Words Matter! “Court-Appointed Neutral”: A Better Name for Special Master and New Rules for Their Work
By Merril Hirsh
At the ABA Annual Meeting on August 7, 2023, the House of Delegates overwhelmingly adopted two resolutions co-sponsored by the Judicial Division and the Section of Dispute Resolution and supported by the Business Law Section. The first resolution encourages the use of a new term—“court-appointed neutrals”—to refer to what many people have called “masters” or “special masters”. The second resolution proposes a new court rule to harmonize and expand the ways in which these neutrals can support the effective administration of justice, for the benefit of courts and parties alike.
Resolution 516, among other things, urges rule-makers and legislators to substitute the term “court-appointed neutrals” for “master” or “special master,” and amends the ABA’s own 2019 Guidelines on the Appointment and Use of Special Masters in Federal and State Civil Litigation to substitute this new term.
Separately, Resolution 517 urges states, localities, territories and tribal courts to adopt a new Model Rule of Civil Procedure on the Appointment and Use of Court-Appointed Neutrals. In addition to providing standards and procedures for making use of court-appointed neutrals, the Model Rule harmonizes the existing myriad of state rules concerning the term used to describe this role in the legal profession.
In adopting these Resolutions, the ABA joins the National Association of Women Judges and three states—Maryland, Pennsylvania, and Delaware—in seeking to modernize and improve the terminology that is used to refer to a neutral, disinterested person appointed by a court to help with the administration and management of a complex case. As the Report accompanying Resolution 516 explains, these words matter. The term “court-appointed neutral” does a far better job of describing the wide-ranging roles that these individuals undertake in service to courts, counsel, parties, and the justice system. And in removing the taint that some find to be associated with the idea of “masters,” the new term also better serves the fair and impartial administration of justice.
Of course, adopting these resolutions brings one process to closure, as this is now ABA policy. But the next step is just beginning, and efforts are already underway to introduce the term “court-appointed neutral” into court rules, administrative orders, and common usage in the profession. And with the Model Rule, this is also an opportunity not just to standardize the nomenclature, but also to revisit and discuss all the ways that courts and parties can most effectively use this tool. The Business Law Section continues to be active in working on these matters, and those with an interest and ideas about next steps may contact the author, Merril Hirsh, [email protected], to become involved.