Imagine that traffic light in the center of an intersection being the only traffic control where several heavily traveled roads converge. Imagine that it is rush hour. Now imagine that it is flashing yellow. That image is the present status of the Massachusetts Probate and Family Courts.
A recent known legal industry news publication just ran an article on the frustration that court case processing delays have been causing among lawyers who practice in family law or probate law.
Senior Court Administrators are contending with having skeleton crews working at the clerk’s office. Now and then, an employee tests positive for COVID-19, and a courthouse has to be shut down and disinfected. And allowing the general public into the courthouses en masse has not been permitted. Whether and when the vaccine roll-out will impact this situation remains to be seen.
How COVID-19 Has Impacted the Probate and Family Courts
Filings are months behind in processing. For the most part, hearings are by Zoom, although I have attended three in-person trials over the past two months – one in the District Court and two in the Probate and Family Courts. Zoom works well enough for the situation at hand, but it leaves much to be desired compared to in-person hearings (and negotiations).
For the time being, the system is broken. Sure, like any public access facility, the Massachusetts Probate and Family Court had its share of problems before COVID-19, but they have multiplied exponentially during the pandemic.
Despite working under unprecedented difficulty, the Probate and Family Court employees are doing their utmost to deliver the best possible service that prevailing circumstances permit. And in my opinion, they deserve recognition and a hearty thank you for their diligence and hard work. Each Administrative or Support Person, Assistant Registrar, Session Clerk, Judge, and everyone else who works in some capacity in our Probate and Family Courts deserve a virtual round of applause. Working sometimes in a court, sometimes in an office, sometimes from home, and sometimes from who knows where, they are tasked with managing mountains of paper and electronic filings, processing those filings as best as they can, collecting them together in one place for a hearing, making them available for virtual hearings, and managing those hearings.
Somehow, someway, for the most part, they get it done. They are behind and struggling – but they persevere. And it is perseverance that makes a difference. The system is broken, but it is not defeated. It cannot give in to defeat. Nor should we.
Not All Cases Need to Lead to Trial
Now, I am an experienced trial attorney. For nearly 25 years, I have been trying cases. I am aggressive and confident and at home in a court of law. Some cases do have to be tried. But not all cases have to be tried. And, even if a case does require a trial, not all issues need to be tried.
The court should be our venue of last resort. It is the place where we go when all other reasonable attempts at problem-solving have failed. And this is where perseverance applies the most.
At this time, the court is not as available as it was before the pandemic. That’s a fact. So, now, more than ever, a cool head and a calm demeanor are more crucial than ever in litigation. As lawyers and counselors at law, we owe a duty to our clients to reduce the temperature of a case, offer compromise solutions to issues, and to try to contain the vitriol and emotionality that is part and parcel of family law litigation. Providing solutions to families in a family law crisis is great advocacy. Increasing emotional output, professionals being rude to one another, taking extreme positions, prevaricating, and yelling during virtual meetings is not great advocacy. Some may argue that it isn’t advocacy at all.
A familiar mantra of the United States Marine Corps is “Improvise, Adapt and Overcome.” Many lawyers have adopted this mantra in our professional lives – some willingly and some kicking and screaming– thanks to the COVID-19 pandemic.
In short, if a lawyer’s default answer for addressing issues and loggerheads is to run to court with a motion or filing that may not be heard for several weeks and which, once heard, may not have a ruling for several more weeks, then maybe their ability to improvise, adapt, and overcome is not that well developed. They may file the motion, but they may also reach out and try to work out a solution. On the other end of that communication, there should be a lawyer focused on reception to a conversation. The conversation may not yield a compromise, but the conversation should at least occur. One caveat, however, is to avoid the perpetual discussion. If one side of the equation wants to have lots and lots of conversations and keep moving the goal post, opt-out and wait for the court.
We must all endeavor to persevere in finding alternate ways to address time-sensitive family law problems in divorce litigation cases while access to the court system is problematic, at best. Early four-way conferences, professionals working toward common goals, mediation, and conciliation are all great tools that may be utilized in problem-solving for clients. But an attitude of intelligence and a willingness to listen to all sides of an issue is essential to success.
Our office places our clients on the team and tries to use all of the tools available for conflict resolution. We do not have a one-hat-fits-all-let-the-judge-decide default approach to complex family law issues. If you or someone you know has a family law matter and would like to meet with us, please reach out and schedule a consultation.