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Special Masters in the Pretrial Development of Big Cases: Potential and Problems

Published online by Cambridge University Press:  20 November 2018

Wayne D. Brazil
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Abstract

This article explores the advantages and disadvantages of referring discovery matters in complex cases to special masters. In the first section Brazil explains how the results of his earlier research into the discovery system exposed problems that the appointment of masters might help solve. He then describes the kinds of pretrial tasks and roles federal courts have assigned to special masters and the ways that using a master can expedite and rationalize the case development process. In the second half of the article, the author assesses the major objections to delegating judicial responsibilities to masters and the problems that frequent appointments might cause. Along the way, Brazil offers practical suggestions to judges about how to avoid potential difficulties and how to maximize the effectiveness of this increasingly popular procedure.

Type
Research Article
Information
American Bar Foundation Research Journal , Volume 7 , Issue 2 , Spring 1982 , pp. 289 - 374
Copyright
Copyright © American Bar Foundation, 1982 

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References

1 I am indebted to Geoffrey C. Hazard, Jr., for sensitizing me to the potential significance of converting masters from passive referees into active managers.Google Scholar

2 A special master is a private attorney, a law professor, or a retired judge who is appointed, with or without the consent of the parties, to assist the judge in performing some of his or her functions. Federal Rule of Civil Procedure 53 is the source of authority most commonly cited by federal judges when making such appointments. Whether Federal Rule 53 was intended to authorize delegations of pretrial tasks is a complex question I will address in the next article in this series. In some state courts, an appointee who performs the functions a special master would perform in the federal system is called a “referee.” See, e.g., the recently amended versions of the Cal. Civ. Proc. Code §§ 639, 645.1. Section 639 empowers California trial courts to “direct a reference,” without the consent of the parties, “[w]hen the court in any pending action determines in its discretion that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.”.Google Scholar

3 Brazil, Wayne D., Views from the Front Lines: Observations by Chicago Lawyers About the System of Civil Discovery, 1980 A.B.F. Res. J. 217; id., Civil Discovery: Lawyers' Views of Its Effectiveness, Its Principal Problems and Abuses, 1980 A.B.F. Res. J. 787; id., Improving Judicial Controls over the Pretrial Development of Civil Actions: Model Rules for Case Management and Sanctions, 1981 A.B.F. Res. J. 873.Google Scholar

4 For descriptions of the composition of the groups of lawyers and judges we have interviewed, see Brazil, Views, supra note 3, at 220 n.1; id., Civil Discovery, supra note 3, at 890–902 apps. B-D; id., Improving Judicial Controls, supra note 3, at 876 n.3.Google Scholar

5 Brazil, Civil Discovery, supra note 3, at 863–65.Google Scholar

6 Id.Google Scholar

7 Id. at 865–66.Google Scholar

8 See, e.g., Cal. Civ. Proc. Code §§ 259, 259a, and Discovery Manual, California Superior Court, City and County of San Francisco § 311 C. (Aug. 1977).Google Scholar

9 The group I interviewed in 1981 included 15 federal district court judges, 4 federal magistrates, 6 state court judges, 2 state court commissioners, 3 court administrators, and 25 lawyers who had had some experience working with or as masters or magistrates.Google Scholar

10 In the late 1950s, Judge Irving R. Kaufman published the results of his examination of the use of special masters during the pretrial stage of three large cases. See Kaufman, Irving, Masters in the Federal Courts: Rule 53, 58 Colum. L. Rev. 452 (1958);id., Use of Special Pre-Trial Masters in the “Big” Case, 23 F.R.D. 572 (1958); and id., Use of Masters to Preside at the Taking of Depositions, 22 F.R.D. 465 (1958). Despite its limited scope, Kaufman's work remains the most important contribution to the literature in this area. For a more recent presentation of Judge Kaufman's optimistic views about the contributions special masters could make to expediting pretrial proceedings in big cases see his The Judicial Crisis, Court Delay, and the Para-Judge, 54 Judicature 145 (1970). Several limited studies of the use of magistrates or standing masters have been published. See, e.g., Joseph C. Zavatt, The Use of Masters in Aid of the Court in Interlocutory Proceedings, 22 F.R.D. 283 (1958) (focusing on the use of standing masters in England); Jack B. Weinstein, Standing Masters to Supervise Discovery in the Southern District, New York, 23 F.R.D. 36 (1958); Steven Puro, Roger L. Goldman, & Alice M. Padawer-Singer, The Evolving Role of U.S. Magistrates in the District Courts, 64 Judicature 436 (1981); Committee on the Federal Courts, The Magistrate System in the Southern District of New York, 33 Rec. A.B. City N.Y. 212 (1978). Because there are substantial differences between magistrates and special masters, one cannot safely generalize from experience with the former to the latter. At least two federal district courts have experimented with “volunteer master” programs, but appointees in both jurisdictions have assumed little responsibility for discovery and have been assigned only to relatively small cases. These volunteer masters have served primarily as mediators or arbitrators. For a preliminary and less than enthusiastic assessment of the first stage of the volunteer master experiment in New York, see Report of the Committee on Federal Courts Concerning the Volunteer Master Program in the Southern District of New York (Jan. 29, 1981) [cited hereinafter as Report on Volunteer Masters, N.Y.]. This report has not been published, but some of its findings were described in Alan Kohn, Study Gives ‘Negative’ Marks to U.S. Volunteer Program. N.Y.L.J., Feb. 17, 1981, at 1, col. 3. The volunteer master experiment undertaken in the United States District Court for the Western District of Washington appears to have been better run and more favorably received. See, e.g., Western District of Washington Adopts Local Rule to Ease Civil Backlog, Third Branch [bulletin of the federal courts], Apr. 1980, at 3. About 50 years ago, Wallace R. Lane, a Chicago lawyer, published two articles about practice under the federal equity rules in which he generalized from a largely undisclosed data base about problems associated with use of special masters at the trial stage. See Lane, Wallace R., Federal Equity Rules, 35 Harv. L. Rev. 276, at 295–97 (1922) and id., Twenty Years Under the Federal Equity Rules, 46 Harv. L. Rev. 638, at 654–55 (1933). I discuss Lane's objections to the use of masters in several places in this essay. More recently, several articles have appeared that examine the roles played by special masters in implementing or enforcing equitable decrees. See, e.g., Brakel, Samuel J., Special Masters in Institutional Litigation, 1979 A.B.F. Res. J. 543;Aronow, Geoffrey F., The Special Master in School Desegregation Cases: The Evolution of Roles in the Reformation of Public Institutions Through Litigation, 7 Hastings Const. L.Q. 739 (1980);Special Project, The Remedial Process in Institutional Reform Litigation, 78 Colum. L. Rev. 784, at 805–9, 831 (1978);Nathan, Vincent M., The Use of Masters in Institutional Reform Litigation, 10 Toledo L. Rev. 419 (1979); Note, “Mastering”Intervention in Prisons, 88 Yale L.J. 1062 (1979). The recent general scholarly discussions of roles magistrates and masters could play include Silberman, Linda J., Masters and Magistrates Part II: The American Analogue, 50 N.Y.U. L. Rev. 1297 (1975); Comment, Masters and Magistrates in the Federal Courts, 88 Harv. L. Rev. 779 (1975); and Joy Chapper & Paul Nejelski, Non-Judge Officers Providing Assistance in the Resolution of Complex Litigation: A Preliminary Report (prepared under a Ford Foundation grant by the ABA'S Action Commission to Reduce Court Costs and Delay, 1981, this study, which has not been published, was based in part on informal interviews of an undisclosed number of litigators, judges, court administrators, and scholars; the essay that summarizes the author's tentative conclusions is broadly focused and quite useful). Another useful but short essay was written by former Supreme Court Justice Clark, Tom C.: Parajudges and the Administration of Justice, 24 Vand. L. Rev. 1167 (1971). See also Note, Reference of the Big Case Under Federal Rule 53(b): A New Meaning For the “Exceptional Condition” Standard, 65 Yale L.J. 1057 (1956).Google Scholar

