Special Masters: How To Make the Best of Both Worlds, Part X

Part Ten: Using Regularity To Start Beating the Rap

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

In Part Nine, we discussed the rap on special masters – the concern that special masters can be expensive and potentially ineffective; prone to an alternative agenda; and chosen because of connections to the judge. We suggested that the fact that at least the federal rules include no regularized method of selection or apparent qualification for the job of special master does not help to beat that rap. So what would help?

Obviously, the best answer is a long history of terrific special masters making dramatic contributions to the cause of justice and receiving the press that is their due. But the first step is having one positive experience with a qualified special master making contributions to justice. And that, in turn, begins with appreciating how much of the rap on special masters is related to the way in which we use them.

Right now, with limited exceptions, special masters are brought into cases both ad hoc and post hoc. The most likely circumstance in which a special master will be retained is when something has gone wrong: a sanction against a party that has failed to comply with discovery; or as a way of monitoring a remedy imposed for wrongdoing; or as a kind of pox on both their houses to deal with discovery disputes that have already led judges and magistrate judges to throw up their hands.

It isn’t that special masters cannot help in those situations. They can. But coming in to try to pick up the pieces that one or both parties have worked to shatter is not the situation in which anyone is most likely to shine. A party already sanctioned is not your best audience for special master work; and if the parties are already fighting like cats, herding them is like … well, you get the idea.

Special masters have a much greater potential for contributing to the process of litigation in the situation in which they are not now usually used. Instead of bringing in special masters ad hoc as a remedy imposed after problems have developed, bring in special masters regularly in complex litigation as a means of preventing problems from developing in the first place.

Way back in Part Four of this series, we talked about how having someone oversee discovery could change the incentives that currently exist: that instead of incentivizing litigants to increase costs, we could incentivize them to make the process more focused, more efficient and less contentious. Obviously, special masters cannot oversee the process and achieve these results if they are hired only as a last refuge after the process has already become unfocused, inefficient and contentious. Special masters may be able to do something after the fact, but they can only be truly effective if they are used regularly from the outset.

In addition to being a more effective use of special masters, regularity has side benefits in dealing with the rap on special masters. As lawyers we are used to the idea that regularity is an aspect of legitimacy. If something happens all the time, it does not happen just to punish us. We can tell our clients to expect it. And we can plan for it.

So are we really saying that judges should have the parties retain special masters all the time? Yes, all that and more. Stay tuned for Part Eleven.

Read Part One: The Problem.

Read Part Two: Improving the Process, Not Just the Rules.

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 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?