Posts Categorized: Massachusetts Judiciary

A Win for Access to Justice: Supreme Judicial Court Adopts Ruling Urged by BBA

It’s always a great feeling when the BBA weighs in on an issue and the Court is in agreement, but it’s especially gratifying when the issue at hand will have an immediate and beneficial impact on improving access to justice.

In a decision with potentially far-reaching implications for disputes involving the guardianship of minor children, the Supreme Judicial Court ruled this week that indigent parents are entitled to a court-appointed attorney whenever their children may be taken from them.

This position was urged on the Court by an amicus brief to which the Boston Bar Association signed on.  As noted by Justice Francis X. Spina on behalf of a unanimous Court, “[T]here is every reason, given the fundamental rights that are at stake, why an indigent parent is entitled to the benefit of counsel when someone other than the parent … seeks to displace the parent and assume the primary rights and responsibilities for the child.”

The Court took the position, as the amicus brief argued, that this right to counsel — which already applied in adoption cases and when the state seeks to remove a child from a parental home — ought to be extended to privately-contested guardianship matters as well.  In the case before the Court, a mother was not represented by an attorney when her grandmother, who had her own attorney, won guardianship of her child.

The BBA agreed to join the brief in support of a right to counsel in large part because of its longstanding commitment to the principle of access to justice for all.  The amicus brief directly cites three BBA task force and working group reports, including most recently Investing in Justice, the report of the BBA Statewide Task Force to Expand Civil Legal Aid in Massachusetts.

The BBA’s Amicus Committee is chaired by Mark C. Fleming of Wilmer Cutler Pickering Hale and Dorr LLP.  The BBA’s policy for filing amicus briefs and procedures for submitting amicus brief requests are available here.

Q&A with the Court Management Advisory Board: Glenn Mangurian Covers the Latest Report

The Legislature created the Court Management and Advisory Board (“CMAB”) in 2003 as an independent group of professionals who could bring management expertise, knowledge and experience to bear on the challenges facing the court system. The CMAB reports it findings to the Justices of the Massachusetts Supreme Judicial Court, leaders of the Legislature as well as the Chief Justice and the Court Administrator of the Massachusetts Trial Court.

BBA Week spoke with advisory board member Glenn Mangurian about the most recent report.

Q:       What are the main findings of the Advisory Board’s report?

Mangurian: Over the past 11 years, the Massachusetts Trial Court has been on a difficult but essential journey as it seeks to transform itself from an unevenly-performing, decentralized, often autonomous set of “islands of justice”, managed according to anecdote, intuition and habit, to a consistently high-performing system, managed according to modern best practice disciplines.

The Massachusetts Trial Court is on the move and headed in the right direction.  The Trial Court is addressing the consequences of the fiscal crisis of 2008-2012, and implementing and adapting to the structural changes made by the 2011 court reform legislation. Court management is “under the spotlight”. This focused attention to management “raises the bar” on execution excellence and follow-through at all levels.

The Trial Court must confront additional challenges such as the growing importance of specialty courts to address evolving judicial needs of the public and the scarcity of resources. Regardless of court funding levels, the public expects to be treated with respect and dignity in our courts, and to have its business handled in an expeditious and orderly manner.

The Trial Court “has a lot on its plate” for the next five years. The recent partial restoration and relative stability of the essential funding of the Trial Court is having a significant impact on court management and is important to further court management improvements.

Q:       What do you see as an important call to action as a result of these findings?

Mangurian: The 21st century Trial Court requires increased cross-disciplinary teamwork, active learning and innovation, and expansive talent and leadership development.  To assist the Trial Court in solidifying the progress made to date and preparing for the management challenges that lie ahead, the CMAB believes the Trial Court should focus leadership responsibility and overall accountability in three areas:

  • Knowledge management and decision analytics

The Trial Court should concentrate significant management attention on policy development, best practice sharing and training related to all aspects of evidence-based, data-driven decision-making.

  • Experience of court users

The Trial Court should work to improve the experience of court users having a wide range of perspectives, issues and concerns, and to measure the courts’ performance in this regard over time.

  • Talent development

The building of the Trial Court’s leadership capacity and human capital is of critical importance to the quality, strength, flexibility and resilience of our justice system. Because of an aging workforce and the prospects of increased retirements, there is a growing need to cultivate the next generation of court leaders to ensure continued judicial excellence into the future.