11 Among the most instructive reports of this kind are Ronald E. McKinstry, Use of Special Master in Major Complex Cases, published by the New York Law Journal in Federal Discovery in Complex Civil Cases: Anti-Trust, Securities and Energy 213 (New York: Law Journal Seminars Press, Inc., 1980); Nathan, supra note 10; Marsh, Robert M., Pre-Trial Discovery in an Anti-Trust Case, 8 Rec. A.B. City N.Y. 401 (1953). For reports of judicial experiences and perspectives see Henry N. Graven, Pre-Trial Discovery Conducted by Masters, 23 F.R.D. 566 (1958); Charles E. Clark, Difficulties Encountered in a System of Masters, 23 F.R.D. 569 (1958); and Kaufman, Masters, supra note 10.Google Scholar

12 E.g., special masters have been used to determine the good faith of a party in attempting to comply with discovery orders issued by the court (Societe Internationale v. Rogers, 357 U.S. 197 (1958)); in general discovery supervision (Denton v. Mr. Swiss, 564 F.2d 236 (8th Cir. 1977)); to make preliminary rulings on privilege claims (In re Murphy, 560 F.2d 326 (8th Cir. 1977)); and to rule on discovery disputes arising during efforts to determine the validity of claims in a class action (Kyriazi v. Western Elec. Co., 465 F. Supp. 1141 (D.N.J. 1979)).Google Scholar

13 In addition to Fed. R. Civ. P. 53, federal courts have relied on inherent equitable powers; see, e.g., Ex parte Peterson, 253 U.S. 300, 312 (1920) and Kaufman, Masters, supra note 10, at 462–63, and on the consent of the parties. Some courts have challenged the assumption that the parties' consent is a sufficient premise for some kinds of references. See, e.g., Wilver v. Fisher, 387 F.2d 66 (10th Cir. 1967).Google Scholar

14 The federal statutes that create the position of United States magistrate and describe the roles magistrates can play and the scope of the authority they can assume are 28 U.S.C. §§ 631–36 (1976). For an illuminating and thorough discussion of the nature and history of the most recent significant changes in this legislation, see McCabe, Peter O., The Federal Magistrate Act of 1979, 16 Harv. J. Legis. 343 (1979).Google Scholar

15 Fed. R. Civ. P. 53(a) provides, inter alia, that the “compensation to be allowed to a master shall be fixed by the court, and shall be charged upon such of the parties or paid out of any fund or subject matter of the action, which is in the custody and control of the court as the court may direct.”.Google Scholar

16 See Fed. R. Civ. P. 53(a) and Weinstein, supra note 10. See also 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2607 (St. Paul, Minn.: West Publishing Co., 1971 & 1981 Supp.).Google Scholar

17 In the federal government's recent antitrust action against the American Telephone and Telegraph Company, for example, the parties interviewed prospective masters and agreed on nominees, whom the district court subsequently approved and appointed. Important pretrial issues and the master's roles in this action are discussed in United States v. American Telephone and Telegraph Company, 461 F. Supp. 1314, at 1347–49 (D.D.C. 1978) [cited hereinafter as United States v. AT&T]. Hazard, Geoffrey C. Jr., and Rice, Paul R. served as the masters in this case. Their valuable reflections about their experiences appear in Judicial Management of the Pretrial Process in Massive Litigation: Special Masters as Case Managers, 1982 A.B.F. Res. J. 375.Google Scholar

18 See Ex parte Peterson, 253 U.S. 300, 312 (1920), and Silberman, supra note 10, at 1310–14.Google Scholar

19 In many cases, counsel for both (all) parties concur in the selection of the special master. See, e.g., Fisher v. Harris, Upham & Co., 61 F.R.D. 447 (S.D.N.Y. 1973).Google Scholar

20 In United States v. Moss-American, Inc., 78 F.R.D. 214 (E.D. Wis. 1978), the defendant opposed the testing of soil and water on his property during the discovery phase of an action for alleged pollution. Following a motion by the government, the judge appointed a special master, under the court's general equity powers, to supervise the proposed sampling. The court noted that this resolved the discovery dispute.Google Scholar

21 See, e.g., Olson Transp. Co. v. Socony-Vacuum Oil Co., 7 F.R.D. 134 (E.D. Wis. 1944).Google Scholar

22 See United States v. AT&T, supra note 17. For other examples of special masters supervising document production, see In re Ampicillin Antitrust Litigation, 81 F.R.D. 377 (D.D.C. 1978); United States v. IBM Corp. 76 F.R.D. 97 (S.D.N.Y. 1977).Google Scholar

23 See, e.g., United Artists Corp. v. Grinieff, 17 Fed. R. Serv. 30b.42 (S.D.N.Y. 1952) (Case 1).Google Scholar

24 Fisher v. Harris, Upham & Co., 61 F.R.D. 447, 449 (S.D.N.Y. 1973).Google Scholar

25 See, e.g., Omnium Lyonnais D'Etancheite et Revetement Asphalte v. Dow Chem. Co., 73 F.R.D. 114, 117–18 (C.D. Cal. 1977).Google Scholar

26 For an illuminating account of this kind of service, see Marsh, supra note 11. Marsh described the evolution of his authority in the following passage:. I was appointed special master in this connection on October 1st, 1948, after deposition taking had been in progress for several months. My basic function as described in successive orders of appointment was “to supervise the conduct of the taking of” the depositions, “including the length thereof.” At first this applied to a single deposition which was being taken at the time of the appointment, and the taking of which had developed into a situation where the court apparently concluded there was need of someone to act in the capacity of a policeman or sergeant at arms. As often happens, the riot call itself ended the riot before the police actually appeared in the form of a special master, but there turned out to be plenty of work for him to do. My authority to rule on objections to questions at first extended expressly only to the kind of objection deemed waived under Rule 32(c) unless made at the time of the deposition, such as questions of form, but before long by virtue of the necessities of the situation and with the approval of counsel or the court I found myself ruling on points of relevance, privilege and trade secrets. My powers were enlarged from time to time by new formal orders and also expanded informally by consent of counsel, express or implied. Id. at 403–4. See also First Iowa Hydro Elec. Coop. v. Iowa-Illinois Gas & Elec. Co., 245 F.2d 613 (8th Cir. 1957), cert, denied, 355 U.S. 871 (1957); Shapiro v. Freeman, 38 F.R.D. 308 (S.D.N.Y. 1965).Google Scholar

