By Brian Pariser
In his 2017 State of the Judiciary address, SJC Chief Justice Ralph Gants identified structural issues that had put the Probate and Family Court in crisis. He observed that Probate and Family Court judges “must understand not only a single transaction or event, but each family’s entire history, including the relationship between the spouses, their abilities as parents, and the needs of their children or, in some guardianship cases, the needs of an elderly parent or a drug-addicted adult child. The judges must also determine each family’s income, assets, and potential financial resources, including their capacity to earn.” The situation is made more difficult, he noted, due to the number of self-represented parties that must litigate matters “as complex, as emotional, as enduring, and as life-changing, as in the Probate and Family Court.” The Massachusetts Access to Justice Commission observed in its 2017 Strategic Action Plan that “upwards of 80% of family law cases involved at least one unrepresented litigant at that time, and it appears that the number of unrepresented litigants continues to grow.” Those numbers generally continue to hold true today.
Managing cases with self-represented litigants almost always takes more time and resources. This reality is magnified in the Probate and Family Court, where there is little finality to judgments as parties frequently return to court for modifications, which represent 25% of the court’s caseload, as well as contempt actions. Additionally, the judges are required to issue findings or determinations in 181 distinct situations. Compounding the workload, the court had been significantly understaffed since 2015, when a hiring freeze produced critical vacancies.
Despite their deep commitment to helping families in need, many judges find it difficult to keep up with their overwhelming workload. Consequently, the Chief Justice concluded, “Probate and Family Court judges are retiring before age 70 at the highest rate of all our Trial Court departments, and younger judges are running at a pace they cannot reasonably sustain.” Judicial ‘burn out,’ has cost the court judges with institutional memory and deep experience in highly specialized and technical areas of the law.
Facing this crisis, Chief Justice Gants issued a challenge to “reimagine how we do justice in our Probate and Family Court.” The court has recently made great strides to answer this call. Although improvement is, and always will be, a work in progress, the Probate and Family Court has been creative and innovative and now stands on a firmer footing, ready to face today’s challenges.
The Court’s Coordinated Response to the Crisis
A more efficient Probate and Family Court, which can better manage its increasing workload and resolve cases both fairly and promptly, benefits everyone. Chief Justice John Casey, shortly after his appointment in 2018, conceived a multi-stage strategy built around obtaining sufficient funding, welcoming creative solutions and operational innovations, working with stakeholders, and reallocating and repurposing resources. All efforts were focused on the overarching mission “to deliver timely justice to the public by providing equal access to a fair, equitable and efficient forum to solve family and probate legal matters and to help and protect all individuals, families and children impartially and respectfully.”
Pathways Case Management
Judicial and Assistant Judicial Case Managers (“case managers”) were removed from the courtrooms, where they had been placed due to a shortage of sessions clerks. The role of a case manager is to manage cases and this move allowed them to implement Pathways case management (“Pathways”). Using Pathways, case managers triage cases and match parties to available resources early in the litigation process. They provide information to parties on appropriate resources and about the court procedure. This allows parties to resolve their cases quickly and efficiently, often without judicial involvement. Fewer court hearings benefits both the parties and the public. When judicial involvement is necessary, judges have more time to hear the evidence and write decisions.
Pathways was rolled out in 2019 in select courts, initially addressing modification actions. It now operates in all fourteen divisions. Since January 2020, more than 3,400 cases have been resolved through this program, and, in the first nine months of 2023, 739 cases were resolved this way. Pathways has already proven to be indispensable and will hopefully soon be expanded to include more case types, such as child support contempt proceedings.
Defining Best Practices for Court Staff
In 2022, Chief Casey and Deputy Court Administrator Domenic Dicenso created a working group of judges and registers of probate to make proposals regarding specific topics deemed essential to the continuing evolution of the two aspects of the court – the judiciary and the Registry – into one cohesive unit. The working group ultimately reached consensus and created an internal guide that identifies the primary responsibilities of assistant registers and case managers and establishes best practices for emergency protocols to promote uniformity within and across divisions.
