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Special Masters: How to Help Judges Extend Their Reach … And Exceed Their Grasp

Litigation

By Merril Hirsh June 2017
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When Edmund Burke said that law “sharpens the mind by narrowing it,” he was not being kind. But it is difficult to deny there is some truth to it. Perhaps, by broadening our perspective on what judges can do with special masters, we can expand what our judges can do, period.

Forty years ago, Chief Justice Warren Burger convened a “National Conference on the Causes of Dissatisfaction with the Administration of Justice”—more commonly known as the Pound Conference—at which Harvard Law Prof. Frank E.A. Sander described a solution he called the “multi-door courthouse.”

Sander proposed having a screening clerk at a Dispute Resolution Center direct grievants to the process or processes of dispute resolution most appropriate to the case and the objectives involved. Back then, Sander literally conceived of there being different doors—Screening Clerk (Room 1); Mediation (Room 2); Arbitration (Room 3), etc. See Frank E.A. Sander, Varieties of Dispute Processing, 70 F.R.D. 79 (1976).

Courts have certainly taken aspects of this idea to heart since then. Back in 1976, parties generally went to courts to fight wars—and, if what the parties wanted was peace, they were largely on their own.

Today, courts provide ADR services so extensive and pervasive that it is difficult even to file a complaint without being informed, cajoled, urged or ordered into some type of informal attempt at resolution, and civil trials have, as many note, vanished. Some places, like the District of Columbia and DeKalb County, Georgia, have alternative dispute resolution programs called the “Multi-Door Courthouse,” and originally modeled after Prof. Sander’s ideas.

But the idea of a Multi-Door has largely morphed into one door that is routinely used. In later writings, Sander, himself, concluded that mediation confers so many benefits that it should be the process of first resort for most disputes. Although the District of Columbia Multi-Door program still contains authority for an entire panoply of procedures including—for example, various forms of binding or nonbinding arbitration—the one that is actively used, and staffed by a large roster of neutrals, is mediation.

The other way the idea has morphed, however, is more subtle: Generally, when courts refer to mediation, what they really mean is settlement. These are efforts to obtain a complete resolution with the central goal of getting cases off court dockets so that courts can deal with their enormous workload with severely limited resources.

This is certainly a worthy goal. But it is not the only way in which neutral problem-solving can improve the quality and efficiency of resolution, regardless of whether it results in complete settlement.

Doubt this? Compare a thoughtful article discussing these sorts of goals in mediation, like Louise Phipps Senft and Cynthia A. Savage, ADR in the Courts: Progress, Problems, and Possibilities, 108 Penn St. L. Rev. 327, 327-28, 323-36 (2003)(available for purchase at http://bit.ly/2nxhpmz), with the disarming nuts-and-bolts honesty of a federal court clerk who described mediation as “Survival. It’s a survival mechanism, a way for us to stay on top of our caseload. … With our caseload and our lack of judgeships, it’s the only way we can handle our workload.” “In Resolving Disputes, Mediation Most Favored ADR Option in District Court,” United States Courts—The Third Branch (July 2006).

TWO QUESTIONS

Still doubt it? Ask yourself a simple question—OK, really two questions. Here is a little background: Federal Rule of Civil Procedure 16(c)(2) (available at https://www.law.cornell.edu/rules/frcp/rule_16) and the state rules that adopt its language say, in Rule 16(c)(2)(H), that one of the matters a court “may consider and take appropriate action on” at a pretrial conference is referring matters to “a master.” These rules also say (in Rule 16(c)(2)(I)) that another such matter is “settling the case and using special procedures in resolving the dispute when authorized by statute or local rule.”

Question 1: So when was the last time you had a court at a pretrial conference (say, apart from the Western District of Pennsylvania eDiscovery Masters Program (see description at http://bit.ly/2o2S9FQ)) discuss referring the case to a special master?

Question 2: So when was the last time you had a court at a pretrial conference (say, anywhere) not discuss referring the case for some kind of settlement conference or mediation?

