NEWS FOR ACAM SPECIAL MASTERS

FALL 2007

 

THIS ISSUE

Annual Meeting

Inaugural Edition

ACAM History

New Members

Member Articles

Program for Judges

Legal Developments

Special Feature: Exclusive Interview with Francis McGovern

Dear Colleague,

It is with great pride that we publish the ACAM Special Master Update, our first formal news publication. We can all learn from each other and from special master developments, and you can read all about it right here.

We plan to publish quarterly emails containing useful information relating to our work as court appointed masters. You can participate in this educational endeavor by submitting for publication concise summaries of special master news, successes, ideas, court cases, or any other information worth sharing. Email your contributions to rhaydock@adrforum.com.

Three years ago, we formed this Academy with a mission to help educate judges, lawyers, and the public about the effective use of special masters. We anticipate this publication will further that mission. Enjoy.

Roger Haydock

 


ANNUAL CLE AND MEETING

We very much hope you will be able to attend our Nov. 1-2 CLE and Annual Meeting in Washington D.C: The Art and Science of Serving as a Special Master in Federal and State Courts. The program and meeting will be held at the Hotel Monaco. A full program description and online registration are available on the web, at: http://www.ali-aba.org/cn040/.

The Annual Meeting of the Academy will be held after the conclusion of the CLE program. The meeting will convene at 3:30 at the Hotel Monaco. Following that meeting, the Fellows will convene at 5:00 for cocktails and 6:30 for dinner. The dinner details are set forth below.

If you plan to attend the dinner, please advise David Herr by e-mail (david.herr@maslon.com) and send him a check for the dinner cost of $100.00. It is very important that you do this by October 15, as the Academy will have to guarantee the cost of dinner for the number attending, and there will not be space for those who do not respond and pay be this deadline.

Academy Dinner
Paris Ballroom—Hotel Monaco
 
5:00-6:30   Canapes and Hors d’oeuvres
 
6:30   Dinner (wine included with dinner)
 
Spinach, Gorgonzola, Pine Nut and Balsaimic Vinaigrette Salad
Pan-Seared Thai Snapper, Salsa Fresca, Celery Root Mashed Potatoes
Chocolate Dome with White Chocolate Ganache
Coffee and Tea

We anticipate it will be our largest and best CLE and meeting. It will be a great opportunity to learn about the latest special master opportunities and to network with others.

 


INAUGURAL EDITION

The inaugural and future editions of ACAM Special Master Update will bring you special master developments. Our goal is to provide information about:

  • Relevant case law and legislation,
  • Articles written by and about our members,
  • Significant and successful work by our members,
  • Our annual CLE and meeting,
  • President and Committee reports,
  • New members, and
  • Other fascinating special master information.

As a new organization, we have achieved significant accomplishments over the past few years:

  • A substantial membership, including our charter members and ever increasing new members,
  • Our annual meeting and CLE with ALI-ABA,
  • The publication of The ACAM Handbook for Judges: Appointing Special Masters and Other Judicial Adjuncts,
  • Our website—courtappointedmasters.org, and
  • The collegiality and collaboration we have established among members.

One of our initial goals was to create a national network of federal and state special masters so we could learn from our collective experiences. Together, we have made and can continue to make each of us a more effective special master. There is much more we can and will do.

The ACAM Special Master Update will help us record and publicize our future accomplishments.

 


ACAM HISTORY

The inaugural Special Master National Conference was co-sponsored by the National Arbitration Forum and the William Mitchell College of Law in October 2004. The primary goals of this historic gathering were to discuss and promote special master work and to create a national association of judicial adjuncts. The faculty included Ken Feinberg, Francis McGovern, Judge Michael Davis, Magistrate Judge Jon Lebedoff, Brad Jesson, and Martin Quinn. Thirty-four masters from around the country attended and then formed the Academy of Court Appointed Masters.

The genesis of this new organization came about through the idea and efforts of Roger Haydock, who was a federal court special master. While serving as Special Master in the Baycol MDL, he found it helpful to learn from the experiences of other masters and wished there was a better way to locate and network with these judicial adjuncts. Judge Michael Davis, who had appointed Roger special master, suggested Roger do something about it. Roger recruited David Herr, Lew Remele, and Sol Schreiber to create a non-profit organization, which later became the Academy.

The ACAM mission is to educate the public and the courts with respect to the use and value of special masters. In its first year, the Academy published and distributed an extensive handbook for judges entitled Appointing Special Masters and Other Judicial Adjuncts. This book, written by Randi Roth, David Cohen, Martin Quinn, and Roger Haydock, and contributed to by several other Fellows, has been well received by both federal and state court judges.

