Referees and Special Masters Help Navigate Litigation Roadblocks

Barbara A. Reeves Neal is a JAMS neutral in Santa Monica, Calif. She resolves complex, high-profile commercial, employment and professional liability disputes in the

construction & engineering, energy, healthcare, and insurance industries. Ms. Reeves Neal is a fellow of the Academy of Court Appointed Masters.

Budget cuts have gutted the state’s civil trial courts, clogging dockets, causing delays and forcing attorneys to be much more creative in managing their cases. One often overlooked option is the appointment of referees and special masters to handle matters before, during and after trials.

References, which can be stipulated to by both parties or appointed by the court following a motion by one party, have their pros and cons. On the positive side, they can help save time and expense and move a case toward trial or resolution sooner. On the negative side, they cost money.

Regardless, the cost of appointing a referee often offsets future expenses by eliminating costly disputes that can arise out of a case.

Discovery management, including the production of electronic data, is an especially fertile area for the use of special masters and referees. Someone with experience in the legal system can help set reasonable discovery boundaries and deadlines and prevent expensive disputes before they happen.

Referees can also decide dispositive and non-dispositive motions quickly, and hold hearings telephonically.

Referees and masters also aid the court in the settlement of complex disputes, and can also assist the parties in categorizing a case to help break out different types or levels of injury, liability or damages. Once issues are categorized, the referee or master is able to narrow issues and target settlement efforts at certain plaintiffs or defendants.

Aside from expense, another concern about referees and special masters include delegating judicial functions to a private neutral who could very well take over the process and derail progress toward trial.

This can be addressed early with careful drafting of the order or stipulation appointing the referee or special master. The reference should outline what the referee or special master is being assigned to do, when and how he or she will report to the court, and a provision regarding fees that includes expectations of the parties about this issue.

Referees and special masters allow courts and parties to streamline case management and resolve cases quickly, and also bring expertise in areas such as accounting, finance and technology. The courts, parties and attorneys can all benefit from increased use of referees and special masters.