27 See Fed. R. Civ. P. 53(e), whose language must be strained to cover the kinds of pretrial references discussed in the text. See also United States v. AT&T, 461 F. Supp. at 1320 n.15.Google Scholar

28 Also see Marsh, supra note 11. For a contrary view, See Report on Volunteer Masters, N.Y., supra note 10, where the Committee on Federal Courts suggested that the capacity of the volunteer (unpaid) masters to report to the court afforded “some leverage but not much—certainly not enough to encourage cooperation in the more difficult, complex actions.”Id. at 15. Commenting about the master's capacity to report to the judge, the Committee on Federal Courts declared that it was “strongly opposed to any practice by which the Volunteer Masters would report to the Court on the progress or obstinacy of the litigants or the merits of the litigation, without full notice to the parties.”Id. at 15 n.10.Google Scholar

29 Also see Hazard & Rice, supra note 17, at 389–94.Google Scholar

30 See, e.g., Zunkel v. Litchfield, 21 F. 196 (S.D. Iowa 1884).Google Scholar

31 See, e.g., Xerox Corp. v. IBM Corp., 75 F.R.D. 668 (S.D.N.V. 1977); Sperry Rand Corp. v. Rothlein, 288 F.2d 245 (2d Cir. 1961).Google Scholar

32 One federal district court judge we interviewed reported using his law clerk extensively for this purpose.Google Scholar

33 See, e.g., American Bar Association, Section of Litigation, Report of the Special Committee for the Study of Discovery Abuse 20 (Chicago: American Bar Association, Oct. 1977); Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F.R.D. 487, 522 (1970); Columbia University School of Law Project for Effective Justice, Field Survey of Federal Pretrial Discovery 12–13 (Discussion draft, 1965).Google Scholar

34 The problem of “evasion” in response to discovery requests provokes more complaints than any other “abuse” in the discovery process. See Brazil, Civil Discovery, supra note 3, at 825, 833.Google Scholar

35 See, e.g., United States v. AT&T, 461 F. Supp. 1314, at 1347–49; I.B.M. Corp. v. United States, 493 F.2d 112, 126 (2d Cir. 1973), cert, denied, 416 U.S. 995 (1974); Kaufman, Masters, supra note 10, at 466–68. For additional examples of the use of a special master to resolve privilege disputes, see In re Murphy, 560 F.2d 326 (8th Cir. 1977); MCI Communications Corp. v. American Tel. & Tel. Co., 1979–1 Trade Cas. (CCH) § 62,449 (D. Ill. 1978); Burlington Indus, v. Exxon Corp. 65 F.R.D. 26 (D. Md. 1974); Collins & Aikman Corp. v. J. P. Stevens & Co., 51 F.R.D. 219 (D.S.C. 1971) (special master to review claims of privilege by a nonparty resisting discovery).Google Scholar

36 See McKinstry, supra note 11, at 215, 224–25.Google Scholar

37 See, e.g., Hazard & Rice, supra note 17, at 380–81, and United States v. American Tel. & Tel. Co., 86 F.R.D. 603 (D.D.C. 1979).Google Scholar

38 United States v. AT&T, 461 F. Supp. at 1345–49. In this opinion the court assigned responsibility to supervise discovery and the stipulation procedure to the magistrate. Subsequently the court shifted these responsibilities to the special masters. See Hazard & Rice, supra note 17, at 384–86.Google Scholar

39 This assessment of the master's contributions is shared by counsel on both sides and by the supervising judge.Google Scholar

40 This view is implicit in Hazard's and Rice's account of their experiences in the AT&T litigation. See Hazard & Rice, supra note 17, at 384, 412. There are some influential voices that generally oppose broad delegations of pretrial authority to masters. See, e.g., American College of Trial Lawyers, Recommendations on Major Issues Affecting Complex Litigation 18–19 (1981), and National Commission for the Review of Antitrust Laws and Procedures, Report to the President and the Attorney General, 80 F.R.D. 509, 515 (1979) (fearing that unless masters work in “virtual partnership with judges, their presence in a case may actually add to its complexity and hinder direct supervision by the district judge”). Id. at 530. I explore these fears and ways to reduce them at pp. 348–57 infra.Google Scholar

41 See, e.g., Kaufman, Masters, supra note 10, at 466–68, and cases cited in note 67. See also Omnium Lyonnais D'Etancheite et Revetement Asphalte v. Dow Chem. Co., 73 F.R.D. 114 (C.D. Cal. 1977); and First Iowa Hydro Elec. Coop. v. Iowa-Illinois Gas & Elec. Co., 245 F.2d 613 (8th Cir. 1957), cert, denied, 355 U.S. 871 (1957).Google Scholar

42 In a civil rights action stemming from an employment discharge, the district court granted plaintiff's motion for summary judgment and appointed a special master to take testimony and make a recommendation regarding a monetary decree. The court granted the master power to supervise all discovery proceedings related to this issue, including ruling on motions, ordering the taking of depositions, and ruling on routine discovery disagreements. The master was also authorized to issue subpoenas duces tecum and order production of documents by either party. Sprogis v. United Airlines, Inc., 308 F. Supp. 959 (N.D. Ill. 1970).Google Scholar

43 See, e.g., Kyriazi v. Western Elec. Co., 465 F. Supp. 1141 (D.N.J. 1979). After this class action sex discrimination action was resolved on the merits in favor of the plaintiffs, special masters were appointed to adjudicate claims by individual members of the class. Among other things, these masters were to develop a schedule for conducting the discovery necessary to resolve claims disputes.Google Scholar

44 See McKinstry, supra note 11, at 221–22.Google Scholar

45 The Manual is published in several places. See, e.g., 1 Moore's Federal Practice (2d ed. New York: Mathew Bender & Co., 1980 & Cum. Supp. 1980–81). For a discussion of the Manual's approach to managing discovery, see Brazil, Improving Judicial Controls, supra note 3, at 906–8.Google Scholar

46 See Omnium Lyonnais D'Etancheite et Revetement Asphalte v. Dow Chem. Co., 73 F.R.D. 114, 119 (C.D. Cal. 1977).Google Scholar

47 See, e.g., McKinstry, supra note 11, at 227. Chesa Int'l, Ltd. v. Fashion Assocs., Inc., 425 F. Supp. 234 (S.D.N.Y. 1977) (court upheld imposition of sanctions by special master following defendant's failure to comply with master's productions order); Denton v. Mr. Swiss, 564 F.2d 236 (8th Cir. 1977) (special master imposed monetary sanctions for discovery failure, and eventually recommended dismissal of the complaint for failure to make discovery. The report and recommendations of the special master were adopted by the district court. The court of appeals held that the district court did not abuse its discretion, but remanded the case on other grounds). A recent, widely publicized example of a master's involvement in the sanctioning process occurred in W.T. Thompson Co. v. GNC, No. 78–3206 (C.D. Cal.). In that case, the master fined the defendant and its counsel $375,000 for “willfully destroying” relevant documents. The master also concluded that the defendant was in default and therefore dismissed its counterclaim. The defendant has appealed the master's decisions to the district judge to whom the case is assigned. See Granelli, James S., Gibson Dunn Fined in Document Destruction, Nat'l L.J., May 10, 1982, at 2, 27.Google Scholar

