In the week following the implementation of Probate Court Standing Order 2-20 on March 18th (see Hether Cahill’s post here) many key aspects of litigation in the Probate and Family Courts remain in flux, ad hoc, or simply opaque as our already over-burdened court system struggles (valiantly) to continue serving the public amid this unprecedented crises. As a result, guidance from the Courts at the county level is more important than ever in determining what can be heard and when. It is also changing on what seems like a daily basis. Any potential litigant with questions regarding particular counties and courthouses would be wise to seek out a trusted probate litigator, especially in this tumultuous time.
That said, here’s where things stand at the moment:
Although Standing Order 2-20 (“SO 2-20”) provides a list of “emergency” cases that may be heard, the process for such emergency hearings and what circumstances are sufficient to constitute an emergency are determined at the county level. As of today, the following western counties have issued further county-specific guidance on their processes: Middlesex (3/20/20), Norfolk (3/20/20), Suffolk (3/24/20), Essex (3/23/20), Bristol (3/19/20), Plymouth (3/19/20), and Worcester (3/20/20). Additionally, Barnstable county has updated its website.
Any litigant or counsel faced with a potential “emergency” matter would be wise to review the specific guidance of the county where their case is located. As general guidance, parties who are seeking to be heard on an emergency basis should expect the following:
The Courts are interpreting the requirements for what constitutes an “emergency” strictly, but retain discretion. Whether a case rises to that level is in the discretion of the Judge and their judicial case managers. The few cases that we have seen hearings in have each presented an immediate concern of irreparable harm. For example, an emergency motion for appointment of a Guardian might be heard if there is a credible concern the protected party is suicidal or likely to actively hurt themselves.
Practice Note – based on my experience in “emergency” hearings over this past week, it appears that emergency motions related to Guardianship, particularly where there are serious mental health issues, i.e. schizophrenia, bipolar, psychosis, and/or drug-addiction issues stand a reasonable chance of being heard on an emergency basis. In part this appears due to the additional risk these conditions create in the current environment. In one such case, the Court administratively appointed counsel for the protected person and issued the Order by e-mail, which allowed the protected person and counsel to meet via videoconference immediately before a hearing that afternoon. All pleadings were filed by e-mail. As a result, immediate relief was granted in a situation that would have normally required multiple hearings. This expedited emergency process allowed our client to be appointed as temporary Guardian only a week after retaining counsel.
In general, a good rule of thumb for litigants will be whether or not the harm they are seeking to avoid will be irreparable if they are not heard. For example, many Courts are declining to hear “emergency” motions for support and/or Contempt on support orders. The basis for declining these appears to be that the loss of income can be corrected at a later time, before parties are evicted or run out of alternative resources to provide daily necessities.
After working with counsel to articulate the exact nature of the emergency, the SO 2-20 category into which it falls, and the harm that will result if it is not heard immediately, litigants will need to navigate each Court’s unique process to obtain a hearing. In general, litigants will need to contact the Court directly to have your case “screened-in” as an emergency pursuant to SO 2-20. Most Courts have provided emergency phone and e-mail contacts in their individually-issued guidance. Most Courts have also established protocols to allow parties to file their pleadings by e-mail in emergency cases. E-filing remains available for other matters. Parties should not appear at the Court, if possible, as the Probate Courts are closed to the public. There are potentially rare exceptions, but several Courts have indicated that litigants with legitimate emergencies who appear at the Court in person should expect to be heard telephonically for the protection of court staff.
Once a case is screened-in, you will receive, by direct e-mail or a phone call, notification of the date and time for a telephonic or video conference hearing. Whether to request a telephonic or video conference hearing is up to the parties. Availability of video conferencing equipment will depend on the Court’s individual resources and capabilities. In cases where there are several parties, i.e. a petitioner and three objectors, each with counsel, the hearing will probably need to be conducted telephonically. In any case, the party seeking relief should explicitly identify whether they are seeking a telephonic or video conference hearing.
In conducting the hearing, parties and counsel should do their best to accommodate the Court. While it is generally bad form to interrupt others, doing so in a telephonic or video-conference hearing is particularly egregious. It can and will bring the hearing to a screeching halt, sometimes literally as the interconnected phone systems struggle to keep up. On the other hand, where parties and counsel allow the Court to conduct its business in an orderly and uninterrupted manner, these hearings can and do move forward in a reasonably expeditious manner – even with many individuals remotely present.
From all of us at Burns & Levinson, we wish you safety and health during these uncertain times.