At first blush, the term "private judge" sounds like some fictionalized idea one might find in an yellowing "Richie Rich" comic book, or something only a Donald Trump could do. But hiring a private judge is a very real legal maneuver – and one that's increasingly accessible to the middle class.
Private judges, who are sometimes neutral attorneys but more often retired judges, have been around in New York state since the late 1970s, and California since the early 1980s. In the past decade, many other states, including Texas, Ohio and Indiana, have begun embracing the concept. It's a win-win for the states and the people involved in the cases: Private judges make the court case load lighter for public judges, and the opposing parties that pay for their services can have their cases heard sooner.
So if you're in the midst of a divorce case, contract dispute or some other civil matter, and the thought of hiring a private judge intrigues you, here's what you need to know.
You don't really hire the private judge. Technically your attorney makes the arrangement, but you and your opposing party split the cost of the private judge to make a ruling on your case. So while it might sound like a sneaky, backhanded way to get the justice you want, because both parties are paying for it, someone will come out with a ruling they like, and someone won't. So, yes, you could spend hundreds or thousands of dollars on a judge's services, only to be told you're in the wrong and will need to spend much more.
Not just anyone can be a private judge. They are appointed by the same court where you would have your case tried if you went with a public judge, and private judges have the same duties and legal authority that judges in a public courthouse have. Their rulings can be appealed, unlike those of a professional mediator or arbitrator.
What a private judge judges. Each state has its own rules, but private judges typically hear domestic relationship cases, breach of contract cases and a variety of civil cases, says Judge Scott Vowell, who retired from the bench in January and now, with attorney M. Alex Goldsmith, runs Vowell & Goldsmith, a legal firm in Birmingham, Ala., that specializes in alternative dispute resolution and civil litigation. What type of case wouldn't a private judge try?
"A murder case, or a case that requires a jury," Vowell says.
The Benefits of a Private Judge
The taxpayers don't pick up the tab. "In Alabama, state funding has continued to decline every year, and every time the state court budget is reduced, it affects the court's efficiency, and the court loses employees," Vowell says. "Private judges provide an alternative for those who don't want to wait for the process of the legal system to get around to them. In fact, as budgets continue to decline, I think there will be more demand for this."
Speed. You can get a case tried quickly – in days versus months. The appointment for the hearing is also agreed upon by everyone, rather than the individual being told to show up for a court date.
You can choose your own judge. Within reason. As noted, the other party involved in the dispute also has to approve the judge, as does the court. Regardless, that's a powerful incentive for people considering a private judge.
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"You get to select the decision-maker. In a public court, judges are assigned randomly. But with a private judge, you can find a neutral private judge who both lawyers respect," says Randall Kessler, a divorce attorney in Atlanta and a recent chairman of the American Bar Association Family Law Section.
The privacy factor. "Parties may wish to share information with each other and the judge – but not the public," says Fran Tetunic, professor of law and director of the Alternative Dispute Resolution Clinic at Nova Southeastern University's Shepard Broad Law Center in Fort Lauderdale, Fla.
"Consider Paula Deen. Remarks she made in her deposition went viral," Tetunic adds. "Well, viral may not be the correct word, but you get my point."
If Deen's hearing in Georgia – a state that permits private judges – had been allowed by the court to be overseen by a private judge, perhaps the deposition might have gone unnoticed. But perhaps not, since court cases held privately are still considered part of the public record.
Still, a private judge does allow you to stay off the public radar. "When a case is being heard in the court room, a passerby can just come in. That doesn't happen if you facilitate your hearing in a chateau in the mountains or wherever you have it," Kessler says.
Some celebrities who have used private judges include Brad Pitt and Jennifer Aniston, Pamela Anderson and Michael Jackson.
Vowell, who served 18 years on the bench, says when he became qualified to be a private judge, the criticism that only the rich can afford one bothered him. But he came around to the reasoning that private judges ultimately help everyone.
"When private judges handle complex cases and matters involving more money than the average case, it does at least clear up the cases from public judges, and so it speeds up the process for all litigants," Vowell says.
The cost. It varies depending on the judge, who can set his or her own fees, and the complexity of the case. As one might expect, a private judge can cost thousands of dollars. Kessler says he typically sees private judges charge $500 to $700 an hour. On the other hand, according to the website for Private judge Donald A. Cox, a private civil hearing in central Ohio costs $150, a sum that even cash-strapped couples could likely scrape up. Traveling farther or conducting a hearing via Skype is $200. But if you want Cox's services for the entire day, it'll cost you $1,900.
If you're going to hire a private judge, "do your homework before making a selection. Although basic information is available online, the best information will come from practicing attorneys in the community," cautions Chris Bottcher, an attorney in Birmingham who has worked with Vowell. Or you may find that your legal representative isn't much help. As Bottcher observes, "Private judging is a relatively new practice, and many lawyers are unfamiliar with it."
And in some instances, such as a contentious divorce, it may behoove you to stick with a public courtroom. "A private judge may not be appropriate, though, when a party is belligerent or has been violent," Kessler says. "Someone who must be reined in by authority may feel they have unlimited ability to argue or raise their voice when the environment is too informal. There some times when the decorum and formality of the courtroom are not replaceable."