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There was a time when the use of private judges to solve litigious disputes was a California legal secret. But the secret is out now, and spreading fast. At least four states-Ohio, Indiana, Texas and Colorado-in the last year have have passed legislation or are considering new rules that broaden the authority of private judges to hear cases. And states that have had private judges on the law books for several years have seen a dramatic growth in their use, fueled by enterprising lawyers and retired judges who have capitalized on clients desiring confidentiality and quicker resolutions than they would receive in backlogged public courts. Like arbitrators and mediators, private judges are paid by the parties in a lawsuit to make a binding decision in a case heard outside a courtroom, often in a law office or conference room. Private judges hear everything from divorces to complex business cases, involving everything from trade secrets to medical malpractice. But unlike arbitrators and mediators, private judges-who charge up to $400 per hour-must follow the rules of court in hearing motions, granting discovery requests and issuing contempt orders. Most significantly, their decisions may be appealed to a state court of appeals. In some cases, private judges even use jurors. “It’s a piece of the law that nobody has paid attention to,” said Donald Cox, a private judge in Ohio who is a former county common pleas court judge. “But the parties are demanding quicker responses. We live in the Internet age and everybody wants to do everything yesterday and so now lawyers have clients come in and say, ‘I’m not going to sit here for two years and wait for my case to go to trial. Isn’t there anything else we can do?’ “ But critics charge that private judging is a threat to public access and may be creating a separate judicial system for the rich, who can afford to pay for their own judges. In the meantime, the rising use of private judges has brought demands to clarify or broaden their authority. “It’s a controversial subject because clearly, for lack of a better term, it’s a separate system of justice for the rich,” said Fred Silberberg, a divorce lawyer at Silberberg & Ross in Los Angeles. Silberberg helped draft a pending California Senate bill that would allow private judges to seal divorce records. Under California law, hearings with a private judge must be open to the public and documents must be filed in the courts. Yet First Amendment groups say that private judges prevent public access to hearings and court documents. They allege that private judges aren’t following the rules. “If the proceedings are not posted on the Internet, or in a docket, how do you demand to be allowed in?” said Susan Seager, a media lawyer in the Los Angeles office of Seattle-based Davis Wright Tremaine. “And how do you see the court documents? It’s a black hole, and it’s to the benefit of the people litigating it to keep it that way. And there’s not much oversight on the judge who doesn’t obey the rules.” A battle in Ohio But despite the criticism of private judges, other states are running with the concept. There are nearly two dozen private judges in Ohio, which passed legislation in 1984 allowing the practice for civil cases. Many hire private judges for divorces, although the original intent was to hear business cases. Now, “even lawyers a few years ago that were reluctant are in full swing,” said Nancy L. Sponseller, a family law attorney at the Law Offices of Nancy L. Sponseller in Dublin, Ohio. Many divorce lawyers want a private judge for confidentiality reasons, even though the documents must be filed in the courts. “Many filings are for the local political notables, and doctors and lawyers, people who want their finances secret, businesspeople who are well known here, will use a private judge and will file out of the county,” Sponseller said, noting that Ohio has 88 counties. “There is far too much financial information filed at the courthouse and that’s an issue.” While the documents are still public, filing them in another county makes cases before a private judge more difficult to find, especially because the hearings take place in a conference room and not a courthouse, Sponseller noted. Cox said he learned about the practice watching California divorces. He charges $125 per hour and handles about 500 dissolutions per year. “We probably don’t have the backlogs in Ohio that they do in California, but on a contested divorce case it could take a couple years before the parties are divorced [in regular court],” he said. Cox has used jury trials in four automobile accident cases. He said that he has obtained jurors by asking for volunteers, selecting the 50th name on every 50th page of the phone book. He pays each juror $50 a day and buys lunch, he said. Cox said he picks only volunteer jurors in cases where both parties have agreed to it. If the parties insist on a public jury, and the local court system does not permit him to use its jury pool, which sometimes happens, he sends the case back to the courts, he said. Even with volunteer jurors, attorneys on both sides follow the regular rules of voir dire and reduce a pool using state rules governing bias, prejudice, peremptory challenges, relationships and other factors, he said. He admitted that the original intent of the statute probably didn’t consider jury trials, but it’s within the law. “The authority is part of the statute that says I have the same powers and so forth of an ordinary court,” he said. “If I have parties who agree to it, I have the authority to have a jury trial.” But the process has not been entirely smooth. In one of three related cases, the Ohio Supreme Court is expected to decide within weeks whether private judges are allowed to use free court facilities, such as the courthouse, bailiffs, court reporters and jurors. State