48 McKinstry, supra note 11, at 225.Google Scholar

49 Interview with Paul R. Rice, May 1982.Google Scholar

50 Geoffrey C. Hazard made this point in a letter to the author dated June 9, 1981.Google Scholar

51 A variation on this theme can be found in Coca-Cola Co. v. Int'l Tel. & Tel. Corp., 201 U.S.P.Q. 424 (N.D. Ga. 1978). A special master was assigned to reconcile numerous discovery disputes relating to the confidentiality of documents. The court noted that through this process, the special master would develop an expertise in this area generally and so ordered that any subsequent motion to compel would be automatically referred to the special master.Google Scholar

52 See Comment, supra note 10, at 800 n.139.Google Scholar

53 See, e.g., Dennis A. Kendig, Procedures for Management of Non-Routine Cases, 3 Hofstra L. Rev. 701, 716–18 (1975). One of the advantages lawyers ascribe to the “rent-a-judge” procedure in California is that it can result in more efficient trials because the litigants can arrange to have their case referred to a retired judge who has developed expertise in the relevant, specialized subject areas. See Christensen, Barlow F., Private Justice: California's General Reference Procedure, 1982 A.B.F. Res. J. 79, at 83–84.Google Scholar

54 See Hazard & Rice, supra note 17, at 389–95. One ground for objecting to a delegation of pretrial responsibility to a master is that the delegation deprives counsel of opportunities to educate the court about the case. See, e.g., McKinstry, supra note 11, at 215; Higginbotham, Patrick E., The Commission Recommendations Can Work, 48 Antitrust L.J. 475, 480 (1980); American College of Trial Lawyers, supra note 40, at 18–19. I assess this objection at pp. 349–52, 355 infra.Google Scholar

55 The Report on Volunteer Masters, N.Y., supra note 10, at 15, states that “many lawyers with whom we discussed the proposal were opposed to any effort that restricted their access to the Court itself. They pointed out that good lawyers use the pre-trial conference to attempt to educate the judges on the merits of the case and to get reactions that are useful in determining future strategy. The program, they claim, would interfere with this process.” I know of no one who advocates that special masters, instead of judges, preside over the final pretrial conferences in large lawsuits.Google Scholar

56 The thoughts expressed in this paragraph were inspired in part by conversations with Paul R. Rice.Google Scholar

57 Paul R. Rice is one of the sources of these views.Google Scholar

58 The likelihood of this kind of relationship developing between counsel and master probably increases if the lawyers have a voice in the process by which the master is selected. Of course, if one of the parties or lawyers feels that the master is biased in favor of his or her opponent, the master's presence will be counterproductive. See, e.g., Maurice A. Garbell, Inc. v. Boeing Co., 385 F. Supp. 1 (C.D. Cal. 1973).Google Scholar

59 See Hazard & Rice, supra note 17, at 393–96.Google Scholar

60 See, e.g., In re Gilbert, 276 U.S. 6, 9 (1928).Google Scholar

61 Vincent M. Nathan should be credited with raising the issue of which ethical rules are applicable to special masters. Nathan assumes that the ABA'S Code of Judicial Conduct is the relevant source of norms for the federal judiciary. As pointed out in the text, however, technically the appropriate source is the amended version of the Code of Judicial Conduct for United States Judges that was approved by the Judicial Conference of the United States in 1973 and amended in 1975. See 69 F.R.D. 273 (1976) (cited hereafter as Code). Nathan's very useful writing in this area focuses primarily on roles played by special masters in implementing decrees after trials. Nathan, supra note 10.Google Scholar

62 Code, supra note 61, Introduction, reports that the Judicial Conference version of the Code was “based upon the Code of Judicial Conduct approved by the American Bar Association” and that the language of the ABA'S Code was retained to the “extent possible.” See American Bar Association, Special Committee on Standards of Judicial Conduct, Code of Judicial Conduct (Chicago: American Bar Association, 1972).Google Scholar

63 Fed. R. Civ. P. 53 seems to contemplate the use of masters only during and after trial. Moreover, that rule explicitly declares that a “reference to a master shall be the exception and not the rule” and that in court-tried actions, “save in matters of account and of difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it.” The Supreme Court had made clear its hostility to frequent references of entire trials to masters well before the current codes of judicial conduct were drafted. See La Buy v. Howes Leather Co., 352 U.S. 249 (1957) and ABA Code, supra note 62.Google Scholar

64 Code, supra note 61, penultimate section, Compliance with the Code of Judicial Conduct. When the Judicial Conference adopted the Code in 1973 it explicitly declared that the “adoption of the Code will not restrict any functions or privileges accorded by statute or resolution of the Conference to part-time magistrates, part-time referees in bankruptcy or special masters.” Report of the Proceedings of the Judicial Conference of the United States held at Washington, D.C., April 5–6, 1973, at 10. While this declaration indicates that the Conference is aware that special exemptions for masters might be appropriate, I have found neither statutes nor resolutions of the Judicial Conference that would exempt masters who are serving during pretrial from the rules the Code would otherwise impose.Google Scholar

65 Code, supra note 61, Canon 3A.(4).Google Scholar

66 Id.Google Scholar

67 This inference is supported by due process restraints the Supreme Court has imposed on the issuance of temporary restraining orders ex parte; see, e.g., Wright & Miller, supra note 16, §§ 2951, 2952.Google Scholar

68 Hazard, Geoffrey C., Jr., made the same point in a letter to the author dated June 9, 1981. He wrote: “The chief advantage a special master can have is instant and continuous availability, owing to the fact that he is assigned to one case only and, presumably, gives that case highest priority.”.Google Scholar

69 Brazil, Views, supra note 3, at 245–51.Google Scholar

70 Brazil, Civil Discovery, supra note 3, at 862, 865–67. See also C. Ronald Ellington, A Study of Sanctions for Discovery Abuse, Federal Justice Research Program, Office for Improvements in the Administration of Justice, FJRP-79 1003, at 117–23 (Washington, D.C.: Department of Justice, 1979).Google Scholar

71 Brazil, Views, supra note 3, at 247.Google Scholar

72 Hazard & Rice, supra note 17, at 391–96.Google Scholar

73 See Kaufman, , Masters, supra note 10, at 467.Google Scholar

74 Hazard & Rice, supra note 17, at 391–96.Google Scholar

75 Id. at 390–94, 400, 411, 417–18.Google Scholar

76 United States v. American Tel. & Tel. Co., 86 F.R.D. 603 (D.D.C. 1979).Google Scholar

77 See, e.g., Philip M. Saeta, Letting a Little Sunshine into Appellate Decision Making, 20 Judge's J., Summer 1981, at 20.Google Scholar

78 Hazard & Rice, supra note 17, at 416–18.Google Scholar

79 This description of McKinstry's reactions to his experience as a special master is based in large part on telephone interviews of him. See also McKinstry, supra note 11, at 227.Google Scholar

80 Id.Google Scholar

81 See the sensitive exposition of this idea by Hazard & Rice, supra note 17, at 395–96.Google Scholar

82 See, e.g., Lane, Equity, supra note 10, at 295–97; Comment, supra note 10, at 790–91; Adventures in Good Eating, Inc. v. Best Places to Eat, Inc., 131 F.2d 809, 815 (7th Cir. 1942). Criticism of the use of masters in the English chancery courts has even more ancient roots. See, e.g., Kaufman, Masters, supra note 10, at 452–53 n.4, quoting Jeremy Bentham's vitriolic criticism of the English practice.Google Scholar