With ALI-ABA, the Academy has co-sponsored a CLE program, followed by the Academy’s annual meeting. The initial 2005 program was held in Chicago and the 2006 program in San Francisco. Sol Schreiber and David Herr co-chaired these programs, and highly regarded and nationally known masters and judges served as faculty. These conferences produced articles and research that have helped advance the work of judicial adjuncts.

The success of the Academy is due in large measure to its members and leaders. There are currently 82 ACAM members. Francis McGovern and Sol Schreiber each succeeded Roger Haydock as President, and David Herr is President-elect. Executive committee members have also contributed to its success, as well as many committee members working on Publications/Website, Membership, CLE/Programs, and Judicial Outreach. Members who have served multiple years include Gregory Miller, Catherine Yanni, Margaret Farrell, Clarence Sundram, and Lew Remele.

By any measure, ACAM is doing well at fulfilling its mission and promoting the effective use of masters by the judiciary. More information is available at www.courtappointedmasters.org.  We hope to see the Academy take an even more prominent role in educating judges, lawyers, and parties about the valuable contributions special masters and other judicial adjuncts make to the fair and efficient resolution of litigation.  Whatever you can do in your own jurisdiction and circles of influence can help move ACAM forward.  We hope in the coming years to see more and more activities showing how judicial adjuncts are of value to the administration of justice.

 


NEW MEMBERS

We are pleased that the following masters are now our ACAM colleagues:

Michele D. Beardslee, Cambridge, MN
Peter N. Thompson, Saint Paul, MN
Frank P. Tranchina, Covington, LA
Paul O. Lopez, Ft. Lauderdale, FL
Louise Dovre Bjorkman, Saint Paul, MN
Amy J. Galloway, Ft. Lauderdale, FL
James D. Wilson, Chicago, IL
Cary Ichter, Atlanta, GA
Ann Kough, Los Angeles, CA
Valerie J.M. Brader, Ann Arbor, MI

 


MEMBER ARTICLES

The following articles written by members have been recently published. All members are encouraged to publish articles in their state and local bar journals and magazines. Please email your new publications to rhaydock@adrforum.com for inclusion in future editions.

Cary Ichter, Special Masters: Mastering the Pretrial Discovery Process, Ga. Bar J., Apr. 2007, at 22.

Howard Marsee, Utilizing Special Masters in Florida: Unanswered Questions, Practical Considerations, and the Order of Appointment, 81 Fl. Bar J. 12 (Oct. 2007).

 


FELLOWS PRESENT PROGRAM TO MINNESOTA JUDGES

On September 6, Academy Fellows Tom Fraser and David Herr of Minneapolis presented a program on the Use of Special Masters in Complex Litigation to about 55 Minnesota trial court judge at the annual meeting of the Minnesota District Judges Association. They also addressed the use of masters in electronic discovery disputes. In addition to other resources, the materials for this program included the Academy’s benchbook: APPOINTING SPECIAL MASTERS AND OTHER JUDICIAL ADJUNCTS: A HANDBOOK FOR JUDGES (2006), which was made available to judges on a DVD and was also posted on the court’s intranet (for judicial use only).

The program was well received by the judges and will be reprised in the future. This program was a great way to showcase the Academy and the resources its members can provide to judges handling complex cases. The program could easily be adapted for use in any other state, and Tom and David would be happy to assist anyone trying to set up such a program.


LEGAL DEVELOPMENTS

The following is a list of recent court decisions in which the role, purpose, or function of a special master is discussed. 

In re Gootnick Family Trust, No. 07-00042, 2007 WL2479294 (D. Haw. Aug. 28, 2007) (unpublished) (upholding calculation of reasonable attorney’s fees by a federal magistrate who was appointed special master pursuant to Rule 53).

JCW Investments, Inc. v. Novelty, Inc., 482 F.3d 910, 920-21 (7th Cir. 2007) (affirming the adoption of a 54-page special master's report that determined reasonable attorney's fees in a copyright and trademark infringement case involving a "Fartman" novelty doll).

Latin American Music Co. v. The Archdiocese of San Juan of the Roman Catholic & Apostolic Church, No. 05-2806, 2007 WL 2326817, at *9 (1st. Cir. Aug. 16, 2007) (affirming equal allocation of special master's fee under prior version of Rule 53 that did not expressly address fee allocation).

Moeller v. Taco Bell Corp., No. C02-05849 MJJ, 2007 WL 2301778, at *9 (N.D. Cal. Aug. 8, 2007) (unpublished) (granting partial summary judgment in ADA case based on special master’s report measuring restaurant accessibility).