In addition the CMAB recommends the SJC establish a regular and recurring schedule of strategic and operational oversight meetings with the Chief Justice of the Trial Court and the Court Administrator.

Q:       How would you encourage BBA members to use this information?

Mangurian: The BBA has long been an advocate for the judicial funding. The Court Management Advisory Board thanks you for your support of the Trial Court.

We encourage all members to read the report. The report can be accessed here.

The document should serve as a catalyst for conversations among members and with employees of the Trial Court. The CMAB is planning an open discussion with the BBA on the report and work of the CMAB. Stay tuned for the specific date, time and location.

My Visit to the Drug Court

I’d been in a courtroom hundreds of times, but I had seldom heard applause. That changed on the day I sat in on sessions at the Boston Municipal Drug Court in Dorchester.

One round of applause was a reaction to a young man’s acceptance into a detox program instead of prison. The surprise wasn’t the applause itself, but its source: joining in was a judge, a prosecutor, a defense attorney and a probation officer. All were clearly rooting for this man’s future success.

Massachusetts has 19 drug courts – 18 for adults and one for juveniles. These specialty courts are intended to address the issues underlying criminal behavior. The idea behind it is: if we can successfully treat the addiction, we can reduce the number of crimes – theft, for example – that were committed to support it.

Drug courts provide intensive, supervised probation and treatment, as well as regular drug testing with progress monitored by a supervising judge. Participants meet with the same judge over time, creating an ongoing relationship that can increase chances of success.

Indeed, Judge Serge Georges – whom I observed at the drug court in Dorchester – knew each probationer he saw well. He knew their stories. He shook their hands. He asked after their family members. He treated each with dignity, and praised them for doing well. And this kind of attention and treatment is happening all across the state; you can read more compelling personal stories in Sarah W. Ellis’ article in the new Boston Bar Journal.

The BBA is a long-standing supporter of funding for specialty courts, including drug courts, and my visit only reinforced that position. I’d read the statistics: for every dollar invested in drug court, taxpayers save more than $3 in avoided criminal justice costs; drug courts reduce crime as much as 45% more than other sentencing options. But seeing the faces and hearing their success stories (and the applause!) had more impact than the numbers. For this, I’d like to thank Chief Justice Roberto Ronquillo and Justice Georges for hosting my visit. It was clear to me that they are both passionate supporters of the drug court, and are personally invested in its success.

Visit to Drug Court

The BBA appreciates their dedication and is proud to support the specialty courts. To learn more, and to stay on top of policies impacting drug courts, be sure to read this week’s Issue Spot.

PILP Takes Up the Fight Against Recidivism

If you follow the public service activities of the BBA, you probably already know all about our Public Interest Leadership Program, affectionately nicknamed ‘PILP.’ PILP is just one of the ways the BBA fosters leadership and engagement in public service among young attorneys. Participants receive guidance and mentorship from BBA leaders as they plan and execute a community service project over the course of a year. The PILP classes are tight-knit groups, and past members are always proud of the experience and glad to lend a hand to the current class.

PILP is now in its eleventh cycle and at this week’s Council meeting, the current class – PILP 11 – presented their proposed idea to work on over the coming months. I’m excited to share more information about their project with you. Not only is it a great idea in its own right, but it also builds on and expands the work of a previous PILP class, meaning that it will really deepen our overall commitment to assisting the courts in a very important area: preventing recidivism.

In his recent State of the Judiciary address, Chief Justice Gants of the SJC said, “We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism.” We at the BBA wholeheartedly agree with this sentiment. That’s why when PILP 9, the class of 2012-2013, brought their idea to implement reentry readiness workshops for probationers in collaboration with the federal district court, they were enthusiastically supported.

Their Community Reentry Readiness Project has been a huge success. After it was overwhelmingly well-received in its first year by workshop attendees, who attended through the Court Assisted Recover Effort (CARE) and Reentry: Empowering Successful Todays and Responsible Tomorrows (RESTART) probation programs, the court requested that the BBA continue the program, which has recently started its second iteration.

