Private Judging

Is Private Judging Right for You?

Private family law judging isn’t just for the very rich. However, it isn’t for everyone, either. Here are some questions which will help you decide if it fits your needs.

  1. Have you gone to court repeatedly, only to find that the judge didn’t have time for your case?
    Each time you go to court, it costs you money. You have to pay your attorney to prepare for court, then travel to and sit through court while other cases are heard. You take off work and pay for your attorney’s time even if your case doesn’t get called. With a private judge, the time is set aside just for you. That means court starts when it is supposed to, and when it is done, the meter is turned off. Although you are paying for the judge’s time, it may actually save you money if you are repeatedly returning to a “free” judge only to be told to come back another day, or told that you can only have half (or less) of the court time you really need to tell your story fully. Even if you are representing yourself, you still lose time from work for repeated court appearances, and income flow is particularly critical at a time when you are separating households.
  2. Do you want more input into who decides your case?
    While procedures vary from county to county, most cases at the public courts are assigned to judges arbitrarily, based on the date of filing, to the next judge in the rotation, or based on the case number. Judges rotate in and out of the family law assignment, and sometimes have little family law experience before taking the bench. Some judges may be better at business valuation issues, while others excel at custody. Cases are rarely assigned based on these criteria, and you have no control over the method of assignment. However, if you have a specialized issue, you and your spouse can elect to take it to a private judge who has substantial experience in that specific area. Some issues, such as stock options, business valuation, breach of fiduciary duty and pension rights are extremely technical, and it is important to have a judge who is very familiar with the intricacies of those issues. Similarly, many judges don’t have much experience with custody litigation. If you select a private judge with expertise in the areas presented by your case, you won’t be paying your attorney to educate the judge, and you can be assured that the person who is making the decision is familiar with the specific facts presented by your case.
  3. Do you have a special need for privacy?
    Proceedings at the courthouse are open to the public. Sometimes there are tax issues which you don’t want to discuss in a public place. Sometimes there is a family owned business which has to be valued or divided, and you don’t want your competitors to have access to your confidential business information, sales and profit figures. Sometimes you just don’t want to share your family history with strangers. In all of these cases, it might be worth it to pay for a private judge and present your evidence in a more private place.
  4. Do you need an answer earlier than you can get into court?
    Frequently, the court can’t accommodate your hearing for several weeks, or even months, because the dockets are so full. If you are in need of a support order, an order for custody of your children, for access to your children, or to get property released or sold, your need for judicial intervention may be immediate. Many private judges can get your case in to court in a matter of days, with a decision the same day or shortly thereafter. Again, although you are paying for the judge’s time, getting an early order may well be worth the cost, as you aren’t waiting for weeks or months to obtain critical relief. This is particularly true if you have to borrow money to meet critical financial needs while waiting for a court date. In California, judges are required to issue their rulings within 90 days of the hearing. Many litigants can’t afford to wait that long. When selecting a private judge, you can determine that judge’s availability, and obtain a commitment to a timely decision.
  5. Do you (and your attorney) want more control over the manner in which information is given to the judge?
    Many courts have complex rules which control the manner in which information is given to the judge. Some require that all direct testimony is done by written declaration, subject to cross examination. These declarations can be very expensive to draft and respond to, and you may wonder how carefully the judge will read them. Litigants often complain that the judge isn’t getting the witness’ story, but rather the attorney’s written version. Often it is simply faster, cheaper, and more satisfying to offer live testimony, but your public court restricts the availability. Sometimes the only way to assess a witness’s credibility (that is, who is telling the truth and who isn’t) is to watch them testify. If this option isn’t available in your court, or if the time allowed for testimony is seriously restricted, you may want to use a private judge, who will allocate enough time to hear live testimony and make a determination of credibility. This is particularly important when a key legal issue turns entirely on a determination of who is telling the truth (“he said/she said”). It is quite common in family law for the only witnesses to a key event to be the parties themselves. If they are telling diametrically opposed and mutually exclusive versions of what happened, it is virtually impossible to determine credibility from a written declaration alone, and your entire case may depend on obtaining a judge who has the ability to take live testimony and decide who is telling the truth. Experienced trial judges are extremely adept at assessing a witness’s body language, consistency, and veracity. Finding such a judge may be critical to the success of your case.