Without gainsaying the importance of settlement or the many positive aspects that bringing ADR into the courthouse has had, the truth is that we have succeeded in sharpening our court-based ADR focus intensely, by largely narrowing the ADR we use to assist us with settlement, and our goal in employing it to get cases settled.

The point of this article is not to go back to arguing for screening clerks directing would-be litigants first to check out Rooms 1, 2 and 3. It is, instead, to urge that we open another door more frequently. Settlement is not the only form of alternative dispute resolution that courts can use to make the most of their limited resources in obtaining the just, speedy and inexpensive determination of cases.

And subparagraph I is not the only part of Rule 16(c)(2) worth considering. Special masters provide an opportunity to bring into judicial resolution a panoply of alternative dispute resolution skills that can broaden the court’s reach to exceed its grasp.

WHAT CAN THEY DO?

Rule 53—the Federal Rule of Civil Procedure that concerns selection of special masters—is unusual in a way that bespeaks some of the unusual history and thinking behind the use of special masters.

Most of the federal rules focus on what a judge or party can or must do and then explain how to do it. Rule 4 talks about what a summons must say and how it must be served. Rules 12 and 13(a) and (b) talk about when “[a] defendant must serve an answer,” and when a pleading “must” or “may” state “a counterclaim.”

Rule 16 explains that a “court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences.” Rule 26(b) talks about the circumstances under which parties “may obtain discovery.”

You get the point.

The very first words of the first (appointment) provision of Rule 53 say “Unless a statute provides otherwise, a court may appoint a master only to. …” Rule 53(a)(1)(emphasis added).

As these words reflect, it is not Rule 53 that empowers courts to make use of special masters. Judges have inherent authority to appoint special masters. And that inherent authority includes the power to use special masters in numerous and creative roles in which they can be effective.

Indeed, the limits the rule then places on the use of special masters, are, well, very limited. They apply mostly to a function special masters used to perform but now rarely do (at least at the trial level)—holding “trial proceedings” and making or recommending “findings of fact on issues to be decided without a jury.” Rule 53(a)(1)(B).

Otherwise, special masters can—without limitation—“perform duties consented to by the parties,” Rule 53(a)(1)(A), and can also “address pretrial and post-trial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.” Rule 53(a)(1)(C).

These limitations are big enough to drive a truck through. Saying that a special master can be appointed “to perform duties to which the parties consent” is another way of saying that special masters can be used to perform any type of ADR to which parties might consent in some other situation.

And saying that special masters may “address pretrial and posttrial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district,” is another way of saying that special masters can be used for almost any worthwhile case-related function that local judges and magistrate judges either lack the practical ability or are ill-positioned effectively to perform.

Want an adjudicator? The parties can consent to that and agree, subject to court approval, to the terms, if any, under which the court will review it—anything from unreviewable discretion to de novo to every other standard in between. And without consent, the court can delegate the initial work to special masters for a report and recommendation.

Like a mediator? You can agree to have a special master do that. And it does not have to be just a “settlement” master, in the sense of someone who is charged with the “nuts and bolts” of trying to get things settled and off the docket. It can be someone who promotes holistic problem-solving between parties with the central goal of improving the quality of the resolution regardless of whether it results in complete settlement.

Want an expert on something … anything? How about an accountant? Or an eDiscovery expert? Or someone who knows construction? Or the science surrounding a patent? You can bring all of those into the litigation with a special master.

How about a case coordinator? Sometimes what you want is someone who can coordinate many different cases or diverse activities in one case.

What about an intermediary? Craft the relationship properly and you can have someone else, besides the judge, work with the parties to fashion how the lawsuit will proceed. Perhaps, for example, someone can receive information from a mediator that a judge best should not hear, and then advise the court of procedures that will advance the resolution, without revealing the information.

How about a facilitator? Perhaps what you need is someone who works with the parties to brainstorm creative ways to solve problems: like suggest ideas for cutting the cost of eDiscovery, or deposing more than one witness at a time (a form of “hot-tubbing” popular among some arbitrators in dealing with experts); or staging production of documents. A special master can do that too.