PILP 11’s project proposes to bring the community reentry readiness workshops to the state courts – specifically to the Boston Municipal Court in Roxbury through “CHOICE,” an intensive supervised probation program for young adult offenders. The participants in CHOICE are between the ages of 18 and 24, and most have served a short, probation-only sentence. With the support of these workshops, we hope to intervene early in their lives and encourage them to avoid future infractions. As the presenting members of the PILP class explained, these probationers are at a turning point where they can change the path that they are on; the information and the support provided in these workshops could make the difference in which path they choose. We all have a stake in their success and, using evidence-based practices, we can promote proven efforts to achieve that success and reduce recidivism.

I’d like to applaud the current PILP class for responding to this request from the courts, which really strengthens our relationship with the judiciary, and for presenting their plan so thoughtfully and thoroughly. It’s clear that they have carefully considered the needs of these young men and women– for example, adding a workshop on student financial aid – and I’m confident that they will succeed in their endeavor.

The Council unanimously agreed to accept PILP 11’s proposal, so they will be implementing the workshops in Roxbury shortly. Look for more updates on their progress in the coming months!

An Update from the Trial Court

Last week was a busy one at the BBA. Not only did I spend Tuesday as Principal for the Day, but later that evening, the BBA Council had the chance to hear directly from Chief Justice of the Trial Court Paula Carey and Court Administrator Harry Spence – the dynamic duo who lead the Trial Court department. We know that they have extremely busy schedules, so we appreciate the time they took to discuss the status of the courts and give us a sneak peek at what might be in store for the future.

One Mission: Justice with Dignity and Speed,” the court’s strategic plan, has been in place for over a year under Chief Justice Carey and Court Administrator Spence, and through its emphasis on collaboration both internally and with other outside agencies, it has moved the courts forward in leaps and bounds. While change is still ongoing, there are a few significant updates from the discussion that I’d like to share as we continue our own advocacy for the courts:

  • Specialty Courts: The number of specialty courts has been rapidly expanding and is sure to continue to do so; in fact, a portion of the Trial Court’s funding for the year was specially earmarked by the Legislature, indicating lawmakers’ support for the specialty courts. Chief Justice Carey was emphatic about the great work and successes these programs achieve, challenging all of us to attend a specialty court graduation and not cry. One year into a three-year plan, eight new specialty courts have already been added, and, by the end of the year, we are slated to see a total of thirty-five. In addition to expansion, the Trial Court is working to standardize specialty court operation and study outcomes so that we can better measure their effectiveness. This can help us find ways to maximize the effectiveness of the specialty courts in response to specific challenges, such as the opiate crisis, and ultimately reduce rates of recidivism.
  • Technology: This is another area in which we can expect continual change from the courts as they update their systems and move toward becoming more streamlined, efficient, and user-friendly. They are moving to an all-digital system and are aiming to become 90% digitized within the next few years. Already, we can expect to see new features being set into place. For example, in Bristol and Barnstable Counties, attorneys can already find dockets and documents online. In January, they will implement e-filing for civil cases in certain demonstration sites and will soon begin to offer digital preservation of documents. The courts will also completely install MassCourts, the electronic case access tool, for the Superior Court by June. The Trial Court is committed to making its operations more user-friendly and accessible to the general public.
  • Security Screening: Under the guidance of their Director of Security Jeff Morrow – formerly of NCIS – the court has identified security issues in the courthouses and is working to address them. It may mean stricter security measures for all, but this will likely be a worthwhile trade-off for the added peace of mind. I found this particularly striking as the courts are hoping to maintain a dialogue with the bar to figure out the most effective way to ensure the safety of all who enter any courthouse.

We also heard more about the court service center that recently opened at the Brooke Courthouse, which has assisted over 3,000 litigants since June. New court service centers are in the works for all major courthouses across the Commonwealth. We are proud that our most recent Public Interest Leadership class had the opportunity to work with the courts to develop materials for the center and help it to launch – it’s a great example of how the bench and bar can collaborate on issues of mutual interest. It is a privilege to work with powerhouses like Chief Justice Carey and Court Administrator Spence, and we’re looking forward to lending our support as the year progresses. This stated mission of “justice with dignity and speed” is one that we share wholeheartedly.

