Section 6Articles, Books, Websites, and Literature About MastersA variety of sources contain information and materials on special masters. The followingresources contain references to the use of masters, or explain their roles, or describe their work.Please contact ACAM to include other sources not listed in this Section. See Table of Contents.BOOKS1.David Herr and Roger Haydock, Fundamentals of Litigation Practice, Chapter 6(Thomson Reuters).2.Roger S. Haydock and David F. Herr, Discovery Practice, Chapter 2 (Wolters Kluwer).3. David F. Herr and Roger S. Haydock, Motion Practice, Chapter 2 (Wolters Kluwer).4. Roger Haydock and John Sonsteng, Trial Advocacy: Before Judges, Jurors, andArbitrators, Chapter 3 (West Academic).5. Roger S. Haydock and Peter B. Knapp, Lawyering: Practice and Planning, Chapter 1(West Academic).6. Roger Haydock, David Herr, and Jeffrey Stempel, Fundamentals of Pretrial Litigation,Chapter 1 (West Academic).ARTICLES7. 2004 Special Masters Conference: Transcript of Proceedings, 31 WM. MITCHELL L. REV.1193 (2005), available fWestlaw Abstract: A historic gathering of special masters occurred on October 15th and 16th,2004 in Saint Paul, Minnesota. Federal and state court-appointed masters from around thecountry met for the first time to share their experiences as special masters and to form anational association of court appointed masters. This issue of the William Mitchell LawReview contains articles presented at the conference and the transcript of facultypresentations.2349

Citing Reference:Francis E. McGovern, Appointing Special Masters and Other Judicial Adjuncts: A Handbookfor Judges (2007) (ALI-ABA & Federal Judicial Center Continuing Legal Education Courseof Study, materials available on Westlaw as SN009 ALI-ABA 1911)Westlaw Abstract: This bench book is designed to help federal and state court judges:(1) decide whether and when to appoint a master; (2) draft effective appointment orders;and (3) anticipate and effectively address ethical issues and practical concerns that arisein special master work. These materials may also be helpful to prospective adjuncts andto parties considering whether to request the appointment of a judicial adjunct. All courtshave the power to appoint a special master or other type of judicial adjunct to assist withcivil and criminal cases. Rule 53 of the Federal Rules of Civil Procedure governs theappointment of masters in federal court. In state courts, various procedural rules or statestatutes empower judges to obtain assistance.Many federal and state court judges use masters Judicial adjuncts can providecourts, parties, and lawyers with essential services without tapping into court resources.Masters can act as mediators and settle civil and criminal cases away from thecourthouse; they can monitor discovery and resolve time-consuming disputes; they canbe assigned trial duties; they can testify as expert witnesses, especially in cases involvingtechnical and specialized issues; they can help coordinate multi-party, multijurisdictional, and multi-district litigation (MDL) cases; they can administer settlementclaims; and they can monitor compliance with a court order or settlement agreement. Anadjunct can markedly reduce the burden on a judge, the judge's staff, and even the court'sadministrative staff. Parties and lawyers recognize that in some cases the appointment ofa master can save them substantial fees and costs, and can lead to a much quickerresolution of their disputes. Judges who use professional and experienced masters knowhow valuable they can be to case handling and resolution.Section 1 of this bench book summarizes the various roles judicial adjuncts can serve.Section 2 covers appointment orders several appendices provide checklists, sampleappointment orders, listings of court decisions relevant to the use of judicial adjuncts, anda bibliography of academic articles about the use of judicial adjuncts. Finally, additionalappendices contain the texts of various statutes, codes, and other rules that may governthe conduct of judicial adjuncts.See also Academy of Court-Appointed Masters, Appointing Special Masters and OtherJudicial Adjuncts: A Handbook for Judges (2006), available free online /appointing-masters-handbook/(Thisappears to be an earlier version of the same document above) (No abstract available).8. Richard H. Agins, Comment: An Argument for Expanding the Application of Rule53(b) to Facilitate Reference of the Special Master in Electronic Data Discovery, 23PACE L. REV. 689 (2003).2450

