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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