Judicial References: A remedy for more efficient dispute resolution

Hon. Ann Kough (Ret.) served in the Los Angeles County Superior Court as a complex litigation judge and earned a reputation for fairness and efficiency in handling the most difficult and contentious cases. Since joining JAMS, Judge Kough has arbitrated a wide range of disputes that span a broad spectrum of legal issues across several industries. She can be reached at akough@jamsadr.com.

With cash-strapped court systems across the country making cuts that result in ever-growing dockets, achieving efficient dispute resolution through litigation is becoming more challenging. In California, one remedy could be the use of judicial references. This involves appointing a neutral to serve the same role as a sitting judge.

The authority for judicial references comes both from the California Constitution, Article VI, section 21, which provides for the appointment of temporary judges, and CCP sections 638 and 639, which provide for the appointment of a referee to hear all or less than all issues in the case. Under Article VI, section 21, with the stipulation of the parties, the court may order the matter to be tried by a temporary judge. Under CCP section 638, the parties may agree to the appointment of a referee to either 1) hear and determine any or all of the issues in the action and render a statement of decision, or 2) ascertain a fact necessary to enable the court to determine an action. This agreement may either be pre-dispute, as a clause in a written contract, or post-dispute. The scope of the neutral’s work may be as wide or as narrow as the parties would like, and may be expanded at any point in the case. A court has the authority to appoint a neutral to 1) handle discovery disputes, 2) hear and determine accounting issues, or 3) determine questions of fact the trial court deems necessary.

The advantages of a judicial reference are many: parties choose their own decision-maker, get reliable and convenient trial/motion dates, receive all of the attention their matter needs and retain full procedural rights, including appellate rights, as if in court. Counsel may select a temporary judge/referee with subject matter expertise and can schedule motions and hearings at their, and their clients’, convenience.  A judicial reference can also save money.  Although the initial cost is more than court filing fees, in the long run parties save money because neutrals can tailor case management to minimize the expense of discovery, identify threshold issues, which may resolve or streamline the matter and devote full days to trial if the matter must be tried.

As access to the courts for civil matters is drastically curtailed, counsel should consider the use of judicial references.