Westlaw Abstract: The volume and volatility of computer-generated data present novelproblems of evidentiary discovery, requiring the employment of a neutral party with therequisite technical, legal, and business experience to provide effective oversight andmanagement. A special master, referred to serve as an impartial officer of the court pursuantto Rule 53 of the Federal Rules of Civil Procedure, can bring a greater level of specializedknowledge, flexibility, involvement, and efficiency to pretrial discovery of electronicallygenerated and stored data (“electronic data”) than can most trial court judges burdened withmanaging a full docket.Citing References:David Herr, Ann. Manual Complex Lit. § 13.1 Trial Judge’s Role: Use of Special Masters(2009).David Ferleger, Special Masters under Rule 53: A Welcome Evolution, ABA-ALI CLE,available on Westlaw as SN040 ALI-ABA 1 (2007).From Article Introduction: In recent years, and increasingly since the amendment of Rule53 in 2003, courts turn to special masters in constitutional, commercial, mass tort andother litigation for assistance at all stages in the adjudication process. Masters may beappointed pre-trial, to preside over trials, and in the post-trial monitoring and compliancephases of a suit. The use of masters has been constructive and beneficial to litigants andto the courts. Few administrative difficulties have been reported.Federal Rule of Civil Procedure 53 has been a primary support for this approach.However, even post-amendment, courts continue to declare their inherent authority toappoint masters "beyond the provisions" of Rule 53. Pre-amendment, appointment of amaster was reserved to the "exceptional case" and there was significant dispute inparticular instances over whether a case was sufficiently exceptional to warrant a master.The 2003 rule in effect abandoned the notion that appointment of a master is disfavored,and many features of the rule are now designed to facilitate expanded use of masters.This article describes the early use of masters, the functions to which courts have putmasters, and a selection of issues regarding the appointment and operation of masters.[Westlaw]Lynn Jokela & David Herr, Special Masters in State Court Complex Litigation: An Availableand Underused Case Management Tool, 31 Wm. Mitchell L. Rev. 1299 (2005).Abstract from article: This article examines the role masters have played in litigation andexplores the benefits that might be obtained from the greater use of masters in the future.The FJC survey of federal judges appointing special masters concluded that specialmasters were “extremely or very effective.” The FJC study is an empirical survey of theeffectiveness of special masters, and it includes commentary from judges regarding theirexperience after appointing special masters. These benefits include better, faster, andfairer resolution of litigation in the cases in which masters are used, as well as an easingof the burdens these cases place on the judiciary. This article also analyzes the barriers tothe use of masters and how they might be removed.2551

9. Lloyd C. Anderson, Implementation of Consent Decrees in Structural Reform Litigation,1986 U. ILL. L. REV. 725.LexisNexis Abstract: The court's powers to enforce a consent decree include interpreting thedecree, issuing injunctions to implement the decree, granting supplemental relief, delegatingauthority to a special master, and holding a party in contempt of court. . A court emphasizesthe contractual nature of consent decrees when it undertakes to resolve disputes over themeaning of certain provisions. . The actual experiences of attorneys, judges, and monitors inthe research cases reveal a pervasive pattern of [non-adjudicative] techniques for makingconsent decrees work; reported cases rarely reveal such techniques. . Written reports wouldhave been helpful because they would have provided the parties a clear record upon which todetermine in what areas defendants were not complying and how the parties had resolvedvarious issues. . One way the monitor responded to this situation was simply to order upperlevel mental health agency officials to attend meetings to discuss areas of noncompliance. .A lenient judicial posture toward requests for substantive modification would introduceuncertainty and therefore discourage voluntary settlement and increase litigation overimplementing consent decrees. . The economy improved, a newly elected administration wasstrongly committed to implementation of the decree, and the legislature fully funded all thecommunity programs.Citing Reference:Ellen E. Deason, Managing the Managerial Expert, 1998 U. Ill. L. Rev. 341Westlaw Abstract: While most lawyers think of court-appointed experts as witnesses,judges increasingly appoint experts for managerial roles. For instance, court-appointedexperts evaluate pretrial discovery; they play key roles in encouraging settlements andhelping judges decide whether or not those settlements should be approved; theydetermine complex damages; they advise judges on remedial orders and monitorcompliance and implementation. Professor Deason analyzes the proliferation of courtappointed experts for these indispensable functions in the absence of any explicitauthority or procedures for their appointment. She argues that the current Federal Rulesof Evidence and Federal Rules of Civil Procedure do not contemplate managerialfunctions for court-appointed expert witnesses or special masters and hence theirlimitations on appointments and their procedures are inadequate. Moreover, the othersource of appointment authority, inherent judicial power, has ambiguous boundaries andoffers courts little guidance. Thus, Professor Deason suggests the development of newappointment authority tailored to the legitimate needs of the courts for managerialassistance, designed to encourage the maximum effectiveness in the use of experts, andconstructed to prevent unnecessary interference with party autonomy.10. Elizabeth Berkowitz, The Problematic Role of the Special Master: Undermining theLegitimacy of the September 11th Victim Compensation Fund, 24 YALE L. & POL’Y REV. 1(2006).2652

