Today I located the "Report to the Judicial Conference’s Advisory Committee on Civil Rules and Its Subcommittee on Special Masters" with the above title by Thomas E. Willging, Laural L. Hooper, Marie Leary, Dean Miletich, Robert Timothy Reagan, and John Shapard (Federal Judicial Center 2000). The following are some excerpts from the 131 page report:
Federal Rule of Civil Procedure 53 (Rule 53) provides that a “court in which any action is pending may appoint a special master therein” and that a “reference to a special master shall be the exception and not the rule.” In discussing the powers to be assigned to special masters, Rule 53(c) appears to contemplate the traditional activity of a special master in holding evidentiary hearings and issuing reports with factual findings to facilitate a trial. Rule 53 contains neither an explicit authorization for nor a prohibition of pretrial or posttrial activities of a special master.
This report examines how pretrial and posttrial special master activity can take place under a rule designed to limit special master appointments to trial-related fact-finding in exceptional cases. More specifically, the subcommittee wanted to know how often and under what authority judges appointed special masters to serve at the pretrial and posttrial stages of litigation, whether any special problems arose in using special masters, how courts’ use of special masters compared with their use of magistrate judges, and whether rule changes are needed.
First, we looked at how often special masters were appointed. By examining a random national sample of docket entries referring to special masters (including court-appointed experts), we found that in about 3 cases out of 1,000 (0.3%), judges or parties considered formally, on the record, whether a special master should be appointed (see Table 1). Judges appointed special masters in about 60% of these cases, that is, in fewer than 2 cases in 1,000 (0.2%). Cases involving patents, environmental matters, and airplane personal injuries showed a higher than average likelihood of such consideration, but even in these types of cases, judges and parties were not likely to consider appointing a special master in more than 7 out of 100 cases (7%). Consideration and appointment of experts under Federal Rule of Evidence 706 represented less than 10% of the above activity.
Historically, Rule 53 was designed to help judges resolve fact-intensive cases. The process involved having a master review facts, organize the information, and prepare a comprehensive report to assist the judge or jury. The traditional image is one of a court-appointed accountant poring over volumes of bookkeeping records, classifying them, and perhaps applying clear legal formulas to thousands of transactions. Modern use of special masters, we found, covered a full spectrum of civil case management and fact-finding at the pretrial, trial, and posttrial stages (see Table 11). Judges appointed special masters to quell discovery disputes, address technical issues of fact, provide accountings, manage routine Title VII cases, administer class settlements, and implement and monitor consent decrees, including some calling for long-term institutional change.
Read the full report here.