83 See, e.g., Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701 (1927); Note, Reference of the Big Case Under Federal Rule 53(b): A New Meaning for the “Exceptional Condition” Standard, 65 Yale L.J. 1057, 1059–63 (1956 Comment, supra note 10, at 789–91; Arthur T. Vanderbilt, Cases and Other Materials on Modern Procedure and Judicial Administration 1240–41 (New York: Washington Square Pub. Co., 1952).Google Scholar

84 Judge Charles E. Clark's criticisms of the use of masters, which focus on problems of delay, expense, and potential bias, would seem to apply to use of masters at any stage of a civil action. See Clark, supra note 11.Google Scholar

85 See, e.g., Kaufman, Masters, supra note 10, at 453 and accompanying notes; Comment, supra note 10, at 791; Adventures in Good Eating, Inc. v. Best Places to Eat, Inc., 131 F.2d 809, 815 (7th Cir. 1942).Google Scholar

86 For dated but graphic examples of substantial costs caused by referring responsibiity for the entire adjudicatory process, see Note, Reference of the Big Case, supra note 10, at 1060–61, esp. n.22. See also Clark, supra note 11, at 570.Google Scholar

87 Fed. R. Civ. P. 53(a) gives the appointing court discretionary authority to fix the rate (or amount) of the master's compensation, and at least one court has refused to approve compensation at the prevailing rate charged by attorneys in the area for commercial litigation. See Reed v. Cleveland Bd. of Educ, 607 F.2d 737 (6th Cir. 1979) (decree implementation). But our respondents indicated that in their experience, judges were inclined to approve hourly fees comparable to those the appointee normally would charge his or her clients. The Supreme Court has offered the following guidelines for courts setting the fees for masters who serve at the trial stage:. The value of a capable master's services cannot be determined with mathematical accuracy; and estimates will vary, of course, according to the standard adopted. He occupies a position of honor, responsibility, and trust; the court looks to him to execute its decrees thoroughly, accurately, impartially, and in full response to the confidence extended; he should be adequately remunerated for actual work done, time employed and the responsibility assumed. His compensation should be liberal, but not exorbitant. The rights of those who ultimately pay must be carefully protected; and while salaries prescribed by law for judicial officers performing similar duties are valuable guides, a higher rate of compensation is generally necessary in order to secure ability and experience in an exacting and temporary employment which often seriously interferes with other undertakings. Newton v. Consolidated Gas Co., 259 U.S. 101, 105 (1922). For cases approving substantial fees, as well as cases ordering reductions in the compensation requested by masters, see 9 Wright & Miller, supra note 16, § 2608 & nn. 67–69.Google Scholar

88 See the criticism of the role of masters in English chancery courts in the nineteenth century discussed in Kaufman, Masters, supra note 10, at 452 n.4. Hints of similar concerns are suggested in Wallace R. Lane's criticisms of the use of masters at the trial stage by American equity courts. See Lane, Equity, supra note 10, at 296–97 and Lane, Twenty Years, supra note 10, at 654–55, esp. n.51.Google Scholar

89 There are reported cases in which the fees masters generated while serving at the trial or subsequent stages have been ordered reduced. See cases cited in 9 Wright & Miller, supra note 16, § 2608.Google Scholar

90 In Reed v. Cleveland Bd. of Educ, 607 F.2d 737 (6th Cir. 1979), following dispute over the compensation of a special master, the court suggested that masters might submit monthly vouchers, so that parties will know the actual costs of the reference as they occur. Presumably, use of such a process would provide the parties with an opportunity to object to any unreasonable charges by the master.Google Scholar

91 Again, most such criticism has focused on the master serving at the trial stage. See Lane, Equity, supra note 10, at 296–97. Judge Clark expresses similar concerns about masters used in the pretrial period. See Clark, supra note 11, at 569.Google Scholar

92 The experiences as masters of Judges Robert M. Marsh and Philip J. McCook support this view. See Marsh, supra note 11, at 411.Google Scholar

93 Kaufman, Masters, supra note 10, at 468.Google Scholar

94 Id.Google Scholar

95 It is important to distinguish litigants' rights at the trial stage from their rights with respect to pretrial matters that do not significantly affect their capacity to litigate the merits of claims. While these distinctions require difficult exercises in line drawing in some situations, in many others the differences are clear and significant. Delegation of routine pretrial tasks presumably raises far fewer problems than would invasion of the parties' interest in trial before a judge. For concern about the latter problem, see Adventures in Good Eating, Inc., v. Best Places to Eat, 131 F.2d 809, 815 (7th Cir. 1942).Google Scholar

96 In U.S. Oil Co. v. Koch Ref. Co., 518 F. Supp. 957 (E.D. Wis. 1981), the court decided to appoint a special master to supervise the pretrial preparation of the case. The court acted in response to increasing animosity between the parties that was reflected in opposition to discovery requests. The fees and expenses of the special master were to be borne equally by the parties and limited to $75 an hour; and the prevailing party would not be permitted to include this expense as an element of recoverable costs. See also Omnium Lyonnais D'Etancheite et Revetement Asphalte v. Dow Chem. Co., 73 F.R.D. 114 (C.D. Cal. 1977), and First Iowa Hydro Elec. Coop. v. Iowa-Illinois Gas & Elec. Co., 245 F.2d 613 (8th Cir.), cert, denied., 355 U.S. 871 (1957).Google Scholar

97 Kaufman, Masters, supra note 10, at 453.Google Scholar

98 The scope of a poor citizen's constitutional right of access to the courts in civil matters has not been clearly delimited by the Supreme Court. See, e.g., the Court's different approaches to this issue in Boddie v. Connecticut, 401 U.S. 371 (1971), and United States v. Kras, 409 U.S. 434 (1973). A comprehensive exploration of the constitutional and statutory aspects of this question is beyond the scope of this essay.Google Scholar

99 See Fraver v. Studebaker Corp., 11 F.R.D. 94 (W.D. Pa. 1950). see also Woodward, Graffis v., 96 F.2d 329, 332 (7th Cir.), cert, denied, 305 U.S. 631 (1938); Parker Rust Proof Co. v. Ford Motor Co., 23 F.2d 502, 506 (E.D. Mich. 1928); Note, Reference of the Big Case, supra note 10, at 1061–62 & nn.23, 24.Google Scholar

100 Note, Reference of the Big Case, supra note 10, at 1061 & n.24.Google Scholar

101 See Fed. R. Civ. P. 54(d); Cal. Civ. Proc. Code § 1032.Google Scholar

102 See, e.g., Annual Report of the Director of the Administrative Office of the United States Courts, 1978, at 196 & app. I, table C4 (Washington, D.C.: Government Priming Office, [1978]).Google Scholar

103 Apparently many poor litigants would be unwilling to risk such liability, even though they probably would be judgment proof.Google Scholar

104 See, e.g., Omnium Lyonnais D'Etancheite et Revetement Asphalte v. Dow Chem. Co., 73 F.R.D. 114, 120 (C.D. Cal. 1977).Google Scholar