Peterson v. Islamic Republic of Iran, No. 01-2094, 2007 WL 2563441 (D.D.C. Sept. 7, 2007) (adopting the findings of special masters on damages suffered by military personnel in the 1983 attack on Marine barracks in Beirut and awarding a sizable judgment against the Islamic Republic of Iran).

Roberts v. County of Mahoning, Ohio, 495 F.Supp.2d 784 (N.D. Ohio 2007) (terminating the appointment of a special master who successfully assisted county officials in resolving unconstitutional conditions at a country jail by issuing a report that “established a mechanism for the actual resolution of this litigation”).

Sportlite, Inc. v. Genlyte Thomas Group, LLC, No. Civ. 04-2146-PHX-MHM, 2007 WL 2324615, at *8-10 (D. Ariz. Aug. 9, 2007) (ordering a reduction of special master's fees based on special master’s failure to disclose his involvement in malpractice litigation and disciplinary hearings and his delay in issuing report).

 


SPECIAL FEATURE: EXCLUSIVE INTERVIEW WITH FRANCIS McGOVERN

A special feature of this inaugural issue is a conversation with Francis McGovern, ACAM Past President and a very experienced and extraordinarily talented special master. Mark Fellows, National Arbitration Forum Manager of Education & Research, conducted this recent interview.

Mark: Please tell us your background as a special master.

Francis: I was teaching at Boston University and asked Eric Greene if he would join with me and be a co-special master in approximately 126 asbestos cases. In the process, we developed a computerized evaluation system for asbestos cases. It was successful at resolving them. Another judge in the Sixth Circuit heard about the success in Cleveland and asked me to be a special master and mediate an Indian Treaty Fishing Rights case, and that worked out. Subsequently, my work has been solely for judges serving as a special master or neutral in a wide variety of cases.

Mark: What type of special master work do you prefer?

Francis: My preference is serving in the role as mediator in particularly complex cases usually with a public component.

Mark: How do you keep your energy and your focus given your various activities and involvement in high-profile cases?

Francis: Actually, there is an enormous synergy between teaching and serving as a special master. They feed on each other. The teaching provides the stimulus to keep up to date both in terms of legal development and cultural developments because the students, believe it or not, get younger each year. It forces me to stay conversant with the latest trends. At the same time, I have the benefit of being able to take what I have learned in teaching and apply it in the context of the various cases. Then, the loop gets closed by being able to talk about in class the application of the theories and cultural developments in the context of actual settings.

Mark: What characteristics does it take to be an effective special master?

Francis: I am not certain that there are any specific prerequisites other than the general traits of a very thick skin, and an ability to develop movement in cases, whether it is based on personal experience, legal experience or other factors, so that cases can get processed. People use extremely varied techniques but are equally successful. So, I don’t think that there is any one formula of prerequisites other than the ability to develop confidence in the world that you are serving.

Mark: Any specific advice, career wise, for someone aspiring to get into the special master role for the first time?

Francis: My general advice would go back to the movie, “What About Bob?” where he was dealing with baby steps. That is to say, there is no substitute for experience. Start out with very small cases, which might seem to be trivial to the experienced practitioner. I would argue that such cases raise some of the same issues that occur in larger and more complex cases. Any objection that someone might have to engage in the role of mediation, or the other functions as special master, would be extremely worthwhile no matter how small the dispute, no matter how low the profile.

Mark: I want to ask you about the Academy of Court Appointed Masters and its potential. What role can ACAM play in order to get special masters to be more widely accepted by judges and courts?

Francis: The number one role from my viewpoint is the opportunity for special masters to speak with each other about their experiences and their approaches. The role of a special master is sufficiently unique in the legal landscape so that there are relatively small numbers of people who have been able to serve as special masters. They can generally benefit enormously from the ability to share their experiences with other special masters. That is to say, the ability in law firms to practice law with others is well known, but less appreciated is the ability of special masters to help each other in learning aspects of what they do that most special masters would not feel comfortable in talking with anyone other than a special master.

I think an appropriate analogy here is how judges discuss their work. Judges feel often times uncomfortable talking about the intricacies of their work with non-judges, where they feel very comfortable talking with judges. So, number one on my list would be the ability of special masters to communicate with each other and share their experiences and approaches because I think we can all greatly benefit from the wisdom of others.

Mark: What other roles can ACAM play?

Francis: I think the educational component is number one on the list. That is to say, generally speaking, the biggest barrier to the use of special masters by judges is their unfamiliarity with the role. Once a judge feels confident that this is a particular approach to resolve a particular case, you find judges being a repeat player. The greatest difficulty is breaking the ice in the first instance, and once you can do that, generally speaking, the experiences of the judges has been quite positive and they tend to use special masters again. So, I would say the number one approach would be an educational role for the Academy in assisting judges to make that first step in appointing special masters and in helping them understand the potential upside and downside so that their first experience is a worthwhile one.

