Private Judging

Private Judging FAQs

1. What is private judging?
In private judging, you and your spouse, with the assistance of your attorneys, agree to use a private family law specialist as a judge instead of whoever your case is assigned to at court. You can set the timetable which is right for your case, and select an individual whose qualifications fit the issues presented. You can be assured of the expertise of the judge who will decide your legal issues, and can set aside as much time as is required to present all of the important evidence.

2. How do I know if private judging is right for me?
We have developed a whole series of questions which will help you make that determination. [Click Here to Review Questions]

3. How is private judging different from mediation?
Although a private judge will work with you to settle your case (if appropriate), the judge retains the final power to make orders. That means that if, after conducting a settlement conference, you and your spouse are still unable to agree, the judge will have a hearing and make the order based on the law and the facts. In mediation, you and your spouse work with a neutral mediator in a confidential setting to resolve your differences. As a result, you are fee to craft unique solutions to your legal problems which might not be available at court. This gives you greater latitude to design a solution which works for you, whether or not it is something the judge would be able to order. Click here if you would like to learn more about mediation. Mediation is confidential in California,
while court proceedings are not.

4. Is the private judge’s order binding?
Yes. Private judging isn’t a preliminary finding, or informal opinion which you must then “confirm” by going back to court. The private judge’s ruling is just as binding
and enforceable as any Superior Court judge’s. That’s why it is important to find out about your judge, [Click Here for Judge Bios] and make an informed decision.

5. How is a private judge different from a referee or special master?
California law provides that judges can appoint either referees or special masters to investigate specific issues or claims and report back to the court. Special  masters and referees are not judges and do not have authority to make binding orders. Instead, they investigate the issues which have been assigned to them, and make recommendations to the judge, who is then free to accept, reject, or modify the recommendations in making a final order. By contrast, a private judge has all of the authority of a Superior Court judge, and the orders are final, enforceable and appealable.

6. What is the source of the private judge’s authority and power?
Some states do not allow private judging. However, the California Constitution has a specific provision which allows litigants to choose to take their case to a private  judge, so long as the private judge has the qualifications to serve as a judge in a public court. When parties agree to a specific private judge, a Stipulation for Appointment is signed by all parties and their attorneys, and the private judge. It is then sent to the Presiding Judge of the county where the case is pending. When the Presiding Judge signs the order, the private judge has all of the powers of a sitting Superior Court judge for that case only. It is always done on a case by case basis.

7. Does the same law apply in private judging as at court?

Yes. Just like the judges at the courthouse, your private judge must sign an oath of office which promises to uphold the Constitution and laws of the State of  California. The private judge is no more able to make up the law, or change it if s/he doesn’t like it, than the judges at the courthouse. The benefits of private judging are the specialized expertise of the judge, expediency, cost-effectiveness, timeliness, and privacy, not in obtaining a result which does not follow the law. That’s why it is important to have a private judge who not only has significant family law experience, but who also keeps up on recent developments in the law.

8. Do the same rules apply as in court?
Private judging can be as formal or informal as you wish. Unlike at court, you and your spouse and the private judge can agree to limit the technical rules of  evidence or procedures. You can agree to present your case in narrative form, rather than proceeding by direct or cross examination. You can elect to have your attorneys tell the judge your story, in the form of an “offer of proof,” if you like. Of course, unless you both agree, all of the same laws and rules will apply in private  court as in public.

9. Why would I choose a private judge over a public one?
In addition to the efficiency and cost effectiveness of the private judging approach, and the ability to choose the right judge for your case, you can be assured of the experience and expertise of your judge. Very few public family law judges are certified as Family Law Specialists by the State Bar of California. Judge Pearce is a member of the first class of Certified Specialists, and has been certified since 1980. Judge Talia has been certified since 1985. Both have many more years of  experience in litigating the kinds of family law cases which are presented to them than most public family law judges.

