The Hon. Sean M. Dunphy is chief justice of the Probate and Family Court. This report was prepared for the Joint Committee on the Judiciary.
• The number of cases filed in the Probate and Family Court has increased steadily over the last several years and is presently 154,974. (Chart 1)
• The nature of the Probate and Family Court caseload has changed dramatically over the last two decades from primarily probate cases, which are paper-driven cases with a certain life and minimal court appearances, to primarily domestic cases, which are people driven, have an uncertain life and involve multiple court appearances. (Chart 2)
• 89,963 motions for temporary orders were processed in the Probate and Family Court in FY 2002. This number is not included in the reporting of the total caseload of the Probate and Family Court.
• We estimate that at least 100,000 litigants appear in the 14 divisions of the Probate and Family Court each year without the assistance of a lawyer in any aspect of their case.1
• The judges of the Probate and Family Court are being asked to decide some of the cutting edge legal issues of our times. They are required by statute to write findings of fact and rulings of law in more cases than judges of any other department of the Trial Court.
• Five of our divisions operate from multiple court locations, requiring courtroom, registry and probation staff. Staff is also required to coordinate and transport files between the Registry of Probate and the satellite locations.
• The Probate and Family Court is a court of record. The court is required to file, maintain and have available records of its cases for an indefinite period.
• From FY 2001 to FY 2003, our appropriation was reduced by $1,510,521. Our staff has been reduced by 78 through layoffs, attrition and early retirement.
• We are dependent upon funds in the Administrative Office of the Trial Court for court officers, guardians ad litem, interpreters and for the maintenance of the facilities we use.
Probate and Family Court Department facts and figures
The Probate and Family Court has jurisdiction over domestic matters such as abuse prevention, divorce, paternity, child support, custody, visitation, adoption and termination of parental rights and probate matters including wills, the administration of estates and trusts, guardianships and related medical decisions, conservatorships, change of name and partition of real estate. The court also has general equity jurisdiction. There is a division of the court in each of the state's 14 counties. The court has 51 judges.
The Probate and Family Court has experienced a steady growth in its caseload. In the last decade, our caseload has increased from 130,678 cases filed in FY 1992 to 154,974 cases filed in FY 2002. This growth has occurred primarily in domestic matters. This trend is expected to continue. We also expect a significant increase in the number of probate cases filed. As the "baby boomer" population ages, large numbers of people will suffer incapacity and death. Therefore, there will be a significant increase in the number of petitions for guardianships and the related medical/legal decision making that often accompany such matters. Population migration patterns that separate elderly Massachusetts residents from their children will also result in an increased need for the appointment of guardians. This view is shared by Judge John R. Maher, president of the National College of Probate Judges, who recently wrote of the "approaching tidal wave of elderly and disabled citizens who will relatively soon require the services of the nation's guardianship system." There will also be an increase in the number of petitions for the administration of estates.
The shift in the nature of our caseload from primarily probate to primarily domestic has required an increase in our staff. While probate filings have remained relatively stable over the last 20 years, the court has experienced a significant increase in domestic matters. Since 1980, our caseload has shifted gradually from 60 percent probate and 40 percent domestic to 60 percent domestic and 40 percent probate. In some divisions, the shift has been even greater. For example, in the Hampden division domestic cases represent more than 68 percent of the case filings, and in the Worcester division represent more than 67 percent.
Probate matters are paper driven, have a relatively certain life and usually involve little courtroom time. The burden of these cases, the majority of which are uncontested and processed administratively, falls primarily on the staff of the Registry of Probate to ensure that all procedural requirements are met prior to submission for a judge's review and approval.
Domestic matters, on the other hand are people driven, have an uncertain life and usually involve multiple appearances by the parties in our courtrooms. The burden of domestic matters is spread among the three areas of the court: registry, probation and judicial. Pleadings are received and processed in the registry, matters are conferenced and investigated by probation and then heard and decided by a judge.