How about a parent? For decades, courts have required parties to “meet and confer” before they can bring, for example, discovery matters to the court’s attention. For judges, this is entirely understandable. Judges do not want to deal with bickering children any more than parents do. And certainly more than one parent has told the children “you need to work this out between yourselves.”

The problem is that meeting and conferring does not always work with lawyers any more than it does with children. Yes, lawyers should be professionals. Yes, they should work out problems. But the premise of having rules that require lawyers to meet and confer is that you need them: that lawyers, left to their own devices, would not do that on their own. And ironically, the very instances in which lawyers are least likely to be able to meet and confer effectively—the very contentious unpleasant type of situations—are the ones in which judges are most likely to insist upon it.

Even worse, meet-and-confer rules can punish lawyers for acting reasonably in the first place. Imagine that an unreasonable lawyer (UL) knows that the adversary is a “reasonable lawyer” (RL). UL sends unreasonable discovery demands knowing that RL will send only reasonable ones. UL makes as many objections and as few responses as possible knowing that RL will provide limited objections and reasonable responses. UL now has the responses; can schedule depositions; can use the material in motions (all the while threatening in terrorem to demand the full unreasonable responses).

In most courts, RL at best has to go through the meet-and-confer process; file a motion to compel; get the motion fully briefed; attend a hearing; and await a decision that in some courts could take months. Who would you rather be?

So what about having someone there who makes the meet-and-confer process productive? Someone who actually receives discovery when it is filed, reviews it and schedules a phone call to discuss the discovery before it becomes a pitched battle, with a very different tone.

Instead of saying “go to your room and work this out,” it is: “You know, I’m looking at this Request for Production No. 3—the one that asks for every document related to every document that relates to every other document that. … Is it just me, or are you asking for every document in the universe. You can’t really want that. What are you driving at?”

Or, “These responses to the requests for production. … Am I right that you believe that not one of these 50 requests is sufficiently unobjectionable to merit the production of a single document? Is it really unreasonable for the other side to expect you to have some documents about the brakes that failed?”

The potential special master roles are as numerous and diverse as creativity can make them.

The 2015 Amendments

These various flexible case management functions become even more important with the Dec. 1, 2015, amendments to the Federal Rules of Civil Procedure.

Another word of caution here: saying that a change in our view of how to administer cases may be necessary to make the rules work is not a criticism of these rules. Actually, the rules are an amazing achievement and reflect extremely hard work by a large number of very thoughtful and dedicated participants.

Rather, as Laurence F. Pulgram put it in his aptly-named piece “The Discovery Rules Have Changed But Will We?” Litigation J. v. 42 No. 3 (ABA Spring 2016)(excerpt available at http://bit.ly/2ns59lM), even “the biggest change in discovery and case management in at least 15 years,” “will not be self-executing,” and requires “thoughtful implementation by the bench and bar if they are to change anything at all.”

Rule 26(b)(1), for example, no longer says that parties are entitled to everything “reasonably calculated to lead to the discovery of admissible evidence.” Now it says that matter has to be “relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

How exactly do we expect parties to moderate their requests in light of this new standard? It is not that easy to tell lawyers—the champions we used to say were supposed to represent their clients “zealously within the bounds of law”—not to overdo it. It is even more difficult to imagine that message working by itself when overdoing it is all these lawyers have ever known.

The rules, after all, have never allowed unreasonable overbroad requests. As Kenneth R. Berman pointed out in his article “Reinventing Discovery under the New Federal Rules,” Litigation J., v. 42 No. 3 (Spring 2016)(available at http://bit.ly/2neTCV8), “proportionality in one form or another has been a ground for objection for over 20 years.” The new rule just “means that it now will be a more prominent and important factor, albeit a subjective one and a fuzzy line, in determining what is and isn’t discoverable.”

If the old rules did not, by themselves, prevent requests for unreasonable overbroad discovery, the fact that the most recent revisions clarify or even change the terms of engagement does not by itself change the strategy.

