In-person trials and Probate & Family Court hearings will be shut down until early 2021 or later in Commonwealth.
UPDATED DECEMBER 7, 2020 - With daily Covid infection rates climbing in Massachusetts and vaccines weeks or months away, many Massachusetts Probate Court watchers are wondering if a new shutdown order from the Massachusetts Trial Court that will further limit operations in Massachusetts Probate & Family Courts. On Friday, December 4, 2020, the Massachusetts Trial Court appeared to confirm that in-person activities at Massachusetts courtrooms would be dramatically curtailed until January 8, 2021. The Trial Court update stated in part:
In light of the major increase in COVID-19 infections in Massachusetts and experience with court staff testing and courthouse closures, the Trial Court will extend the reduction of in-person court operations begun on November 27 through January 8, 2021. Courthouses will remain open during this time, and Trial Court staff will be maximizing remote work and leveraging the technologies in place to conduct operations remotely.
The suspension of most in-person activity - including all or most in-person Probate Court trials scheduled for December 2020 - extended an decision by by the Trial Court and Massachusetts Probate & Family Court Department before the Thanksgiving holiday requiring a one-week suspension of in-person hearings following the Thanksgiving holiday. The statement included the following information about Massachusetts Probate Courts:
In light of the increasing COVID-19 infection rate in Massachusetts and the country, and using guidance from medical experts, the Trial Court will significantly reduce in-person court operations from Friday, November 27, 2020 through Friday, December 4. Courthouses will remain open during this time, and Trial Court staff will be maximizing remote work and leveraging the technologies in place to conduct operations remotely.
On the morning of December 7, 2020, this office received an email from a Probate Court clerk confirming that a Plymouth County trial that was scheduled to take place this week was postponed until after January 8, 2021. The next available trial dates in Plymouth County? Mostly likely August 2021 or later. Expect similar delays throughout the Commonwealth.
Massachusetts Probate Courts were shutdown for in-person hearings from mid-March 2020 through August 2020, when judges slowly began hearing in-person trials again. In-person operations in Probate Courts increased steadily in September and October, during a lull in the Massachusetts infection rate. However, a November spike infection threatens to gain limit Probate Courts to virtual operations.
Barnstable Probate & Family Court Announces all Virtual Hearings Through December 31, 2020
Each department of the Massachusetts Trial Court has taken slightly different approaches when responding to the Covid-19 outbreak. Similarly, each county’s Probate & Family Court has maintained a certain level of autonomy when developing their responses to the Covid crisis. On November 24, 2020, the Barnstable Probate & Family Court sent a letter to members of the Barnstable County Bar Association announcing the following:
Beginning Monday, November 30, 2020, and continuing until December 31, 2020, all in-person hearings, including trials, will be conducted by Zoom, except for emergency cases which cannot be heard by Zoom.
Throughout the Covid crisis, the Barnstable Probate Court has been a leader in the implementation of virtual trials conducted via Zoom. Although other counties have broadly adopted Zoom for many types of hearings, conducting trials using Zoom presents many unique challenges, many of which center on the difficulty of presenting documentary exhibits to witnesses testifying from remote locations. Barnstable has led the charge in adopting protocols for conducting trials virtually, however.
Massachusetts Juvenile Court Suspends In-Person Hearings until January 11, 2021
Heading in December 2020, it seems likely that a Standing Order announced by the Massachusetts Juvenile Court the day before Thanksgiving could be adopted by other Trial Court departments in the coming days. The new Juvenile Court Standing Order provides:
It is hereby ORDERED that effective Friday, November 27, 2020 until Monday, January 11, 2021, all Juvenile Court Divisions shall address emergency matters only in order to allow for a decrease in the numbers of staff and members of the public inside Juvenile Court locations. These emergency matters shall be conducted virtually unless conducting such a hearing virtually is impracticable or because it would be inconsistent with the protection of constitutional rights.
The Juvenile Court Standing Order goes on to define emergency matters and lay out the particulars of how virtual hearings will be conducted in Juvenile Court matters through early January. The Juvenile Court Standing Order includes similar terminology to the shutdown orders that entered across Massachusetts Courts in the spring.
Although other Trial Court Departments have not entered new Standing Orders for the upcoming in-person shutdown, such Standing Orders are likely on their way.
Can Probate Court Operate Virtually Without In-Person Hearings?
From the start of the Covid outbreak in March, Massachusetts Probate Court have shown increasing skill and sophistication in virtual operations. In the early days of the pandemic, many court hearings were held via phone. As the weeks unfolded, most Courts rolled out Zoom hearings to enable a greater level of participation by judges, court staff, attorneys and parties. Even as Massachusetts courts have increasingly excelled at conducting hearings without attorneys or parties in the building, the court have required significant numbers of in-person staff to be present at court facilities in order to maintain smooth operations.
In the context of a December Covid shutdown, the number of virtual hearings that Massachusetts courts may conduct is likely to be limited by the volume of in-person staff that each court is able to have in the building at a given time. The new Juvenile Court Standing Order, for example, “seeks to reduce in-person court operations in order to balance access to courts with protection of the health and safety of all Trial Court employees”. The Standing Order also hints at technical challenges associated with remote hearings where it provides, “All virtual hearings shall be held, to the extent practicable, in a courtroom or other location that can be recorded by FTR.”
Given that many virtual hearings may require at least some in-person staff at the physical courthouse, it seems likely that the number of virtual hearings may be limited due to staff numbers as much or more than any technical issue with virtual hearings.
Most In-Person Trials Probably Delayed Until Late Winter or Spring at Earliest
Although we generally try to avoid speculation in this blog, we believe it is fair to predict at this point that all or nearly all in-person Probate & Family Court trials (i.e. not including virtual Zoom trials) scheduled in December 2020 will be continued indefinitely, at least through January 8, 2021. Given the massive backlog that Courts were already facing on in-person trial dates, it seems likely that many of these delayed trials will be pushed well into 2021. That said, it is possible that more counties will follow the Barnstable Probate Court's example and make greater use of virtual Zoom trials between now and when court's re-open for in-person hearings.
Could Some In-Person Hearings Still be Held in December 2020?
It should be noted that the Trial Court has left some wiggle room for in-person hearings in its latest announcement, which discusses a "reduction" in in-person hearings rather than a total shutdown:
The reduction of in person hearings has the potential to significantly limit presymptomatic individuals from entering courthouses, and reduces the potential of those individuals infecting others. .... To the extent possible, matters already scheduled during this time will be held as virtual proceedings. Parties, attorneys and court users with questions about matters scheduled during this time should contact the appropriate clerk’s, register’s, or recorder’s office.
Because the Trial Court has characterized its decision as a "reduction" in in-person hearings, it is possible that certain matters could still be scheduled in-person in Massachusetts courtrooms. However, this is unlikely to occur in anything but the most urgent matters. Most attorneys and litigants should plan on all in-person hearings being delayed, continued and/or rescheduled until at least January 8, 2021, and quite possibly much longer.
For the most up to date news on the Massachusetts Trial Court’s response to the Covid crisis, check frequently at the Trial Court’s daily updates page.