10. How does the private judge get paid?
Private judges charge by the hour for their time. Generally, the private judge is paid from the community estate, with each party paying one-half of the cost “subject to allocation.” That means that the judge might decide later to allocate more of the cost to one side or the other. Common reasons for reallocation would be if the judge concludes that one side has unreasonably increased the cost of the litigation, or if one side has significantly more assets or income than the other, such that it would be unfair not to do so. Sometimes, when one side appears to have significantly greater assets than the other, that party will advance the judge’s fees, again “subject to allocation” if the judge ascertains that it would be fair to do so. The private judge will ask for a deposit to be placed in a trust account, to be drawn against as the case proceeds and time is expended on your case. If the case goes on for a while, you may be asked to replenish the original deposit. That it why it is especially important that you prepare carefully and make the best use of the private judge’s time. The judge will work with you on this by doing “case management.”

11. What is “case management?”
Sometimes the cost of litigation is driven higher than it should be because it isn’t clear what part of the case you should be prepared for at a particular time. Sometimes parties can’t agree on what information they need to have (“discovery”) before proceeding with a particular hearing. Private judges generally have much more time and flexibility to manage cases than judges at the courthouse, and case management is one of the most cost-effective and efficient ways to use a private judge, even if the ultimate trial is going to be at the public court. The private judge will ensure and oversee the flow of information, the order of hearing, the manner in which evidence is presented, and generally make sure that each side knows what they need to do, and has what they need to have, to effectively present their case. This means that time at court is used efficiently, and you aren’t paying attorneys to prepare the same issue or evidence more than once. Case management is often done by conference telephone call, which is an extremely efficient and cost effective method. If there are enough issues or complexity requiring management, they may set a “case management status conference.” These conferences almost always pay for themselves many times over in preventing overlapping or duplicate attorney fees, and making sure that each attorney knows exactly what they do (and do not) need to prepare for.

12. Will the private judge conduct a settlement conference?
Most courts require that parties attend a mandatory settlement conference supervised by the judge before going to trial. The purpose is to give people assistance in settling their case before they are exposed to the cost and potential trauma of a contested trial. While you can waive a settlement conference if you and your spouse are convinced that you are so far apart in your positions that it would be a waste of time and money, you should seriously consider trying to settle before going to trial. A good settlement judge can often assist you in finding middle grounds and creative solutions that you didn’t anticipate. Most attorneys and judges will tell you that trial is a last resort, and should only be used if you have truly exhausted all settlement efforts.

13. How is a settlement conference with a private judge different from a settlement conference at court?
If you have a settlement conference at the court, you rarely get to see the judge personally. More likely, there will be several cases set for settlement conference on a particular day. You will each wait your turn to see the judge. When your turn comes, your attorneys (not you) will go into chambers to see the judge and discuss settlement options. Your attorneys will then come out and report to you while the judge meets with attorneys on another case. Many litigants object to this process because they are excluded from the proceeding at a critical stage in their case. They don’t get to hear what their attorney and the opposing attorney say to the judge. In private judging, you get to talk directly to the judge. You get to hear your attorney tell the judge why you think there should be a particular result. You then get to hear the judge’s reaction first hand rather than through your attorney. You can also tell the judge your story in your own words, and not through someone else.

14. What is a “caucus” settlement conference?
Judges at the public courthouse rarely conduct “caucus” settlement conferences, although they are common in private judging. A caucus simply means that the judge meets privately with each side of the case, with you and your attorney, and then with the other party and their attorney. This is only done by agreement, because it is a specific exception to the rule that the judge cannot have individual (ex parte) contact with one side outside of the other’s presence. Sometimes you will be more free to state your position if the other side isn’t listening. The judge can tell you where weaknesses are perceived in your case without alerting the other side to them. That allows you to negotiate a settlement where you give up something you are likely to lose anyway in exchange for something else. Many litigants find this procedure very helpful and conducive to settlement. Be aware, however, that this isn’t an opportunity to give the judge information which you couldn’t present at trial. If the caucus doesn’t result in a settlement and the case goes to trial, the judge must base the decision solely on the admissible evidence at trial, not on what someone told them in a settlement conference. Judges are used to ignoring information which is inadmissible because it violates a rule of evidence.

