One of the first questions that any attorney and potential litigant must consider when deciding whether to file a lawsuit is where to bring the case. Since November 2017, potential probate litigants in three Massachusetts counties have a new venue to consider, the Fiduciary Litigation Session, or “FLS”, at the Norfolk Division of the Probate and Family Court in Canton, Massachusetts. The parameters of the FLS are outlined in Probate and Family Court Standing Order 3-17. Borrowing elements of the successful Business Litigation Session at the Suffolk Superior Court, https://www.fitchlp.com/blog/2015/10/the-specialized-role-of-the-business-litigation-session/, the FLS’s goal is “to provide a specialized forum for the speedy resolution of contested and complex probate litigation cases and to provide individualized and collaborative case management to reduce the costs associated with fiduciary litigation.” http://www.mass.gov/courts/case-legal-res/rules-of-court/probate/pfc-orders/3-17.html
At the present time, the FLS is being offered as a one-year pilot program for cases in Norfolk, Middlesex, and Suffolk Counties. The FLS is taking cases that are presently pending in those counties, as well as potential new matters to enter the FLS in the first instance. Matters that may be appropriate for the FLS include contested cases relating to probate and fiduciary matters, contested fiduciary accounts with respect to conservatorships, estates and trusts; trust petitions involving removal of fiduciaries, reformation, modification, interpretation or construction of trust instruments, breach of fiduciary duty and trust terminations; equity complaints on issues involving estates and trusts; and removal of conservators.
A request for reassignment to the FLS may be made by the judge, counsel, or even a self-represented litigant. The assigned judge has final authority to approve or deny a request for reassignment. This decision is not an adjudication, and therefore cannot be appealed. For new and pending cases, after the expiration of the answer period or return date, the procedure to request reassignment involves making a formal request. A party wishing to contest reassignment to the FLS must file a written response, and the assigned judge (in the non-FLS session) makes a determination. According to the standing order, the primary considerations for reassignment to the FLS are the complexity of the case and the need for substantial case management.
Within thirty days of a case’s acceptance into the FLS, the parties are required to appear at a scheduling conference to define the issues and disputes, and expedite settlement and disposition of the action. This initial conference can influence practical and strategic decisions for both sides, particularly if the assigned judge provides feedback on the strengths and weaknesses of the issues in dispute. It is important to keep in mind that all trials held in the Probate and Family Court are “bench trials,” that is, trials conducted without a jury. Depending on the types of claims, a potential fiduciary litigant may also have the option of bringing her or his case in the Superior Court, where the option of a jury trial exists. When a litigant has a choice of the venue, such choice can be a critical one, and should be carefully considered.