  6. Are you reluctant to have a settlement conference with the same judge who will decide your case?
    In civil practice, the judge who presides over a settlement conference is usually not the same judge who will preside over the trial. This is done because in settlement conferences, attorneys often are required to frankly discuss the weaknesses of their case. They obviously don’t want to do this in front of the judge who will make the decision. In family law, the opposite rule generally applies: The judge to whom the case is assigned for trial is the same judge who conducts the settlement conference. Some attorneys object to this practice, as they don’t want to “show their cards” to the trial judge, and perhaps limit the results they might get at trial. In order to avoid this, they will frequently agree to a private settlement judge. That judge is appointed solely to conduct a private and confidential settlement conference, where each side can freely discuss their case without fear of tainting the trial judge in any way. If the conference fails to result in a settlement, they are free to go back to public court or to another private judge for the trial.
  7. Does your attorney have a novel theory of the case?
    If so, it might be helpful to “try it out” on another judge first. Where an attorney has developed a novel or unusual theory of the case, or is trying to make new law, it is frequently beneficial to try it out on an experienced private judge first before rolling the dice at trial. Since they can’t try the case under one theory and substitute a different one if the first doesn’t work, it is usually cost-effective to do a settlement conference before a private judge before having to commit to a single novel theory at trial. In that case, they have an opportunity to change their trial strategy before taking a chance on losing because they chose an unusual approach.
  8. Do you have an unusually complex or time-consuming case, which requires substantially more time than the public court can give it?
    Few courts can afford to assign a family law judge to a single case which will tie that judge’s time up for several days, or sometimes even weeks. Some courts try to address this issue by giving the case a series of sequential days, with part of the case heard on one day, another part heard a few weeks later, and so on. Sometimes it takes months to finish this progress, and in the meantime, that judge will have heard hundreds of other matters in between the installments of the ongoing trial. It is simply unrealistic to expect the judge to remember all the details of your case under those circumstances. That means that your attorney will be required to use valuable trial time to remind the judge of prior evidence and how it applies to the current issue. If you use a private judge instead, you can book enough time to have the entire matter heard in a single block of time, and get a decision while your evidence is still fresh in the judge’s mind.
  9. Do you have a case which requires careful monitoring to ensure compliance with orders?
    Most family law judges don’t have the time to monitor their cases after making an order. If further orders are required, you may then have to file a new motion and wait your turn on the court’s calendar, which can take weeks or months. If you anticipate a need for closer monitoring, you may want to get a private judge involved early on, so that they will be in a position to act quickly in the event of a problem.
  10. Do you have a case where you suspect one side of hiding data, records, or other information?
    Or where you suspect one side will abuse the discovery process for tactical reasons? No one can protect their legal rights without access to the relevant information. There are frequently serious disputes in family law regarding whether information is being appropriately provided (“discovery”). This can cut both ways. Sometimes people withhold information in the hope that the other side won’t realize the full extent of what they are entitled to. Sometimes the abuse occurs on the other side, where one party propounds all sorts of unnecessary and invasive discovery demands to try to force the other side to settle, either to protect their privacy or to reduce the escalating cost of responding. In either situation, a private judge is often retained to determine and enforce the appropriate flow of information or intervene to prevent abuses.
  11. Do you suspect that the other side will attempt to use the inefficiency of the public courts for tactical advantage?
    If so, you may want to prevent that at the outset by selecting a private judge who will actively manage your case [link to what is case management] and prevent gamesmanship which is designed to disadvantage one party and favor the other.
  12. When should I not use a private judge?
    Sometimes the amount of money at issue simply doesn’t justify the cost of a private judge, even after allowing for the cost benefits of a quick resolution. This is particularly true if you are representing yourself, so you aren’t paying an attorney to prepare repeatedly for court or to wait with you for your case to be called. Sometimes you know that the judge to which your case is assigned is reputed to rule in a way which would favor you, or to favor mothers or fathers. And sometimes, you don’t want to have a good judge.
  13. Why wouldn’t I always want a good judge?
    If you have a very weak case you may want an inexperienced judge (and many otherwise good judges are simply inexperienced in family law). An experienced family law judge will immediately see the weaknesses in your case; an inexperienced judge may not be so knowledgeable. As a result, you may prefer to take your chances with a poor judge who may rule in your favor (by mistake, essentially) rather than an experienced judge, who won’t.