I was recently appointed Special Master (also known as Special Arbitrator) to oversee any pre-trial discovery in a matter pending before the Supreme Court of the State of New York in the First Department pursuant to law and Civil Practice Rules (CPLR) 3104(b). The litigation had been quite contentious prior to my appointment.
There had been several court motions related to discovery issues leading up to my assignment. The parties clearly had trouble agreeing on anything and were barely civil to each other. They simply could not agree even on fundamental issues. We felt the animosity, the exchanges between lawyers were palpable. I now understand why the presiding judge felt the need to appoint a special master. He simply did not have the time or the resources to push the case through to full discovery and put the case on the trial schedule. As such, I was responsible for adjudicating on all outstanding discovery issues, as well as all future inquiries regarding discovery as they arose.
Down to business
After receiving my pre-pandemic assignment, I was tasked with reviewing the order of appointment. I went through the case file and the trial transcripts, after which I conferred with the presiding judge to review any additional details and nuances about the case that he might have been aware of.
With both sides clearly at odds, I set out to bring the parties to agreement on the discovery issues, even though initial attempts had failed through countless teleconferences and face-to-face meetings. Then the pandemic hit and all conferences went virtual.
Again, I attempted to negotiate a settlement, but quickly realized that would not be feasible. I returned to my original mission with the aim of bringing the parties to agreement on some of the exceptional discoveries. Many of these efforts ended in an impasse in which I rendered decisions. Eventually, all the document discovery was done successfully.
Then, I supervised the virtual depositions of each party and rendered decisions during pre-trial examinations (EBT). There was one post-EBT discovery that the parties could not agree on, and again, I made an order regarding the disputed post-EBT discovery. While awaiting my appointment, there was a practice of substantive motions decided by the presiding judge, as these matters were beyond the scope of my appointment. Once the issue note was filed, my date was essentially over.
Throughout the proceedings, I found it beneficial to speak with the assigned judge and keep him informed of the progress of the litigation. Also, in many cases, a Special Master may be asked to return after the issue note, due to newly discovered issues that may have surfaced or to handle other issues.
In reflecting on my role as a special master, my experience as a former judge and as a mediator has clearly been put to good use. My knowledge of the law, in particular article 31 of the CPLR, enabled me to take the necessary decisions. And despite the visible enmity between the two parties, my mediation skills were essential in bringing the parties together and bringing them to agree on many points, when initially they refused to do so. In fact, many of the sessions mirrored mediation, but were of course limited to the discovery elements involved. When the parties could not agree and a compromise could not be reached, my legal experience was used to draft the appropriate order.
State and Federal Rules
In state court, the appointment of a special master/arbitrator is guided by CPLR §3104(b). In federal court, the arbitrator may be appointed pursuant to Rule 53 of the Federal Rules of Civil Procedure (FRCP). Under both Acts, the appointment can be made on consent or by order of the court by motion or on the initiative of the court. Whether the appointment is in state or federal court, the essential purpose of the appointment is for the Special Master to assist the court and the parties in overseeing and resolving all discovery issues and moving a case forward. complex civil lawsuit. These broad powers may be modified by the decree appointing the Arbitrator.
The parties are also allowed to stipulate that an appointed lawyer acts as a special master. They are authorized to issue orders on the discovery of documents, resolve claims of privilege, conduct in camera inspections, oversee depositions, and rule on objections raised to EBTs. Obviously, the appointed arbitrator must have no conflict of interest with any party or attorney involved in the case, and both parties must include a retainer for payment to the arbitrator.
Once chosen, the Special Master has all the powers of the court, except for holding someone in contempt, removing them from office, or appointing a successor arbitrator. There may be instances where the tribunal or the parties ask the Special Master/Referee to handle other matters beyond discovery, but this must be specifically stated in the Order of Appointment. Finally, while a judicial hearing officer (JHO) can also serve as an arbitrator, the court system has essentially cut the JHO program.
Personal takeaway meals
In my role as special master, I devoted myself exclusively to the case. My schedule was flexible and I was able to devote time, energy and attention to a complex case, unlike a Supreme Court justice. In addition, the lawyer was able to reach me by phone, text or email at any time, day or night. I was able to deal with issues as they arose and if needed a video conference could be arranged the same day at their request.
We are all well aware of the effect the pandemic has had on the legal profession and the courts, and while some of the restrictions have been eased, the courts are still ‘catching up’ with the backlog of cases that are s has been produced in the past two years. . A special master can help move these cases forward and can reduce the burden on the judge handling the case as well as save litigants time and money. And if the parties agree, the role of the Special Master can be expanded to include fact-finding, mediating a settlement, or even a specific issue, such as insurance coverage. Essentially, the use of a special master is a win-win situation for the court, the lawyer and all parties involved.
As for my experience, it was extremely gratifying to know that I was able to help the parties reduce the clutter of discovery and help them reach a mutually agreed resolution.
Larry S. Shachner is a member of the National Arbitration and Mediation (NAM) Panel of Hearing Officers and is available to arbitrate and arbitrate cases throughout the United States. He is a retired Bronx County Supreme Court Justice and served for nearly 20 years.