Civil litigants, how would you like to have a process that allows the parties to determine the decision-maker, preserves all civil remedies and appellate rights and ensures effective case management and hearing and trial dates that proceed as scheduled? This process has all of the perceived benefits of arbitration while ensuring the result is subject to appellate review.
California has just such a procedure. The California Constitution, Article VI and the Code of Civil Procedure section 638(a) authorize the parties to stipulate to a private judge and to fashion the authority granted to the person selected. Stipulations vary in scope from a narrow discovery issue to all aspects of civil litigation including the right to act as the settlement judge as well as the trial judge. This affords the parties the opportunity to control the litigation process that does not exist in the court system, and ensures that the decision-maker has the time to consider the issues and to provide the parties with hearing and trial dates that proceed as scheduled.
Given these benefits, it is surprising that this process is neither widely known nor utilized except in family law cases involving substantial wealth. One reason is the right in most civil cases to have the case decided by a jury. Neither the California Constitution nor the Code of Civil Procedure address the jury trial right, and it is unlikely that the state courts are prepared to use their strapped resources to summon jurors for parties’ utilizing private judges.
Recently at JAMS, this issue was addressed by the parties stipulating to the use of jurors located by a jury consultant firm. The lawyers conducted voir dire and the jurors were paid for their services. The parties used the jurors to decide test cases to provide markers for settlement of a large class of cases. In the recent ABA Litigation magazine (Volume 41, No. 4, Summer 2015), there is a description of a private trial of a business case using jurors where the lawyers agreed that the verdict would be treated as an arbitration award.
Both of these approaches involved giving up substantive appellate rights. A viable alternative is for the parties to give up appellate rights only related to jury selection, while preserving all other substantive and procedural grounds for appeal. In reality, little is given up by waiving this right for it is extremely rare for a civil case to be reversed based on jury selection. As a consequence, in a case that warrants use of a private judge, the obvious benefits of a private judge trial out-weigh the right to challenge jury selection.
If you believe your case would benefit by using a private judge to manage and decide the case, do not be put off by your opponent’s insistence on a jury trial. There is more than one way to secure the benefits of a private judge and the insight provided by a jury verdict.