By CHRISTOPHER ZENISEK
Master of puppets I'm pulling your strings; Twisting your mind and smashing your dreams; Blinded by me, you can't see a thing; Just call my name, 'cause I'll hear you scream. —Metallica, "Master of Puppets"1
Little did fans know that Metallica's 1986 hit was written about the intricate legal processes described in the Colorado Rules of Civil Procedure. Okay, not really. But it is true that, effective January 1, 2018, the Colorado Supreme Court adopted amended CRCP 53 regarding appointment of special masters. A "special master" is an individual, paid by one or more parties, whom the court appoints to undertake certain court responsibilities in a particular case.
This article explores the reasons behind the changes, outlines the process by which the Civil Rules Committee recommended the rule to the Supreme Court, and provides an overview of the amended CRCP 53.
Reasons for the Changes
In early 2015, an attorney suggested to the Colorado Supreme Court's Civil Rules Committee that CRCP 53 needed amendment, as it contained some arcane language that seemed no longer to apply to current-day cases.
Among other concerns, the attorney noted that different standards applied to special master proceedings in jury versus non-jury cases. For instance, in a non-jury case the parties had 14 days to object to a special master's order, while in a jury case there was no deadline for objection. Likewise, in a non-jury case, findings of fact were to be accepted unless clearly erroneous.3 In a jury case, however, findings could be reviewed de novo, but the master's ruling was admissible as evidence and could be read to the jury.4 Finally, the rule permitted a court to appoint a master in jury actions "only when the issues are complicated"; but for non-jury matters, "save in matters of account, a reference shall be made only upon a showing that some exceptional condition requires it."5
In practice, of course, it's virtually (maybe entirely) unheard of that a special master would convene a jury trial. Why, then, have a distinction between "jury" and "non-jury" cases if a master will not interact with a jury anyway?
The Civil Rules Committee, chaired by Court of Appeals Judge Michael Berger, appointed a subcommittee to study the issue.
Committee and Subcommittee Discussions
The subcommittee discovered that FRCP 53 had been revised in 2003 and had been in place since without significant criticism. After consideration, the subcommittee recommended that Colorado pattern an amended CRCP 53 on its federal counterpart, with some changes. Over the course of several meetings, the Civil Rules Committee discussed several concerns and revised the proposed amendments to CRCP 53 before ultimately recommending it to the Colorado Supreme Court.
The following is a synopsis of the concerns addressed.
Standards of Review
If a court receives a master's decision, by what standard shall it review the decision? If too lenient, the court risks losing the benefit of the master's help because it might have to spend as much time in review as if it had decided the issue initially. If the standard is too strident, however, the court's authority could be delegated unwisely into private hands.
After several discussions, the Civil Rules Committee accepted the approach set forth in FRCP 53—that is, a reviewing court must decide all legal conclusions denovo, and it must resolve all "objections to findings of fact made or recommended" de novo unless the parties have stipulated to a "clear error" standard or stipulated that the master's findings will be final.6 Finally, procedural matters may be set aside only for abuse of discretion.7
The amended standard of review provides that the trial court still may receive evidence and has wide discretion to "adopt or affirm, modify, wholly or partly reject or reverse, or resubmit to the master with instructions."8
TIPS FOR ATTORNEYS (FROM THE BENCH)
1. Be realistic. Is your case truly an unwieldy mess demanding more attention than the court can provide? Or. might a little patience and a few rulings help shape and resolve the matter? A special master is most useful in the former case.
2. Raise the issue early. By the time the court realizes the need for a special master, the trial might be approaching and it might be too late to bring in a special master. If you believe a master is necessary raise the issue at a case management conference or earlier.
3. Don't be the "Unforgiven."*
Always confer. Rare is the case a court will wish to appoint a special master—after all, masters are "the exception and not the rule." Rarer is a special master appointment requested by one party and opposed by the other. Both by rule and by fairness, expect the court to be mindful of proportionality and financial impact on all parties. If there is good reason for opposing, you may face some resistance.
4. Be open to it.
This is an unusual procedure, and it might create some discomfort with the court. But...