Conference Background and Agenda
Recommendations from the
Commonwealth of Massachusetts
1.
Creation of a Magistrate Position
The
creation of a magistrate position, which would play a crucial role in
effectively dealing with the ever increasing volume of cases involving pro se
litigants. The primary role of
magistrate is envisioned to be that of “case manager.”
It would be the magistrate’s task to screen cases and make initial
orders in some cases. The
magistrate would ensure that by the time matters come before a judge they are
ready for the hearing. By allowing a magistrate to conduct initial case
conferences, hear certain uncontested matters, issue certain orders, make
preliminary referrals and issue orders in specified circumstances, judges would
have more time to hear complex contested matters.
2.
Simplified Domestic Relations Process
The
Committee recommends the implementation of a process in the Probate and Family
Court that would be similar to “Small Claims” process in the District Court.
Litigants involved in domestic relations matters (i.e., divorce or
paternity) with a limited number of issues (i.e., support and visitation) could
elect with the approval of the judge or magistrate to proceed under the
Simplified Domestic Relations Process which would eliminate most formal
discovery and relax the rules of evidence, two major stumbling blocks for may
pro se litigants. This process would also be available to represented
litigants.
3.
Unbundling Legal Representation
“Controlled
unbundling” of legal representation is one way to make legal representation
available to more litigants. “Controlled
unbundling,” in the form recommended by the Committee would allow the attorney
to provide representation in certain aspects of a case without requiring the
attorney to appear at every court hearing.
The attorney would be required to file an appearance in the case and the
client and his/her attorney would in certain circumstances be allowed to agree
when the attorney need not appear at the hearing and when the client could
appear him/herself.
4.
Rules and Legislation Changes
A number
of Committee’s recommendations would require changes to rules of court,
standing orders and existing legislation. For
example, “controlled unbundling” of legal services would require changes to
both ethical rules and Massachusetts Rules of Domestic Relations procedure
regarding appearances and pleadings; the recommendation that the Register of
Probate be allowed to refuse to accept certain incomplete or improper filings
would require changes in Massachusetts Rules of Domestic Relations Procedure.
Many of the initiatives recommended in the Report require additional
funding. We propose that a significant amount of the necessary funding
be generated through the imposition of additional filing fees and assessing
court costs.
5.
Education and Information
The
Committee recommends that educational/informational materials be made available
in a variety of forms and languages. The
Committee recommends specific training for judges and court staff to increase
awareness of issues involving diversity of the population, language barriers and
literacy problems.
6.
Forms Revision
The
Committee recommends that forms that are most often used by unrepresented
litigants be reviewed and where appropriate, revised to include:
simplified language; larger spaces for writing information; clear concise
instructions; and overlay templates to address diverse language needs.
Forms should be compiled in self-contained packages, which include all
forms and instruction necessary to present the most frequent files matters.
7.
Probation Officers Role Expanded
The
Committee recommends the expanded involvement of probation officers in dispute
resolution referrals by judges and magistrates and in conducting investigations.
The Committee also recommends the creation and funding of the position of
associate probation officers in the Probate and Family Court to allow the
probation officers to undertake these expanded duties and to implement certain
education policies and procedures.
8.
Court Clinic
The
Committee recommends the expansion or creation of Court Clinics either on a
regional or county basis. Such
clinics already exist in several counties of the Probate and Family Court and
perform initial evaluations and assessments particularly in custody and child
welfare cases.
9.
Pro Se Coordinator Position
The
Committee recommends the creation of a permanent Pro Se Coordinator within the
Probate and Family Court Administrative Office to institute the Committee’s
recommendations, oversee their implementation and monitor their effectiveness.
The Coordinator’s role will also include development of ongoing
responses to the changing needs of the court and litigant.
This
Committee’s recommendations must be viewed in conjunction with other
initiatives, which impact the pro se litigant and the court.
It is expected the Pro Se Coordinator would also work to integrate the
recommendations of these and other committees.
Reproduced
from:
COMMONWEALTH
OF MASSACHUSETTS: THE TRIAL COURT – PROBATE AND FAMILY COURT DEPARTMENT - Pro
Se Litigants: The Challenge of the Future, Committee Report December, 1999
Massachusetts
Probate and Family Court Bench/Bar Conference, April 8, 1995 Boston Law School,
Professor Charles P. Kindregan & Patricia A. Kindregan, Esq.
Based on a
series of Probate and Family Court Pro Se Committee Meetings that began in
November of 1997 and ran until June 21, 1999, this report was written in
response to the rising number of pro se litigants who appear in this court.
Refusing to view this as a “problem,” the committee has chosen rather to
view it’s finding as an opportunity for the courts to become more efficient
and proactive with all the respective parties whether represented or not. In
addition, the committee recommended there be substantive changes in the
philosophical approach to case management and court structure, which in some
cases would need to be referred to the legislature. The Committee saw an
enormous need for a working partnership between the Bar and pro se litigants.
The Courts also saw a need to cooperate and request the assistance of social
service agencies and educational institutes which could disseminate many of the
educational programs and materials.
Hon.
Mary C. Fitzpatrick and Hon. Sean M. Dunphy
Office of the Chief Justice
Three Center Plaza
Boston, MA 02108