15. How do I choose a private judge?
Private judges are always selected by agreement of the parties. One side may not impose a private judge on the other. You should find out as much about your  prospective private judge as possible. What is his/her background? What kinds of legal issues did they specialize in when they were in practice? What is their familiarity with the specific issues presented by your case? Has your attorney worked with this private judge before? What about the other attorney? Private judges are required to disclose whether they have worked with either attorney on a case within two years of accepting an assignment. Also, private judges are bound by the same ethical rules and disclosures as judges at the courthouse, and may not take cases where they have a conflict of interest. They must decline to hear cases where they feel then cannot be impartial.

16. What kinds of legal issues can we bring to Judges Talia and Pearce?

Both of them are Certified Family Law Specialists, and both have extensive experience in all phases of family law litigation.

These include:
a. Property characterization, valuation and division;
b. Business valuation issues;
c. Tracing separate property claims;
d. Stock options, pension rights, and other employee benefits;
e. Child custody and access;
f. Child support orders, collection and enforcement;
g. Spousal support orders, collection and enforcement;
h. Determining the validity and interpreting premarital agreements;
i. Domestic partnerships;
j. Parentage;
k. Attorney fees and litigation costs;
l. All other aspects of family law litigation.

17. If I want a private judge and my spouse doesn’t, can I force her/him to agree?
No, private judges are always appointed by agreement of the parties. However, after people have been to the public courts a few times, perhaps not accomplishing much, they are frequently more interested in exploring more efficient ways to get their legal matter decided. Even if your spouse won’t agree at the beginning,  circumstances may make private judging more attractive as the case progresses. Frankly, it is not only frustrating but very expensive to pay your attorney to prepare for a legal proceeding and wait around the courthouse, only to find out that the judge doesn’t have time to hear your case, or can only hear a part of it, requiring you to come back another day. After this has happened to your spouse, s/he may see the wisdom and economy [See FAQ #21] of paying a private judge to get a speedy and thorough resolution.

18. Can I interview the private judge before agreeing to the appointment?
Not really, although there are steps you may take to obtain more information. Judges, whether public or private, are not allowed to talk to one side “ex parte,” that is, outside the presence of the other. This is an important rule which protects their neutrality. You can’t individually interview a prospective judge, nor can your attorney. If you want to know more about the judge’s qualifications for your case, you should talk to your attorney about setting up a conference call between the judge and both attorneys. Your attorney can ask any questions either of you may have, and may discuss the case in general terms, to satisfy him/herself that the judge is impartial, qualified, and expert in the areas you need.

19. How do I choose the right private judge for my case?
You should always find out about the private judge’s professional background, experience in practice, and professional specialties. Many family law attorneys don’t like to do custody work. If you have a custody problem, it will be important to select a judge with expertise in that area. Similarly, if you have an issue involving pension rights, stock options, business valuation, or other technical areas of law, you will want to ascertain the level of your private judge’s experience in those fields.

20. Will I get a different kind of decision from the private judge?
The private judge is bound by the same law and rules as any public judge, and must apply the law of the State of California to the facts of your case. However, you will often get a more detailed analysis of the reasons for the judge’s decision in a private judging setting. That is a result of the lack of time available to most judges at the courthouse. Most judges have only enough time to make the decision, and cannot draft a lengthy explanation of why they ruled in a particular way. That often leaves litigants wondering what it was that caused the judge to rule one way or another. If asked for a Statement of Decision the public judge will usually order one of the attorneys to draft it. Not only might that result in a delay of several weeks, but you will get the drafting attorney’s analysis rather than the judge’s. If you request a Statement of Decision from a private judge, you will get a detailed analysis of the judge’s thinking, and will know exactly what evidence the judge found to be most persuasive, and which testimony s/he found credible. Even if you don’t agree with the result, you will be able to evaluate why it occurred, which is, in itself, an  important factor in keeping your family law matter in perspective.

21. How does having a private judge save me money?
Doesn’t the fact that I have to pay for this judge’s time while the judge at the courthouse is free mean that it is cheaper to go to the public court?

