A case in recent news has led a lot of people to ask, “What is a special master?” The fact that people need to ask this question tells you two things. First, people are not very familiar with this tool. Second, the name “special master” does not help them much to explain it. Properly understand what this is, and you have a tremendously useful tool for judicial administration—especially for courts facing pandemic-related backlogs.
What is a special master? A “special master” is a poor choice of name for someone appointed to help a court. Face it. It is hard to find anyone (OK, besides a St. Bernard) who really likes having a “master.” The word “master” has obvious negative connotations, but even most positive connotations still suggest that someone is being appointed to take over.
That is not a good job description. What we are really talking about is a Swiss Army Knife—a collection of many possible tools that can be used, as needed, to serve a court. Serve how? In almost any way that would be useful.
In civil litigation, neutrals have been used (among other ways) to oversee discovery (including specifically e-discovery); to assist with settlement of either particular issues or the whole case; to coordinate among proceedings; to conduct hearings or trials; to conduct investigations; to advise the court or the parties as an expert; to monitor conduct (whether of the parties generally or the litigation specifically); to analyze, facilitate, and deal with issues arising out of class actions; to administer claims; to conduct audits or provide accountings; to serve as a receiver; to act as an intermediary between the parties, or other ADR professionals, and the court; and to resolve specialized disputes (for example, internecine disputes among plaintiffs or defendants or their counsel). In criminal proceedings, courts have appointed neutrals (again, among other ways), as a case master; a conference judge; a search warrant monitor; an investigator; and a monitor of the adequacy of the government’s constitutionally required disclosures. Have a project that swamps the handling of a docket? Appoint a neutral to review the 5,000 documents for ostensible privilege, or investigate the alleged spoliation and report back, or provide scientific advice on the Daubert or Frye motion, or the forensic accounting that gets to the bottom of the dispute. The list of potential uses is limited only by our imagination.
Why be so obsessed with a name? When we misname something, we misunderstand it. Both the Academy of Court-Appointed Neutrals and the American Bar Association (ABA) Judicial Division Lawyers Conference Court-Appointed Neutrals Committee recently changed their names. This change is part of an effort to broaden our thinking both about who can serve in these many roles and how their service can help courts.
What does this mean for court management? Both the ABA and the academy have been asking themselves this question for some time. In January 2019, the ABA House of Delegates adopted, as official ABA policy, “Guidelines on the Appointment and Use of Special Masters in Federal and State Civil Litigation.” Yes, it uses the term “special masters.” That is, because the work since on implementing them focused much more thinking on the name. But the principles in the Guidelines can assist courts as we work to change the name.
The Guidelines reflect a consensus reached by a working group of representatives (in many instances, leaders) from ten sections, divisions, forums, and conferences of the ABA about the use, selection, administration, and evaluation of court-appointed neutrals. The group that drafted them included both sitting and former federal and state judges, plaintiffs and defense lawyers, alternative dispute resolution professionals, and academics. The first of the nine Guidelines contains the central principle that “[I]t should be an accepted part of judicial administration in complex litigation and in other cases that create particular needs that a special master might satisfy, for courts and the parties to consider using a special master and to consider using special masters not only after particular issues have developed, but at the outset of litigation.”
Making it an accepted part of judicial administration to consider using court-appointed neutrals—not necessarily using them, but being ready to think about using them—is critical because the lack of a systematic approach has limited in several ways both the avenues for becoming a court-appointed neutral and the uses that courts make of this resource:
- A lack of experience with court-appointed neutrals leaves parties and even jurists unfamiliar with what services they could perform and, thus, less able to consider how appointment might help the administration of justice.
- Ad hoc selection puts a heavy premium on prior association with the judge. This advantages repeat players, makes it less likely that the choice will be drawn from a diverse pool, and can lead parties to distrust the process or the choice.
- Post hoc selection after problems have already developed limits the potential benefit that appointment could have been used to avoid these disputes in the first place.
