Increased Use of Special Masters and How They Can Help

By Peter F. Vaira, for the November 21, 2018 edition of The Legal Intelligencer newspaper

Ten years ago, there was little mention of the service of special masters among members of the bar. In the last several years there has been a substantial increase in the appointments of special masters by federal and state courts, on both the trial and appellate level. There is now an Academy of Court Appointed Special Masters. The author of this article serves as a special master as part of his law practice; however, in this article he will not discuss any matter he has been involved in and will not make any comment on the nature of his service.

A special master is a person appointed by the court, or in some instances hired by litigators, to act at pretrial, during trial, or post trial. A special master may be appointed to solve problems in discovery, act as a fact finder, solve problems created by complicated statutory procedure, deal with complaints of ethical violations, and manage unique multi-party legal proceedings, in an effort to minimize the court’s time and resources. Special masters are often appointed pretrial to narrow the number of issues presented by the pleadings, or post trial to implement a court order. The need for special masters is the result of the complicated nature of today’s law practice. Court-appointed special masters are usually paid by the litigating parties.

Although most special master appointments are in the civil area, there are many instances where special masters provide a valuable service in criminal cases. Earlier this year, a federal district court judge appointed a special master to search for attorney-client communications in documents seized by the FBI via a search warrant issued for the law offices of David Cohen, a long-time attorney for President Donald Trump. Special masters are also valuable in solving conflict of interest issues among defense attorneys in criminal cases since special masters can interview attorneys and clients confidentially about issues and facts that could constitute a conflict and that a judge may not learn about in a normal conflict hearing.

Rule 53, Federal Rules of Civil Procedure, states that the court may appoint a special master only to perform duties consented to by the parties, hold trial proceeding and recommend findings of fact or issues to be decided without a jury. If warranted by exceptional circumstances, they may address the need to perform an accounting, resolve a difficult computation of damages, or address pretrial or post trial matters that cannot effectively be addressed by a district court judge or magistrate judge. Rule 48, Federal Rules of Appellate Procedure, provides for similar powers of an appellate master.

There is no specific Pennsylvania state court rule authorizing a court to appoint a special master. Courts rely upon their overall supervisory power to manage litigation. Philadelphia Court of Common Pleas judges regularly appoint special masters. Justice Max Baer, of the Pennsylvania Supreme Court, described the special master in Pennsylvania courts as follows, “The function of a special master is to gather necessary factual information, consider pertinent legal questions, and provide the court with recommendations. Special masters operate as an arm of the court, investigating facts on behalf of the court and communicating with it to keep it apprised of its findings … .” In re The Thirty-Fifth Statewide Investigating Grand Jury, 197 MM 2014, Petition of Attorney General Kathleen Kane, decided March 31, 2015. Baer cited numerous examples where the courts of Pennsylvania have appointed special masters. Baer emphasized that special masters are not special prosecutors.

Former Federal District Court judge of the Southern District of New York, Shira Scheindlin, described her use of special masters as follows, “It is my view that these appointments are very beneficial in resolving disputes quickly, streamlining discovery, handling delicate settlement negotiations and— somewhat surprisingly—reducing cost and delay.” Scheindlin also said, “While there are judges who have never—or only rarely have—appointed a special master, I believe those judges would make such appointments if the parties jointly made it known that the appointment of a master would be helpful. Even if only one party requested such an appointment, and made a good case for making the request, the judge would likely be amenable to such an appointment,” “The Use of Special Masters in Complex Cases,” Portfolio Media, Inc., Law360, New York (Aug. 15, 2017) www.law360.com.

David Cohen, who has offices in Cleveland and New York City, is one of the first attorneys to concentrate his practice on being a special master. He said, “The most important benefit a special master provides is quick attention. Discovery is made dramatically more efficient and less expensive when the parties can simply call the special master to obtain a ruling, or even get insight into the court’s preferences, rather than submit motions or letter briefs to the court. And, of course, the special master’s easy access works to conserve scarce judicial resources—in other words, having a special master frees up the judge’s time. Not every case needs a special master, but complex or highly contentious cases often benefit from having one.” In his article “The Judge, Special Master and You,” (Litigation Magazine, Summer 2014) he provides very practical insight into the judge, special master and attorney relationship.

Third Branch, the Newsletter of the federal courts (December 2004 edition) reported, “A study by Federal Judicial Center … showed that judges have appointed special masters to quell discovery disputes, address technical 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.”

A practical advantage of the use of a special master is that he is not a judicial officer with a formal court docket. The special master can respond, on short notice, to hold an onsite inspection or attend a hastily requested hearing among lawyers concerning a recently discovered issue. A sitting judge or magistrate judge simply does not have the time to adjust his schedule or docket to deal with such problems. A special master is not a judicial officer and can have one-party conversations with attorneys in order to hasten a resolution. I know of special masters who have held hearings in warehouses, parking garages or in attorneys’ offices. A special master is often welcomed as an experienced colleague who understands the complexity of litigation and the attorneys will deal with him as one of their own.

Busy judges and attorneys handling complex situations can benefit from exploring the opportunity of using a special master.

Peter F. Vaira is a member of Greenblatt, Pierce, Funt & Flores. He is a former U.S. attorney, and is the author of a book on Eastern District practice that is revised annually. He can be contacted at p.vaira@gpfflaw.com.