Appointing a Special Master – How? When? and Why?

by Hon. R. Keegan Federal, Jr.

Through recent CJE programs around the State, many if not most trial judges in Georgia are now familiar with Uniform Superior Court Rule 46, but many if not most have not yet taken advantage of the benefits available under the Rule. This article specifies how a Special Master can assist the Court, explains when the Court should consider appointing a Master, identifies the types of cases that warrant the appointment of a Master, and simplifies the procedures required to select and appoint the Master.

Could you use help with your caseload?

Due in part to the pandemic and the resulting backlog of cases throughout the State, many trial court judges are experiencing difficulties in moving their calendars as expeditiously as they (and the lawyers and parties in their cases) would like. Special Masters can alleviate the burdens and frustrations of a backlog by handling many judicial responsibilities that otherwise must be addressed by the presiding judge. Perhaps one of the most time-consuming but aggravating issues that plague trial courts is discovery disputes, e.g., objections to interrogatories, motions to compel, contested requests to produce, etc. A duly appointed Special Master has the authority to hear and resolve any and all such disputes, including motions to strike, motions for sanctions, dispositive motions, motions in limine, etc. without the need for any involvement on the part of the Court. In addition, Rule 46 specifically authorizes the Master “to address pre-trial and post-trial matters, . . . to monitor compliance with orders of the Court or . . . implementation of settlement agreements” [often needed in contentious divorce cases, intellectual property cases, injunction actions, etc.]. In short, the Master will oversee and rule on all pre-trial objections and motions and relieve the Court of the need to do so.

It has been said that “the task of a Special Master is limited only by the imagination of the appointing judge and counsel and may extend to almost all aspects of litigation where the Court needs independent assistance in solving ongoing litigation or post-litigation problems. (See “Special Master – A Valuable Person for Solving Complex Legal Issues”, Fulton Daily Report, Sep 20, 2022.) Indeed Rule 46 itself provides that the Court may appoint a Master “to perform duties consented to by the parties” without specifying any limitations on such duties, and even “to hold trial proceedings and make or recommend findings of fact . . . .”

The opportunities for the Court to obtain needed assistance are virtually limitless, and the appointment of a Special Master in appropriate cases will allow you to move your caseload much more effectively and efficiently.

Do you have a particularly vexatious and troublesome case?

Every judge occasionally encounters a complex case with perplexing or convoluted facts in dispute (perhaps involving a specialized area of expertise outside the Court’s previous legal or judicial experience), and/or especially rancorous attorney(s), and/or a multitude of adverse parties. These cases can demand an unreasonable amount of the Court’s time and resources, to the extent that the Court is then required to delay addressing other matters that need and deserve the Court’s attention. Again, a Special Master, who is not burdened with a caseload, can focus exclusively on these vexatious cases and move them toward trial (or settlement!) efficiently and expeditiously, without any need to draw on the resources of the Court.

The appointment of a Special Master to oversee this type of case is not only warranted but perhaps demanded in order for you to effectively oversee and move your remaining cases.

How do you go about selecting and appointing a Special Master?

Rule 46 authorizes the trial judge to appoint the Master “upon the Court’s own motion” and the consent of the parties is not required. The Court must “give the parties notice and an opportunity to be heard before appointing a Master” but the attorneys usually waive the hearing. As a practical matter, some judges solicit names of potential appointees from the attorneys in the case although the more objective practice is for the Court to select someone already known to the Court to have the experience, ability, and integrity required, or to contact the Academy of Court-Appointed Neutrals (formerly “Masters”) and select one of its members. The prospective appointee will do a conflicts check, and then provide the judge with a proposed draft of an Appointment Order that complies with the dictates of the Rule and fulfills the Court’s particular need for assistance.

There are currently seven Fellows of the Academy in the State of Georgia. If you have not yet been through the process of selecting and appointing a Special Master, contact this author (keegan@fedfirm.com) or any member of the Academy (admin@courtappointedneutrals.com) who will walk you and your staff through the required steps.

What happens next?

Oftentimes, the appointing judge doesn’t hear anything further about the case after appointing the Master, except perhaps to enter a final consent judgment. And that occurs because, as the case progresses, the Master has the time and repeated opportunities to encourage the parties to settle. It’s true that the parties do have the right to appeal rulings of the Master to the appointing judge, but experience proves that such appeals are rare, especially after an initial appeal of a ruling is affirmed.

The ABA Guidelines encourage the use of Special Masters!

The guidelines recently promulgated by the ABA provide, “It should be an accepted part of judicial administration in complex litigation, and in other cases that create particular needs that a Special Master might satisfy, for courts and the parties to consider using a Special Master . . . not only after particular issues have developed, but at the outset of litigation.” (Emphasis added.)

Identify your most troublesome case, and consider the benefits to you, your staff, and to the attorneys and parties in the case, plus the benefits to the attorneys and parties in your remaining cases, that will be achieved by your appointment of a Special Master; call one who will meet your needs; and then step back and allow the Master to relieve you of the burdens and frustrations of dealing with the case (– and you may never hear of it again!).

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