Beyond The Will, Client Compass

Accessing the Courts During a Pandemic; a Probate Litigator’s Perspective

July 16, 2020


The last time I set foot inside of a Courthouse was on March 5, 2020, more than four months ago. This is the longest I have gone without a trip to Court since passing the bar, including the parental leaves I took after the births of my children! The COVID-19 pandemic abruptly closed the Courts to the public in mid-March, and they are only now starting to re-open, gradually, and with precautions. In the meantime, the Courts have been operating remotely, hearing certain cases by telephone or video conference. At least one of my colleagues even participated in a trial by Zoom! More on that experience next week. For now, this post will update you on what to expect from the Probate and Family Court – including the specialized Fiduciary Litigation Session – over the next few months.

  1. Are any Hearings going forward in person? Effective July 13, 2020, the Probate and Family Court may conduct evidentiary hearings and trials in person. Schematics have been done for all Courthouses, and there are set capacity limits that must be maintained. There will be temperature-checks upon entry. Masks must be worn, and social distance must be maintained. Beginning on August 10, 2020, certain additional matters may be heard in-person, but those matters are primarily focused on the domestic relations side of the Probate and Family Court’s business.
  2. What about other types of Hearings? All other Hearings will remain virtual; heard by telephone or videoconference. At the outset of the closure, very few cases were actually being heard, with most cases being continued to a future date. Now, as the Judges and Court staff have expanded their use of telephone and videoconferencing, more cases are being heard virtually, including routine Motions and Pre-Trial Conferences. Each county has developed protocols for screening and scheduling cases as efficiently as possible.  For probate litigation matters in the Fiduciary Litigation Session, most cases are now going forward as scheduled, primarily by telephone. Outside of the Fiduciary Litigation Session, significant backlogs have accumulated, and so there are ongoing delays in many pre-existing and newly-filed matters. Stay tuned to Beyond the Will for a future post about complications and opportunities presented to probate litigation matters in light of the delays and limits to Court access.
  3. Can we conduct any other Court business in person? Subject to the capacity restrictions and safety protocols mentioned above, the Registry (clerk’s office) in each Courthouse can now be accessed in person to make filings and conduct other Court business. Wherever possible, though, all business should be handled virtually. E-filing is available in certain matters. In the Fiduciary Litigation Session, many filings are accepted via email to the FLS Clerk. Most recently, the Probate and Family Court has expanded its “Virtual Registry” where parties and counsel can connect with the clerk’s offices of the various Courthouses online via Zoom to review filings and conduct other business much the same as we would previously have done in person.

While I never expected to be practicing law primarily from my dining room table with my dog under my feet, here we are, and in many ways, it’s working. Courts, attorneys, and litigants have adapted, and the process continues to evolve as we all navigate this strange new world together. Stay safe, everyone!

If you’d like to read the latest iteration of Probate and Family Court Standing Order 2-20 for yourself, you can find that here.

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