- The general lack of a regular process for considering court-appointed neutrals has meant that there is a lack of procedures that would be expected to improve the neutrals’ work (such as vetting candidates; conducting organized training; permitting evaluations and feedback; developing professional expectations for court-appointed neutral service; and maintaining data for study).
Both before changing its name and since, the ABA Court-Appointed Neutrals Committee has been working on implementing these Guidelines. The committee recently released for public comment a discussion draft of a Model State Rule of Civil Procedure on the appointment and use of court-appointed neutrals. It is available here. The committee is also working with courts on projects, including helping the Indiana Commercial Court and the circuit court in Sarasota County, Florida, develop rosters of neutrals. The committee has identified criteria that can be used to select court-appointed neutrals to rosters and drafted a survey to evaluate neutrals’ work. The committee is also working on model principles of ethics to help ensure that when neutrals are appointed they help solve the problems.
The Academy of Court-Appointed Neutrals has supported these efforts in various ways. It has 1) opened its membership to people who had never previously served as court-appointed neutrals; 2) widely recruited in an effort to diversify the profession and the background people bring to it; 3) worked with former Federal Judicial Center director and judge Jeremy Fogel to develop the first-ever curriculum for teaching people to become court-appointed neutrals and begun work on a mentoring program to help bring new people into the profession; and 4) reached out broadly to partner with judges, court staff, bars, affinity parts, and other organizations involved in judicial administration or alternative dispute resolution and academic institutions to develop ways to help courts implement programs without overburdening court resources.
Now add in a pandemic. As the Guidelines and efforts to start implementing them date from 2019, this is not really a case of necessity being the mother of invention. It is more like necessity shortcutting adolescence. Perhaps more than ever in our history courts are focused on creative new ideas for managing dockets and addressing backlogs. And it was fortuitous that we already had people talking about an underused tool that offers the potential for creative solutions to case management difficulties.
How can you use this tool? Here are six suggestions:
Suggestion 1: Analyze your needs. Is the problem managing existing civil cases with undecided motions, or parties who are not moving cases at a time when the court is unable to schedule trials? Would it help to have the neutral review the file, determine the issues that could most benefit from immediate resolution, and help the court prioritize them? A neutral could also help to address these motions or work with the parties to determine what information is necessary to get motions teed up or cases in a posture for settlement. Or a neutral could mediate disputes or recommend another mediator who can assist the parties. Or a neutral could do the heavy lifting for the court of reviewing the 5,000 pages of documents for privilege, categorize them, and issue a report and recommendation that the parties may or may not take up with the court. A neutral could conduct weekly calls with the parties to go over every issue on the horizon and to see which can be resolved without motion.
Is the problem a backlog of trials? Some parties may consent to have court-appointed neutrals try a case now, rather than wait until the court is available. And in most jurisdictions, courts can appoint neutrals, with or without consent of the parties, to incentivize parties to move cases even without the threat of immediate jury trials or facilitate the resolution of cases or significant issues within cases before the lawyers arrive on the courthouse steps.
Is the problem figuring out what the priorities are? Why stop with reviewing the files in particular cases? Might it make sense to have court-appointed neutrals review dockets and recommend to courts how cases can be handled effectively, or how to prioritize pending motions so that the court’s decision making is most effective in getting cases to resolution?
Suggestion 2: Find court-appointed neutrals who have the diverse backgrounds, talents, experience, personality, and methods that best track the tasks the court wishes to have performed and the role the neutral will play. Just as there is no one role court-appointed neutrals perform, there is no one rule for determining what talents will make a person an appropriate neutral in a case. A candidate may have a talent or personality that is especially useful, even if the candidate has little experience. Sometimes, a wealth of experience generally as a neutral is more relevant than knowledge of the subject matter; sometimes the reverse is true, and the need for subject-matter expertise is predominant. When one size does not fit all, order different sizes.