The private judge’s fee is usually a small component of the total cost of litigation. When going to court, you pay your attorneys and expert witnesses (accountants, etc.) by the hour. Since some cases settle at the last minute, the courts substantially overbook their time. That is, they schedule more trials than the time allotted. They do this because court time is so limited, and they want to avoid the possibility that a court sits idle because of a last minute settlement when it is too late to book another case into that time slot. Those precious court hours cannot be recovered, and as a result, the litigants pay a price. You will pay your attorney and witnesses to prepare for a trial on a particular day, travel to court and wait through other cases, only to find that the judge doesn’t get around to your matter. The next chance to get to court may be weeks or months later. You not only have to pay your attorneys to sit and wait through the other cases, but will pay them to  prepare again when the new date comes around. You want your attorney to be sharp and have all of the relevant facts and law well in mind, and the only way to do that is to prepare again. It is not unusual to return to court three or four times before actually getting your case before the judge. Sometimes, too, you really need more time than the court can give you, and your attorney is forced to squeeze the case into a smaller time slot than would otherwise be desirable. This means that issues which you would like to pursue don’t get presented, or perhaps the evidence isn’t developed as thoroughly as you would wish. This always creates a risk of an incorrect or incomplete ruling. In private judging, the time is set aside for you and your case. You aren’t waiting for another case to finish, and you get to book as much time as you need to thoroughly present your evidence. As a result, you aren’t paying your attorney to wait in the hall for another case to finish, nor are you paying for multiple preparations of the same trial. The case is done in a single setting, and your attorney is doing what you are paying him to do…trying your case… and not killing time until another case is finished. This is a significant savings in time and money. Even when you factor in the cost of the private judge (which you are sharing with your spouse), it is much cheaper to pay half of the judge’s hourly rate than all of your own attorney’s and expert’s time to return repeatedly to court.

22. Does the private judge use a courtroom?
Private judges are precluded by law from using the public court facilities. As a result, most private judges use conference rooms instead of courtrooms. Judge Talia and Judge Pearce feel strongly that people should have access to the same kind of physical plant in the private arena, and have created their own private courtroom which is designed to be comfortable and private, but provide the same amenities (witness stand, court reporter’s stand, judge’s bench) as are available at the public courts

24. What if my spouse’s lawyer has appeared before the private judge, but mine hasn’t?
All judges are required to decide each case on its own merits. Private judges are required to disclose all cases which they have had with either attorney before any new appointment. Just because one attorney may have appeared before the private judge and another may not has no bearing on the judge’s decision. Private judges, just like judges at the courthouse, are required to be fair and impartial, and to “recuse” themselves (that is, withdraw from or decline a case) if they feel there is any reason why they cannot be.

25. What if I just need a quick decision on a single issue?
This is one of the best uses of private judging. Often there is a single issue (such as the validity of a premarital agreement or the determination of a separate  property claim) which, if resolved, will allow the balance of the case to be settled. Until it is resolved, you may often be forced to prepare the whole case for trial. In private judging, it is easier to split off (“bifurcate”) a single issue for trial. That trial can often happen in a very short time. You get a prompt decision, and then, with that information in hand, can evaluate your position for the balance of the case. Instead of waiting months to find out the answer, you can find out quickly, make your analysis based on the result, and get on with your legal proceeding and your life.

26. How do I get a copy of the judge’s standard order for appointment?

Since each case is different, Judge Pearce and Judge Talia have not posted their agreements on this website. There are generally three types of forms, one for cases where the private judge is appointed for the entire case, one for settlement conferences only, and one for situations where the private judge is going
to only hear limited issues, while the others remain in the public courts. Your attorney should contact the judge to get a copy of the stipulated order applicable to your case.

27. What if I need an emergency hearing?
Sometimes emergencies arise which require immediate orders. Since their dockets are so full, the public courts have limited time set aside for such cases, and it is rare to get a full and thorough hearing on short notice. Judge Talia and Judge Pearce believe that the private judge system must be flexible enough to accommodate
the emergencies which are facts of life in family law. They can usually find a few hours in their schedules to address these issues on short notice.

28. How private is “private”?
“Private” as used in “private judging” means “privately compensated,” as opposed to paid by the State. Some people assume that, because they use a private
judge, there is no possibility of someone at the public court learning their personal business. This is largely a function of the formality of the proceeding. The attorneys and litigants may agree to a high degree of informality in procedures, either to reduce cost, or insulate them from the public eye. The proceeding themselves do take place in a private courtroom. However, by law, members of the public must be admitted on request. This rarely happens unless the parties involved are newsworthy and the press becomes involved. However, if you file declarations and other pleadings with the court, they will become part of the public record, just as in any other legal proceeding. In this day of increasing access to private information, identity theft, and court files available online, it is always a good idea to be careful what personal information you put in the public record, and disclose only so much information as is absolutely necessary to protect your legal rights. And of course, whether using a private or a public judge, you should never put your social security number, bank or credit card information in a public record.

