Denver Bar Association
September 2005
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Family Conflict, High Emotions and Money

by Hon. Jean Stewart
Denver Probate Court

Editor’s Note: DBA President Chris Little has decided not to write his own column each month. Rather, he believes it is important to recognize how hard our judges work, in spite of budget cuts and lack of funding. Several judges from the various courts will write about their daily experiences and challenges. The DBA membership is urged to support the independence of the judiciary. Chris Little hopes these articles will provide information about our judges’ dedication to the Bench.

Hon. Jean Stewart
In the spring of 1995, I was winding up my private practice and preparing to assume my duties as presiding judge of the Denver Probate Court. I imagined I would spend my days immersed in meaningful analysis of the Doctrine of Worthier Title; that maybe I would be the probate judge who would finally unravel the intricacies of the Rule Against Perpetuities in lucid and riveting opinions.

Now, a decade later, I recognize that the realities of my judicial life are remarkably different than anticipated. The case load, as in all courts, is overwhelming and relentless. Particularly here, where our volume depends on Denver’s citizens growing old, going insane, or dying, our inventory is constantly replenished. Budgets are small and shrinking, employees are overworked and too often feel under-appreciated, and the entire atmosphere surrounding "public service" can be unexpectedly toxic.

But, there is no more interesting or varied judicial assignment in Denver than mine. My days can often be too full and too long, but the work is never boring. Our cases vary widely, touching every aspect of human life from birth to death, and are replete with family conflict, high emotions, and all the drama money adds to already complex relationships. Spirited litigation over wills is our bread and butter, but every case turns on unique facts, circumstances and family dynamics.

Even estates without wills provide fascinating legal and factual issues: we have common law spouses appearing out of the blue, unanticipated heirs demanding DNA tests, allegations of purloined assets, murder and intrigue enough to satisfy anyone’s taste for mystery and complex legal analysis. It isn’t the Rule in Shelley’s Case, but it’s endlessly interesting and dynamic.

Families that fight over the distributions of estates almost invariably have a long history of festering animosities that are given renewed life in the context of litigation. These conflicts aren’t always interesting; sometimes they’re just pathological. Some people, entire families in fact, have thrived for years on the conflict itself and so work at cross purposes with us to try to bring it to an end. I need to identify these cases and manage them appropriately. Mediation can be a welcomed resolution in many cases, and every year I become more aggressive about mandating it and spend more time searching for that "golden moment" when mediation would offer the biggest payoff.

Not all of my work concerns distributions of estates at death. I also hear all Denver cases involving people who are allegedly afflicted by legal disability, which includes babies abandoned or left in the care of a grandparent, victims of debilitating diseases like Alzheimer’s, or accidents (motorcycles and head injuries are a common tragedy). Then there are the few who people who simply disappear, leaving behind financial and legal affairs that need tending. We offer a variety of remedies, including guardianships and conservatorships, court-settled trusts, single transactions, and other protective devises that create another layer of work for us, sometimes lasting many years, and for which the legislature provides nary a penny in staff support.

We also handle protective proceedings, where we approve and supervise personal injury settlements for minors and incapacitated persons, which range from medical malpractice to dog bites and, again, thrust us into long-term relationships with some of these families.

Unfortunately, all fiduciary relationships can give rise to fraud, abuse and then litigation. Removal and surcharge proceedings abound, and family tensions can erupt into warfare.

The Denver Probate Court is also home to 1,250 new mental health cases every year. Mentally ill citizens certified for involuntary treatment can request a hearing, demand a jury, and insist that the trial commence within ten days. A treating psychiatrist can request involuntary medications, including electro-convulsive therapy, and also demand a hearing within 10 days. The time limits arising from the mental health statutes create a "universe within a universe" here, leaving us breathless.

We’ve worked hard over the last decade to modernize the Denver Probate Court. My goal is to develop a Courtroom 21-type court within the next decade. Circumstances have compelled us to make some of the changes. In 2003, we lost funding for a court reporter and replaced her with a digital tape deck that never needs to stretch or take a bathroom break. This was an opportunity to make lemonade out of lemons — I could hold hearings during recesses in trials!

On July 1, 2003, we mandated electronic filing in response to the massive budget cut, offering us countless efficiencies. Every day, paper becomes less significant in our routine work. Our reputation has brought us new issues, however: requests for speeches, presentations, information and visits to hear about or view our electronic revolution. Recently, the Japan Federation of Bar Associations came to the United States to gather ideas about modern judicial practices, spent part of the day with us and grilled me with insightful questions — all in a day in the life. …

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