Law Sections

Crisis in the Courts

Bottlenecks Across the System Are Limiting Access to Justice

A perfect storm of conditions, but especially a hiring freeze within the state’s judicial system and a still sagging economy that has many people seeking various forms of relief through the courts, has created a huge bottleneck that is in many ways limiting access to justice across Western Mass. The planned closing of Westfield District Court, a step being fought by judges, lawyers, and state legislators, would make a difficult situation much worse, but even if that facility stays open, there appears to be little light at the end of this tunnel.

Diana Sorrentini-Velez

Diana Sorrentini-Velez says the bottlenecks in the area’s courts force justice seekers into a waiting game she compared to purgatory.

Diana Sorrentini-Velez was searching for the right words to sum up, or put into context, what the worsening bottleneck within the region’s judicial system — especially in Probate Court and District Court, where most of her work takes place — means for her clients.
And she managed to find several poignant ways to qualify the problem.
“People are being held in purgatory,” she said in reference to the weeks- or sometimes months-long waits for resolution of issues. “You don’t know which direction you’re going in, and you don’t know how to plan as a result. You know the rug is going to be pulled out from under you at some point; you just don’t know when it’s coming.”
And not knowing is the worst.
“District Court is the peoples court,” she continued. “Everybody goes to District Court, whether it be for personal issues, criminal law, civil issues, or whatever. And when you have individuals who are seeking justice and can’t even get before a judge, what does that do for their confidence in the judicial system? If they can’t be educated as to the alternatives, then they feel they have none, and they’re essentially stuck where they are.”
Tom Kenefick

Tom Kenefick says the region’s courts are in crisis, and will continue to be in that state until they are adequately funded by the state.

Tom Kenefick, president of the Hampden County Bar Assoc., was much more succinct in his commentary. “Our courts are in crisis,” he told BusinessWest. “There’s no other way to put it. Our judicial system is taking some enormously painful financial hits that are now starting to manifest themselves to the public — we’re to the point where the public is really starting to feel it.”
With those and other colorful statements, area attorneys tried to put into words their sentiments about a judicial bottleneck fueled by state budget cuts, a hiring freeze within the judicial system, and economic conditions that are only making the courts that much busier. Things are as bad as most people can remember, and the situation is almost certain to get worse before it gets any better.
Especially if the Westfield District Court is closed, as Robert Mulligan, chief justice for Administration & Management (or CJAM, as he’s called), intends. The closing is being fought on many levels and by many people, said Kenefick, adding that shuttering the facility will force people to drive longer distances to find justice and probably wait longer for it in the long run.
Kevin Maltby

Kevin Maltby says judges are doing the best they can given the circumstances, but they can’t be in two places at once.

“If it does close, that will cast a very long shadow, and I don’t know where it will end,” he explained. “You’re going to have displacement of court personnel, and you’re going to see cases move to other courts that are already overburdened. Meanwhile, people from the Westfield and the hilltowns are going to have to go Holyoke or Chicopee. It will have a huge impact.”
But even if the Westfield court remains open, the bottleneck created by unfilled positions and an unrelenting workload will impact people on a number of levels, said Kevin Maltby, an attorney with Springfield-based Bacon Wilson, who handles large amounts of probate work.
“The problem is there’s a bottleneck at the top,” he explained. “We have cases coming in, but we just don’t have enough judges, clerks, and support staff to move them through efficiently.”
In response to the crisis, the bar association and individual attorneys are stepping up through pro-bono work, much of it aimed at reducing the number of pro-se cases currently clogging the courts, said Kenefick. These efforts are making a small dent in the logjams, but significant steps are needed to bring a needed measure of relief.