To change the strategy we need to make sure it is counterproductive to send unreasonable overbroad requests. Again, just to be clear, this author is in the camp that believes that it has always been ultimately counterproductive to send unreasonable overbroad discovery requests. Every time I have received unreasonable overbroad requests, I have smiled, if only for a moment, because I know that those requests give the responder a fielder’s choice: Make a pointed demand for specific, obviously-reasonable information, and the responder may actually have to answer. Make a vague overbroad incomprehensible demand that, once parsed, seems to demand everything related to anything that was itself related to anything else, and responder is pretty safe throwing up his or her hands and objecting. You would think that no judge or magistrate judge could order a response to a request that she or he cannot understand.

But to be honest, these days, my camp has begun to look a little like the Light Brigade—You know, the one that was decimated when it accidentally charged into a gigantic Russian army and received the honor of a really supportive Tennyson poem as recompense.

At least in complex litigation, most lawyers seem to believe that discovery should always start out with unreasonable overbroad and largely incomprehensible requests, if only for the in terrorem threat.

Indeed, as there will always be a “meet-and-confer” exchange (or perhaps a dozen) to negotiate off of it, there is an incentive to take out an unreasonable position just to have room to compromise. And whatever you think of that logic, you cannot expect lawyers who thought it best to ask overbroad unreasonable demands—even though the prior rules forbade it—to change the tactic just because the current rules also forbid it.

Moreover, the new rules change the terms of engagement on both sides. Whereas requesters faced with the prospect ultimately of having a request judged under a more explicit standard of proportionality, responders face an even larger sea-change.

Rule 34(b)(2)(B) now requires, in part that, “[f]or each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.”

And Rule 34(b)(2)(C) specifies that “[a]n objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.”

For decades, lawyers have responded to requests for production by listing every conceivable objection known to Anglo-American jurisprudence followed by “subject to and without waiving any of the foregoing general and specific objections, X will produce all documents reasonably responsive to the request.” Now they are actually supposed to be figuring out whether they are withholding anything based on objections and what that is.

No one can be sure how this will change the terms of engagement. Will a requester be chastened by the explicit requirement of proportionality, or emboldened by the fact that the responder now has a much heavier burden of identifying what responder is and is not doing?

The only thing that is certain is that unchecked, lawyers given something new to argue about, will argue about it. The challenge is not to leave the lawyers unchecked, lest the hard work of the Advisory Committee on Rules of Civil Procedure merely arm historically unreasonable litigators with wholly new barbs about the adversary’s inability to appreciate the rule changes.

A LACK OF RESOURCES

Which brings us back to special masters. The way to meet this challenge is to arm the Light Brigade—and have them charge in the right direction.

The problem over the decades with the Federal Rules has not been that they encouraged judges to permit abusive conduct. The problem is that rules did not get you to a judge. The best rules in the world will not eliminate abuse if lawyers know that their adversary will not be able to get to a decision maker fast enough to enforce them effectively.

If judges and magistrate judges had infinite time and patience and nothing better to do, they could, of course, be available at any instant to oversee the process and make sure that the meet-and-confer process is productive. In fact, there is scarcely a court in the country that has all its vacancies filled, much less the resources to perform this function.

If you agree with this argument to this point, the case management that is necessary to have this operate is, by definition, more intensive than what courts have generally been able to offer in the past. For example, Rule 16(b)(3)(B)(v) specifically identifies that one of the provisions a scheduling order “may” include is a direction “that before moving for an order relating to discovery, the movant must request a conference with the court.” This is a fine idea. But it is not completely new. Some judges and magistrate judges have required pre-motion telephone conferences for decades.

Maybe more courts will use pre-motion status conferences now that the rule mentions them specifically. But the rules did not suddenly increase court resources.

Pre-motion telephone conferences work only if the court has the time to take the call. In some courts, it takes a year to schedule a status conference. And even if the court does take those calls and has the time, a pre-motion telephone call generally takes place at the point where parties are prepared to file a motion. It does not take place at the point where they send the discovery; or send their response; or send their first meet-and-confer letter; or response, reply, rebuttal, rejoinder, or zinger back—points where all this waste can be headed off.

