As litigation becomes more expensive and time-consuming, the reality is that only 1 to 2 percent of cases are disposed of with a jury verdict. In these circumstances, the overwhelming financial cost of litigation is in the discovery and pretrial stages; the major, indirect, non-financial cost is the loss of employee time spent assisting counsel in trial preparation.
One way to minimize costs and maximize efficiency is through use of a Special Master. While Special Masters can serve in many roles, including as settlement masters, the most frequent use (and the one considered here) is the adjudicative function of overseeing discovery and resolving discovery and privilege disputes. The ultimate goal of the Special Master is to save time for judicial officers and reduce the litigation costs for the parties. The following are checklists that may aid in determining whether and when to use a Special Master.
I. Pre-litigation checklist
II. Selection checklist
III. Timing of selection
A. At the outset of the case
B. Waiting until problems arise
IV. Making efficient and cost-effective use of a Special Master
A. Development of a case management order
B. Meet in-person or by phone on a weekly basis at the beginning
C. Consider word limits for motions.
D. Consider agreeing that the Special Master’s decisions are final, eliminating appeals to the court with limited exceptions, such as case-defining issues and privilege. Such an agreement is appealing to the court because it eliminates or minimizes the need for judicial intervention.
E. Have the Special Master issue oral or written preliminary findings on motions.
The factors and considerations noted above are suggestions to assist counsel in evaluating the timing and appropriateness of using a Special Master.
Hon. Richard A. Levie (Ret.). is a full-time mediator, arbitrator, special master and case evaluator based in the Washington, DC, office of JAMS. Judge Levie has served as special master in many civil cases, including the federal tobacco lawsuit, five antitrust actions including the AT&T/T-Mobile and U.S. Airways/American Airlines merger cases and a multi-billion-dollar qui tam False Claims Act case. He is a past president and current board member of ACAM. Judge Levie can be reached at email@example.com.