The Civil Litigator
| Jurisdiction | Colorado,United States |
| Citation | Vol. 10 No. 10 Pg. 2541 |
| Pages | 2541 |
| Publication year | 1981 |
1981, October, Pg. 2541. The Civil Litigator
At the time the filing date is stamped on the complaint, counsel has usually made his or her election to try the case before a jury or the court. The options available to counsel regarding the determination of matters of fact, however, do not end there. A thoughtful election of counsel may be frustrated by the request of opposing counsel or the insistence of the court that specific issues of fact be presented to a master. Rule 53 of the Colorado and Federal Rules of Civil Procedure provides the framework for such a referral and the procedures for implementing it are examined here.
Colorado Rule 53 and Federal Rule 53 are essentially the same and the Colorado courts have concluded that federal decisions are persuasive authority on procedural matters.(fn1) Both jurisdictions have stated that unrestricted references to masters constitute abdication of the judicial function,(fn2) references increase costs to litigants(fn3) while services of judges and court facilities are furnished at public expense,(fn4) and references to a master should be used sparingly(fn5) and not as a routine matter where the issues are not complex and the facts are not complicated.(fn6) Indeed, Rule 53(b) itself states that "a reference to a master shall be the exception and not the rule."(fn7)
Rule 53(b) makes a distinction between jury and nonjury actions, allowing a reference injury actions when "the issues are complicated" and in court actions, "save in matters of account" and "of difficult computations of damages" (federal rule only), when a showing of some "exceptional condition" is made. Legal commentators have differed in their assessment of the two criteria, concluding on the one hand that courts should be less liberal in ordering references in jury cases than nonjury cases,(fn8) and on the other, that the "complicated issue" standard used in jury cases is far less restrictive.(fn9) The latter view appears more persuasive since the master's findings of fact in nonjury cases must be accepted by the court unless clearly erroneous,(fn10) thereby justifying a more restrictive standard for reference than in a jury case where the master's findings are admissible evidence, but the jury remains the ultimate arbiter of the facts.(fn11)
Since the 1957 decision in LaBuy v. Howes Leather Co.,(fn12) in which the U.S. Supreme Court held that a federal district court had abused its discretion in ordering a reference to a master in a complex antitrust action, courts have generally recognized that complexity of issues in a nonjury case is not an exceptional condition warranting a reference.(fn13) Although court congestion was also held in LaBuy to be insufficient to warrant reference, courts have tended to recognize the principle, but find a reason to depart from it.(fn14)
Those matters most appropriate for reference to a master in a nonjury situation include suits for accounting,(fn15) (but if the accounting is not complicated, reference is not justified),(fn16) and suits involving difficult computations of damages.(fn17) The use of special masters at the remedial stage of litigation is beyond the scope of this article.(fn18)
In a jury case, the court must be mindful that the fact-finding function of the jury might be unduly invaded by a reference to a master, and the issues in the case should be examined to determine if they are of sufficient complexity to warrant the reference. Mandamus directing the district court to vacate an order of reference was granted in In re Watkins(fn19) on the observation that the "minimum required is a demonstration that over and beyond a mere numerical quantitative analysis, the case is intrinsically complex."(fn20) Complicated damage computations left to expert testimony for each side that produce wide variations tend "to bewilder rather than to clarify the jurors' minds"(fn21) and raise an appropriate setting for reference in a jury case.
Pursuing a claim against a substantial business enterprise is usually an expensive undertaking. If, in addition to the normal costs of litigation, the claimant must undergo the extraordinary and unwanted referral to a master on one or more issues, the result can play havoc with the less substantial litigant. The court in Graffis v. Woodward(fn22) lamented the possible mischief which might result, but sustained the reference to a master after observing:
Counsel for petitioners have by affidavit declared that their clients are unable to bear unusual costs of litigation, while the defendant, one of the wealthiest corporations in the United States, is well able to meet any...
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