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July 14, 2023 National Conference of State Trial Judges

How to Use Court-Appointed Neutrals to Improve Case Management

By Merril Hirsh, Stephanie Domitrovich and Roger Haydock

The NCSTJ provided ABA members with the opportunity to learn more about court-appointed neutrals through a recent webinar conducted on June 1, 2023. The webinar informed judges and lawyers on how best to manage cases with the assistance of court-appointed neutrals, and now is available for free on the ABA website: How to Use Court-Appointed Neutrals to Improve Case Management: A 2023 Benchbook.

Senior Judge Stephanie Domitrovich moderated a panel with Professor Roger Haydock and Merril Hirsh. Professor Haydock is the founder of the Academy of Court-Appointed Neutrals (ACAN). Merril Hirsh is the long-time chair of the Lawyers Conference Court-Appointed Neutrals Committee and more recently became ACAN’s Executive Director. 

The panel focused on the ACAN Benchbook – a free online resource designed to provide practical information on court-appointed neutrals. Among other things, the program discussed what a court-appointed neutral is; why there is a movement to use the name “court-appointed neutrals” to replace the term “masters” or “special masters”; and how courts and litigants can potentially use neutrals and practical steps in assessing the possibility of appointment and making an appointment fair and beneficial. The program also discussed ACAN’s mission and how the Academy is working with the ABA to rethink and diversify the profession and create new opportunities for assisting courts and litigants.

One particular topic the panelists addressed was the various roles court-appointed neutrals serve (including addressing or working with the parties on discovery, coordinating litigation, investigating facts, helping to work through disputes, monitoring and implementing decrees and providing expertise). The panel discussed how court-appointed neutrals can assist in assessing the reliability of scientific evidence under Daubert or Frye guidelines and FRE 702, and the importance and value of FRE 706 experts by comparing the similarities and differences between court-appointed neutrals and FRE 706 experts.

Panelists also analyzed many important items that should be incorporated in a Court’s Appointment Order to assist the neutrals in their work. Drafters should provide, for example, details as to the roles of court-appointed neutrals and identify when ex parte communications may occur. Panelists referred to information available in the 2023 Benchbook to assist judges and lawyers in drafting these Orders.

Panelists also reviewed and assessed ethical considerations in appointing neutrals. Many ethical concerns were explored such as conflicts of interest and relationships with the judge, the litigants as well as the attorneys. Other ethical concerns included interactions with the media, including heightened awareness of pitfalls to avoid ethical violations. Panelists also assessed the advantages and benefits of appointing neutrals were weighed.

Panelists provided takeaway concepts when considering the appointment of neutrals such as whether the neutral can fulfill the needs in the case, whether the benefits of appointing a neutral outweigh the costs, whether the costs are proportional to the case and whether specific knowledge, experience and qualities are needed for a neutral working in the case. The webinar attracted 52 registrants and closed with a lively exchange of questions between the panelists and members of the audience. As a benefit of your ABA membership, you can access the full program here.

Hon. Stephanie Domitrovich

Senior Judge, Erie County Courts

Professor Roger Haydock

Founder, Academy of Court-Appointed Neutrals

Mr. Merril Hirsh

Executive Director, Academy of Court-Appointed Neutrals

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