by Neil W. McCabe

The first justice of the Middlesex County Probate and Family Court spoke to The Somerville News in her chambers Aug. 16 about her job and her plans for the court.

“This is a specialized court. When people come here it is because they have problems that they can’t solve themselves,” said Hon. Beverly W. Bornstein, who was named to the bench in 1992 by then Gov. William Weld.

The probate and family court handles the most personal and sensitive issues that anyone ever has to deal with in a public setting, divorce, child custody, guardianship of children and adults and wills, she said.

“The people need our help, and they aren’t criminals, they need the judges and the staff here to help them,” she said. “If you are here, it is for an important reason.”

Bornstein said she practiced family and probate law for 28 years and was often had cases at the court she now leads. This experience informs continues to inform her priority and concerns.

One to the biggest problem facing the court is its sheer size, she said. “This court is responsible for 54 cities and towns from Ayer to Holliston. It is very diverse with more than 1.5 million people.”

“The county has the wealthiest to the poorest, and people from all over the world. It makes our work complex because of the diversity of the people and the materials involved,” she said. “Because of Middlesex is so big, the problems are just magnified.”

The size and business of the court means that Middlesex County hurts in other ways as well. Other counties were computerized first, in order to work out the bugs in the system before taking on a major job like Middlesex County, she said.

At the court house, six judges preside over eight to nine sessions per day with two judges lent from other courts to help out, she said.

Funds appropriate for the physical upkeep of the court house are often diverted to smaller, more easily completed projects, she said.

Bornstein said she regularly speaks with other first justices in order to maintain go working relationships with the other courts. They also discuss procedural matters that have to be developed in response to new rules and regulations.

Although every effort is made to maintain consistency from court to court, Bornstein said each court does tend to reflect the local community values. This is not the case in Middlesex Court because of the diversity of the citizens in the county.

One legal trend that concerns the first justice is when cases are tried pro se, that is when an individual appears before the court without an attorney, representing themselves, she said.

“There are those who cannot afford a lawyer or think they can’t afford a lawyer, and we try to be sensitive the situation,” she said.

“What is surprising is how many people who can afford lawyers, still try to represent themselves,” she said.

The problem with people representing themselves is that because the do not have the proper training, they do not know what to present to the court or how to present to the court, she said.

“What they don’t realize is that the court is a passive institution. They will say, ‘Judge, you can go see for yourself,” but it doesn’t work that way,” she said.

The system is set up, so that each side presents evidence and precedents to the court, but the court does not actively research or investigate cases, she said.

During a case, Bornstein said she can attempt to cull or solicit proper information in the proper form to help a non-lawyer, but if there is a competing side, then it would not be fair. “The court has to remain impartial.”

Efforts have been made to simplify procedures for non-lawyers, she said. “The danger is that when you try to simplify complex issues. People are complex and their problems are complicated.”

Another concern is that the very reason that brings an individual to the probate and family court is by its nature highly emotional and mentally distracting. “What brings them into the court in fact may hurt their presentation.”

Bornstein said she would not speculate about what started the trend of individuals representing themselves, but it seemed to have peaked.

Recently there was a bill in the legislature to transfer control of the assistant registers at the court from the judges to Register John R. Buonomo, and Buonomo had lobbied for its passage on Beacon Hill.

Bornstein said that this was another example of the danger of simplification.

The first problem is that although they are called assistant registers, for more than 100 years, the assistant registers have worked inside the registry on behalf of the judges, she said.

The assistant registers are highly trained and most of them are lawyers themselves. This skill set allows them to understand cases to determine what can be done easily and what will require hearings and trials before a judge, she said.

The registry clerical staff is fine for routine paperwork, but as soon as things get complicated, they are not equipped, she said. The two staffs work together, but they are not the same.

The first justice said the second problem was that as the court becomes more computerized, more and more of the case management and scheduling will have to be done by the assistant registers. Currently, the clerks in the registry dominate this aspect of the court’s workload.

When she heard that the bill was approaching final passage, Bornstein said she was preparing to go on vacation, and was completely surprised. “There was certainly no communication about it from John Buonomo, so I don’t know what he was thinking.”

“These are coveted jobs for lawyers, especially if a lawyer wanted to specialize in the field. A lawyer could learn in two years what it would take him 25 years to learn in private practice,” she said.

The remarkable thing is that majority of the assistant registers continue to work at the courthouse, regardless of better opportunities from their experience, because they love to work in a job where they are truly helping people solve their problems, she said.

Bornstein said she has legal right and moral obligation to lobby the legislature on matters that affect the administration of justice. Working the phones, she called legislators to explain to them that Buonomo’s bill would undermine the smooth operation of the court.

None of the legislator she spoke to had a deep understanding of what the changes would mean, they had simply had supported it because it made sense for assistant registers to work for the register, she said.

Bornstein said she is very concerned about the court house facility itself. More than just a coat of paint, the county needs a centralized modern facility that is more accessible to the whole county and that communicated to the people who have business before the court that the court cares about them.

The current court house lacks proper storage to maintain files for the more than 26,000 filings or for day care for children, who come to the court with their parents, she said.

“We have no conference rooms here. I can’t imagine having to negotiate a divorce in public at one of those tables,” she said.

In the coming year, the court will have to struggle with the time standards that are being imposed on how long a case be heard, she said.

In the criminal courts, time standards are valuable, especially with there is the problem of liberty and the right to a speedy trial, she said.

If the purpose is to eliminate the institutional lag, that is one thing. It is another if the purpose is simply to push cases through the system, she said.

“I have a problem with time standards for divorces and children issues. You always have to be super careful because there are always innocent people who are not there. Yet, they are affected by what is happening here,” she said.

Regardless of what challenges the court faces, Bornstein said she is committed to making sure that the people who rely on the it are taken care of . But, she would prefer to take care of them in a bigger, better courthouse.