JAMS ADR Insights
Utilizing Discovery Referees in Complex Litigation
Judge Terry Friedman on using discovery referees to work around procedural roadblocks and a constrained judicial system
Published October 11, 2017
It’s no secret that over the past several years the California judiciary has suffered deep budget cuts, especially to the state’s civil courts.
According to California’s Judicial Council, there are 189 fewer judges than needed to manage the state’s current caseload. Due to constitutional imperatives, civil judgeships in many counties have been shifted to criminal assignments.
As a consequence, civil practitioners will continue to experience delays in trials and hearings, with a particularly severe impact on discovery disputes.
This represents a crisis not only for judges, court staff and attorneys, but also for civil justice. Access to the judicial system is vital for a healthy democracy.
Fortunately, existing statutes allow for parties to work around some procedural roadblocks that tightened budgets can’t navigate.
Discovery references can help provide quicker resolution to discovery disputes when doing so in the courts would take up a large amount of time, such as when multiple motions must be considered or when the amount of documents to be reviewed would be severely time consuming.
California’s Civil Code of Procedure grants parties to a dispute some flexibility in deciding the referees and whether their opinions are binding or not.
With explicit consent from the parties, a judge can designate a general reference that is able to make binding determinations.
More common are special references, which a court or parties can appoint to make nonbinding recommendations “when it is necessary for the information of the court in a special proceeding,” according to California’s Civil Code of Procedure.
Parties are able to submit written objections to the appointment of referees for a number of reasons, including prior legal or personal relationships with the other party, an interest in or bias towarda certain outcome of a matter, or a lack of qualifications to be a referee.
There are other advantages in using referees, who can often devote more time to matters than can a trial judge. Of course, attorneys should keep in mind that, as in the courtroom, succinct arguments tend to be more successful.
Referees can also be more flexible in scheduling hearings either in a private office or telephonically, though this informality should not be an invitation to engage in improper ex parte communications.
How and when the crisis affecting the courts will end remains to be seen.
But for now, taking advantage of discovery referees can help alleviate the added time and expense associated with a constrained judicial system.
Judge Terry Friedman (Ret.) is JAMS neutral who spent 15 years as a trial judge with the Los Angeles County Superior Court after serving as a member of the California State Assembly for eight years. He can be reached at email@example.com.
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