Discovery Referee | JAMS ADR Blog

Barbara Reeves Neal, Esq.

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.

Hon. Terry B. Friedman, (Ret.)

Today’s post comes from Hon. Terry B. Friedman (Ret.), an experienced mediator, arbitrator and discovery master 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.

It’s no secret that California’s budget woes mean deep cuts to the state’s civil courts.

According to California’s Administrative Office of the Courts, there are currently 330 fewer judges than needed to manage the state’s current caseload, and obligations to fill criminal judgeships in Los Angeles will likely be met by shifting even more officers from the civil bench.

As a consequence, civil practitioners likely will face delays in trials and hearings, and an impact on discovery disputes in certain complex cases is inevitable.

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.