1.
What is private judging?
2. How do I know if private judging is right for me?
3. How is private judging different from mediation?
4. Is the private judge’s order binding?
5. How is a private judge different from a referee or
special master?
6. What is the source of the private judge’s authority
and power?
7. Does the same law apply in private judging as at court?
8. Do the same rules apply as in court?
9. Why would I choose a private judge over a public one?
10. How does the private judge get paid?
11. What is “case management?”
12. Will the private judge conduct a settlement conference?
13. How is a settlement conference with a private judge
different from a settlement conference at court?
14. What is a “caucus” settlement conference?
15. How do I choose a private judge?
16. What kinds of legal issues can we bring to Judges Talia and
Pearce?
17. If I want a private judge and my spouse doesn’t,
can I force her/him to agree?
18. Can I interview the private judge before agreeing
to the appointment?
19. How do I choose the right private judge for my case?
20. Will I get a different kind of decision from the private
judge?
21. How does having a private judge save me money? Doesn’t
the fact that I have to pay for this judge’s time while
the judge at the courthouse is free mean that it is cheaper to
go to the public court?
22. Does the private judge use a courtroom?
23. Why is the private courtroom facility designed as
it is?
24. Is there a bailiff?
25. What if my spouse’s lawyer has appeared before the private
judge, but mine hasn’t?
26. What if I just need a quick decision on a single issue?
27. How do I get a copy of the judge’s standard order for
appointment?
28. What if I need an emergency hearing?
29. How private is “private”?
30. What if I want the same judge to hear later motions
in my case?
31. What if I don’t want the private judge to be
involved indefinitely?
32. What if I opt for a private judge, and then decide
I don’t like the rulings? Can I opt out?
33. What if I think I might want to appeal the judge’s
order?
34. Do the same rules apply on appeal?
35. Can I bring other legal matters (not family law) to
these judges?
36. If I don’t use Judge Pearce or Judge Talia,
can I still rent the private courtroom facilities for another
private judge?
1.
What is private judging?
In private judging, you and your spouse, with the assistance of
your attorneys, agree to use a private family law specialist as
a judge instead of whoever your case is assigned to at court.
You can set the timetable which is right for your case, and select
an individual whose qualifications fit the issues presented. You
can be assured of the expertise of the judge who will decide your
legal issues, and can set aside as much time as is required to
present all of the important evidence.
2. How do I know if private judging is right for me?
We have developed a whole series of questions which will help
you make that determination. [Click Here
to Review Questions]
3. How is private judging different from mediation?
Although a private judge will work with you to settle your case
(if appropriate), the judge retains the final power to make orders.
That means that if, after conducting a settlement conference,
you and your spouse are still unable to agree, the judge will
have a hearing and make the order based on the law and the facts.
In mediation, you and your spouse work with a neutral mediator
in a confidential setting to resolve your differences. As a result,
you are fee to craft unique solutions to your legal problems which
might not be available at court. This gives you greater latitude
to design a solution which works for you, whether or not it is
something the judge would be able to order. Click here if you
would like to learn more about mediation. Mediation is confidential in California,
while court proceedings are not.
4. Is the private judge’s order binding?
Yes. Private judging isn’t a preliminary finding, or informal
opinion which you must then “confirm” by going back
to court. The private judge’s ruling is just as binding
and enforceable as any Superior Court judge’s. That’s
why it is important to find out about your judge, [Click
Here for judge Bios] and make an informed decision.
5. How is a private judge different from a referee or
special master?
California law provides that judges can appoint either referees
or special masters to investigate specific issues or claims and
report back to the court. Special masters and referees are not
judges and do not have authority to make binding orders. Instead,
they investigate the issues which have been assigned to them,
and make recommendations to the judge, who is then free to accept,
reject, or modify the recommendations in making a final order.
By contrast, a private judge has all of the authority of a Superior
Court judge, and the orders are final, enforceable and appealable.
6. What is the source of the private judge’s authority
and power?
Some states do not allow private judging. However, the California
Constitution has a specific provision which allows litigants to
choose to take their case to a private judge, so long as the private
judge has the qualifications to serve as a judge in a public court.
When parties agree to a specific private judge, a Stipulation
for Appointment is signed by all parties and their attorneys,
and the private judge. It is then sent to the Presiding Judge
of the county where the case is pending. When the Presiding Judge
signs the order, the private judge has all of the powers of a
sitting Superior Court judge for that case only. It is always
done on a case by case basis.
7. Does the same law apply in private judging as at court?
Yes. Just like the judges at the courthouse, your private judge
must sign an oath of office which promises to uphold the Constitution
and laws of the State of California. The private judge is no more
able to make up the law, or change it if s/he doesn’t like
it, than the judges at the courthouse. The benefits of private
judging are the specialized expertise of the judge, expediency,
cost-effectiveness, timeliness, and privacy, not in obtaining
a result which does not follow the law. That’s why it is
important to have a private judge who not only has significant
family law experience, but who also keeps up on recent developments
in the law.
8. Do the same rules apply as in court?
Private judging can be as formal or informal as you wish. Unlike
at court, you and your spouse and the private judge can agree
to limit the technical rules of evidence or procedures. You can
agree to present your case in narrative form, rather than proceeding
by direct or cross examination. You can elect to have your attorneys
tell the judge your story, in the form of an “offer of proof,”
if you like. Of course, unless you both agree, all of the same
laws and rules will apply in private court as in public.
