Special Master Services Special Masters in the Federal Courts

The Third Branch
Newsletter of The Federal Courts
Vol. 36, Number 12 – December 2004

In the summer of 2003, Chief Judge Lawrence L. Piersol faced a dilemma in the District of South Dakota. A dispute involving construction of a new recreational site on land where American Indian remains had been found was threatening to get out of hand. Attorneys for the state, the federal government, and the tribe had been in and out of his court over and over again, but the matter seemed to go from bad to worse.

“The case was full-blown at that point,” Piersol recounted. “I’d issued injunctions delaying and then directing construction around grave sites, but serious disputes continued to arise. The potential for bloodshed was real.” Piersol needed someone at the site—over 100 miles away from his court—to monitor the situation. And not just anyone.

“I needed someone who not only had the power of the court,” he said, “but who was sensitive to Sioux Indian ways, and who knew how to communicate with all parties.”

Piersol appointed a special master. Under Federal Rule of Civil Procedure 53, a master should be appointed for pretrial and post-trial matters only in limited circumstances when the assignment “cannot be handled effectively and in a timely fashion” by an available judge in the district.

Special masters can help judges resolve complex cases. At a basic level, they may review and organize information, and prepare reports for the judge. But they frequently move beyond that to other aspects of civil case management. A study by the Federal Judicial Center on Special Masters’ Incidence and Activity, showed that judges have appointed special masters to “quell discovery disputes, address technical issues of fact, provide accountings, manage routine Title VII cases, administer class settlements, and implement and monitor consent decrees, including some calling for long-term institutional change.” Piersol asked his special master, Magistrate Judge Marshall P. Young, to keep a daily journal that helped him monitor progress and the actions of construction workers and tribal members.

“Judge Young had the power of the court, including supervision authority. He could oversee without having to run back to the court,” he said.

Young worked out so well, Piersol now is thinking of using a special master in another Indian matter involving land.

“It worked beautifully,” Piersol said. “He knew the law, and he had a sensitivity to Indian concerns and customs. And we didn’t have to pay him!”

As a magistrate judge, Young was a salaried officer of the court—but special masters not on a court’s payroll are paid for by the parties to the case. In fact, parties prepay for special masters in most cases, subject to repayment by the losing party if the judge decides to reallocate those costs. In post-trial appointments, at least one party is assigned full payment.

In the tobacco litigation before her, Judge Gladys Kessler (D.D.C.) used a special master, retired judge of the Superior Court of the District of Columbia, Richard Levie, to handle all discovery matters—a mammoth undertaking. Kessler’s orders gave him the authority to issue reports and recommendations.

“Sometimes he would make recommendations on various complicated procedures, for example, on the submission of pretrial exhibits, where the numbers were horrendous,” Kessler said. “He’d talk with the parties, then give the best recommendation. All reports and recommendations were appealable to me, and a good number were appealed—but by no means all. The parties might appeal 3 or 6 issues of a 100-page report and recommendation.”

As special master, Levie handled no task directly relating to the trial. His duties ceased when the discovery phase was over.

“He worked on it for at least two years and got an enormous amount of work done,” said Kessler. “There is no way I could have handled that litigation without a special master.”

Judges who have used special masters tend to share Kessler’s opinion. Almost all of the judges and attorneys surveyed in the FJC study thought that the benefits of appointing the masters outweighed any drawbacks and said they would, with the benefit of hindsight, still support the appointments. The study also said that several judges who appointed masters for pretrial and trial-related purposes, such as supervising discovery-related conflicts or assisting the court with complex issues, reported that the special masters helped them understand the complex issues, saved the parties money, made the case settle faster, or saved the appointing judge’s time. Several attorneys noted that, while a judge could have handled the responsibilities, the special master simply could devote more time to the case.

Judge Michael J. Davis from the District of Minnesota spoke at a Special Masters Conference held in October 2004, a conference sponsored by the Advance Dispute Resolution Institute at William Mitchell College of Law and the National Arbitration Forum. The conference saw the formation of the Academy of Court-Appointed Masters.

“I’ve used special masters almost since I became a federal judge,” said Davis, who is now presiding over the massive Baycol litigation, a multidis-trict litigation proceeding in which cases from around the country have been transferred to Davis by the Judicial Panel on Multidistrict Litigation. Davis has assigned a magistrate judge and two special masters to work on that case. One special master is working solely on mediation. In response to privacy concerns, another special master was brought on to screen the thousands of medical records involved in the case.

“The special masters have gained the confidence of both sides. They’ve taken the pressure off the magistrate judge and helped me. They’ve been my righthand people in many pretrial matters for 2 ½ years,” Davis said.

The value of special masters is clear, and recent changes to Rule 53 have brought the rule up-to-date with the ways in which judges use special masters.

“For the future, I don’t think there will be any great change in how judges view special masters because of the rule change,” said Davis. “But when you have a case where you feel the appointment of a special master will be of assistance, judges may be encouraged to make use of this tool.”

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