29. What if I want the same judge to hear later motions in my case?
You can provide in your private judge stipulation that the private judge will hear post judgment motions as well. Unlike civil cases, this can be particularly important in family law, where people frequently return to court years after their initial case. Sometimes this happens because one side requests a change in custody, or because income changes and someone requests a change in support, or termination of support. This is particularly important if the facts are complex, and you want to ensure that you don’t have to keep paying your attorney to educate a new judge each time an issue comes up. Since public judicial assignments frequently change, you may have no idea who the judge will be who decides a later request for a change in custody. It is generally much more cost effective to return to the judge who  already knows your case for later proceedings. You can specifically provide that the private judge will hear subsequent proceedings.

30. What if I don’t want the private judge to be involved indefinitely?
You can always include what is called a “sunset provision” in the private judge agreement, so long as all parties agree. A common one provides that the private judge’s appointment will terminate at the end of the trial, or when appellate rights expire, or at some designated future time (assuming that no proceedings are actively pending.) This preserves your right to either return to the private judge, select another private judge (both by agreement, of course) or return to the public  courts if you cannot agree.

31. What if I opt for a private judge, and then decide I don’t like the rulings? Can I opt out?
No. This is called “forum shopping” and is frowned on by the law. You can’t try out a judge, decide if you like their rulings, and then opt out if you don’t. If the law allowed that, everyone could undercut the legal system by simply refusing to go back to a judge who doesn’t give them whatever they want. The same rules for removing a judge from a case in a public forum apply in private judging. If you think your private judge is ruling inappropriately, you must go through the same procedures to have them removed from the case as you would with a public judge. The rules are quite specific that adverse rulings alone are not sufficient to remove a properly appointed public or private judge. That’s why it is so important to do your homework at the outset and select the best judge for your case.

32. What if I think I might want to appeal the judge’s order?
If you want to preserve your appellate rights (and many who opt for private judging do), you must be sure that you follow the technical rules and procedures, just as if you were at the courthouse, and that you preserve a “record” by using a court reporter to take down the testimony. Paying a court reporter in addition to the private judge will increase the cost, or course, but is essential to have a transcript if you want to preserve your right to appeal. Remember, the private judge is bound by the same laws as the judges at the courthouse, and you may well want to preserve the right to question a ruling if you believe it was made in error. You can  generally only do that if you have a transcript to refer to.

33. Do the same rules apply on appeal?
Yes, the private judge is held to the same standard as a public judge, and the rules of appellate review are exactly the same for both public and private judges.

34. Can I bring other legal matters (not family law) to these judges?
While there are many qualified private judges in other areas of law, Judge Pearce and Judge Talia limit their assignments to areas where they have particular training and expertise. These facilities and judges are available only for family law matters such as divorce, custody, parentage, restraining orders, domestic  partners, and other domestic relations issues.

35. What if we’ve settled everything and just need to have the final paperwork processed? Why would I use a private judge just for that when it is free at the courthouse?
With the recent cuts in court funding, clerk time has been significantly reduced. This means that, even if you’ve settled your entire case and signed all the necessary paperwork to finalize your divorce, uncontested judgments go to the end of the line. When this happens, it can take many months for the court to process your judgment. Worse, divorce Judgments have become increasingly complicated, and if there are any technical errors in the documentation, you won’t find out about them, and have an opportunity to correct them, until several months later when they finally get to your paperwork. This can be a significant hardship if you need to have the final Judgment quickly for tax reasons, to convert health insurance, or to complete a refinance or other real estate transaction. If you use a private judge, the judge’s authority can be limited to reviewing and signing off on the paperwork. For a modest flat fee, your private judge can review the final paperwork for errors and process your decree in days rather than months, which can often result in a substantial tax or other savings.