105 See Fed. R. Civ. P. 53(a). In Adventures in Good Eating, Inc. v. Best Places to Eat, 131 F.2d 809, 814–15 (7th Cir. 1942), the court of appeals ruled that the party who petitioned the trial court to appoint a master had to bear the entire cost of the master's services when the opposing party objected to the reference and the trial court abused its discretion when it ordered the reference.Google Scholar

106 See, e.g., Chesa Int'l, Ltd. v. Fashion Assocs., Inc., 425 F. Supp. 234 (S.D.N.Y. 1977).Google Scholar

107 Fed. R. Civ. P. 53(a) provides, inter alia, that “when the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party.”.Google Scholar

108 Omnium Lyonnais D'Etanchiete et Revetement Asphalte v. Dow Chem. Co., 73 F.R.D. 114, 120 (C.D. Cal. 1977).Google Scholar

109 This description of the fee arrangement is based on telephone interviews of Judge Harold H. Greene, special master Paul R. Rice, and counsel for the parties to the action.Google Scholar

110 Arguments along these lines have been made in attacks on the “Rent-a-Judge” procedure that enables parties with sufficient resources to by-pass the entire system of public adjudication. See, e.g., Christensen, supra note 53, at 90–96; ‘Rent-a-Judge’ Still Generates Conflict, Cal. Law., Feb. 1982, at 17; and Note, The California Rent-a-Judge Experiment: Constitutional and Policy Considerations of Pay-as-You-Go Court, 94 Harv. L. Rev. 1592, 1601–10 (1981).Google Scholar

111 The Supreme Court might well view a system that permitted litigants to hire masters not as an interference with any rights of less wealthy litigants but simply as governmental encouragement of an alternative form of behavior that conforms to government's legitimate policy preferences. If the Court so viewed the matter, it would hold that the permissive use of masters did not even implicate equal protection interests. Cf. Harris v. McRae, 448 U.S. 297 (1980); Maher v. Roe, 432 U.S. 464 (1977).Google Scholar

112 Cf. Scott v. Illinois, 440 U.S. 367 (1979); Argersinger v. Hamlin, 407 U.S. 25 (1972); Goldberg v. Kelly, 397 U.S. 254 (1970); and Ortwein v. Schwab, 410 U.S. 656 (1973).Google Scholar

113 See, e.g., Fed. R. Civ. P. 53 and Cal. Civ. Proc. Code §§ 639, 645.1.Google Scholar

114 See, e.g., Dandridge v. Williams, 397 U.S. 471 (1970); San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1 (1973).Google Scholar

115 See, e.g., Maher v. Roe, 432 U.S. 464 (1977).Google Scholar

116 See Washington v. Davis, 426 U.S. 229 (1976); Village of Arlington Heights v. Metropolitan Hous. Dev. Corp. 429 U.S. 252 (1977).Google Scholar

117 Personnel Administrator v. Feeney, 442 U.S. 256 (1979).Google Scholar

118 For an interesting review of the due process and equal protection objections to California's procedure for referring trials of civil actions to retired judges, see Christensen, supra note 53, at 90–93. Christensen concludes that the California reference procedure does not offend either the due process or the equal protection clause of the United States Constitution; but because that procedure is consensual and involves trials rather than discovery, we cannot assume that Christensen's analysis resolves the constitutional questions raised in the text. A student writer in the Harvard Law Review has concluded that the California reference procedure offends the equal protection clause and might offend the due process clause and the First Amendment. Note, supra note 110, 1601–10. Christensen, however, finds this student's arguments strained and, ultimately, unpersuasive.Google Scholar

119 Adventures in Good Eating, Inc. v. Best Places to Eat, Inc., 131 F.2d 809, 815 (7th Cir. 1942); Clark, supra note 11, at 569–70; Comment, supra note 10, at 791.Google Scholar

120 Lane, Equity, supra note 10, at 296–97.Google Scholar

121 Cf. Clark, supra note 11, at 569–70; Note, Reference of the Big Case, supra note 10, at 452–53 n.4.Google Scholar

122 See, e.g., United States v. American Tel. & Tel. Co., 86 F.R.D. 603 (D.D.C. 1979).Google Scholar

123 See also McKinstry, supra note 11, at 214.Google Scholar

124 See, e.g., In re Murphy, 560 F.2d 326 (8th Cir. 1977) (panel of three masters appointed due to extensive number of documents); Kyriazi v. Western Elec. Co., 465 F. Supp. 1141 (D.N.J. 1979) (class action suit involving thousands of claims of class members; three masters appointed to rule on these claims and to resolve discovery disputes arising out of efforts to fix the amounts involved).Google Scholar

125 See United States v. AT&T, 461 F. Supp. 1314.Google Scholar

126 See Report on Volunteer Masters, N.Y., supra note 10, at 9 n.7.Google Scholar

127 See United States v. AT&T, 461 F. Supp. at 1320, n.15 (reporting that the order of reference “directed that any matter upon which the Special Masters could not agree would be submitted to the Court for resolution.”).Google Scholar

128 Id. t 1343. See also Hazard & Rice, supra note 17, at 384–87.Google Scholar

129 See Clark, , supra note 11, at 570.Google Scholar

130 See, e.g., American College of Trial Lawyers, supra note 40, at 18; Lane, Equity, supra note 10, at 296 and n.74; cf. Report on Volunteer Masters, N.Y., supra note 10, at 15–16. In one case, after some three years of discovery disputes, the court dismissed a master who had been appointed by agreement of the parties. The court felt that allowing the case to continue before the master would result in the parties' misuse and exploitation of the special master process. See Xerox Corp. v. IBM Corp., 75 F.R.D. 668 (S.D.N.Y. 1977).Google Scholar

131 See Kaufman, , Masters, supra note 10, at 464, 466, 468, & n.77; Marsh, supra note 11, at 403–5; United States v. AT&T, 461 F. Supp. at 1320 n.15, 1348–49. But see Omnium Lyonnais D'Etancheite et Revetement Asphalte v. Dow Chem. Co., 73 F.R.D. 114, 119–20 (C.D. Cal. 1977).Google Scholar

132 Cf. Report on Volunteer Masters, N.Y., supra note 10, at 15–17. But see McKinstry, supra note 11, at 226–27, and note 137 infra.Google Scholar

133 Kaufman, Masters, supra note 10, at 468.Google Scholar

134 Cf. McKinstry, supra note 11, at 227.Google Scholar

135 Cf. id.Google Scholar

136 One district judge, in appointing a special master pursuant to Federal Rules of Civil Procedure 53, granted the master all powers allowed by Federal Rule 53, and all powers necessary to effectuate Federal Rules 26–37, and 45(a)-(d). Omnium Lyonnaise D'Etancheite et Revetement Asphalte v. Dow Chem. Co., 73 F.R.D. 114 (C.D. Cal. 1977).Google Scholar

137 There are a few reported cases in which masters were authorized to impose or recommend sanctions; see, Denton v. Mr. Swiss, 564 F.2d 236 (8th Cir. 1977); Chesa Int'l, Ltd. v. Fashion Assocs., Inc., 425 F. Supp. 234 (S.D.N.Y. 1977); Fisher v. Harris, Upham & Co., 61 F.R.D. 447 (S.D.N.Y. 1973).Google Scholar