The Fiduciary Litigation Session
The Fiduciary Litigation Session (“FLS”) is another relatively recent, successful, undertaking which has brought relief to congested dockets. The FLS was originally initiated in 2017 as a temporary pilot program to resolve complex probate litigation cases. In 2019, the court committed to building on the FLS, securing funding to expand its single session and hire a dedicated FLS staff of two full time session clerks and a research attorney. The FLS is now staffed by two retired recall judges and receives referrals from all the court’s divisions.
As of June 16, 2023, 483 matters have been reassigned to the FLS, of which 355 have been resolved. Each of these contested cases was referred to the FLS in accordance with Probate and Family Court Standing Order 3-17 “based primarily on the complexity of the case and the need for substantial case management.” No fewer than 93 of these cases are comprised of two or more related actions, and their complexity demands significant judicial attention and multiple days of trial. The FLS’s expansion has saved the court countless hours of trial time for each referred case and provided the bar and litigants with consistent, specialized judicial expertise. The court hopes to expand the FLS to hear additional case types.
Office of Adult Guardianship and Conservatorship Oversight
In 2021, Massachusetts was one of only seven states to receive a federal grant to establish the Office of Adult Guardianship and Conservatorship Oversight (“OAGCO”), which will be housed within the court’s administrative office. The OAGCO will have an important role in educating guardians and overseeing the reporting obligations of both guardians and conservators.
The Pandemic Spurs Permanent Practice Innovations
Beginning in 2020, the COVID-19 pandemic threatened to paralyze the court and set back its reform efforts. The court nimbly responded to the challenges and, in the process, permanently redefined Probate and Family Court practice.
In 2020, in conjunction with the Department of Revenue, Child Support Enforcement Division (“DOR/CSE”), the court established the award-winning Virtual Child Support Case Conferencing Session (“case conferencing”). This session was created to maintain families’ access to child support at the beginning of the pandemic, when so much was uncertain about public health, the economy, and the resulting impact on children.
Beginning with telephonic hearings, and later by Zoom, litigants appear safely before a judge to resolve certain paternity and child support matters involving DOR/CSE. Case conferencing rapidly expanded and since its inception has scheduled more than 22,000 individual cases for hearing. In the six months between April and September 2023, case conferencing heard 5,121 cases, more than half of which were reviewed administratively without a hearing.
Due to its success, the court made case conferencing permanent. In-person hearings with judges in day-long “block sessions” are no longer necessary and litigants, many of whom are low income, are saved the time and money that would otherwise be spent to attend court, including extra childcare, transportation, and lost wages from missed work.
The court plans to retain other innovations made in response to the pandemic. Probate and Family Court Standing Order 2-23 keeps remote hearings in place for certain additional case types, and staggered scheduling is required for all cases, in-person and virtual. The court’s virtual registries, which presently allow court users to remotely access ‘face-to face’ help from court staff in 11 divisions, will also be maintained.
Eight New Judges and Adequate Personnel
To sustain and cement the benefits of its successful initiatives however, the court needed to fill significant judicial and staff vacancies. After years of trying to do more with less, court leaders were able to fund additional positions to assist both the registries and judicial staff.
Even with the innovations the court has implemented, the increasing complexity of the litigation means that the most difficult and contested matters must ultimately end up before a judge. Recently, the court has relied on retired judges, in both part-time recall or volunteer capacities, to resolve a significant portion of these cases. This was a temporary solution to a long-term problem. As such, Chief Casey and Assistant Deputy Court Administrator Dicenso, with the support of Chief Justice Locke and Court Administrator Thomas Ambrosino, advocated for an additional eight permanent, circuit judges to permit both the stability and expansion of proven programs, support judges throughout the state, and improve access to justice in the court. The Legislature and the Governor heeded the call and have shown their support of the court’s pressing needs and included funding for eight additional Probate and Family Court judges in the FY 2024 budget.
By 2017, the Probate and Family Court was in crisis and struggling to provide among the most basic, critical services to the public. However, with significant support from all areas of government and the public, the court has improved the administration of, and access to justice. While there is on ongoing need for continued improvement, the past five years has demonstrated that the reimagining of the court has yielded tangible results, and improved the court and the lives of court users.
Brian Pariser serves as Deputy Legal Counsel to the Probate and Family Court.