- Edward George Bulwer-Lytton
Director, Broad Field Project
Private judging refers to the process by which a court refers issues of fact or law to a person who is not employed by the court, but selected by the parties.
The concept of private judging is most useful to attorneys faced with a case requiring particular expertise, or in which the parties need to get a decision more quickly than the courts are likely to provide one. Clients may also need to understand the concept when their attorneys are recommending private judging rather than typical court trial.
Private judging is similar to arbitration in that the goal is to reach an expert decision relatively quickly, in a case not seen as resolvable by negotiation or mediation. The key difference is that a court retains a supervisory role, even though the parties are free to agree on rules and procedures that in some respects differ from the public courts. Thus the standard of proof is typically the same as in a public trial, and the outcome is enforceable in the trial court, an appellate court, or both. Private judges are usually former judges, or lawyers. Under varying names, private judging has been provided for in the statutes of approximately half of the United States; in California, where the practice is most widely used, it has been legal for 100 years. While it is commonly thought that users of private judging are exclusively large corporations "buying" their way out of the public courts (a perception which has fueled criticism of the practice as creating "two-tier" justice) two California studies indicate that about 30 percent of privately judged proceedings involve personal injury or domestic relations matters, in which the lawyers involved urged the process on their clients because the fees paid to the private judge were thought less troublesome than delays and other costs of using a regular trial.
A 55-year-old corporation executive is discharged by her employer during a recession, despite an admitted good work record. Noting that younger and similarly qualified executives were kept on, she sues for age discrimination. Shortly thereafter, she obtains a new job — at the other end of the country. It therefore becomes important to her to schedule the trial for an exact and agreed-on date, without the delays and uncertainties imposed by a hectic court schedule. Meanwhile, her former employer, seeking a minimum of publicity for the case, also wishes to avoid a regular trial. And both parties' attorneys have a particular former judge in mind whom they regard as fair and as an expert in this type of case. The parties are unable to settle the matter, but a hearing takes one day and is conducted two years earlier than would have been possible in court; a decision is rendered, following short briefs in a format the parties agreed on in advance, two months later.
This concept is applicable in any situation where the parties feel they must have a decision on the legal "merits"; are more concerned about speed of decision and expertise of the decision maker than they are about the direct cost of paying a private judge; and cannot agree either to resolve the matter voluntarily, or to accept the different rules and procedures that would allow using arbitration.