138 Fed. R. Civ. P. 53(c) describes a master's powers in the following general terms: (c) Powers. The order of reference to the master may specify or limit his powers and may direct him to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master's report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. He may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may himself examine them and may call the parties to the action and examine them upon oath. When a party so requests, the master shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in Rule 43(c) for a court sitting without a jury. It is not at all clear that the language that declares that a master may have “the power to regulate all proceedings … before him and to … take all measures necessary … for the efficient performance of his duties” was intended to authorize delegation of the court's power to sanction. Section (d)(2) of Federal Rule 53 describes consequences that can ensue for witnesses who fail, without adequate excuse, to appear or give evidence in proceedings before a master:. (2) Witnesses. The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas as provided in Rule 45. If without adequate excuse a witness fails to appear or give evidence, he may be punished as for a contempt and be subjected to the consequences, penalties, and remedies provided in Rules 37 and 45. It is not likely that this provision contemplates anyone other than a judge wielding the powers described. The statute that governs proceedings before federal magistrates, who are public employees, makes it clear that magistrates are not empowered to find parties or litigants in contempt of court. See 28 U.S.C. 636(e) (1976). See also Advisory Committee on Civil Rules of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure, Note to Proposed Rule 73(a) (June 1981) (cited hereafter as Advisory Committee, Proposed Amendments).Google Scholar

139 Cf. Report on Volunteer Masters, N.Y., supra note 10, at 16, where the Committee on Federal Courts reports being “dubious whether [authority to sanction] can or should be given to Volunteer [unpaid] Masters in the program. It is difficult, for example, to predict what sanctions would work or how they should be authorized. Even if a statute or local rule were to be proposed, it would not comport with the ‘voluntary,’ consensual nature of the program. Moreover, if a statute or local rule gave the Volunteer Master authority to impose sanctions in the absence of consent by the parties, it would also have to provide a hearing to confirm sanctions and thus would undermine one of the very purposes of the Volunteer' Master program—helping the judge reduce his or her calendar workload.” As I discuss in the text, at pp. 344, 347–50 infra, it is not clear that parties or counsel would routinely appeal sanctions imposed by masters, especially if the sanctions were confined to financially compensatory awards and the standard applied by the trial court in reviewing the awards was the “clearly erroneous or contrary to law” standard applicable to review of nondispositive discovery rulings by magistrates. See 28 U.S.C. 636(b)(1)(A) (1976). See also Citicorp v. Interbank Card Ass'n, 87 F.R.D. 43 (S.D.N.Y. 1980).Google Scholar

140 But see Report on Volunteer Masters, N.Y., supra note 10, at 15 n.10 where the Committee on Federal Courts expresses its strong opposition to “any practice by which the Volunteer Masters would report to the court on the progress or obstinacy of the litigants or the merits of the litigation, without full notice to the parties.” Since a master's reports about alleged misbehavior or about substantive issues could affect the court's thinking about more severe sanctions or about the merits of an action, fairness would seem to require that any such reports be in writing and delivered to all parties at the time they are submitted to the court. By contrast, a master should be free to report privately to the judge about mechanical and procedural matters, e.g., about how certain discovery events are being handled and what percentage of contemplated discovery has been completed.Google Scholar

141 Fed. R. Civ. P. 37(b), for example, empowers federal trial courts to order designated facts “established for the purposes of the action,” or to limit a party's ability to introduce designated evidence, or to strike parts of pleadings, or to dismiss an entire action. There is one reported case in which a special master recommended in his final report, inter alia, that the complaint be dismissed for failure to make discovery. The district court adopted this recommendation, which was affirmed by the circuit court (the case was remanded on other grounds). Denton v. Mr. Swiss, 564 F.2d 236 (8th Cir. 1977). See also note 47 supra.Google Scholar

142 28 U.S.C. § 636(b)(1)(A) (1976) creates a presumption in favor of certain nondispositive pretrial rulings by United States magistrates. But since magistrates are public employees, one cannot simply assume that because a power may be delegated to a magistrate it also may be delegated to a special master.Google Scholar

143 To avoid the appearance of unfairness (and due process problems), the order should make it clear that the master will not report his or her perceptions of the merits of substantive claims; instead, the master's report will focus on how the case is progressing procedurally, how close it is to being ready for trial, etc.Google Scholar

144 Cf. Report on Volunteer Masters, N.Y., supra note 10, at 14–15.Google Scholar

145 See also McKinstry, supra note 11, at 6; Marsh, supra note 11, at 411–12; Kaufman, Masters, supra note 10, at 467–68; Hazard & Rice, supra note 17, at 401–2 & n.50.Google Scholar

146 In addition to courts' inherent authority to control proceedings before them and the powers conferred by Fed. R. Civ. P. 37, courts can invoke 28 U.S.C.A. § 1927 (West Cum. Supp. 1982) as a source of authority to sanction. That statute reads: “Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiousy may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct.”.Google Scholar

147 Cf. American College of Trial Lawyers, supra note 40, at 18.Google Scholar

148 Marsh, supra note 11, at 411.Google Scholar

149 See, e.g., Annual Report, supra note 102, at 196 & app. I, table C4.Google Scholar

150 Cf. Steven Flanders et al., Case Management and Court Management in United States District Courts, at 37–39 (Washington, D.C.: Federal Judicial Center, 1977), where the authors suggested that a significant expenditure of judicial resources in settlement negotiations might not repay the effort.Google Scholar

151 La Buy v. Howes Leather Co., 352 U.S. 249, 256 (1957); Comment, supra note 10, at 793–94.Google Scholar

152 Also see Wilver v. Fisher, 387 F.2d 66 (10th Cir. 1967). The appellate court felt that reference by the trial court to a special master to supervise answers to interrogatories was inappropriate. “The order of reference here borders on an abdication of the judicial function and is not justified by the record.”Id. at 69.Google Scholar

153 See Puro et al., supra note 10, at 445.Google Scholar

154 Id.Google Scholar

155 See Brazil, , Improving Judicial Controls, supra note 3, at 885–86.Google Scholar

156 Cf. Advisory Committee on Civil Rules, Proposed Amendments, supra note 138, Proposed Rule 16 and accompanying note.Google Scholar

157 Recent empirical studies support the view that courts can significantly affect the pace of case development by setting firm deadlines for the close of discovery and for trial. See, e.g., Larry L. Sipes et at., Managing to Reduce Delay 37–38, 47–53 (Williamsburg, Va.: National Center for State Courts, 1980); Flanders et al., supra note 150.Google Scholar

158 It is important to distinguish litigants' interests in having a judge perform nondispositive pretrial functions from their interest in having a judge preside at trial. The federal magistrate's act makes it clear that, at least in Congress' view, litigants have no “right” to have a judge perform nondispositive pretrial functions. See 28 U.S.C. § 636(b)(1)(A) (1976). By contrast, “[l]itigants are entitled to a trial by the court, in every suit, save where exceptional circumstances are shown.” Adventures in Good Eating, Inc. v. Best Places to Eat, Inc., 131 F.2d 809, 815 (7th Cir. 1942).Google Scholar