Lexis Abstract: Less than two weeks after the collapse of the World Trade Center, a unifiedCongress passed the Air Transportation Safety and System Stabilization Act (ATSSSA, or"the Act"), a bill intended to help stabilize the economy by protecting the airlines from anavalanche of litigation. . As noted above, the Act provides the airline industry with a range ofbenefits, including federal loan guarantees of up to ten billion dollars; compensation of up tofive billion dollars for "direct losses incurred . as a result of any Federal ground stop order;"compensation for "incremental losses" from September 11 to December 31, 2001;reimbursement for any increase in the cost of insurance through October 1, 2002; and a cashflow benefit from the deferral of the deposit of excise taxes. . The architecture of the Fundwas based in part on the Agent Orange settlement compensation scheme, and the SpecialMaster was based on the Agent Orange court-appointed Special Master. Before Congressenacted the ATSSSA, David Crane, one of Senator Trent Lott's congressional staffers, drafteda model of the Special Master which Congress soon incorporated into the statute. . Acomparison with other victim compensation funds emphasizes the failure of the ATSSSA toprovide for a suitable tort option. . Suddenly, any Fund-eligible parties considering the tortoption would find themselves vying to litigate with a host of new parties.Citing References:Judge John G. Farrell, Administrative Alternatives to Judicial Branch Congestion, 27 J. Nat'lAssn Admin. L. Judiciary 1 (Spring 2007)Lexis Summary: . Workers' Compensation Law (originally called "Workmen'sCompensation Law") involved a new legal concept: liability without fault. . Many moreworkers were assured a recovery for a work accident than were assured under the tortlitigation system. . In addition to providing compensation to the victims, the legislationwas also intended to save the airline industry from bankruptcy and the U.S. economyfrom collapse. . Under the legislation, a monetary fund was created and the attorneygeneral appointed a special master, Kenneth Feinberg, a respected attorney withconsiderable experience with giant class-action lawsuits. . There are some very limitedexceptions which allow certain tort actions in court. . Strictly speaking, I note thatadoption of such programs is not always motivated solely to relieve judicial congestion ordelays. . I believe that both emerging technologies of nanotechnology andbiotechnology are extremely likely to bring with them environmental risks which couldresult in injuries and illnesses with long latency periods and difficult causation issues,involving multiple plaintiffs, all of which are problematic under traditional common lawtort schemes. . It is my belief that carefully crafted administrative alternatives in theseareas could help to provide fair and rapid relief to the victims. [LexisNexis]11. Samuel J. Brakel, Special Masters in Institutional Litigation, 1979 AM. B. FOUND. RES. J.543 (1979).Wiley Abstract: Litigation concerning conditions in institutions such as prisons or mentalhospitals does not stop at the issuance of a remedial decree. Steps must be taken to assureimplementation. Increasingly, the courts are resorting to special masters to assist them inimplementing such institutional reform. While the use of masters by courts is a firmly2753

established tradition, the role assigned to masters in the institutional context is often anextraordinarily broad and intrusive one. As a result, serious questions have arisen about thisnew extra-traditional master role and about the applicability, the sufficiency, of the traditionalrationales and restraints. This article is among the first in a small but developing body ofliterature that begins to examine the new master role and the questions concerning it. [WileyInter Science -]12. Wayne D. Brazil, Special Masters in Complex Cases: Extending the Judiciary orReshaping Adjudication? 