To the parties litigate, nothing is more important than to have their legal matter concluded sooner rather than later. Having said that, one should always be ready to go forward with settlement or the trial of their case by completing their discovery. So, what can you do to conclude your legal matters expeditiously?
In 2012, the State of Alabama passed what is known as the Private Judging Act, Act. No. 2012-266 and Codified at §12-17-350 et seq. with an effective date of July 1, 2012. Now almost three years later, few lawyers and their clients have heard about Private Judging – much less know how it can work for them. Here’s a quick summary: the parties and their lawyers can opt to use a Private Judge sooner rather than waiting to get their day in Court on some date later in the future. So why is this good alternative not actively being utilized?
As one of the authors of the Act and now a retired judge, I can only speculate as to the reason for its slow acceptance. One reason, and I think the most important one, is that not many lawyers know that it is available, and there may be many judges who are not familiar with the Act and how it can help move their dockets. As a former judge, I would have welcomed this process because it would have eased an already crowded docket. So, here are some frequently asked questions about the use of a Private Judge in Alabama:
1. What is a Private Judge and what are the qualifications?
A. A Private Judge is a person qualified to act as a judge of a case.
B. Qualifications are:
(1) Have been but not currently serving as judge of a District or Circuit Court
(2) A former judge for at least six (6) consecutive years
(3) Be admitted to practice law in Alabama
(4) Be an active member in good standing of the Alabama State Bar Association
(5) Be a resident of Alabama.
2. What type of cases can be heard by a Private Judge?
A. All domestic relations cases
B. Contract cases
C. Tort cases
D. Combination of contract and tort cases
E. No utilities cases or cases in which the State of Alabama is a party
F. A. through D. are non-jury cases.
3. How do you select a Private Judge?
A. A Private Judge who has met the qualifications must register with the director of the Alabama Center for Alternative Dispute Resolution.
B. A roster of qualified judges will be published and made available to the public and all actively serving judges in the state.
C. The parties shall select a judge from the roster, with that judge’s consent, and submit a motion for appointment with the Circuit Clerk in which said case is pending and the Presiding Judge shall enter the Order of Appointment.
4. What is the Private Judge’s authority and power?
A. The Private Judge has the same powers as the judge of a Circuit Court, as follows:
(1) Court procedure
(2) Deciding the outcome of the case
(3) Attendance of witnesses
(4) Punishment of contempt
(5) Enforcement of orders
(6) Administering oaths
(7) Giving necessary certificates for the authentication of the Records and proceedings
(8) Vested with judicial immunity
(9) All proceedings shall be of record and filed with the clerk of the Circuit Court
(10) All records shall be public in the same manner as Circuit Court records (unless otherwise ordered).
5. Is the Private Judge’s order binding and for how long?
A. The Rules of Civil Procedure shall apply for all actions before the Private Judge.
B. The judge shall maintain jurisdiction over all matters brought before him or her until the order is deemed final and appealable.
C. An appeal from an action or a judgment of a Private Judge may be taken in the same manner as an appeal from the Circuit Court.
6. Court cost and who pays the Private Judge.
A. There is a filing fee of $100 that is paid to the Court Clerk at the time the motion to appoint the Private Judge is filed.
B. The Private Judge’s compensation is determinate by a contract for services between the judge and the parties which shall also include compensation of all personnel, the cost of all facilities and materials that are used in relation to the case not otherwise covered.
7. Does the same law apply to Private Judges as at court?
A. Yes, the Private Judge stands in the same shoes as the Circuit Judge and must uphold the laws of the State of Alabama and its constitution.
8. If one party wants a Private Judge and the other party does not, can a Private Judge be forced upon them?
A. No, both parties must agree to the Private Judge before the appointment is made.
9. What happens if after the appointment of a Private Judge one side does not like the rulings; can they elect to opt out?
A. No. As any other Circuit Judge, one does not have that right. This is known as judge/forum shopping and is not allowed.
B. The rules on this are very specific; adverse rulings alone are not sufficient to remove a properly appointed public or private judge.
10. What are the real advantages of having a Private Judge?
A. The specialized expertise of the judge
B. Expediency/matters are heard promptly
C. Cost effectiveness
D. Timeliness/fewer delays
E. This is the only case the Private Judge is presiding over at the time
F. Timeliness of final orders.
11. Does the Private Judge have a courtroom?
A. No assigned courtroom
B. Cases can be tried at any place in Alabama, which may include a county courtroom if available and approved by the Presiding Judge.
12. When will the Private Judge set my case for trial?
A. Anytime; all cases are set by the Private Judge or by agreement of the judge and attorneys for the parties.
13. When a Private Judge is requested, will the Assigned Judge of that case get upset?
A. No, the request goes to the Presiding Judge, not the Assigned Judge.
B. That is one fewer case the Assigned Judge will have on his/her docket.
C. Said request for a Private Judge needs to be done timely (not at the last minute) so it does not disrupt the Court calendar.
D. A survey of judges supports this concept.
Since all Private Judging cases are non-jury, not every set of facts lend themselves to the use of a Private Judge. Cost in every case is a consideration, however it has been suggested that, all things considered, said re-assignment to a Private Judge generally saves money and is more timely in its completion.
Rule 1.3 Diligence (Rules of Professional Conduct) states “A lawyer shall not willfully neglect a legal matter entrusted to him.” If a lawyer knows his/her case may take 15 to 24 months, or longer (non-jury) with the assigned judge, does he not owe it to his client to present the option of Private Judging? Yes, there are other factors to consider, including cost, but it may be in the client’s best interest to be heard sooner rather than later. A client’s interests may be adversely affected by the passage of time or a change in circumstances. Private Judging provides an accelerated option for your clients and may remove any anxiety they might have about their day in court.
Recently, there have been ongoing discussions about expanding the use of Private Judging as an option to consumer contracts and contracts in general, in place of arbitration or as an option to arbitration. This is a novel idea when you consider the time factor in getting heard, the finality of the decision, and the cost savings in getting the issue resolved sooner rather than later. All of the judicial requirements are in play, as with any other Circuit Judge, including the right to appeal.
However with all of its positive aspects, not every contract, tort, combination of contract and tort, or domestic relations case is suited for Private Judging. The parties may want the public forum, or they and their lawyers may not be ready to go to a Private Judge because they are unfamiliar with the process.
Hopefully this article will be beneficial in helping increase familiarity with the Private Judging option. Additionally, all judges, especially the Presiding Judges of each circuit, need a working knowledge of the Act and how it might benefit their individual case loads by reducing their dockets. It is not uncommon for a judge to suggest that the parties mediate their case. Taking it a step further, why not suggest the parties consider Private Judging? Your day in court, sooner or later — why wait?
Check back Thursday, when we will feature an article from Partner David B. Walston on the alternative dispute resolution of employment claims via Private Judging.