First of all, full disclosure: I myself am a Private Judge. For six years now as a Private
Neutral, I regularly get hired to do Private Judging. So naturally I am in favor of it, and I will explain why in this post.
But make no mistake: my positive opinion of Private Judging is also based on my considerable experience in this area. From 1997 to 2005, I worked as the Family Court Settlement Officer for the Superior Court of Santa Clara County. In that role, I would see 5 or 6 marital dissolution cases a day and be appointed the parties’ “Temporary Judge” or “Judge Pro Tem” (an older name for “Private Judge”) for the purpose of conducting settlement discussions. During this period of my legal career, in other words, I worked as a Private Judge many thousands of times.
For this reason, I am in an excellent position to explain both what this work is and what it is not.
A blog I recently read (www.simplyappalling.blogspot.com/2005/06/hire-your-own-judge-youll–help-system.html) implied that hiring a Private Judge to handle a marital dissolution case is something that only the wealthy or the privileged few would do.
This is simply not correct. Though there are indeed additional costs incurred in non-courthouse proceedings that are not incurred in courthouse trials, these additional costs, contrary to what one might think, almost always result in an overall cost savings for the litigants.
Why is this so? Because the cost of hiring a Private Judge is more than offset by other kinds of cash savings–and sometimes quite substantial ones at that. (More on this in what follows.)
So Private Judging is not simply “for the wealthy.” Rather, it is for almost anyone whose income or assets exceed the level of “very modest.” It is also for those who want to
control their own solution without being held hostage to or dominated by the other party, and it is for those who don’t want to engage a private attorney for representation.
In other words, Private Judging is indeed for almost anyone.
So now, let us begin with the basics: what exactly is a “Private Judge?”
As stated above, “Private Judge” is simply another name for the formal legal job title of “Temporary Judge.” A Temporary Judge/Private Judge (a.k.a. Judge Pro Tempore) is an
attorney who meets specific California legal qualifications and who is appointed by the parties with the consent of the Court. Within the parameters of her/his appointment, a Temporary Judge/Private Judge generally has the same responsibilities, authority and roles as those of the full time, courthouse judicial officers, including being bound to the judicial code of ethics.
How does one go about hiring a Private Judge?
The appointment of a Private Judge begins with the parties themselves filing with the Court an agreed court order known as a stipulation and order for “APPOINTMENT OF TEMPORARY JUDGE,” or “Stip” for short. In this Stip, both the type of work and the scope of authority of the Private Judge are clearly defined.
By the agreement of the parties, a Temporary Judge can be limited in jurisdiction to one or more types of issues (substantive) – such as Real Estate Sale, Child Custody, Attorney
Fees, Discovery, Tracing Retirement Accounts, Allocating Stock Option and RSUs,
etc. — or to a particular scope of authority (procedural)–e.g., All Purpose (unlimited) scope of authority, Settlement only, Case Management only, Referee only, etc.
Once parties have embraced an individual in the role of Private Judge, they are committed to using the PrivateJudge according to the stipulated terms of her/his employment.
What exactly does a Private Judge do?
In general, Private Judges provide neutral, third party input on probable solutions to legal matters. This input can be determinative and binding, or simply advisory and educational, depending on how the order of appointment is drawn.
Private Judges also have the ability to give litigants and parties practical guidance whenever this is needed or appropriate. For example, a Private Judge might advise parties about motions, hearing orders, settlement recommendations, and trial and judgment matters. She/he might provide other kinds of assistance as well, such as assistance with difficulties between clients, between attorneys and even between clients and attorneys.
Drawing on a broad base of experiential antecedents, as well as on possible, unconsidered options within various legal parameters, Private Judges are adept at providing creative
solutions to the legal matter at hand. The combination of their legal expertise, managerial skill and analytical perspective keeps the adversarial process moving along and on track
to a final, judicially-approved court order.
In short, Private Judges, just like conventional courtroom judges, address the considerations of both sides, but unlike conventional courtroom judges, Private Judges are much more welcoming of party-input when it comes to the crafting of a final agreeable,
compromised solution. In this respect, parties working with a Private Judge often have more autonomy than they would have in a court trial when it comes to determining a final outcome.
Also, Private Judges are often able to work in a much more timely and efficient manner than a conventional judge would be able to do, simply due to the fact that their case loads are in the tenths of a percentage of those handled by the regular judicial officers.
How much does a Private Judge cost?
Typically, Private Judges charge an hourly rate, in the same manner as other legal professionals. However, because the cost of hiring a Private Judge is shared equally by both parties, it is usually less than the cost of a representational attorney.
Of course, what one finally pays to hire a Private Judge is always affected by the actual hourly rate and by the services provided. For example, the degree of the Private Judge’s active involvement, the amount of preparation required and the kinds of formal procedures used (telephone-conference, web meeting, face-to-face meeting) all will bear on the final cost.
Whatever the cost of a Private Judge turns out to be, this cost must always be balanced against the ultimate cost-savings that Private Judging brings.
Private Judges are typically expert in the field of law that pertains to the cases they try. They are able, therefore, to size up the facts of a case quite quickly and move swiftly from a perspective of conflict to a perspective of resolution. This efficiency factor saves parties hourly rate costs and lengthy waiting times that are typically associated with conventional courtroom proceedings (e.g. attorneys resolving disputes with filing a motion, and response, which usually takes 2 hours per side; waiting 6 to 8 weeks to get to a court hearing date; waiting around almost half a day for the judge’s attention and then having only 20-30 minutes of hearing time with a Judge whose background is not at all in
the field that relates to the legal matter at hand.)
For motions, the expected savings will be approximately $3000 to $5,000 per side; for contested cases, the savings are usually in the range of 25-33%.
Private Judges also cut down on some other key elements of attorney costs. For example, they can accept letter of pleadings indicating the issue in conflict and the factual background for this specific case, thereby avoiding formal pleadings and drafting, and saving 2 hours of attorney time. Private Judges can also engage in a teleconference for a hearing, thereby saving 6-8 hours of attorney preparation and travel time.
And usually, Private Judges have heard the issue at least 50, if not 2000 times before. But even if they have not, their familiarity with the legal context of the disagreement means that they will be able to address the conflict succinctly and directly, either giving an indicated decision on the spot, or guiding investigation and factual development in a
Almost all people engaged in dissolving a marriage can look forward to these advantages from using a Private Judge:
- Cost savings
- Privacy / public avoidance
- Greater party autonomy
By providing parties with savings of cost, time and psychological or emotional trauma, as well as with more autonomy in determining the terms of a final divorce agreement, Private Judging is definitely a route that many divorcing couples will want to consider, either
with attorneys or on their own.
©2011 James Frederic Cox