Below is the full text of a Massachusetts Lawyers Weekly article from 01/28/2021.
Lawyers complaining recently of phone calls that go unanswered and filings that aren’t docketed in a timely manner have long lamented shortcomings in the operations of the Probate & Family Court.
The court’s chief, John D. Casey, promises there’s a light at the end of the tunnel.
In announcing Casey’s appointment as chief in May 2018, Trial Court Chief Justice Paula M. Carey praised the judge for having the skills and leadership qualities necessary to “reimagine the structure” of the court.
Casey says the court was making steady progress in the fulfillment of his commission before operations were disrupted by the coronavirus last March. Now, having steered the court through nearly a year of the pandemic, he foresees major steps forward in meeting the needs of counsel and their clients, as well as the needs of the vast numbers of unrepresented litigants who seek redress in the Probate & Family Court.
“In another three or four months, we’re going to be in a position to be fully remote if we have to,” Casey says.
While the court may not be “broken,” Massachusetts Bar Association President Denise I. Murphy says it is “definitely in need of repair.”
“These are issues that have predated COVID and have only gotten worse,” Murphy says. “The system has to be improved.”
According to Murphy, the MBA’s recent program addressing civility issues was largely in response to what has been transpiring in the Probate & Family Court.
“By its nature, it’s unlike any other court,” Murphy says. “The need is always emergent, unless it’s just about money. We’re talking about peoples’ lives: the end of a life, the beginning of a life, and lives being torn apart. So emotions are always going to be high.”
Some lawyers question whether the level of service can be significantly improved without an expansion of the court itself, funded by the taxpayer or more creative measures.
“They don’t have the resources financially, or in terms of judges or staff, to serve the people who come into the court every day,” Boston family law attorney Regina M. Hurley says.
Intractable problems?
Pamela B. Greenfield, president of the Massachusetts chapter of the National Academy of Elder Law Attorneys, says the court is “notorious” for having a difficult system in place.
“Part of the reason is because it’s a very pro se-heavy court. The majority of people are not represented by counsel. It’s not like Superior Court where nearly everybody is represented by counsel,” Greenfield says.
Because court employees frequently are occupied helping pro se litigants navigate the process, they have less time to address other matters, such as updating dockets or answering a phone call from a lawyer with a pressing matter, Greenfield says.
“[The court] winds up having this hectic, frenetic [atmosphere] where the clerks are dealing with pro se litigants coming in and asking emotional questions about child support, custody and restraining orders,” the Needham lawyer adds. “On the probate side, it’s helping people figure out how to file for probate and get access to assets after someone has passed away.”
I know of a judge that’s been on the bench for three months. That judge has reported being overwhelmed — working till 10 or 11 at night seven days a week, trying to keep up with things.”
Greenfield says an attorney’s perspective on the court often depends on whether the lawyer is a litigator or does transactional work.
“My practice is very transactional, so 90 percent of what I’m doing in court can be handled by a clerk behind the counter,” she says. “You’re going to hear a lot more gripes from practitioners who are used to sitting in a courtroom before a judge and are having trouble getting their motions marked up and hearings scheduled.”
Casey acknowledges that there have been recent problems in terms of documents getting docketed and scanned.
“There may be divisions [where employees are] not getting to the phone as quickly as they should,” he says. “But our staff and our judges and our registers have done a remarkable job. Our filings are only down 25 percent over the past 12 months, yet we’re working in conditions where we have a maximum of 50 percent staff onsite” because of pandemic guidelines.
The Probate & Family Court consists of 14 divisions with 51 authorized judicial positions.
In his 2017 State of the Judiciary address, Supreme Judicial Court Chief Justice Ralph D. Gants cited the “overwhelming” workload facing the Probate Court’s judges as among the major challenges facing the state judiciary. Gants pointed out at the time that, as a result of that workload, the court’s judges were retiring before the mandatory age of 70 at the highest rate of all Trial Court departments.
“The burdens we place on our Probate & Family Court judges are simply not sustainable; we need to reimagine how we do justice in our Probate & Family Court,” Gants said.
Casey knows all too well the stress his judges are under.
“I know of a judge that’s been on the bench for three months,” Casey says. “That judge has reported being overwhelmed — working till 10 or 11 at night seven days a week, trying to keep up with things.”
Silver lining
Casey says the court made great progress in the past year transitioning from paper-based to an online system. In addition to expanding e-filing and introducing filing by email, last January the court launched its Pathways case management pilot in Plymouth County.
“We’re moving forward on the Pathways program” Casey says. “We’re restarting it in Plymouth, and then we are going to bring it to all the smaller divisions. Then we’re going to introduce it to the larger divisions. The entire Trial Court has been working toward a true e-court, and we’ve made great strides.”
In June, the court launched virtual registries in Barnstable, Essex and Middlesex counties. The program uses Zoom videoconferencing to enable registry employees to provide assistance to the public with court forms as well as access to court documents and docket information. According to Casey, more than 40,000 people have used the virtual registries since the program began.
They don’t have the resources financially or in terms of judges or staff to serve the people who come into the court every day.”
He notes that the COVID crisis forced the court to resort to conducting hearings via Zoom.
“We’ve conducted over 22,000 Zoom hearings since the end of June,” Casey says, adding that Zoom hearings have proven so successful that they will continue to be used once the pandemic is over.
“Pro se litigants, lawyers and other parties have all embraced the efficiency of being able participate in a 10- or 15-minute [Zoom] hearing, without having to drive into court,” he says.
Hurley agrees.
“The pandemic has brought a lot of folks kicking and screaming into the future,” she says. “With these virtual hearings, … you get a date and a time. It’s much more efficient in terms of both a client having to be away from work and an attorney having to be away from their office.”
Thinking outside the box
Apart from the court making greater use of technology, Casey says the state provided funding for two recall judges to attack a backlog of child support cases.
“Now, those two judges are doing about 300 hearings a week working basically part time,” he says.
Casey adds that the Trial Court’s Carey made it clear that, if necessary, the Probate & Family Court has the green light to bring in more recall judges and per diem employees through the end of the fiscal year.
Aside from more funding from the Legislature, Hurley says getting the money to improve court operations may be achieved by more creative methods. For example, she says the court could assess user fees according to a sliding scale based on the value of the financial interest at stake in a particular case, as is currently done with certain probate matters.
“Money changes hands on a daily basis in the Probate & Family Court,” Hurley says. “To the extent that the money [at stake] is sizable — [for example,] you’ve got a $25 million marital estate — you could have some sort of use charge that is one or two points of the total value of the estate. That’s a bit radical, but I’m looking for solutions.”
Meanwhile, Casey has been actively reaching out to attorneys about issues they’re confronting in his court. Since the end of last March, he’s spoken to 26 bar associations.
The MBA’s Murphy commends Casey for his efforts.
“He has a particular view on what happens in the Probate & Family Court because he actually practiced in it,” Murphy says.
In fact, Casey is so anxious to hear from lawyers that he’s giving out his email address: john.casey@jud.state.ma.us.
“I’ve told attorneys, ‘If you have a problem, reach out to me. I may not know about it otherwise,’” he says.