The practice of law presents rewarding and challenging aspects. In addition to the legal education one receives from books, lectures and the licensing process, most lawyers who frequent the Courts and participate in a trial practice need more. Not only are you called upon to be a counselor, a communicator, a businessman or woman, you also need to know your judges. Each Court in the various circuits and their judges have their own way of doing things and expect the lawyers to know their procedures or their likes and dislikes on matters that come before them. Of all the tools lawyers need, knowledge of the judges may be the one piece of information that can make a meaningful difference in your case and how you are perceived by your judge. This information highway becomes a two way street as the judges also seek information about the lawyers who practice before them.
This article will try to disclose important information about the Domestic Judges in Jefferson County and surrounding counties (Shelby, St. Clair and Blount). As is generally the case, lawyers want to know their judge’s feelings on various subjects and tools that can, and in some cases, should be used to help you and your clients move their case to a speedy and successful conclusion. The objective of this article is to get our judges to discuss their use of and their position on various tools available to the courts and the parties through their lawyers. The areas of discussion included such things as the use of a daily master; when and if a special master should be appointed; settlement conferences; mediation dockets; mediation in general; special setting of cases and the new kid on the block, Private Judging.
To accomplish this task, a group of judges was interviewed separately and I was surprised at how similar our judges think on these practice areas, yet how different each of them approach matters. In an effort not to single out a particular judge, this article will present positions or tendencies by counties, not the individual judge. Any of you who practice in these counties should already know most of the information but may be surprised or misinformed about several areas because some of the judge are new to the bench or the area is new and untested.
The one area that all the judge will agree is the continuance of cases and especially those that are specially set. With the back log of cases, if you convince your judge to give you a special setting, keep in mind the judge is carving out specific time for you and your clients and in most cases it would be for multiple days. If you know your case will settle or need to be continued or re-assigned to a Private Judge, please be considerate and let the trial court know as soon as possible. That reserved slot can be filled with other deserving cases. That means more than 24, 48 or even 72 hours in advance. As a practical matter, that would be a good rule of thumb on all continuances.
Another common ground of the judges would be the use of a special master and private mediation. Those options are used sparingly and generally, only on request by the lawyers. As one reads Rule 53 ARCP, it too would suggest the use of a special master be the exception, rather than the rule. Mediation has now been around since the early 90’s and has generally not been forced on the lawyers or their clients. That being said, Shelby County judges will not set their cases for trial unless the lawyers and parties participate in their mediation/settlement docket.
The use of a Daily Master is not a universal concept shared by all the judges or the counties that have been included. That concept originated in Jefferson County primarily for two reasons: first, the unusual number of temporary issues being filed on a large docket of cases and second, the lawyers asked, with the courts approval, for such a program. The lawyers volunteer to sit as Daily Masters and this program has worked successfully for several years. It is a recommended process, but the judge still has the option to hear all or some of those temporary issues.
The newest kid on the block is the Private Judging Act – where the parties, through their lawyers, can file a motion with the presiding judge in the circuit where the case originates requesting the appointment of a former or retired judge who has been approved to sit as a private judge over a case. In talking with the judges, they are all in favor of this option because it reduces their caseload and would open more slots for other cases to be heard that do not warrant a private judge. In addition, all the judges would request reasonable notice of that choice so they can manage their dockets and not be left with unused time. Otherwise, they all believe this to be one more option to help parties move their case along in a timely fashion and in some cases, reduce their cost. There is no thought by any judge that they would be upset because they have one less case to hear. The general consensus is “take a case, please!”
In an effort to document this interview/survey, a chart listing various areas and positions is attached for future reference. As a side note, it is highly recommended that if your judge or judges have periodic town meetings/CLE sessions, that you attend all, discuss concerns and issues with the judges and get answers first hand. It will take a little time, but the judge will know you care about this area of the practice of law and who knows, you might even be helping the judge while helping yourself.
Judge R.A. (Sonny) Ferguson, Jr., Retired
Christian & Small, LLP
(205) 250-6631