Federal magistrate judges are playing a growing role in civil litigation in all three districts in Pennsylvania, as well as across the country. With consent of the parties, magistrate judges now conduct full civil trials and enter final judgments. The Western and Middle districts of Pennsylvania have adopted procedures to facilitate the process even more.

First, let’s sweep aside two major misconceptions: (1) magistrate judges are now empowered to conduct both bench and jury trials; and (2) once a final judgment is entered by a magistrate judge, there is no appeal to a federal district judge. A final judgment from a magistrate judge trial is appealable only to the federal circuit court of appeals. Thus, a trial by magistrate judge is the same as a trial by a federal district court judge. Magistrate judges have come a long way from initially being regarded as simply a newer version of the old U.S. commissioners.

Although Title 28 U.S.C 636 (c) requires that all parties must consent to a trial by magistrate judge, the Western and Middle districts of Pennsylvania have taken affirmative steps to increase the use of magistrate judges in civil litigation. In the Eastern District of Pennsylvania, the burden is on the plaintiff’s attorney to file the consent of all parties with the clerk. In the Western and Middle districts, the magistrate judges are placed on the same assignment wheel with the district court judges, and are assigned cases initially. As there are less magistrate judges than district court judges, the magistrate judges appear in the rotation less often. If the parties do not consent to a trial by the assigned magistrate judge in a specified amount of time, the parties must request an assignment to a district court judge. Numerous other federal districts across the country have instituted this procedure, e.g. the District of Oregon and the Eastern District of Missouri. Those parties who are not assigned a magistrate judge by rotation are nonetheless notified by the clerk of court that they have the right to consent to a trial by magistrate.

The Western District of Pennsylvania goes even further. If, after being assigned a magistrate judge by rotation, the parties request a district court judge, the magistrate judge keeps the case for all pretrial motions up to the trial. In that situation the parties may appeal the magistrate judge’s decisions to the district court judge for all non-dispositive and dispositive issues pursuant to 28 U.S.C. 636 (b). Such a referral to a magistrate judge for pretrial matters does not require the consent of the parties. (See United States v. McLaughlin, 2005 U.S. Dist. LEXIS 23842 (E.D. Pa. Oct 18, 2005) (J. Diamond).) The litigators have generally accepted this procedure. According to Robert Barth, deputy clerk of court in the Western District, the parties consented to having their cases heard by a magistrate judge in 28 percent of cases filed.

There are distinct advantages for the use of magistrate judges. The old prejudice that the magistrate judges are inexperienced in major litigation is long gone. Magistrate judges are selected on the basis of their experience by the board of judges of each district. The district court judges cannot risk selecting someone who is inexperienced or unskilled who will then be assisting them in complex matters. Magistrate judges have been selected to become district court judges in all the districts of Pennsylvania. They have demonstrated they can handle complex litigation, and deal with experienced (and inexperienced) counsel.

A major advantage for using a magistrate judge is the designation of a firm trial date. No jury pool, no standby. The chief reason is that the magistrate judges do not try felony criminal trials. The speedy trial act requires that a district court judge give scheduling preference to criminal trials, which affects the scheduling of civil matters. Using a magistrate judge avoids a floating trial date. U.S. Magistrate Judge Timothy Rice of the Eastern District of Pennsylvania said he permits counsel to select their own trial date. He informs them to keep their vacations and other personal matters, and lets them set the date. A trial date on July 15 means a trial on July 15. Rice said there is less pressure for the lawyers from clients and witnesses. Rice said the litigators are very satisfied. He averages about 10 trials a year. Rice said that the availability of a firm trial date often moves cases that are stalled in settlement negotiations. When Rice is assigned as a settlement master, Rice often tells the parties to avoid wasting time negotiating fine legal points, the case can be tried within a few weeks before a magistrate judge. The availability of a quick trial date removes the delay factor often relied upon by litigators as a bargaining tool, and forces the attorneys to evaluate the probative value of their witnesses sooner than later.

Caren Litvin, an attorney who practices in the Philadelphia courts, called her experience in a four-day jury trial before Rice one of the best professional experiences in her 27 years of practice. She said there was a reasonable trial date, the discovery schedule was geared to the trial date and the jury had the opportunity to hear the evidence in a reasonable manner. Peter G. Rossi, of Cozen O’Connor, related an experience he had in trying a four-day jury trial in the Western District before U.S. Magistrate Judge Cynthia Eddy. The case had not been assigned to Eddy, but had gone by rotation assignment to a district court judge. The judge told the attorneys her docket was very crowded, and an expedited trial was not possible. The judge sought out Eddy, who was readily available. The attorneys consented to the referral. Rossi said it was a great professional experience; the court was well versed in the applicable law, controlled the courtroom and handled the jury in a very pleasant manner. Rossi said that he often seeks trials before magistrate judges. He believes they have the time, and try hard to do well to obtain more cases.

The subject matter decided by magistrate judges has included a wide variety of cases: ADA disability, age discrimination, attorney fee disputes, civil rights, commercial disputes, Fair Labor Standards Act, insurance coverage, personal injury, products liability and racial discrimination. (For an extensive list of cases, email p.vaira@vairariley.com.) Eddy has just completed a case where the damage award was several million dollars. A magistrate judge has the power of civil and criminal contempt.

Once parties consent to a magistrate judge hearing the case, a party may petition the district court judge to vacate the reference to the magistrate judge, but only for extraordinary circumstances pursuant to 28 U.S.C. 636 c (4). The term “extraordinary circumstances” does not include adverse rulings or rulings consistently in favor of one party. A motion for removal for bias must be made to the magistrate judge pursuant to 28 U.S.C. 455.

Trial by magistrate judge is a practice whose time has come. Aside from relieving overworked district court judges, the magistrate judges can get cases to trial that should be tried, instead of wallowing in the settlement maze. Perhaps a new generation of actual trial lawyers will emerge in this process. The judges of the Eastern District should look closely at the assignment procedures of the Middle and Western districts of Pennsylvania with a view toward adopting them in some fashion.

Peter F. Vaira is a principal shareholder in the Philadelphia law firm of Vaira & Riley. He is the author of Eastern District Federal Practice Rules, Annotated (Gann Law Books). He can be contacted by email at p.vaira@vairariley.com. Vaira has a blog devoted entirely to Eastern District practice at http://petervaira.wordpress.com.