53 U. CHI. L. REV. 394 (1986).Westlaw Abstract: In recent years, courts have used special masters to help manage complexcivil cases. But this use has raised serious questions of efficacy and ethics. This paper firstidentifies the needs and ambitions that inspire courts to appoint masters, in order todemonstrate why recourse to this tool can be so rich in potential yet so controversial. Then, indescribing some recent roles masters have played, it assays their potential contributions aswell as the risks attending their use. It concludes that as masters are used more ambitiously,the potential benefits and risks increase. Masters can bring significant new skills andflexibility to bear on cases whose complexity threatens to overwhelm our traditional system.However, a correlative danger exists that using masters will fundamentally alter that system inways we find troubling: by making adjudication too informal, by removing it from publicscrutiny and challenge, and by encouraging judges to rely on masters to a degree incompatiblewith appropriate exercise of the judicial function. [Westlaw]Citing References:Jeffrey W. Stempel, New Paradigm, Normal Science, or Crumbling Construct? Trends inAdjudicatory Procedure and Litigation Reform, 59 Brook. L. Rev. 659 (Fall 1993)Introduction: This Article assesses the landscape of litigation reform activity and thecurrent political tension between continuing commitment to open access to the courts anda desire for faster, less expensive dispute resolution. It will also examine the state of thereform process but refrain from evaluating specific proposals. Part I describes majorrecent and current activities affecting American litigation. Part II then analyzes currentdebates about litigation by identifying the leading schools of thought on both litigationpractice and litigation reform. It attempts to situate current litigation issues in a broaderinquiry: whether the perceived post-1938 consensus attending adjudicatory procedure andcivil litigation reform has merely come unglued (in whole or in part) or, rather, whether ithas been supplanted by a new consensus, a “new paradigm,” reflecting an altered visionof the litigation process. Finally, Part III proposes a more integrated and deliberatemethod to govern civil litigation reform as a means of thwarting troublesome recenttendencies. [Westlaw]2854

Irving R. Kaufman, Reform for a System in Crisis: Alternative Dispute Resolution in theFederal Courts, 59 Fordham L. Rev. 1 (October 1990).Introduction: Many observers see the courts on the verge of buckling under the strain;one view from the trenches sees the problem of delay as “‘beyond the crisis stage.”’ Theproblem is not merely one of harried judges. Litigants, people with grievances, are beingdenied meaningful access to the courts. Delay prevents the courts from doing their job—resolving people's disputes at reasonable costs so that they may return to their normallives. Flexibility, experimentation and a willingness to innovate are essential if theadministration of justice is to keep up with the society we serve. What follows is a briefexamination of proposed changes in judicial administration, stressing those that hold thegreatest promise to reduce the major costs of justice—expense and delay. [Westlaw]13. Wayne D. Brazil, Special Masters in the Pre-trial Development of Big Cases: Potentialand Problems, 1982 AM. B. FOUND. RES. J. 289 (1982).Abstract: This article explores the advantages and disadvantages of referring discoverymatters in complex cases to special masters. In the first section Brazil explains how the resultsof his earlier research into the discovery system exposed problems that the appointment ofmasters might help solve. He then describes the kinds of pretrial tasks and roles federal courtshave assigned to special masters and the ways that using a master can expedite and rationalizethe case development process. In the second half of the article, the author assesses the majorobjections to delegating judicial responsibilities to masters and the problems that frequentappointments might cause. Along the way, Brazil offers practical suggestions to judges abouthow to avoid potential difficulties and how to maximize the effectiveness of this increasinglypopular procedure. [Wiley InterScience.14. Wayne D. Brazil, Geoffrey C. Hazard Jr. & Paul R. Rice, Managing Complex Litigation:A Practical Guide to the Use of Special Masters, American Bar Foundation (1983).Abstract from 63 Tex. L. Rev. 721: Professors Geoffrey Hazard and Paul Rice provide anilluminating case study of the management techniques that worked for them as special mastersin the massive United States v. . The purposes of pretrial conferences as stated in the newrule include concerns for efficiency such as "establishing early and continuing control so thatthe case will not be protracted because of lack of management," "discouraging wastefulpretrial activities," "improving the quality of the trial through more thorough preparation," andfacilitating settlement. . They believe that a full-time position is not likely to offer the payand status needed to attract persons whose mastery of the subject and intellectual prowess willenable them to work well with the able and aggressive attorneys usually involved in complexcases. Instead, the authors recommend the use of co-special masters, one with day-to-daymanagement functions and the other with duties related to subject matter expertise. . Judgesshould hold a conference with counsel and the master to discuss the tasks and powers beingdelegated and the procedures to be followed. . Brazil, Hazard, and Rice's Proposals TheBrazil-Hazard-Rice book is concerned primarily with discovery management and addressesthese administrative matters in much more detail than does Schwarzer. . In that case, alldiscovery demands were required to be filed with the masters, thus rejecting the Federal2955

