Originally published by Kyle Bailey.
At the January 2019 Midyear Meeting, the American Bar Association adopted the ABA Guidelines for the Appointment and Use of Special Masters in Federal and State Civil Litigation. The new guidelines pinpoint two primary benefits of special masters. First, special masters can assist judges and magistrates with effective case management because special masters are able to focus their time on complex cases to a degree that judges with busy dockets cannot afford. The second main benefit of utilizing a special master is cost savings. Special masters often reduce costs by helping to not only avoid issues before they arise, but also efficiently resolve disputes that cannot be avoided.
One area that is highlighted by the ABA Guidelines is the ability for special masters with technical expertise to assist in technologically complex disputes. Specifically, the guidelines state that special masters, “Provid[e] technical advice and assistance for example in managing patent claim construction disputes in patent infringement litigation.” Since no judge can be an expert in every subject matter that comes before the court, “Special masters who have specialized expertise in relevant fields can provide a practical resource to courts in cases that would benefit from subject-matter expertise.”
Despite these advantages, the appointment of a special master is still an underutilized form of dispute resolution. One of the main roadblocks currently preventing more widespread use of special masters is the absence of consistent procedures for their appointment and use. Therefore, the primary goal of the ABA Guidelines is to encourage increased awareness of the benefits related to the use of special masters and the development of standards for the appointment of special masters.
Overall, the guidelines recommend that courts, counsel, and parties be aware of the full range of functions a special master can perform and consider new ways special masters may be utilized. Legal practitioners should keep the ABA Guidelines in mind when engaging in complex disputes, especially in highly technical areas like intellectual property.
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