When the impact of the increasing number of pro se or unrepresented litigants is added, the burden on the staff in all areas of the court increases considerably. It is more likely that individuals involved in domestic matters will not have a lawyer. More than 95 percent of unrepresented litigants file their pleadings in person. Usually they require the assistance of staff in the Registry of Probate and Probation Office to prepare their pleadings. They then seek information and direction concerning giving notice to other parties and scheduling their case. When they come back to the courthouse for hearings, they seek assistance from Registry of Probate staff. They then need the assistance of the probation staff to prepare necessary information for the judge and to provide dispute intervention services in an effort to facilitate an agreement by the parties. They will usually require extra time and attention from the courtroom staff in the presentation of their cases.
Unlike other departments of the Trial Court, there are no prosecutors from the District Attorney's Office or attorneys from the Department of Social Services to prepare the pleadings and the list of cases and then make the presentation of evidence to the judge nor are there appointed lawyers to assist the parties in the preparation and presentation of their cases. All these matters are the responsibility of the staff of the Probate and Family Court.
Our judges are being asked to decide some of the cutting edge legal issues of our time in both probate and domestic areas. Since we have no juries, our judges are required by statute and case law to write findings of fact and rulings of law in more cases than the judges of any other department of the Trial Court. The knowledgeable and expeditious disposition of our cases requires the assistance of assistant registers, session clerks, law clerks and judicial secretaries for our judges.
Recently, the governor and Legislature have recognized our increasing caseload and provided us with additional circuit judges. However, no provision was made for additional staff to support these new judges. Therefore, we have requested the creation of new assistant register, session clerk and judicial secretary positions in various divisions and additional law clerks in the Administrative Office budget. We had gradually increased the number of law clerks to 23 with the very modest goal of 27, one chief law clerk and 26 law clerks assigned to various divisions of our court across the state with a desired ratio of one law clerk for every two judges. Our progress ended in FY 2002 when we had to layoff 10 law clerks. We now have only 13 law clerks. We were left with a chief law clerk to supervise and assign the law clerks and 12 law clerks to assist and support 51 judges.
In addition to the size and nature of our caseload, the impact of pro se or unrepresented litigants and the lack of ability to provide lawyers to individuals who cannot afford their own, there are other factors that must be considered when determining our staffing needs. These include the fact that several of our divisions have multiple locations and that we are a court of record.
In five of our divisions, which operate from multiple locations, it is necessary to have courtroom, registry and probation staff at multiple locations. Additional staff is required to coordinate and transport files between the Registry of Probate and the other locations. These multiple locations are necessary because the Registry of Probate is located in a city or town designated as the county seat and the court facilities at the location are inadequate to house the staff and business of the division and have an inadequate number of courtrooms to house the number of judges required to respond to the caseload of the division. The Bristol, Essex, Middlesex, Plymouth and Worcester divisions do not have adequate courtrooms at one location to meet their needs. (For example, in Middlesex we now have sessions in five different locations.) In addition, the geographic area of those counties is so large that court sessions at more than one location is desirable to make the court accessible to the public. However, if court facilities with adequate courtrooms were available we would be able to reduce the number of locations.
The Probate and Family Court is a court of record. The court is required to file, maintain and have available records of its cases for an indefinite period. A wide variety of members of the public come to our court not only to file and process current litigation but also to obtain records and information from old cases. Real estate title searches, requests for certified copies of divorce or paternity judgments, change of name certificates, certified copies of wills, adoption records and administration of estate records are a few examples of activities that are unrelated to current filings but bring people to our courthouses and utilize the staff resources of our court.
1. In FY 1999 the Probate and Family Court began collecting data on the number of cases filed by unrepresented litigants. In FY 2002, 53,348 cases were filed by pro se plaintiffs and petitioners. (See Chart 3). Cases filed by pro se litigants often have pro se defendants and cases filed by lawyers often have pro se defendants. Our current automated case system does not collect data on pro se defendants and respondents. Based on information from our court divisions, we estimate that there are at least 100,000 pro se litigants appearing each year in the 14 divisions of the Probate and Family Court.[back]