Rules' view that the attorneys should generally conduct discovery without court involvement. According to Hazard and Rice, "The end product was a combined narrative stipulation,pretrial order of issues in dispute, and a tentative order of proof."15. Victoria E. Brieant, Techniques and Potential Conflicts in the Handling of Depositions,ALI-ABA Course of Study: The Art and Science of Serving as a Special Master inFederal and States Courts, Chicago, Ill. 2005.Abstract: Part 1 of this article addressed the use of depositions in the United States and therules that govern them. Topics included deposition techniques, sanctions, the limitations ofdepositions, objections, instructions not to answer, Rule 30(c)(2), special masters andmagistrate judges, discovery of documents reviewed by deponents, videotaped depositions,the form of questions, witness preparation, non-party subpoenas, and authentication ofelectronic evidence. These topics are, however, of utility only when you can actually take thedeposition. Getting to take a deposition is the United States is relatively easy. Despitevariations in rules among the states, the fundamentals tend to be consistent. Taking thedeposition of non-citizens or outside the U.S., on the other hand, can pose some seriousproblems.16. Anne-Marie C. Carstens, Lurking in the Shadows of Judicial Process: Special Masters inthe Supreme Court’s Original Jurisdiction Cases, 86 MINN. L. REV. 625 (2002).Lexis Abstract: However, the arcane procedures and delegations of authority used by theCourt in executing its original jurisdiction—where the Supreme Court functions as a trialcourt—have garnered newfound attention of late. . The precedent that guides the SpecialMaster, particularly in boundary dispute cases, is a fragile body of specialized federalcommon law, pasted together from international law treatises, property concepts, contract law,and sovereignty principles. " New Jersey initiated the first boundary dispute with New Yorkin 1829, a suit in which New Jersey conceded that New York had obtained jurisdiction overEllis Island, Staten Island, and neighboring islands by adverse possession. . Other possiblesolutions include creating a specialized federal court, establishing concurrent originaljurisdiction in the federal district courts, delineating procedures applicable to originaljurisdiction cases, and institutionalizing the prior practice of appointing senior or retiredArticle III judges. Third, a specialized court likely would be better equipped to standardizethe procedures applicable to original jurisdiction cases, given their continued exposure tocases raising similar procedural difficulties. . The United States Court of Federal Claims andthe United States Tax Court are specialized Article I courts; the United States bankruptcycourts are specialized federal courts, but they are considered "units" of the federal districtcourts, and their judges are not subject to the appointment provisions or protections of ArticleIII. [LexisNexis]3056

Citing References:Amalia D. Kessler, Our Inquisitorial Tradition: Equity Procedure, Due Process, and theSearch for an Alternative to the Adversarial, 90 Cornell L. Rev. 1181 (July 2005)Westlaw Abstract: Professor Kessler suggests that some of the worst abuses of modernlitigation--and, in particular, our discovery practice--can be traced to the ill-consideredway in which inquisitorial devices were imported into a common-law-based adversarialframework. By rediscovering our lost inquisitorial history, she argues, we can learn howour botched marriage of inquisitorial and adversarial traditions resulted in much of theinefficiency and unfairness of modern civil litigation, and we can begin self-consciouslyand systematically to develop the inquisitorial framework necessary to remedy ouradversarial excesses.To facilitate procedural reform, Professor Kessler challenges our conception ofinquisitorial procedure as alien to and incompatible with our commitment to due process.this transformation in equity procedures led in the early twentieth century to areconfiguring of the inquisitorial master as a trial master. She suggests that thesubsequent rise of increasingly complex litigation during the second half of the twentiethcentury, and especially the structural injunction suit of the Civil Rights era, led to a reemergence of the master's inquisitorial role, but that scholars have mistakenly viewed thisrole as a new