Five years after attorney Lisa Arrowood filed a medical malpractice lawsuit, the case still hasn’t gone to trial. She came close in August, but the case hit a sudden snag.
“A month before the trial, we found out there is no judge,” Arrowood said. She’s now scheduled to have the trial begin in July, before a new judge, according to court filings.
Arrowood’s experience is far from abnormal: As she put it, “There are a lot of empty courtrooms.”
While the flow of cases returns to normal levels after being disrupted by the COVID-19 pandemic, a shortage of judges is now causing holdups in the busy superior courts in Greater Boston, leading lawyers to urge the state to focus on putting new judges in place.
“There just aren’t enough judges to go around. It’s frustrating for anybody trying to get a resolution,” said lawyer Justin O’Brien, who said he too had a civil trial postponed by a judicial vacancy in Suffolk Superior Court.
One of Suffolk Superior’s eight standard civil sessions has been down a judge in recent months, according to the state’s roster of judicial assignments. Two of the four sessions in Norfolk Superior Court did not have a judge assigned to them at the beginning of February, nor did two of seven superior civil sessions in Middlesex County.
Those numbers may seem small, but attorneys say the vacancies have a huge effect in the civil sessions of the courthouses because there are not that many in the first place. Additionally, three current superior court judges are due to retire later this year, according to the state.
John E. Powers III, Suffolk Superior’s acting clerk in charge of civil business, said his office and the judges are working hard to keep “chipping away at the backlog,” but, “between COVID and some unjudged sessions, it has created some challenges for us.” He added that he expects another vacancy next quarter.
In Massachusetts, judges are required to retire at age 70. Retirements tend to come in clusters, lawyers said; multiple seats open up, and people who are appointed to fill them are generally around the same age. A few decades later, they all have to retire.
“It’s been more of a problem in recent years,” Arrowood said of the judicial vacancies.
Governor Maura Healey has nominated three people for Superior Court judgeships, along with 14 for other courts, including probate, district, and juvenile, according to her office. Healey’s office said her administration and the Judicial Nominating Commission, which guides the application and nominating process for judges, have been “hard at work nominating qualified, diverse judges to all courts.”
“The JNC continues to work diligently to fill open positions,” said Healey spokesperson Karissa Hand. The governor’s office said it does not have data about past vacancies.
Judicial appointments have to be approved by the Governor’s Council. The process is lengthy, attorneys said, but none of the lawyers advocated for shortening it, saying they want a robust process to ensure candidates are qualified.
Thomas Flaws, an attorney who practices civil law in the Boston area, said he would like the state to fund more positions for clerks and judges in Superior Court. It added probate judgeships last year.
“I don’t fault the clerks, I don’t fault the judges,” he said. “They’re just dealt a really tough hand.”
O’Brien, the lawyer, said he’d like to see the state plan better for upcoming mandatory retirements.
“It’s something you can see coming,” he said. “Get the wheels turning before it becomes an issue.”
O’Brien recently hosted a panel about vacancies as buzz about them in the legal community mounted.
“At the end of the day, you need people sitting in those chairs,” O’Brien said. “And however that needs to happen, it needs to happen.”
This comes as the court is crawling out of a pandemic-driven backlog. Court policy lays out a range of timing for cases, such as which motions should be filed, and hearings held within certain time periods, such as three months, six months, and beyond. As of Jan. 31, 54 percent of the courts’ 177,332 pending civil cases in Massachusetts courts were running beyond their milestone requirements, according to data from the trial court system. Criminal cases fared better, with 21 percent of 63,886 pending cases lingering beyond tighter time standards for criminal cases.
Both marks are improvements from the heights of the pandemic. At the end of June 2021, 73 percent of civil and 31 percent of criminal cases were pending beyond the time rules, according to the courts.
Pre-pandemic data is more difficult to parse. At the end of June 2019, the last data available before the pandemic, 66 percent of civil and 23 percent of criminal cases were running behind.
Flaws said that before the pandemic, if a case had a pretrial conference in the spring, he could expect a trial scheduled for the summer or fall. Now, given continued backlogs and vacancies, he said, “There’s a fair chance I’d be looking at a 2025 trial date, and not necessarily early 2025.”
The court system continues to focus on recovering from the pandemic, courts spokespersonJennifer Donahue said in a statement. As operations returned to normal, the courts placed priority on criminal cases, she said.
“We remain hard at work on civil cases and the Trial Court is using data and technology to prioritize these efforts,” she said. She said the courts are looking to make day-to-day operations more efficient.
When the courts resumed trials as the pandemic abated, the state allowed civil cases to be presented to six-person juries, rather than the typical 12. The courts reverted back to the higher number at the start of this year, but Marc Diller, president-elect of the Massachusetts Academy of Trial Attorneys, said he worries that will create a setback.
“It would be favorable for the efficiency of the system to go back to six-person juries in the civil session,” he said.
Diller said larger counties, such as Suffolk and Middlesex, continue to see operations moving slowly. There, he said, “The backlog is real.”