Court of Opinion
All the attorneys who spoke with BusinessWest went out of their way to commend those who are still left working in courthouses across Western Mass. They used strong words and phrases to describe what they consider Herculean, but also Sisyphean efforts to keep the wheels of justice turning, albeit slower than most everyone would like.
“They’re being forced to do things with one hand tied behind their backs,” said Sorrentini-Velez. “There’s only so many hours in the day, only so many people who can look at a piece of paper, and so many hours a judge has to review motions and prepare for court hearings. And the consequences are always going to be felt by the general public, because no matter what, at 4:30 everyone’s gone, and people’s problems don’t go away at 4:30; their problems continue.”
Said Maltby, “everyone wants to be able to point the finger at the courts. But if they can’t hire the bodies they need to go through the amount of paperwork that gets filed there on a daily basis, there’re nothing they can do about it.
“Judges can’t be in two places at once,” he continued, adding that the cutbacks are forcing justices to often shuttle back and forth, with their commuting time further limiting their ability to get work done.
The situation is summed up in a recent CJAM edict concerning changes in the schedules for public office hours at the courts. The order to close those offices at 4 p.m. and use the time to catch up on paperwork is designed to help reduce delays, although those we spoke with are rather skeptical about that claim — and Thomas Moriarty, Hampden Register of Probate, is defying the order, noting that he won’t deny the taxpaying public access to justice.
“Our severe staffing reductions require an adjustment in some public office hours so that employees can more effectively serve those who depend on the courts,” Mulligan wrote in the missive. “Court staff have made remarkable efforts to deliver timely justice during three years of significant budget and staff cuts. However, almost one-third of courts now need some uninterrupted time to address backlogs and reduce delays, as already done by courts in other states.”
Quantifying the broad problem, at least from a dollars-and-sense standpoint, Kenefick noted that there has been an overall budget reduction of $85 million over the past three years, requiring implementation of a hiring freeze, among other steps. Overall, the Trial Court has lost 1,167 people statewide, which translates to a 15% reduction in staff.
There are currently 13 judicial vacancies statewide, and eight in Western Mass. alone, Kenefick continued, adding that the hiring freeze has put the remaining judges in a position where they’re often typing their own decisions because there are no clerks or secretaries able to do it for them.
“As people retire or get sick, they’re not being replaced,” he explained. “Staff members are trying to do the work of two or three people.”
Complicating matters further, he continued, is that the crisis comes at the same time legal aid programs are being slashed to the levels they were at 10 to 15 years ago, to roughly $300 million nationwide, said Kenefick, adding that the net effect of these various factors is a serious impact on overall access to justice.
And this phenomenon has a number of manifestations, said those we spoke to — from those agonizing waits for decisions to use of the clogged courts as leverage to gain desired ends.
This latter consequence can be seen in divorce cases, said Ellen Randle, an attorney with Springfield-based Bulkley Richardson and Gelinas Inc. and head of the firm’s Domestic Relations Department, noting that some attorneys and their clients are taking full advantage of the difficult circumstances.
“They put pressure on the spouse by shutting off the money,” she explained. “And that’s a real problem because of the length of time it takes to get even a child-support order.”

Taking a Long Recess
Meanwhile, the logjams in the courts are prompting more parties to look closely at alternative dispute resolution (ADR) options such as mediation and arbitration, as well as limited-assistance representation, in which an attorney takes part of a case — thus reducing the cost to the client — with the goal of moving matters through the process more quickly and easily.
However, many individuals, especially pro-se litigants, are often not aware that such programs exist, or have limited direction concerning them, which adds to the problem, said those we spoke with.
“I’ve had I can’t say how many calls from people saying, ‘I got your name from the court from the list’ — and that’s what it is, literally just a list with contact numbers of every attorney in Hampden County who’s certified to practice limited-assistance representation,” said Sorrentini-Velez. “So you have pro-se individuals who are already frustrated because they’re not in Probate Court for anything pleasant, and are emotionally taxed as a result of whatever is bringing them to the fourth floor [Family Court], and you add to that the fact that there’s not enough clerks because of the hiring freeze, and if they’re lucky enough to make it in front of a judge they’re not going to get a decision for a longer period of time because judges don’t have the staff they need to type up their decisions.”
In response to the growing bottleneck, bar associations and many individual lawyers are doing their part through limited-representation work and various forms of pro-bono work, said Kenefick, noting that these initiatives are having an impact.
“We try, as a bar association, to provide support services, and they are helping in many ways,” he said, adding that initiatives range from a panel dedicated to helping victims of the June 1 tornadoes to a host of legal-aid programs, to initiatives designed to help with the rising tide of pro-se cases, many of them spawned by the recession and its aftereffects.
Beyond such efforts, Randle, who’s taking part in many of them, offered the hope that attorneys across the region will recognize the scope of the problem facing the judicial system and those it serves and commit to putting their efforts toward mitigating the problem by working to revolve matters outside the courtoom.
“If they’re not the one that has control of the money, they need to get an order to get money flowing back into their household, and it’s difficult to tell them, ‘well, we can’t get into court for four weeks,’” she explained. “You hope that all the lawyers who do this kind of work on a regular basis are having this same experience, and so they’re going to be stepping up and being more cooperative in terms of working things out and staying out of court, which is always your first preference.”
Those who can’t stay out will likely wind up playing the waiting game, said Sorrentini-Velez, adding that the bottlenecks in the courts are essentially forcing people to put their lives on hold, and very much against their will.
“And as an attorney, there’s only so much comfort you can provide, because you’re in the same position,” she explained. “You’re also just waiting; you’re at the mercy of the court, and the court is at the mercy of whoever funds them.”

Final Arguments
Kenefick and others said efforts on behalf of many lawyers are helping to keep a bad situation from becoming even worse.
But all those we spoke with expressed real concern about the fact that there appears to be no relief on the horizon, and said the outlook for the courts, and the people served by them, looks very bleak unless lawmakers in Boston take steps to end the hiring freeze and properly fund the judicial system.
“It’s hard to know where this is going to go,” said Randle. “We’re down to two judicial case managers in the Hampden Probate Court for four judges. They’re the gatekeepers of the courtrooms; you have to go through them, and they just can’t keep the cases moving. And Hampshire County doesn’t even have a case manager.”
In other words, it may be some time before there’s anything approaching an end to the crisis in the courts.

George O’Brien can be reached at [email protected]

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