phenomenon. Professor Kessler then posits that much of the inefficiencyand unfairness of modern civil litigation--and, most especially, of the pretrial discoveryprocess--results from integrating equity procedures into an adversarial context thatpermits parties to abuse powerful devices that were once controlled by the courts. Finally,she points to recent French procedural reforms to suggest that we can adopt moreinquisitorial procedures without violating the core values of due process. [Westlaw]17. Frank M. Coffin, The Frontier of Remedies: A Call for Exploration, 67 CAL. L. REV. 983(1979).Abstract from 1983 Duke L.J. 1265: The proposals are those made by Judge Frank M. Coffin,who has suggested major procedural changes to accommodate the exigencies oforganizational change litigation. 135 He is prepared to permit an "outside expert judge" to sit inon the remedial phase, since ex parte "influence would not seem to be of as much concern atthe remedial stage as when liability is at issue." 136 Judge Coffin also recommends thatappellate judges "sit in on critical arguments [in the trial court], absorb the atmosphere, gain abetter appreciation of the problem, and help inform the court of appeals so that it could play amore sensitive role." 137 Likewise, Judge Coffin would sanction conferences between trial andappellate judges before the trial judge decides on a remedy, 138 and he advocates theparticipation of the trial judge as "a resource person" [*1302] at the appellate argument. 139He is ready to adapt existing institutions in dramatic ways to make possible inquisitorialprocedures by trial judges and to make available to them "the help of proven experts." 140Frustration with the inadequacy of the courts to cope with organizational change litigation hasthus generated a willingness to tinker with procedure in quite fundamental ways, with verylittle awareness that such changes might redound to the disadvantage of the system as awhole.3157

18. James S. DeGraw, Rule 53, Inherent Powers, and Institutional Reform: The Lack ofLimits on Special Masters, 66 N.Y.U. L. REV. 800 (1991).Abstract: In addition to performing traditional trial-stage tasks, masters often participateextensively in the pretrial phase by overseeing discovery proceedings and conductingsettlement conferences. . By contrast, if the order of reference appointing a special master toimplement a remedial decree is unclear, she has little guidance. . A court may use its inherentauthority or its authority under Rule 53 to appoint an expert as a special master to advise thecourt. . Despite the appointment of an expert special master, the Lanzaro court retainedsubstantial responsibility for the ultimate resolution of the case. . The appointment of abiased special master thus restricts the court's inquiry even further and escalates exponentiallythe potential for abuse when accompanied by the ability to proceed ex parte, the authority toconduct broad discovery, and a deferential standard of review. . For example, in Toussaint v.McCarthy, the order of reference granted the special master broad discovery and ex partepowers as well as the power "[t]o review the placement and retention of prisoners insegregation, and to require the release of prisoners assigned to segregation without sufficientbasis, in accordance with the provisions of . . . the Permanent Injunction." . When stated inthe order of reference, the master shall have the ability to monitor the defendant's compliancewith the court's decree. . [LexisNexis]Citing References:Thomas L. Creel & Thomas McGahren, Use of Special Masters in Patent Litigation: ASpecial Master’s Perspective, 26 AIPLA Q.J. 109 (Spring 1998).Introduction: Are there unique aspects of patent infringement trials that make the use of aspecial master of particular benefit to the judge and the litigants? Yes, is the answer frommany judges who have used them. The unanimous decision of the Supreme Court inMarkman v. Westview Instruments, Inc. lends credence to the use of special masters. InMarkman, the Supreme Court stated that claim construction is exclusively for the court ina jury trial. Thus, the judge is to construe the claim for the jury much like a statute, andthe jury then decides infringement of the claim so construed. Because claim constructionis a matter of law, the United States Court of Appeals for the Federal Circuit (“FederalCircuit”) reviews the construction under a de novo, not clearly erroneous, standard. As aresult, a judge who is untutored in the science of the patented invention and in thevagaries of patent law is required to make a claim construction that can be reversedwithout regard to fi

Articles, Books, Websites, and Literature About Masters A variety of sources contain information and materials on special masters. The following resources contain references to the use of masters, or explain their roles, or describe their work. Please contact ACAM to include other sources not listed in this Section. See Table of Contents. BOOKS 1.