January 01, 2015

The Judge, the Special Master, and You

David R. Cohen

The court’s case management conference started out as routine. Then came the curve ball. “Given how things stand,” the judge says, “I’m thinking of appointing a special master. It seems appropriate, in the circumstances of this case.” The judge turns toward you. “I’d prefer to have your consent, although I’m not sure I need it. Counsel, what is your position?”

Questions flash through your mind. Why does the judge believe we need a special master? How will this affect litigation cost? Will a special master change our chance of winning? Whom does the judge have in mind? If we don’t consent, will the judge hold it against us? And is this going to ruin my vacation plans?

The answers to these questions (including the last one) will make a real difference in your case. This article provides some insight into the judge’s thinking.

Where did the judge get this crazy idea? Actually, the idea is not so crazy. The Federal Judicial Center offers this firm endorsement of special masters: “[A]ll judges and almost all attorneys [surveyed] thought the benefits of appointing the masters outweighed any drawbacks and [all] said they would, with the benefit of hindsight, still support the appointments. Attorneys said this regardless of how the special masters’ appointments initially came about, and even regardless of whether the master’s involvement benefited their clients.”

What’s so “special” about this case that it requires a special master? Every case where a judge appoints a special master shares one overriding feature: “excessive use of limited judicial resources.” This simply means a judge and her staff have only so much time and energy available, and your lawsuit is consuming disproportionate attention.

Thus, a court is more likely to appoint a special master if the case: (1) involves an especially complex or technical area of the law, such as patent or antitrust; (2) requires heightened, time-consuming discovery oversight, such as in multi-district litigation or when counsel are ever-bickering and over-zealous; (3) calls for fact-intensive non-jury determinations, such as an accounting, awards of attorney fees, assessment of sanctions, or expert-heavy damage measurements; or (4) entails a long post-trial or post-settlement stage, such as class-action settlement administration, or monitoring and compelling compliance with injunctive relief.

Why not refer my case to a magistrate judge instead? Two reasons: First, the same strain on judicial resources felt by district judges is also felt by magistrate judges. Second, magistrate judges will confirm there are certain kinds of tasks that are more appropriately assigned to special masters. These include administering settlements, monitoring consent decree compliance, addressing technical issues requiring special expertise, reviewing massive document libraries for privilege, and even overseeing discovery where the disputes are especially frequent and highly contentious.

What about the cost? In the large majority of cases, imposing on the parties the cost of a special master is simply not justified. The court could handle the matter itself just fine. But there are three types of cases where the benefits of appointing a special master clearly exceed the costs.

The first is when the litigation is expensive or the financial stakes are high and each side is spending with no end in sight. Compared to expert witness fees, deposition travel expenses, and invoices for platoons of brief-writing attorneys, special masters are a good value.

The second is when the parties’ actions are driving up the cost of litigation unnecessarily. Sometimes, discovery disputes are truly excessive. Write a few $5,000 or $10,000 discovery letters to the court, and then consider the costs and benefits of having a special master. The master’s fees to settle these disputes will be substantially less, and the judge’s exasperation will be relieved rather than intensified. Indeed, there are total cost savings for the clients on both sides when the parties can obtain immediate access to efficient and inexpensive dispute resolution instead of filing motions and writing more letters.

The third type of case is when resolution of certain issues requires time or expertise the court simply lacks. Reviewing thousands of documents for privilege, or assessing numerous attorney fee petitions, or combing through a patent’s history is not the best use of a judge’s time. A special master frees the court to focus on larger matters.

What will the special master actually do? Federal Rule of Civil Procedure 53 gives judges great flexibility regarding tasks the court may delegate to a special master. Boiled down to its essence, Rule 53 says: Judge, if you are faced with a complex or difficult matter that will take up too much of your valuable time, then you can appoint a personal aide and get help, with or without consent from the parties.

Of course, that’s the practical meaning of the rule. Here is what Rule 53(a)(1) actually says: The court may appoint a special master to: (1) perform any duties to which the parties consent; (2) “address pre-trial and post-trial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district,” even without party consent; (3) conduct trial and “make findings of fact” in non-jury matters, if warranted by some “exceptional condition,” even without party consent; or (4) perform “difficult” accountings or damage computations, again, even without party consent. For examples of issues that fit these descriptions, see Cohen’s Special Master Case Reporter (available free at specialmaster.biz).

How do the judge, the special master, and the parties communicate with each other? Some judges prefer very formal special master relationships, requiring virtually all communications to be written, similar to the distance between trial courts and appellate courts. Other judges prefer more intimate and informal connections with their special master, allowing the master to serve as a conduit between the parties and the court, like a combined battlefield reporter and military lieutenant. The amount of ex parte communication allowed between parties and the special master will depend on the nature of the lawsuit.

It is a safe bet that, even when the judge and special master have the most formal of relationships, the special master receives occasional intimate direction from the judge, and the judge sometimes obtains casual intelligence from the special master.

Who gets to decide who the special master will be? Ultimately, it’s the judge who decides. The deeper question is the extent to which the judge will consider your input. Some judges simply appoint a specific individual as special master without any consultation from the parties. Others may announce the intention to appoint a certain individual but invite comment or allow objections (which might carry risks similar to filing a motion for recusal). Still others announce the intention to appoint a special master, ask the parties for suggestions, and then have the court choose. In the latter circumstance, the parties may agree on a specific individual, in which case the court almost always adopts the parties’ mutual choice.

Is this going to affect my vacation plans? That’s not a trivial question. It is reasonable to wonder how appointment of a special master might affect not only your case, but also other parts of your life.

The most common approach of special masters is compassionate. A good special master understands the job is to make the appointing judge more successful by providing superior service to the court and to the parties. This is not achieved by simply furnishing fair and accurate legal analysis. It also requires maintaining easy accessibility, treating the parties with kindness and respect, serving without any hidden agenda, and applying rulings consistently.

Doing all those things reflects well on the appointing judge and fosters the parties’ treating each other with more respect, too. Thus, disputes are concluded less painfully, final resolution is reached more quickly, and the special master shares in this success.

ABA Section of Litigation

This article is an abridged and edited version of one that originally appeared on page page 32 of Litigation, Summer 2014 (40:4).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

WEBSITE: americanbar.org/litigation

PERIODICALS: Litigation, quarterly journal; Litigation News, online magazine and print quarterly; committee e-newsletters (all Section members may join any of 40 committees at no additional cost).

BOOKS AND OTHER RECENT PUBLICATIONS: Building the Construction Case: A Blueprint for Litigators; The Art of Cross-Examination, Essays from the Bench and Bar; Trying Your First Case: A Practitioner’s Guide; Business Torts: A Practical Guide to Litigation; Changing Lives: Lawyers Fighting for Children; A Brief Guide to Brief Writing: Demystifying the Memorandum of Law; The Class Action Fairness Act: Law and Strategy; The Law of Class Action: Fifty-State Survey, 2013–2014.


David R. Cohen

David R. Cohen is the immediate past president of the Academy of Court-Appointed Masters and president of David R. Cohen Co. LPA in Cleveland, Ohio.