Special Masters: How To Make the Best of Both Worlds, Part IX

Part Nine: Beating the Rap

By: Merril Hirsh, James M. Rhodes and Karl Bayer

In Part Eight, we talked about how, notwithstanding all the apparent benefits special masters can have for civil litigation, there is a rap, rightly or wrongly, on special masters that they can be (1) expensive and potentially ineffective if they merely add another layer of decision-making to challenge; (2) prone to alternate agenda; and (3) chosen because of connections to the judge, rather than management skills or independence. Yet, here we are advocating for increased use of special masters. How do we beat this rap?

One mistake these rappers make is to judge an institution by its worst examples. Let’s all agree, a bad special master could be worse than none. If we are not concerned about what a special master costs, the special master may well cost too much. And if the special master does not manage the case well or in the best direction, it will be managed poorly.

Now that we have gotten that off our chests, let’s talk about how to get special masters who are better than that.   We have devoted a fair amount of these posts to talking about the effort to align our incentives with our expressed desire to have litigation managed more efficiently and fairly. The truth is that some human beings in general, some lawyers, in particular and even (we can say this because we are jointly publishing this blog, and so can each always attribute the statement to our co-authors) some judges are better at doing some things than others are. The way to get better special masters is to choose special masters in a way that increases both the likelihood that they will be good at it, and the perception that they are likely to be good at it.

The problem is that while court rules talk some about what a special master will do, they do not talk very specifically about how a special master should be selected. Federal Rule of Civil Procedure 53, for example, says three things that relate to who will be the special master:

• The preamble language to Rule 53(a) says that “[u]nless a statute provides otherwise, a court may appoint” one.
• Rule 53(a)(2) says that the master “must not have a relationship to the parties, attorneys, action, or court that would require disqualification of a judge under 28 U.S.C. §455, unless the parties, with the court’s approval, consent to the appointment after the master discloses any potential grounds for disqualification.”
• Rule 53(b)(1) says that “[b]efore appointing a master, the court must give the parties notice and an opportunity to be heard,” and that “[a]ny party may suggest candidates for appointment.”

So the special master can be anyone without a disqualifying conflict who the court appoints after notice and an opportunity to be heard and may or may not be someone suggested by the parties. Whether it is true or not, it should not be surprising that people perceive that the way to become a special master is to the know the judge. There is no other apparent qualification.

So how do we make sure we get the right special masters? Stay tuned.

Read Part One: The Problem.

Read Part Two: Improving the Process, Not Just the Rules.

Read Part Three: What Incentives Are We Creating?

Read Part Four: How Do We Create Better Incentives?

Read Part Five: Incentives Through Expertise.

Read Part Six: An Appellate Court Success Story.

Read Part Seven: Being the Neutral Eyes.

Read Part Eight: How Are Special Masters Perceived?

Read Part Ten: Using Regularity to Start Beating the Rap

Read Part Eleven: The Rule Rather than the Exception

Read Part Twelve:  An Adjunct to Civil Litigation

Read Part Thirteen: Doing Disagreement as Effectively as Doing Agreement

Read Part Fourteen: Is Doesn’t Just Have To Be Construction That’s Constructive

Read Part Fifteen: Where Else Do We Bring Alternative Dispute Resolution Skills to Dispute Resolution?