Suggestion 3: Involve the stakeholders both at the outset and afterward. Buy-in is critical. The earlier stakeholders (like lawyers, bar organizations, affinity bars, and potentially parties) can participate in designing or at least commenting on the program, the better the program will be and the more people who will have ownership of the results.
But do not just bring stakeholders in at the outset. Permit stakeholders to be part of the review and evaluation of the program. That provides accountability and affords an opportunity for improvement.
Suggestion 4: Use a roster. Creating a roster helps to ensure that neutrals will be drawn from a pool of qualified candidates, with diverse backgrounds, skills, and perspectives. It opens opportunities for those who are not repeat players to be considered for appointment. It allows for vetting candidates, which not only improves the quality of those who serve, but also enhances legitimacy, acceptance, and effectiveness: When a judge or the court chooses someone on the list, parties have additional comfort about the skills of the person being chosen. Having a roster also allows courts to incorporate a training program, such as the one the Academy of Court Court-Appointed Neutrals is developing.
It also facilitates buy-in. On the front end, the process of creating a roster is a particularly good opportunity for stakeholders to be involved in the program. On the back end, it facilitates ongoing evaluation with stakeholder participation that improves the services—and validates the buy-in.
Suggestion 5: Make the system of compensation facilitate, rather than impede, the court’s goals. If you do a presentation on court-appointed neutrals, there is one question you are certain to be asked: How do they get paid? The answer is that court-appointed neutrals are generally paid by the parties. But there is more to it than that, especially if the court uses a roster.
In the long run, there are several reasons why a program for making effective use of court-appointed neutrals should not be entirely pro bono. Although (as court-based mediation programs illustrate) a court pro bono program can be very effective in calling forth many professionals willing to devote a limited number of hours each given year, this approach is less effective when what the court really needs is a smaller group of professionals with particular skills each willing to devote a very large number of hours over many years.
Nor is spare time evenly distributed. Requiring that work be pro bono biases the selection in favor of lawyers who have more resources. And even for large law firms, pro bono resources are not free: Working pro bono as a court-appointed neutral means the neutral is not working pro bono to meet other important needs. Robbing Peter to pay Paul is a false economy.
But what about parties who cannot pay? Or for court-based projects (like triaging dockets) that are not case specific in a way that facilitates party payment?
A roster provides a solution to this. People can be encouraged to apply for the roster by the opportunity to facilitate paid employment sufficient to justify the time commitment. But in exchange for this valuable opportunity, the court can require a reasonable pro (or low) bono commitment so that roster members also assist the court and parties in cases where payment (or full payment) is not available.
A careful program should also protect the parties who are paying. ABA Guideline 1 encourages courts and parties to consider the use of court-appointed neutrals as a regular part of judicial administration. But Guideline 3 explains that neutrals should be used only where the benefits outweigh the cost. In other words, a court-appointed neutral should earn his or her keep usually by saving the parties more money than the neutral costs.
Suggestion 6: There is help out there. Use it. Implementing a program may sound like a tall order. But both the ABA and the academy are here to help courts make use of neutrals with as little imposition on court staff time as possible.
Two good places to start are the Court-Appointed Neutrals Committee page on the Judicial Division’s ABA website and the Academy of Court-Appointed Neutrals website, which includes both a benchbook with practical guidance on how to make use of neutrals and a search tool for finding ACAN members by name, jurisdiction, and expertise. Volunteers are willing to work with courts or to find others who will to establish rosters. If the ideas on the websites, or in this article, seem promising, let’s start the conversation.
ABOUT THE AUTHOR
Merril Hirsh of HirshADR PLLC in Washington, D.C. is an ADR professional and both the executive director of the Academy of Court-Appointed Neutrals and the chair of the ABA Judicial Division Lawyers Conference Court-Appointed Neutrals Committee (both institutions that recently changed their name to substitute “Court-Appointed Neutral” for “Master”).
Comments on this article or questions about help in using neutrals are welcome: merril@merrilhirsh.com.