159 But see American College of Trial Lawyers, supra note 40, at 18, where the authors simply declare, without supporting citation, data, or argument: “Perhaps the greatest danger caused by use of masters and magistrates in the conduct of discovery in complex litigation is that their use will prevent the trial judge from attaining a sufficient degree of familiarity with the case to enable him either to conduct the trial efficiently or to serve as an effective catalyst in bringing about a settlement.” None of the judges we interviewed who had delegated substantial pretrial responsibilities to masters or magistrates reported any such difficulty. Even in the massive United States v. AT&T, 461 F. Supp. at 1347–49, the judge did not feel that the roles played by the masters and magistrates compromised his ability to preside at the trial. Nor did counsel in this matter report any such complaints.Google Scholar

160 But see Report on Volunteer Masters, N.Y., supra note 10, at 15, where the Committee on Federal Courts reports that many lawyers seemed to assume that the appointment of a master would restrict “their access to the court itself.”.Google Scholar

161 The Committee on Federal Courts reported that the lawyers who feared that the appointment of a volunteer master would restrict their access to the court “pointed out that good lawyers use the pre-trial conference to attempt to educate the judges on the merits of the case and to get reactions that are useful in determining future strategy.”Id.Google Scholar

162 Cf. Marvin E. Frankel's description of the dynamic between court and counsel in Partisan Justice, ch. 4, The Adversary Judge (New York: Hill & Wang, 1980).Google Scholar

163 Cf. La Buy v. Howes Leather Co., 352 U.S. 249 (1957) (reference of entire proceedings, including trial itself).Google Scholar

164 Lane, Twenty Years, supra note 10, at 652 n.37.Google Scholar

165 See, e.g., Note, supra note 110, at 1611–12, and authorities cited in nn.105-12. Hazard and Rice obviously combined both of the mind sets described in the text in their work as masters in the AT&T litigation. See Hazard & Rice, supra note 17, at 389–96, 416–18.Google Scholar

166 While La Buy v. Howes Leather Co., 352 U.S. 249 (1957), makes it clear that Federal Rule 53 prohibits judges from routinely referring complex cases to masters for trial, some courts and commentators have taken the view that neither Federal Rule 53 nor La Buy prevent references of pretrial responsibilities in big cases. See First Iowa Hydro Elec. Coop. v. Iowa-Illinois Gas Elec. Co., 245 F.2d 613 (8th Cir.), cert, denied, 355 U.S. 871 (1957); cf. Kaufman, Masters, supra note 10, at 465.Google Scholar

167 See Adventures in Good Eating, Inc., v. Best Places to Eat, Inc., 131 F.2d 809, 815 (7th Cir. 1942); Comment, supra note 10, at 796 & n.112.Google Scholar

168 Comment, supra note 10, at 796 & n.112.Google Scholar

169 Cf. Morgan v. Kerrigan, 530 F.2d 401 (1st Cir. 1976) (masters appointed to assist in implementation of decree challenged on grounds of bias).Google Scholar

170 Judge Charles E. Clark expressed a similar concern some 25 years ago in the following words:. Finally there is the very important point of bias. Here I do not mean anything so crude as some undue favoritism to individuals. I mean something much deeper and more subtle, a frame of mind or perhaps even a social attitude or way of thought and life. When a lawyer becomes a judge he must and will do everything he can to disabuse himself of his predispositions and to become as fair as he can force himself to be. But how can a lawyer be expected to change his entire mental habits and convictions only for the hours or days of each adjourned hearing? Take an admiralty lawyer on ship valuations against his perpetual opponent, the government, or a company lawyer dealing with an alleged improper labor practice; it is no proper criticism of either their loyalty or good faith to say that they cannot have—or at least cannot be thought to have—the impartiality of a judge. That is why we give the judge the security of life tenure which the ad hoc master cannot have. But are not the parties entitled to the best endeavors of the public magistrates whose job in life it is to render impartial judgments and deserving of not being relegated to the services of a lawyer who, however high grade, has the real job in life of representing distinguished private clients?. Clark, supra note 11, at 570.Google Scholar

171 Cf. Maurice A. Garbell, Inc. v. Boeing Co., 385 F. Supp. 1 (C.D. Cal. 1973) (plaintiff objected to appointment of lawyer as special master, and discovery problems continued despite the master's presence).Google Scholar

172 Cf. Heine, John P. & Laumann, Edward O., The Legal Profession: Client Interests, Professional Roles, and Social Hierarchies, 76 Mich. L. Rev. 1111 (1978);Laumann, Edward O. & Heinz, John P., The Organization of Lawyers' Work: Size, Intensity, and Co-Practice of the Fields of Law, 1979 A.B.F. Res. J. 217.Google Scholar

173 United States v. Lewis, 308 F.2d 453, 457 (9th Cir. 1962) (despite its characterization of the weight of the presumption against bias, the court held that two commissioners did not have to be disqualified even though they had been associated in the past with the experts who were testifying before them).Google Scholar

174 513 F.2d 375, 380 (5th Cir. 1975).Google Scholar

175 Code, supra note 61, Compliance with the Code of Judicial Conduct, at 286.Google Scholar

176 Code, supra note 61, Canon 3C.(1)(a).Google Scholar

177 Id. Canon 3C.(1)(b).Google Scholar

178 Id. Canon 3C.(1)(c).Google Scholar

179 Id. Canon 3C.(1).Google Scholar

180 But see Nathan, supra note 10, at 458, who observes that the Code does not squarely confront this issue and who seems unsure whether it would compel disqualification.Google Scholar

181 Brazil, Views, supra note 3, at 240–43.Google Scholar

182 Code, supra note 61, Canon 5B.(2).Google Scholar

183 Id. Canon 5C.(4).Google Scholar

184 Id. Canon 7.Google Scholar

185 For an example of the potential problems in this area, see Wood v. McEwen, 644 F.2d 797 (9th Cir. 1981). A part-time U.S. magistrate was appointed as a special master to supervise discovery, following some two years of pretrial problems in an action alleging copyright infringement, antitrust violations, and defamation. The problems continued, and the matter was eventually dismissed with prejudice. Plaintiff's subsequent effort to set aside the dismissal was based in part on the contention that because the master was a member of a local chamber of commerce he suffered from conflict of interest. The circuit court affirmed the district court's dismissal of the action.Google Scholar

186 See Chapper & Nejelski, supra note 10, at 15.Google Scholar

187 Nathan, supra note 10, at 458.Google Scholar

188 Id.Google Scholar

189 The Preface lo the ABA'S Code of Judicial Conduct indicates that the Code was drafted between 1969 and 1972. The Judicial Conference of the United States adopted most of the ABA'S version of the Code in 1973. See note 61 supra.Google Scholar

190 Cf. E. Donald Elliott, Statement Before the Standing Committee on Rules of Practice and Procedure, Washington, D.C. (Oct. 16, 1981) (this provocative and thoughtful essay is available from Professor Elliott, Yale Law School).Google Scholar

191 See Brazil, , Improving Judicial Controls, supra note 3, at 909–10 & n.122; McKinstry, supra note 11, at 221–22.Google Scholar

192 See Hazard & Rice, supra note 17, at 405–10.Google Scholar

193 Our interview data suggest that this risk is large in big cases: about half of such matters are settled with at least one lawyer believing that his or her opponents have failed to discover something significant. Brazil, Civil Discovery, supra note 3, at 812.Google Scholar

194 See Fisher v. Harris, Upham & Co., inc., 61 F.R.D. 447, 449 (S.D.N.Y. 1973).Google Scholar