A Look at Limited Assistance Representation

As I’ve already mentioned in this blog, one of the most exciting parts about beginning my term as BBA President has been the opportunity to meet with leaders of the courts and discuss current topics of concern for the bench and the bar. The chief judges and justices have all expressed the desire to continue to work closely with the BBA on matters of mutual interest.

It’s no surprise that one of those matters is access to justice, a major area of focus for both the courts and the BBA. We of course plan to maintain the momentum from the release of “Investing in Justice,” our task force report on civil legal aid, but there are many other steps to take in the meantime. One subject that has come up repeatedly in my meetings with court leaders is Limited Assistance Representation, its place in the courts, and its potential expansion.

Limited Assistance Representation (or LAR) is currently available to litigants in the Massachusetts Probate & Family Court, Land Court, Housing Court, District Court, and Boston Municipal Court.  Although many people are unaware of its existence, LAR has the potential to offer great benefits to litigants who would otherwise be handling their legal matters pro se. When using LAR, an attorney and client decide, before any legal work has been started, what portion of the case each will be responsible for and what sort of fee arrangement might be appropriate. This way, instead of navigating the legal system entirely on their own, self-represented litigants have some support in the more complex aspects of their individual cases. In some situations, litigants can seek LAR for reduced fee, or even occasionally on a pro bono basis.

LAR allows lawyers at all stages of their careers to get involved in cases that truly need the guidance of someone familiar with the legal system, but without committing to the full case, which could take up a great deal of time and require services beyond what the client can afford. It’s a way for experienced attorneys to support the cause of access to justice, and also gives newer attorneys who are not yet established a chance to gain some practical legal experience. After a specialized training session on how to approach these cases and work with clients on just a single or limited portion of the case, attorneys can manage different portions of multiple cases and charge for the assistance they provide, which is beneficial to the participating attorneys and also makes more affordable legal services available to litigants.

In this way, we see LAR as one of the potential methods to bridge the gap between attorneys seeking work and individuals who need legal services. Let me put this in perspective: in 2012, a briefing paper by the Massachusetts Access to Justice Commission found that approximately 75% of litigants with a case in the Housing Court were self-represented; broken down further, almost 95% of those defending a case in that court were self-represented. Those numbers have not decreased over the past couple of years, and that is troubling. The glut of pro se litigants in this court and others needs to be alleviated in order for the courts to operate more efficiently in the service of justice.

The BBA is constantly exploring ways to improve access to justice in our state. To that end, the BBA is pleased to offer LAR training and serve as a resource for attorneys seeking LAR certification. In the comings months, the BBA will continue to consider the role that LAR and other methods of improving access to justice can play in better meeting the needs of our courts and the litigants who appear before them. This is an ongoing effort, and one which I hope we can continue to count on the legal community to support.

The State of the Judiciary and Its Connection to the Bar

Late last week, the new Chief Justice of the Supreme Judicial Court Ralph Gants appeared before an audience of representatives from across the legal community to give his inaugural State of the Judiciary address. Along with Chief Justice of the Trial Court Paula Carey and Court Administrator Harry Spence, Chief Justice Gants outlined his hopes for the courts, the legal profession, and the justice system in our Commonwealth.

I want to highlight a couple of the initiatives that Chief Justice Gants announced and explain what the bar has done – and can do in the future – to further them.  Many of these initiatives are just as important to the BBA’s mission, and our position as members of the bar, as they are to the courts.

For example, Chief Justice Gants took on the issue of mandatory minimum sentencing. For nearly 20 years, the BBA has opposed mandatory minimum sentencing, issuing a resolution to that effect in 1990, followed by a task force report called The Crisis in Corrections and Sentencing in Massachusetts a year later. The BBA also sponsored a bill that helped to create the Massachusetts Sentencing Commission. Over the years, we have publicly testified in support of sentencing reform and have studied related topics ranging from parole practices to CORI reform.

This is an issue that continues to be a BBA priority, and as Chief Justice Gants noted in his remarks, there is ever-increasing public support for our position. We know that strict sentencing disproportionately affects minority groups, and as Chief Justice Gants cited, mandatory minimum sentencing does not take into account the specific facts of each case – which can be especially problematic given the large proportion of drug-related cases in which addiction is a mitigating factor. The specialty court sessions of the Trial Court, including the drug court and veterans’ court, provide a greater focus on the role and the treatment of substance addiction and are expanding rapidly.  We need to continue to support the courts’ efforts in addressing these difficult and complex issues by continuing our advocacy for specialty courts.

