Motion Practice in the Probate and Family Court

Photo of Jeffrey A. Soilson

Picture this: it is a Tuesday morning, at 8:30 a.m., and you arrive at the Probate and Family Court with your attorney to appear for a scheduled hearing on a contested motion that you filed. Once you wait on a long line to get through the metal detectors, you enter the hallway outside the courtroom and your attorney checks the motion calendar list for the Judge assigned to your case. You first learn that your case has been referred to the Probation Department on a different floor of the courthouse for mediation, and your journey through motion practice in the Probate and Family Court begins.

When you arrive at the Probation Department, and work your way up to the intake desk, which is surrounded by a crowd of litigants waiting for their cases to be called, you receive an intake form to fill out, and are told to wait until a Probation Officer calls your case. If both parties are represented by counsel, in some counties, a trip to the Probation Department for mediation geared toward the creation of stipulation (a written agreement between the parties that is usually presented to the Judge for approval) is not required because it is assumed that the attorneys have already conferred ahead of time and have tried to come to an agreement on their own, but have been unsuccessful. In other counties, the Probation Officer will meet with the attorneys involved, or with the parties and their attorneys, to see if there is any agreement (partial or full) that can be entered prior to going before the Judge in an effort to cut down on the amount of hearing time that is required when the case is sent back to the courtroom.

If, as a result of a meeting with the Probation Officer, the parties are able to come to at least a partial stipulation, that stipulation will be brought before the Judge for an uncontested hearing when the Judge will incorporate the stipulation into an Order. Basically the Judge in that instance is giving the stipulation an official seal of approval, and is adopting the stipulation as if it were an Order coming directly from the Judge in the first place. If any of the issues have not been resolved by stipulation, then the Judge will hear those particular issues when the Judge hears contested matters. Often that takes place after the lunch break, which for most Judges is at 1:00, and this would require all parties and their counsel to return to court for the afternoon session starting sometime after 2:00. Frequently, the contested matters are not heard until much later in the afternoon – just prior to the court closing at around 4:00 p.m. All along you are calculating the number of hours you’ve been in the courthouse with your attorney multiplied by your attorney’s hourly rate, and you are wondering how you are going to fund the litigation until the case is finally resolved.

When you and your attorney first checked for your name on the motion list it was of no surprise to your attorney that there were about 65 cases scheduled for hearing on that particular day. Given the number of hours in the day when the Judge is presiding, and the number of cases that are scheduled on any given motion day, you can imagine how contested matters drain the court’s resources, how little time the presiding Judge actually has to hear such matters, and the incentive on the parties and their counsel to come to agreement before going before the Judge for contested motion practice in the Probate and Family Court whenever possible.

Simply put, waiting time in the courthouse costs clients legal fees. Some judges will take cases where there are private attorneys involved first, but that is less frequently the case. On a first come, first serve basis, the cases are called, regardless of whether there are unrepresented parties (pro se litigants), or parties represented by counsel, who are charging their client significant hourly rates.

In an effort to cut down on waiting time, some judges have discussed the possibility of revamping motion days so matters are scheduled during particular time-slots throughout the day as opposed to all litigants being required to appear at 8:30 for a the first call of the list at 9:00. While some judges believe that this could significantly cut down on waiting time because it would enable a litigant and his or her counsel to appear, for example, in court at 11:00 instead of at 9:00 to attend an 11:00 prescheduled hearing, other judges fear that this would cause even greater problems because of the likelihood that litigants and their counsel will not appear on time at the staggered sessions.

While staggered motion days might provide a solution to the problem of waiting time, and the legal fees that clients must incur as a result of such waiting time, a far better approach to this problem would be to create incentives for litigants and their counsel to meet, negotiate, and come to agreements prior to motion days. There is no reason why mediation should wait until the parties and their counsel are forced to go to the Probation Department on the same date of the hearing on a contested matter. Attorneys for the litigants should be contacting each other prior to the motion day, exchanging proposals, and working diligently to enter into a stipulation prior to appearing in court. By attending court with a stipulation, the parties and their counsel can avoid a trip to the Probation Department, and avoid substantial waiting time while their uncontested matter is quickly heard by the court as one of the first matters on the list – a hearing that should take no more than few minutes (because the Judge simply confirms that the parties have read the agreement, gone over it with their respective attorneys, are satisfied with the advice that they have received, and are asking the Judge to incorporate and adopt the stipulation into an Order of the court).


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