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Bar News - February 17, 2016


Trust Docket to Change Hands as Judge Retires

By:

NH Circuit Court Judge Gary Cassavechia in his chambers at the Strafford County Complex in Dover.

“If you can’t do it perfectly, don’t do it.”

That was the advice of NH Circuit Court Judge Gary Cassavechia’s father, who instilled in him the unrelenting work ethic that has seen him piece together hundreds of complex and interesting trust and estate cases over his 35 years on the probate court bench.

“My father, bless his soul, he always said, ‘Don’t do it if you can’t do it perfectly,’ not well, perfectly,” the judge recalls. “I cannot cut corners, and I find that doesn’t always jive with the world today.”

Like all New Hampshire judges, Cassavechia, who has presided over the state’s complex trust docket since its inception two years ago, must retire on his 70th birthday, which falls on Feb. 24. Circuit Court Administrative Judge Edwin Kelly has appointed Deputy Circuit Court Administrative Judge David King to begin presiding over the trust docket at that time. King and Cassavechia were among the final 10 probate judges to be appointed in the state, and with Cassavechia’s retirement, King will be one of only two left, as the steady growth in trust and estate practice has eclipsed what was once traditional probate.

When the complex trust docket was getting off the ground, Cassavechia was the natural choice to preside over it, says King, who will now hear those cases in Concord. “He’s hardworking, dedicated and brilliant,” King says of his longtime colleague. “He’s a model judge for anybody to follow, and he certainly has been a role model for me.”

With hundreds and sometimes thousands of pages of evidence and oftentimes many millions of dollars at stake, the kinds of cases that are now on the complex trust docket had previously languished for years in the court system. With dwindling resources and very little law to rely on, judges often were forced to put off the work required to decide such complicated issues. Think Tamposi, and the Goodwin-Webber estate case, both of which Cassavechia presided over.

Most of these cases involve litigious and often spiteful parties, and some have as many as 10 lawyers actively litigating. The professionalism of the attorneys, Cassavechia says, makes all the difference when these cases go to trial.

“A weak trial with good lawyers who know how to try a case is like a vacation compared to a case with lawyers who are not prepared and really don’t do a good job,” he says. “Good lawyers don’t make it a personal deal. They’re professionals. I think the most difficult thing for judges is when lawyers act like clients. They can sometimes get so caught up in their client’s cause, or maybe in their own cloth, that it becomes a lot about them. The best thing a lawyer can do, in my view, when they have an objection to a ruling of the court… is sit down. Good lawyers will sit down, even when you’ve ruled against them, because they’ve preserved their argument for appeal.”

Cassavechia has earned the respect of attorneys, who consider him an experienced and knowledgeable judge, one who spent more than 20 years practicing law before accepting a full-time judgeship in 2000. Ralph Holmes, an attorney at McLane Middleton, practices often in Cassavechia’s court.

“He’s very smart and thoughtful. He treats counsel with good humor and respect,” says Holmes. “Lawyers generally enjoy the opportunity to appear before him.”

Asked to discuss some of his most memorable cases, Cassavechia thinks back to those high-profile disputes over family wealth. After the 27-day Tamposi trial in 2009-10, and the subsequent appeal, he anxiously awaited the NH Supreme Court’s decision.

“You’re thinking, ‘If they flip me on this, I’ve got to go through all of this again,’” he says. “And then I got the decision, and they affirmed me on every point.”

But when he looks back over the years, another person also stands out in Cassavechia’s mind – Roland Hemon, the man who tried to have him impeached following a probate case that spanned nearly 15 years.

In the mid-1980s, Hemon was a state legislator. His brother and sister had filed a petition to put their mother under a guardianship. When Hemon found out, he attempted to conceal his mother’s location, to avoid service of the paperwork. When she was eventually served, Hemon fought the guardianship action on grounds of residency and the probate court’s jurisdiction.

“When I made my ruling, he decided to file impeachment proceedings against me, and I remember it was over Christmas time, and it was not a good Christmas,” says Cassavechia. “… He used to have a little band of legislators who when we used to have hearings would come in and sit in the back with their legislative badges on, you know, just to intimidate me.”

Cassavechia had to submit a report to House Judiciary, which voted down his impeachment. Hemon tried again two years later and received more votes, and eventually the case went to the Supreme Court. In 1998, then-Chief Justice John Broderick wrote the decision that affirmed Cassavechia, marking the end of the battle for Hemon.

In the more recent past, the complex trust docket has allowed Cassavechia to focus on the most challenging cases, giving them the attention and specialized case management they need to reach resolution.

Since the creation of the specialized docket, 67 cases have been assigned to it. All 32 cases assigned to the docket in 2014 reached have reached disposition (18 settled, 12 went to trial, and two were dismissed). In 2015, 31 were assigned, and 19 reached disposition (17 settled, two withdrawn), three have been stayed, and one was transferred to federal court.

Given all of this progress, Cassavechia does not want to stop now. The expression on his face when someone congratulates him on his upcoming retirement makes it obvious that he is not stepping into this new chapter willingly. He likes judging, and through the years he has developed a style and method that keeps even the most complicated matters moving forward.

He plans to spend some time each year on the bench as a referee and has considered writing about case management in complex trust litigation, as a handful of states continue jockeying for the biggest share of the vast and growing wealth that is tied up in trusts. Future trust laws may enable families to essentially create and invest in their own banks and give the court jurisdiction to undo them with cause, which would intensify demands on the court in this already complex area.

“That’s going to make Tamposi’s case look like a drop in the bucket, if they ever have those come in here,” Cassavechia says, “and we’ve got to have the ability to deal with it.”

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