We also want to thank Chief Justice Gants for his reference to our Task Force Report on civil legal aid, which we released the day before his speech. He urged the legislature to act on our recommendations for increased funding for civil legal aid, in line with the courts’ continuing focus on ensuring access to justice.

In his speech, Chief Justice Gants indicated that the judiciary’s initiatives could not be successful without the support of the executive and legislative branches and the bar.  The BBA has a long tradition of working with the judiciary on matters of mutual interest.  As one example of the bench and the bar working together on an access to justice project, this summer, we saw the first court service center in Boston open at the Brooke Courthouse. An initiative of the court, our most recent Public Interest Leadership class collaborated with the court staff to assist with some of the set-up, materials, and volunteer staffing associated with the initial phases of opening the center, which provides a workspace area and guidance to self-represented litigants who come to the court and don’t know where to start. Now, according to Chief Justice Gants, judges are wondering how they ever lived without the court service centers that exist in Boston and Greenfield, and there are plans to open new service centers in courts across the Commonwealth.

It is in this spirit that I encourage all attorneys to continue to advocate for the courts and their goals, as it gives us the opportunity to strengthen this partnership. Already, Chief Justice Gants has recommended numerous working groups that include members of the bar, showing that our input is of high value to the courts. We can also make sure to attend open court events, such as an upcoming open house at the Brooke Courthouse Court Service Center on October 30th, as well as bench-bar symposiums to hear our judges’ perspectives on matters of mutual importance and to provide feedback. Through collaboration and thoughtful discourse across all parts of the legal community, we can see these critical shared goals come to fruition.

Promoting Diversity in the Legal Profession

The Beacon Award for Diversity & Inclusion is right around the corner on October 14th, and we’re looking forward to what we know will be a spectacular event. Diversity has been a major priority of the BBA dating back to 1969, when President Haskell Cohn created a special committee to grant scholarships to minority students at the city’s six law schools. Since then, we have continued to add programs and initiatives to expand diversity and inclusion and develop a legal profession that more fully reflects the community it serves.

This year’s Beacon Award honoree is Governor Deval Patrick, a true champion of diversity. What you may not know is the extent of his successful efforts to increase the diversity of the Massachusetts judiciary by naming more women and minorities to the bench.

There are, in total, over 400 judicial seats in Massachusetts between the Supreme Judicial Court, the Court of Appeals, and the seven departments of the Trial Court. During the course of his time as Governor, Patrick made about 170 appointments to the bench – a full 40 percent of the state judiciary. Ultimately, nearly 50% of those 170 appointments have been women, while approximately 20% were members of minority groups.

One can readily see the impact of Governor Patrick’s appointments on the Supreme Judicial Court, which serves as a microcosm of the larger picture. When Governor Patrick took office in 2007, the Court had three female justices – including Chief Justice Margaret Marshall, the first woman to hold that position – and one person of color, then-Justice Roderick Ireland. Today, for the first time in history, the Court has a majority of female associate justices, and only the second time that there has been a majority of female justices in the court (in late 2000, Associate Justices Abrams, Cowin, and Sosman sat on the court while Chief Justice Margaret Marshall held that position). Through Governor Patrick’s appointments, Chief Justice Roderick Ireland became the first person of color to serve as Chief Justice; two persons of color are current Associate Justices; and the first openly gay Associate Justice sits on the bench.

These numbers reflect that Governor Patrick has been a trailblazer in this area. We are grateful for his efforts, and the people of the Commonwealth are served all the better for them.

Moving forward, we need to keep that spirit alive and apply it not just to the judiciary but also to the legal profession in general. While strides are being made in diversifying our state judges, the same is not true for the rest of Boston’s legal community. Our city is actually behind national averages in diversity statistics, particularly for minority groups: according to a story in the Boston Business Journal, only 3.8% of partners in Boston law firms were minorities, versus 7.1% nationwide.

