FY 2023-24 Probate Court Filing Statistics: How busy are our probate judges?

If you make your living in and around our probate courts you’ll want to understand the pressures our state court judges are subject to, which are mostly driven by the volume of cases they juggle with a fraction of the resources available to our better funded federal courts. And to get a sense of that volume, you’ll want to read the annual statistical guide for trial courts published by Florida’s Office of the State Courts Administrator (OSCA).

But first some context. According to the FY 2023-24 Probate Court Statistical Reference Guide, probate court filings peaked in FY 21/22, and have trended downward since then. Not sure why that’s happening, but it’s worth noting.

And according to the FY 2023-24 Statistical Reference Guide, over 1 in 5 of all circuit court filings in Florida still happen in one of our probate courts. That’s a lot of work for probate practitioners. Perhaps not surprisingly, the Real Property, Probate and Trust Law Section is the largest section of The Florida Bar.

By the way, the level of familiarity our probate judges have with the different types of cases they deal with is also important to consider, as reported in the FY 2023-24 Probate Court Statistical Reference Guide. For example, it may come as a surprise to many “trusts and estates” practitioners to learn that only a little over half (52.5%) of probate court filings actually fall under the “probate” category, and that for many probate judges trust cases will seem like exotic creatures, representing only half of one percent (0.5%) of overall probate court filings across the state.

How busy are our probate judges?

This chart is my creation. The goal is to get a sense of how busy our probate judges are by taking the “cases filed” data reported in the FY 2023-24 Probate Court Statistical Reference Guide for three of Florida’s largest circuits/counties — (Miami-Dade (11th Cir), Broward (17th Cir), and Palm Beach (15th Cir) — and dividing those figures by the total number of dedicated probate judges for each of these circuits reported in the FY 2023-24 Overall Statistics.

What’s it all mean?

In Miami-Dade – on average – each probate judge took on 2,780 new cases in FY 2023-24, while in Broward the average was higher at 3,499/judge, and in Palm Beach it was the highest at 4,419/judge. Keep in mind these figures don’t take into account each probate judge’s existing case load or other administrative duties. These caseload figures may be appropriate for uncontested proceedings, but when it comes to that small % of contested estate matters that are litigated these numbers (confirmed by personal experience) make two points glaringly clear to me.

First, as planners we should “privatize” the dispute resolution process

We aren’t doing our jobs as planners if we don’t anticipate — and plan accordingly for — the structural limitations inherent to an overworked and underfunded public court system. One important aspect of that kind of planning should be opting out of the public dispute-resolution system (our courts) and into a private dispute-resolution mechanism (arbitration) whenever possible. And how do you do that? Include mandatory arbitration clauses in all of your wills and trusts. These clauses are enforceable by statute in Florida. I’m a big fan of this approach (see here, here, here, here).

Sample clauses are often the best way to understand in concrete terms how a general concept gets applied in the real world. Two of the Florida attorneys instrumental in passage of Florida’s statute expressly authorizing arbitration clauses in wills and trusts, Bruce M. Stone and Robert W. Goldman, also co-authored a 2005 ACTEC article providing sample arbitration clauses entitled Resolving Disputes with Ease and Grace. And here’s an excerpt from this article that echoes my thoughts on why an overworked and underfunded public court system weighs in favor of private arbitration:

What is now a choice to agree to arbitrate or to require arbitration may become a practical necessity. To have this vision, one need only look to one’s own jurisdiction and the yearly budget disputes between governors and their legislatures as they make difficult spending choices. The “third branch of government” is not an uncommon target. Within that debate, social and political considerations mandate that our leaders use their limited resources to fund criminal, juvenile, and family justice long before they reach estates and trusts. As judicial resources dwindle or shift to a more pressing use, it is apodictic that already slothful judicial resolutions of trust and estate litigation will slow even further.

Second, as litigators we should anticipate the “cold judge” factor

We aren’t doing our jobs as litigators if we don’t anticipate — and plan accordingly for — the “cold judge” factor; which needs to be weighed heavily every time you ask a court system designed to handle uncontested proceedings on a mass-production basis to adjudicate a complex dispute or basically rule on any technically demanding issue that can’t be disposed of in the few minutes allotted to the average court hearing. And how do you plan for the “cold judge” factor? Read Persuading a Cold Judge. Here’s an excerpt:

Begin at the beginning. In every court appearance, there are six basic queries to answer for a judge:

1. Who are you?
2. Who is with you, and whom are you representing?
3. What is the controversy, in one sentence?
4. Why are you here today?
5. What outcome or relief do you want?
6. Why should you get it?

This last query is most often forgotten. Indeed, these six essential queries are a good beginning even when you are dealing with a warm judge. Consider putting them on a PowerPoint slide, a handout in the form of an “executive summary,” or a demonstrative exhibit to project through Elmo or other presentation technology.

A judge in a suburban district told me that the one thing I could do to assist his judging was to begin succinctly by telling him what was before the court, remind him of the nature of the case, and tell him what action I wanted the court to take and why I thought I had the right to that action. Once I did this for him, he would be ready to listen to my argument. This particular judge told me that he has so many cases that he can’t read the motions before the hearing, and if he has read them, it was so long ago that he couldn’t recall what he’d read. He has no legal assistant to write memos for him; he does his own legal research, and if you cited more than 10 cases for him to read, he couldn’t do it. He likes being a judge and wants to do the best job he can, but he is forced to come into hearings and trials cold. So, help him be the good judge he wants to be and the quality of his decisions will be your reward.