Mark: Your keynote address at the first ACAM Conference in Saint Paul addressed five trends. I’d like to ask you if you have any additional reflections on these points a few years down the line. You spoke first about the contrast between the initial excitement of a mediator accepting a special master position in an exciting and complicated case, and you warned that masters should temper that excitement and be careful. Do you have any further reflections on that idea?

Francis: I think the assumption that most people make when they are first appointed as a special master is that there is universal acceptance of their role. The caution that I was trying to underscore in those comments was that it may very well be in the heat of the adversarial process that the universal acceptance is dependent upon the outcome that they had originally anticipated to be a positive one, but it may not necessarily be a positive one. That is to say that the lawyers in the case have a role as advocates, and if they think the case is going in their direction or might go in their direction, they can be very positive. If on the other hand, if for reasons totally independent of the special master, the case is not going in their direction, they might become adverse to the special master. So, the caution there is to ensure that there are no grounds that the special master might leave if the parties find it in their adversarial interests, or in pushing the interests of their client. Or, worded differently, if they find that it is advantageous for them to take a position that is adversarial to the special master, then the special master should be cautious that they have not provided any grounds on which they might be able to do that.

Mark: Another of your observations from that talk was a perceived increase in the source of appointments from judicially-initiated engagements of special masters to ones that are initiated by the party. Any other recent observations about that trend?

Francis: There is no question in my mind, but that trend has become accentuated. As the roles of special master and that of the mediator have become more prominent, we are finding that lawyers co-opt the situation. There is no question in my mind, but the instigation of the appointment of mediators and special masters is increasingly coming from lawyers in proportion to instances where it comes from the bench.

Mark: You have been very involved in working on relationships between judges, sometimes between state and federal judges, in the context of complex mediation. Is that something you still see as a potential growth area for special masters and Academy members?

Francis: Absolutely. It doesn’t happen with the level of frequency that the local litigation generates, but it happens with sufficient frequency that there can be an enormously important role for special masters, not only nationally but also internationally. There has been some recent experience where we have had some proceedings that have been parallel in jurisdictions outside of the United States and within the United States. For example, we have some prominent cases that are involving international matters. We have securities cases that have an international flavor. Then, we even have instances like Katrina, where you have a national disaster that crosses state lines, and sometimes international lines, where you have similar kinds of cases being filed in multiple jurisdictions. As a result, there may be a need for increased cooperation amongst the judges which could be stimulated by the use of special masters.

Mark: You also spoke about the sensitivity around compensation, and how special masters tend not to be compensated as much as mediators, and, of course there is tension associated with making more money than the judges make.

Francis: Yes, that is still always an issue. That is to say, the disparity at this point is increasing. For example, I was just asked to be the neutral arbitrator in arbitration. There is a huge disparity in the pay of the two party arbitrators, and I had to make a decision as to what I wanted to charge. So, we see that popping up in a lot of different contexts. Lawyers now are, of course, passing through the $1000 per hour phase as we have seen in the National Law Journal. It can be a problem when you would like to be paid on a par with the people you are mediating, but the disparity you have is in compensation for the judiciary because that can be even more extreme.

Mark: You talked at some length about the distinction between traditional tools of legal persuasion and some of the more political approaches to persuasion that you were starting to see used more. You used Elliot Spitzer and the Boston Legal television show as examples. Any other reflections on that kind of trend?

Francis: What you see in litigation now is when those of the legislative process or the executive branch are unable to resolve important issues, you find people resorting to the judiciary and the legal system. There is no question in my mind that right now in the United States, we see a lack of momentum prior to the election. So, what we will find is cases being presented to the legal system. In addition, there has been a lack of pronounced change in the composition of the judiciary at least as far as the federal courts are concerned over the last twenty years. So, I think we are going to see more and more issues that have remained dormant being revived again. I suspect that there will continue to be a fair amount of litigation that has this type of political component or political agenda associated with the legal merits of the claim.

Mark: The last topic from your remarks addressed the different styles that mediators and masters have. You gave some examples of figuring out a way to get lawyers to bond with one another, of a judge who would convene gatherings where sticky issues would get resolved informally versus the judges who would not want to engage in any informal or ex parte interactions.

Francis: Yes, I am a still a firm believer in expanding your range of tools, but of course, they need to be appropriate in the legal culture in which you are dealing and with the judge who is responsible for the case. Being appropriate to the circumstances is critical, but at the same time, thinking outside of the box with different techniques should also be part of your repertoire.

Mark: Thank you very much.

 

 

Copyright © 2007 Academy of Court Appointed Masters