Special Masters: How to Make the Best of Both Worlds, Part II

Part Two: Improving the Process, Not Just the Rules

By: Merril Hirsh, James M. Rhodes and Karl Bayer

OK, so in Part One we all agreed that we need to give people a better choice than the one between a system of civil litigation that does a great job of permitting appeals, but is perceived to be, or is, too cumbersome or expensive to resolve disputes; and a system of arbitration that, one hopes, is cheaper, but does not permit, at least the judicial appeal that parties might wish to have available if the arbitrator gets it “wrong.”

So what is the better choice? We’ll start by explaining what the better choice is not. For decades, we have been trying to solve problems like this substantially by revising the rules. In the early 1980s, the big “solution” in dealing with litigation costs was supposed to be meeting and conferring. The idea, reasonable enough on its face, was that if parties were genuinely required to talk through and seek to resolve disputes before they went to court, there would be fewer disputes. Then came a wave of discovery limitations – limiting the number of interrogatories, number of requests for admission, number of hours of deposition, etc. – coupled with signatures and sanctions for discovery abuse. Then came requirements for initial disclosures. And more recently, the “solution” has been amendments to deal with the breadth and expense commonly associated with electronic discovery.

You’d think that with so many “solutions” to a long-standing and important problem, we’d be on to other problems by now. The problem with these rule-based solutions is that (1) lawyers represent clients, not the system, and (2) lawyers are pretty clever about using the system to their client’s advantage. Requiring lawyers to meet and confer might look like a good way to get them to resolve disputes inexpensively. But, in fact, it encourages lawyers to be unreasonable in the first instance, knowing that nothing can go to court without the other side having to negotiate. Numerical limitations to discovery are fine, when they fit the case, and both parties are cooperating to use time efficiently. But they can be very unfair when the case really requires more information or one side really seeks to delay – for example, by arguing over how you count subparts or inquiries that use multiple nouns, verbs or adjectives (“identify every call, conversation, communication, smoke signal, etc.” – is that one request, or four and counting?).

It isn’t that all these rule changes were wrong or completely unsuccessful. It is that, fundamentally, changing rules changes how the game is played, not the fact that it is a game. We need a solution that changes the incentive to play the game itself.

Which brings us back to a Special Master: how can the use of a Special Master help solve this problem? We will address this topic in Part Three. Stay tuned!

Read Part One: The Problem.

Read Part Three: What Incentives Are We Creating?

Read Part Four: How Do We Create Better Incentives?

Read Part Five: Incentives Through Expertise.

Read Part Six: An Appellate Court Success Story.

Read Part Seven: Being the Neutral Eyes.

Read Part Eight: How Are Special Masters Perceived?

Read Part Nine: Beating the Rap.

Read Part Ten: Using Regularity to Start Beating the Rap

Read Part Eleven: The Rule Rather than the Exception

Read Part Twelve:  An Adjunct to Civil Litigation

Read Part Thirteen: Doing Disagreement as Effectively as Doing Agreement

Read Part Fourteen: Is Doesn’t Just Have To Be Construction That’s Constructive

Read Part Fifteen: Where Else Do We Bring Alternative Dispute Resolution Skills to Dispute Resolution?