of Ohio ex rel. Judge Nancy Margaret Russo, Cuyahoga County Court of Common Pleas v. Administrative Judge, Cuyahoga County Court of Common Pleas, Richard J. McMonagle, No. 2005-2130. Cuyahoga County Common Pleas Judge Nancy Margaret Russo filed a lawsuit in the Ohio Supreme Court against Richard McMonagle, the former presiding and administrative judge of Cuyahoga County courts at the time, after he rejected her request to prohibit private judges from using public facilities and jurors. Russo made the request after an 8th Ohio District Court of Appeals ruling denied her request to return a high-stakes medical malpractice case to her courtroom. She claimed that the private judge who took over the case used jurors who should have been available for public cases. “When you read the statute, it says nothing about jury trials,” said Robert Zimmerman, a partner at Kahn Kleinman in Cleveland who represents Russo in the Ohio Supreme Court case. “The statute’s been on the books for over 20 years, yet it seems only recently a few retired judges are attempting to expand the statute to allow for jury trials. That’s fine, but the law has to be changed.” Colorado’s new rules In Colorado, a growing population of high-income residents, as well as statewide judicial budgetary problems, have made private judging more popular. About 50 private judges regularly hear cases in the state. Colorado passed private judging legislation in 1981 but limited its use to cases that had completed discovery. The state also required private judges to charge the equivalent judicial salary. But five years ago, a few divorce lawyers discovered the law. “I frankly stumbled across the statute,” said William Hunnicutt, a divorce lawyer and partner at Denver-based Hunnicutt & Appelman. “We started doing it, and others of our clients did, and it spread.” Now, 80% of Hunnicutt’s divorces get heard before a private judge, compared with 20% five years ago. In response to a rising use in private judging, Colorado Supreme Court Chief Justice Mary Mullarkey sought to clarify the law last year by having a special committee draft new rules. “There has been a real budgetary crisis, so one of her views was anything they could do to encourage people to use it was a great idea,” said Richard Holme, a partner at Denver’s Davis Graham & Stubbs, who helped draft the rules. The Colorado Supreme Court approved the rules, which became effective on July 1, 2005. Under the new rules, a private judge must have served on the bench for at least six years, Holme said. In the past, the chief justice selected the private judge from a list; the new rules allow the parties to pick the judge. Parties also agree to split the fee, which ranges from $200 to $400 per hour. Unlike in California, private judges in Colorado are allowed to use the courthouse and hear jury trials by drawing from the court’s regular jury pool. But the parties must pay jurors’ costs and arrange their transportation if the case is outside the courthouse, Holme said. Since July, when the new rules were adopted, private judging has taken off in Colorado-and not just among those seeking a divorce. Thomas Kanan, of counsel to the Denver office of Morristown, N.J.-based McElroy, Deutsch, Mulvaney & Carpenter, hired a private judge once to hear an automobile accident case that eventually settled for more than $6.5 million. “The people who are more likely to use it are litigators with the big cases, the environmental cases, the antitrust cases,” he said. But critics charge that documents in cases before private judges are not getting filed in the court system, despite new rules stating that all proceedings and records should be open to the public. “The idea of public review has become a big deal,” Kanan said. “If a party wished to keep things on the hush-hush, this would be a way you might do it.” Texas judges think big In Texas, a dozen retired judges formed a corporation in 2004 to offer some of the first private judging in the state. John McClellan Marshall, who retired as a judge in 2000, said he founded Dallas-based Mc2 Legal PLLC after he came across a 1984 statute that allowed bench trials to be heard before private judges. Unlike other states, Texas makes each party pay an equal portion of the private judge’s fees, which reach $400 per hour. “The more parties in the case, the cheaper it is to have a special judge,” Marshall said. In Texas, private judges are referred to as “special” judges. As in other states, confidentiality concerns have driven newfound growth in private judges in Texas. Marshall said that his company hears up to a dozen divorces a month, but he expects his caseload to increase following an amendment to the statute that became effective last September. The amendment, authored by state Representative Will Hartnett, R-Dallas, broadens the authority of private judges by allowing them to hear cases in probate and county courts, not just district courts. “It was a technical expansion of the statute, but the potential is enormous,” Marshall said. Hartnett, chairman of the state House Judiciary Committee and a trusts and estates lawyer at The Hartnett Law Firm in Dallas, said that the use of private judges alleviates clogged courthouses in the state. “This was a clarification with hope it would be used more or become better known as an option,” he said. Little used in Indiana Indiana has had a private judging statute in existence for eight years but did not have its first known case until about a year and a half ago. Jerry Barr, who works in Carmel, Ind., for Indianapolis-based Krieg DeVault, was the private judge who handled that case. He said that the dispute involved an Indiana law firm seeking $80,000 to $100,000 in payments from one of its former partners on an outstanding lease. Indiana law currently allows private judges to hear only contract cases.

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