With complex cases, the best case management may well be not to wait until there is a dispute. It could be to send discovery to a neutral when it happens. Or it could mean having a conference call every Monday to keep the case on track—the same way some people keep a construction project on track. Or case management may mean having a neutral at depositions to make sure that the seven or so hours is used fairly and productively for both sides.

It could be to talk honestly with the parties not merely about what discovery will assist them in litigating the case in the unlikely event it goes to trial, but about what discovery will assist them in trying to settle the case. For example, perhaps we should start with damages, not liability.

Or it could be all of those things and many others. And what it is that is needed can vary on a case-by-case basis. Admirable as the job judges and magistrate judges do to manage what they face, courts do not have the time and resources to have that level of flexibility.

Moreover, even putting aside the time and resource constraints, judges are not always in a good position to roll up their sleeves in the way that a special master may be. There are no absolutes here. Good judges have long been pragmatic. And style and predilection vary.

But, in general, being a judge also involves maintaining some level of distance from the parties. The closer a judge gets to the process by which parties decide how they want to proceed, the greater the risk that the judge may learn something that could unfairly affect the decision-making; or be put in the position of making suggestions that always seem to sound like orders; or become too invested in the process to assess the situation independently; or that the judge may appear to be so acting, regardless of whether the judge is in fact.

Adjudication is a role with which judges can always be comfortable. Mediation may not be. In some ways, facilitation—the idea of proposing things the parties might want to try—can be especially difficult to do while wearing robes. No judge can be his or her own intermediary. And judges may not be well positioned to be parents, outside of their own family.

Some roles simply do not work for a judge at all. For example, in some multi-district litigation, judges have appointed separate special masters to deal with internecine disputes among plaintiffs’ counsel and among defendants’ counsel. Doing so can solve some practical problems: For example, when you have hundreds or thousands of cases managed by a court-appointed plaintiffs’ steering committee, how can you make sure that non-steering committee members’ concerns are, on the one hand, taken into account when they are valid, while, on the other, not allowed to derail the process through infighting?

A judge or magistrate judge cannot easily be in the middle of such a discussion. A special master can.

Indeed, there is a long history of using special masters to perform tasks judges are not so well-positioned to perform. When disputes—often over state boundaries or water rights—arise under the original jurisdiction of the U.S. Supreme Court, the Court does not have nine justices sit as trial judges to take evidence. It appoints special masters to do for the Court what the Court is ill-positioned to do for itself.

The Supreme Court should not be the only court to appoint special masters routinely for a particular type of case warranting their use. Indeed, even if trial judges and magistrate judges had no reason to be concerned about serving various roles, it would still not make it efficient to have them perform all these roles. There are very few judges who think that their best and highest use is to herd cats. Nor should they. Employing special masters to bring a panoply of alternative approaches to resolution is a logical division of labor.

* * *

There is a saying that alternative dispute resolution is what you make it. Special masters are what courts can make them. Special masters are not in competition with judges and magistrate judges. There is a creative way for courts to expand their reach by bringing this flexibility into judicial determination.

If anything, the most recent amendments to the rules increase the need for this creativity, as amended Rule 1 admonishes, “construed, administered and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”

After all, a judge’s reach should exceed its grasp, or what’s a rule amendment for?

Widening Court Doors

The goal: Making more and better use of the courts.

The starting point: ‘Settlement is not the only form of alternative dispute resolution that courts can use to make the most of their limited resources in obtaining the just, speedy and inexpensive determination of cases.’

The idea: The author suggests parties should consent to use Federal Rule of Civil Procedure 53 to engage special masters ‘to perform any type of ADR.’

Biography

The author, a partner in the Washington, D.C., office of Troutman Sanders LLP, is Co-Chair of the ABA Judicial Division Lawyers Conference Committee on Special Masters, and a Fellow of the Chartered Institute of Arbitrators and a long-time litigator. The views in this article are his and do not purport to reflect those of Troutman Sanders or its clients. His Troutman Sanders bio page is available at http://ow.ly/NsDbL.


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