Can You Hire Your Own Judge?
We've written before about how to get a new judge and the criminally insane behavior required to remove a judge from the bench. The truth is that most judges are basically fine and many are talented, dedicated public servants who work very hard at a difficult job when they could be making a lot more money somewhere else. The ones who are terrible loom large in many lawyers’ minds, not because they are numerous, but rather because they can ruin your day and torpedo your client's case in a way that feels very unfair. Some lawyers blame every bad outcome on the judge, at least to their clients. But even the most responsible lawyer has seen a decision that he or she had to roll his or her eyes at.
If you've been stung by a bad decision in the past, either as a lawyer or a client, you may be tempted to seek arbitration, slipping it into contracts at every available opportunity. And for some cases, particularly those involving international business or where confidentiality is crucial, arbitration has a lot of value. But if your goal is simply to avoid aberrant results, there is a real cost to arbitration. Arbitration decisions are not typically appealable even when clearly, radically, shockingly wrongfully decided. So, while arbitration can give you more input on your judge, it can place you completely at the mercy of whomever is ultimately selected.
What you'd like is some guarantee that you have a good judge, but an option to appeal should they do something totally off the wall and contrary to law. But can you do that? Can you just hire your own judge to run an ordinary court case?
As it turns out, in an increasing number of states, the answer is yes. And while not a perfect option or appropriate for every case, it does present a fascinating solution to some of the problems of both litigation and arbitration.
The Wall Street Journal recently wrote about the practice, legal to one degree or another in roughly 30 states. The article focused primarily on family law proceedings such as high-profile divorces. And as it reported, the practice, once a novel strategy for the super-rich, has become more mainstream as high case volumes for pro-se litigants consume more and more of each judge's attention in family court matters. But while important for family law, it is worth noting that a number of states have recently liberalized the rules concerning the practice, leading to its adoption in business litigation and for other non-family matters.
In New York hiring your own judge is principally governed by CPLR 4317(a). That provision provides:
The parties may stipulate that any issue shall be determined by a referee. Upon the filing of the stipulation with the clerk, the clerk shall forthwith enter an order referring the issue for trial to the referee named therein. Where the stipulation does not name a referee, the court shall designate a referee. Leave of court and designation by it of the referee is required for references in matrimonial actions; actions against a corporation to obtain a dissolution, to appoint a receiver of its property, or to distribute its property, unless such action is brought by the attorney-general; or actions where a defendant is an infant.
There are a few key bits to note. First, while the statute makes reference to a “referee,” the person designated exercises “all of the powers” of a judge pursuant to CPLR 4301. The only limitations imposed on the private referee by the CPLR is that he or she cannot appoint someone else in his or her place and he or she cannot “adjudicate any person except a witness before him guilty of contempt.” Everything else, including rendering a verdict or ordering injunctive relief, is on the table.
Second, the statute gives the parties the unfettered freedom to choose their private judge. While absent a specific designation, the clerk could tap a judicial hearing officer or other court employee to serve, there is nothing in the statute that requires or even encourages this. Strictly speaking, there is nothing in the statute that even requires that the private judge be a lawyer. Most people would obviously recommend picking a lawyer, even if there is a absurdist appeal to the prospect of selecting a horrendously unqualified non-lawyer to decide a case with complex legal issues and then asking the Appellate Division to sort out the wreckage after the fact.
Third, it is striking how little discretion the statute gives the court concerning the decision to designate a private judge. With the exception of the itemized grab bag of cases that specifically require judicial consent, the parties to a litigation can drop a stipulation on the docket at any time and basically fire the current judge. Indeed, the statute cuts the current judge out of the loop entirely and mandates that the clerk “shall forthwith enter an order” referring the case to whomever the parties pick.
Now this doesn't happen with any great frequency, the major reason being that it requires a stipulation between the parties, who are—remember—suing each other. Under normal circumstances, one would expect that if two parties to a litigation can get along well enough to agree to fire the judge, they can probably just agree to settle the case. But you can imagine situations where it would come up, such as a business dispute where both sides are invested in coming to a final answer quickly and the judge is busy on other matters.
These rules have existed in New York for some time, though there have been recent efforts to encourage parties to make more use of them. The Commercial Division, a specialized component of the state courts that hears large business cases, recently adapted rule 9-B which reads as follows:
Rule 9-b. Referees. Counsel should be aware that in accordance with CPLR 4301 and 4317(a), on consent of the parties, and with the agreement of the Court, any person may be appointed by the Court to act in place of the assigned Supreme Court Justice, to determine any or all issues or to perform any act, with all the powers of the Supreme Court.
This is less an actual rule than an extremely targeted advertisement for the existing private judge rule, but it reflects the court's desire to thin its docket by any reasonable means.
One thing that New York does not allow you to do with a private judge is to have a jury trial. CPLR 4713 may allow you to give a cocker spaniel the authority to decide your case, but it doesn't let the puppy send out jury summonses.
But if you really have your heart set on a jury trial before a judge that you select yourself, never fear, because Florida has you covered. Florida has a private judge statute—it calls them trial resolution judges—much like the one in New York. But one notable difference is that several Florida jurisdictions (Tampa and the areas just north) have adopted procedures that make court facilities and jury pools available to privately hired judges. And a proposal to extend this practice statewide is up for consideration in the Florida legislature.
So, if you're not a judge but have always wanted to preside over a jury trial, I suggest making friends in the Tampa bar.
Obviously, there are disadvantages to hiring your own judge. Cost is a big one and a major reason that parties often avoid arbitration. And the need to jointly agree on a judge with the opposing side can be an impediment. Indeed, arbitration organizations like JAMS and AAA have panels of neutrals and defined strike and rank procedures precisely to overcome this hurdle.
But if you want your day in court but aren't happy with the judges available, private judging is an option that exists, a blend of litigation and arbitration for parties with specialized needs and the resources to have them met.
