Imagine that the traffic light in the middle of an intersection is the only traffic control where several busy roads converge. Imagine it is rush hour. Now imagine that it is blinking amber. This image is the current status of the probate and family courts in Massachusetts.
A recent news magazine in the legal industry just published an article about the frustration caused by delays in processing legal proceedings for lawyers involved in family or probate law.
Senior court administrators are struggling with skeletal teams working in the clerk’s office. Every now and then an employee will test positive for COVID-19 and a courthouse needs to be closed and disinfected. And let the general public into the courthouse a lot of was not allowed. Whether and when the introduction of the vaccine will affect this situation remains to be seen.
How COVID-19 Affected Probate and Family Courts
Submissions are in process for months. Most of the hearings are being held by Zoom, although I’ve attended three face-to-face trials in the past two months – one in the District Court and two in the Probate and Family Court. Zoom works well enough for the situation at hand, but leaves something to be desired when compared to in-person hearings (and negotiations).
The system is broken for now. Sure, like any public access facility, the Massachusetts Probate and Family Court had some issues before COVID-19, but they have multiplied exponentially during the pandemic.
Despite working in unprecedented trouble, the Probate and Family Court staff strive to provide the best possible service that the circumstances allow. And in my opinion, they deserve recognition and a heartfelt thank you for their diligence and hard work. Every administrative or support person, assistant registrar, session clerk, judge, and anyone else serving in any capacity in our probate and family courts deserve a virtual applause. Sometimes you work in court, sometimes in an office, sometimes from home and sometimes who knows where from. Their job is to manage mountains of paper and electronic documents, to process these documents as well as possible and to collect them in one place for a hearing, which makes them available for virtual hearings and manages these hearings.
Somehow, for the most part, they make it. They’re back fighting – but they’re holding on. And it’s persistence that makes the difference. The system is broken, but it is not defeated. It cannot give in to defeat. We shouldn’t do it either.
Not all cases have to lead to negotiation
Now I am a seasoned litigator. I’ve been trying cases for almost 25 years. I am aggressive and confident and at home in court. Some cases need to be tried. But not all Cases must be tried. And even if a case requires litigation, it doesn’t all Problems must be tried.
The judgment should be our last resort. It is the place we go when all other reasonable attempts to solve the problem have failed. And this is where persistence counts most.
Currently, the court is no longer as available as it was before the pandemic. It is a fact. More than ever, a cool head and a calm demeanor in litigation are more important than ever. As lawyers and Legal advisor, We are committed to our clients to lower the temperature of a case, to offer compromise solutions to problems and to try to contain the vitriol and emotionality that are part of family law litigation. Providing solutions to families in a family law crisis is a major concern. Increasing emotional performance, the fact that professionals are rude to one another, take extreme positions, get their way, and yell during virtual meetings is not a huge endorsement. Some may argue that it is not a legal profession at all.
A well-known mantra of the United States Marine Corps is “Improvise, Adapt and Overcome”. Many lawyers have adopted this mantra into our professional lives thanks to the COVID-19 pandemic – some willingly and some kick and shout.
In short, when a lawyer’s standard response to resolving issues and ambiguities is to go to court with a motion or file that may not be heard for several weeks and, once heard, may be for several weeks has no decision then their ability to improvise, adapt and overcome may not be as well developed. They can submit the request, but they can also try to find a solution. At the other end of this notice, there should be a lawyer focused on recording a conversation. The conversation may not be a compromise, but the conversation should at least take place. One caveat, however, is to avoid the constant discussion. If one side of the equation wants to have increasingly of conversations and keep moving the goal post, deactivate and wait for the pitch.
We must all strive to continue to find alternative ways to address time-sensitive family law issues in divorce disputes while access to the judicial system is problematic at best. Early four-way conferencing, professionals working towards common goals, mediation and arbitration are great tools to use in problem solving for clients. However, an attitude of intelligence and a willingness to listen to all sides of a topic are critical to success.
Our office puts our customers on the team and tries to use all the tools available for conflict resolution. We don’t have a one-hat-fits-all-let-the-judge-decain standard 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 contact us and arrange a consultation.