staff will put each case on its own path, taking into consideration various issues, including whether the case is uncontested or contested, straightforward or complex, whether the parties are self-represented or have counsel, and whether the case is ripe for alternative dispute resolution such as conciliation, mediation, or dispute intervention. Second, litigants will be educated on court processes and referred to services like alternative dispute resolution. This model has proven successful in the Middlesex Division and Essex Division on so-called “block days” with cases that involve child support with the Department of Revenue and also parenting issues. Litigants are referred to on-site mediators who assist the parties in resolving both child support and parenting issues at the same time, and with only one court appearance. We are not the first or only Trial Court department to use differentiated case management. We are, however, the Trial Court department that faces the challenge of implementing a new case management process with a population that is overwhelmingly unrepresented by counsel and that has recurring issues. Training is required to successfully implement these changes to case management. We have begun this process by conducting trainings for sessions clerks and assistant judicial case managers. We will continue to train all members of the Probate and Family Court so that we can rise to the challenges we face and meet our mission.

As I start my second year as Chief Justice, I am aware that nothing we do to improve the Probate and Family Court is done without the help of many different people and organizations – legislators, attorneys, bar associations, staff, judges, Chief Justice Gants, Chief Justice Carey, Court Administrator Jon Williams, and Deputy Court Administrator Linda Medonis. To all of you, I say thank you. Thank you for sharing your ideas about how the Probate and Family Court can be better. Thank you for your patience, as we all know that successful change takes time. But most of all, thank you for supporting me and the staff and judges of the Probate and Family Court as we make changes to enhance everyone’s experience with the Court.

 

The Honorable John D. Casey was appointed to the Probate and Family Court in 2006 and became the Chief Justice in July 2018.  He previously served as the First Justice of the Norfolk Division of the Probate and Family Court.  Chief Justice Casey graduated from Bates College and Suffolk University School of Law.


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.