I know we can do better, and believe that part of the solution is fostering inclusion and mentorship opportunities so that minority attorneys are encouraged to seek leadership positions in their professional roles and in the legal community. The BBA’s Diversity & Inclusion Section works hard to make this happen by partnering with six Massachusetts affinity bar associations on events and programs, holding its own programs about diversity and offering valuable advice from well-established attorneys, running the Group Mentoring Program every year, and encouraging minority law students to apply for the Judicial Internship Program.

But of course, progress is not made by just one organization, or even by a committed group of organizations. Change has to come at all levels and become a systemic effort. The percentage of minority associates in Boston has risen slightly from 14% in 2008 to 16% in 2014, and we hope that the legal community will come together to bolster that growth within their organizations and by supporting organizations that make diversity a part of their mission.

So as we celebrate Governor Patrick’s commitment to diversity, I urge you to reflect on the larger picture in Boston and consider ways that you can pledge your support to this issue. The numbers don’t lie: we have a long way to go and an uphill road to travel.  Despite the longstanding challenges inherent in diversifying the legal profession, I believe that our concerted efforts to educate ourselves and others about diversity, our participation in events that promote it, and our work to consciously develop and maintain inclusive professional environments will ultimately change the numbers for the better.

Supporting Our Judiciary

One of the most rewarding aspects of serving as BBA President is that I have the privilege to meet with the Chief Justices of our state and federal courts in Massachusetts to discuss matters of interest to the bench and the bar. It is a rare opportunity to talk on a one-on-one basis about how we may work together in the coming year, and one that I have been very much looking forward to. This week, I’ve had the honor of speaking with Chief Justice Paula Carey and Court Administrator Harry Spence of the Massachusetts Trial Court, Chief Justice Angela Ordoñez of the Probate & Family Court, and Chief Justice Steven Pierce of the Housing Court, with more meetings to come throughout the fall.

As you know, supporting increased funding for the judiciary has always been a major priority of the BBA, and it is one that I fully intend to advance in my year as President. We have talked about the cause a great deal, but we don’t always go into the background details about why we consider it so crucial. Our courts face many challenges that can hinder access to justice, and even affect the quality of justice. Here are just some of the issues the courts face on a daily basis and some of the changes they hope to implement in the future to enhance efficiency and improve the court experience for all users:

  • The caseloads of all of the courts are far higher than you might expect. The Probate & Family Court alone saw almost 160,000 cases filed in FY2013; altogether, the Trial Court saw just under 1 million filed. Even for cases that never make it to the courtroom, the accompanying paperwork, as well as the time spent handling them, stretches thin the limited resources of the courts.
  • Likewise, the numbers of pro se litigants that come through the courts place a burden on court staff members, as they have to devote precious extra time to giving guidance and providing materials to litigants who are unfamiliar with the court system and are not always prepared to properly present their cases.
  • Relieving this burden and ensuring access to justice for those who cannot afford representation, or who have entered the system struggling with difficulties like substance addiction, is a priority of the courts – and of the BBA. The Trial Court has implemented several initiatives to provide support for these individuals, including the Brooke Courthouse Court Service Center, a workshop for self-represented litigants to access court services and individualized attention from volunteer attorneys. In addition, specialty courts provide treatment plans attuned to the particular needs of those dealing with substance abuse and/or mental health problems, as well as to struggling veterans. These are a critical part of the expansion of the courts.  The latest budget for the Trial Court includes a line-item funding specialty courts, and this appropriation is a positive first step in the right direction.  After speaking with the Chief Justices, I am convinced that there is a need to expand these programs further.
  • Implementing advanced technological upgrades will be an essential part of streamlining the courts. In the long run, these improvements promise efficiency and ease of use, and we must be willing in invest in them today.
  • Apart from the internal systemic maintenance that the courts require, the physical courthouses themselves need work as well. Several are long overdue for repairs and basic accessibility features, such as handicap entrances and routes.

Advocating for increased funding for the judiciary is certainly about improving the infrastructure for the court staff and judges; but it also affects litigants who pass through the courthouse, often without having a clear idea of how to pursue justice, and the attorneys who practice within its walls. This isn’t just a responsibility we take on by rote – it is one of the BBA’s core tenets. We recognize that our judges and court personnel do incredibly difficult work every day to see justice served, and we remain steadfastly committed to working with the courts to help them continue to do so. The people of Massachusetts demand, and deserve, nothing less.