Special masters, court-appointed experts and technical advisors in federal court.

SPECIAL MASTERS, court-appointed experts, and technical advisors are not unique to any particular area of litigation. This discussion has general application to all types of litigation and is intended to provide practical insights to the applicable provisions in the federal rules and case law. This article focuses on federal practice. It does not address the same issues in state courts. Since most states have adopted some version of the federal rules, the reader may find this discussion useful for state as well as federal proceedings. However, some caution is required because local versions of the rules often differ significantly from current federal practice.

Many circumstances in litigation are appropriate for the use of such judicial "surrogates". Examples are multi-party litigation, complex technical subjects beyond the common experience of the court and counsel, and the court's desire to have neutral insight into issues which must be the subject of findings of fact and conclusions of law. Knowing the differences between such surrogates and how they may be used under the rules and case law will probably allow a practitioner to better protect client interests.

I. SPECIAL MASTERS

One perceived benefit of seeking, or agreeing to, the appointment of a special master is the belief that a special master can deal more quickly with the issues in question than they can be dealt with by the district court. Another perceived benefit lies in the belief that, where the issues in question are of a highly technical nature, a master may be chosen who has considerably more technical experience than the judge to whom the case was randomly assigned.

In combination, these perceived benefits are often quite appealing. However, the reality of finding an individual who is both well versed in conducting a legal proceeding and also competent in a highly technical field may be difficult. If someone fitting those qualifications can be found, they may not be able to dedicate the substantial time needed to deal quickly with a complex technical matter without commanding a substantial premium for their services, which will be borne by the parties. In addition, they may not have the experience or skill of a federal judge to make decisions or do tasks of a judicial nature.

The use of special masters is controlled by Federal Rule of Civil Procedure 53 and the case law interpreting that rule. This section discusses certain features of the rule.

A. FRCP 53(a)--Appointment of a Special Master