Using court-appointed neutrals to access justice

Ever since the court appointed a "special master" in the Trump case, the public suddenly became aware that court-appointed neutrals (formerly called special masters) can help courts resolve disputes, ease their docket, and lend their expertise. But the public may not realize how court-appointed neutrals can help access justice.

Even before the pandemic, the American judiciary faced a deluge of increasing litigation, mass torts, class actions, and everyday disputes. The pandemic exacerbated already overcrowded court dockets to the breaking point. As the courts constitutionally addressed criminal cases first, routine civil matters got in line - a long line. Those with limited resources went to the back of that line, widening the justice gap. Yet, the most common legal issues affect all socioeconomic levels: health, finance, and employment. Court-appointed neutrals (CANs) help increase access to justice for all income levels.

Settlement Neutral

CANs, appointed by the court as a neutral third-party granted quasi-judicial authority, can facilitate between the parties and the court and/or just between the parties to settle their disputes partially or entirely. They can privately provide each side with a candid assessment of the strengths and weaknesses of their respective cases, help counsel reign in an overly confident party, and generally smooth the parties' relationship toward reconciliation.

Discovery Neutral

The neutral can manage a discovery plan, issue orders resolving discovery disputes, recommend outcomes to the judge, and monitor ongoing discovery. CANs often help the parties and counsel wade through electronically stored information (ESI), deep fake evidence, social media posts, SIM card swaps, and more everyday dilemmas. They can also undertake the time-consuming task of reviewing documents for privileges barring production, such as attorney-client privilege, or privacy concerns, such as psychiatric records, HIPAA-protected records, and financial statements.

Today, a lot of information exchanged in cases involves native formats, metadata, recoverable erasures, doctored records, and software integration disputes. The right neutral can help tackle these issues, leaving the court free to resolve the merits.

Privacy Neutral

CANs can help evaluate data breaches and alleged data breaches involving large numbers of individuals, consumers, hospitals, medical records, biometric captures, and other threatened privacy rights.

Compliance Neutral

Courts might consider long-term remedies to alleviate societal problems but do not have the time given their bulging docket, to then monitor compliance with their orders. The neutral can monitor compliance and report any problems to the judge or, if authorized, resolve them herself. Such solutions may include for example, monitoring credit reporting, cryptocurrency security measures, data breach resolutions, or identity theft fallout, just to name a few. Neutrals can be helpful after case resolution to ensure the parties implement the court's order or settlement agreement properly and timely.

In civil cases, courts often appoint neutrals to monitor compliance with structural injunctions, especially those involving employment or other organizational change, accommodation facilities, or governmental reform. By surveying the remedial efforts, the neutral can facilitate judicial evaluation of compliance.

Coordinating Neutral

Coordinating neutrals meet and confer with lawyers to develop proposed orders to submit to the judge; they may chair a liaison committee of lawyers; or they may work on associated aspects of complex cases and class actions. They may also coordinate events in related cases filed in different jurisdictions in state and federal courts to ensure uniform and efficient procedures. Or they may simply function as an intermediary between non-communicating opposing sides.

Trial Neutral

The court can assign CANs to assist with trial and hearing duties. Parties may agree to have their dispute heard by a neutral, either for a final decision or for findings and recommendations subject to the court's review. Trial neutrals may also compile and interpret technical or complex evidence or voluminous data. In trade secret litigation, trial neutrals often deal with confidentiality matters. In patent suits, an experienced neutral may assist with or conduct a Markman hearing and prepare findings and recommendations on disputed claim terms. Or trial neutrals can sit as the judge pro tem on small claims matters, where litigants argue their disputes without counsel's assistance.

Expert Neutral

Courts may exercise their inherent authority to engage an expert neutral who can provide guidance on complex or specialized subjects without representing the view of one party. For example, CANs can help decipher issues intertwined with technological, scientific, or complex subject matters.

In other instances, a court-appointed neutral can assist by providing an accounting of complex financial information or the assessment and payment of recurring litigation expenses. For example, a court might ask a neutral to assess a plaintiff's claim of damages or a defendant's ability to pay a settlement or judgment.

Claims Neutral

Neutrals can evaluate and oversee the administration of settlement of class action claims or distribute money damages to eligible recipients. These neutrals can help select, work with, and monitor the administrators who manage the settlement's details.

Receiver Neutral

The court can appoint a neutral to function as a receiver. In this role, the neutral holds, manages, or preserves property until a dispute is resolved. Receivers typically exercise quite extensive responsibilities. In some cases, they have been appointed to run governmental or business entities.

Ethics Neutral

A state court may appoint a neutral to review evidence in connection with ethics complaints against attorneys. These neutrals can recommend whether the state should undertake disciplinary action against an attorney and, if so, what sort. This process may supplement the work done by an ethics or consumer complaints board.

Specialized Neutrals

An expert neutral may also help outside traditional litigation. Neutrals have been appointed by governors, mayors, governmental officials, nonprofit organizations, and private entities to solve problems. Congress and legislatures have also referred significant social problems to experienced neutrals. These experts can work with groups and individuals to resolve disputes, distribute funds contributed in response to tragedies, and use neutral expertise in other types of controversies. Recently, many neutrals have assisted community organizations in working collaboratively with local law enforcement. Often, neutrals provide pro bono services in these instances.

Bottom line: Gone are the days when courts only used "special masters" in "big dollar" cases or high-profile disputes like the Trump case. Today's court-appointed neutrals, diverse as the society we live in, help the courts and the public gain full access to justice for all.

Janice Sperow is a full-time neutral, serving on New Era ADR's, the AAA's, CPR's, and other rosters. She is also a member of the Academy of Court Appointed Neutrals. She can be reached at janicesperow@sperowadr.com. For more information on court-appointed neutrals and a roster, visit https://www.courtappointedneutrals.org.