9. Why would I choose a private judge over a public one?
In addition to the efficiency and cost effectiveness of the private
judging approach, and the ability to choose the right judge for
your case, you can be assured of the experience and expertise
of your judge. Very few public family law judges are certified
as Family Law Specialists by the State Bar of California. Judge
Pearce is a member of the first class of Certified Specialists,
and has been certified since 1980. Judge Talia has been certified
since 1985. Both have many more years of experience in litigating
the kinds of family law cases which are presented to them than
most public family law judges.
10. How does the private judge get paid?
Private judges charge by the hour for their time. Generally, the
private judge is paid from the community estate, with each party
paying one-half of the cost “subject to allocation.”
That means that the judge might decide later to allocate more
of the cost to one side or the other. Common reasons for reallocation
would be if the judge concludes that one side has unreasonably
increased the cost of the litigation, or if one side has significantly
more assets or income than the other, such that it would be unfair
not to do so. Sometimes, when one side appears to have significantly
greater assets than the other, that party will advance the judge’s
fees, again “subject to allocation” if the judge ascertains
that it would be fair to do so. The private judge will ask for
a deposit to be placed in a trust account, to be drawn against
as the case proceeds and time is expended on your case. If the
case goes on for a while, you may be asked to replenish the original
deposit. That it why it is especially important that you prepare
carefully and make the best use of the private judge’s time.
The judge will work with you on this by doing “case management.”
11. What is “case management?”
Sometimes the cost of litigation is driven higher than it should
be because it isn’t clear what part of the case you should
be prepared for at a particular time. Sometimes parties can’t
agree on what information they need to have (“discovery”)
before proceeding with a particular hearing. Private judges generally
have much more time and flexibility to manage cases than judges
at the courthouse, and case management is one of the most cost-effective
and efficient ways to use a private judge, even if the ultimate
trial is going to be at the public court. The private judge will
ensure and oversee the flow of information, the order of hearing,
the manner in which evidence is presented, and generally make
sure that each side knows what they need to do, and has what they
need to have, to effectively present their case. This means that
time at court is used efficiently, and you aren’t paying
attorneys to prepare the same issue or evidence more than once.
Case management is often done by conference telephone call, which
is an extremely efficient and cost effective method. If there
are enough issues or complexity requiring management, they may
set a “case management status conference.” These conferences
almost always pay for themselves many times over in preventing
overlapping or duplicate attorney fees, and making sure that each
attorney knows exactly what they do (and do not) need to prepare
for.
12. Will the private judge conduct a settlement conference?
Most courts require that parties attend a mandatory settlement
conference supervised by the judge before going to trial. The
purpose is to give people assistance in settling their case before
they are exposed to the cost and potential trauma of a contested
trial. While you can waive a settlement conference if you and
your spouse are convinced that you are so far apart in your positions
that it would be a waste of time and money, you should seriously
consider trying to settle before going to trial. A good settlement
judge can often assist you in finding middle grounds and creative
solutions that you didn’t anticipate. Most attorneys and
judges will tell you that trial is a last resort, and should only
be used if you have truly exhausted all settlement efforts.
13. How is a settlement conference with a private judge
different from a settlement conference at court?
If you have a settlement conference at the court, you rarely get
to see the judge personally. More likely, there will be several
cases set for settlement conference on a particular day. You will
each wait your turn to see the judge. When your turn comes, your
attorneys (not you) will go into chambers to see the judge and
discuss settlement options. Your attorneys will then come out
and report to you while the judge meets with attorneys on another
case. Many litigants object to this process because they are excluded
from the proceeding at a critical stage in their case. They don’t
get to hear what their attorney and the opposing attorney say
to the judge. In private judging, you get to talk directly to
the judge. You get to hear your attorney tell the judge why you
think there should be a particular result. You then get to hear
the judge’s reaction first hand rather than through your
attorney. You can also tell the judge your story in your own words,
and not through someone else.
14. What is a “caucus” settlement conference?
Judges at the public courthouse rarely conduct “caucus”
settlement conferences, although they are common in private judging.
A caucus simply means that the judge meets privately with each
side of the case, with you and your attorney, and then with the
other party and their attorney. This is only done by agreement,
because it is a specific exception to the rule that the judge
cannot have individual (ex parte) contact with one side outside
of the other’s presence. Sometimes you will be more free
to state your position if the other side isn’t listening.
The judge can tell you where weaknesses are perceived in your
case without alerting the other side to them. That allows you
to negotiate a settlement where you give up something you are
likely to lose anyway in exchange for something else. Many litigants
find this procedure very helpful and conducive to settlement.
Be aware, however, that this isn’t an opportunity to give
the judge information which you couldn’t present at trial.
If the caucus doesn’t result in a settlement and the case
goes to trial, the judge must base the decision solely on the
admissible evidence at trial, not on what someone told them in
a settlement conference. Judges are used to ignoring information
which is inadmissible because it violates a rule of evidence.
15. How do I choose a private judge?
Private judges are always selected by agreement of the parties.
One side may not impose a private judge on the other. You should
find out as much about your prospective private judge as possible.
What is his/her background? What kinds
of legal issues did they specialize in when they were in practice?
What is their familiarity with the specific issues presented by
your case? Has your attorney worked with this private judge before?
What about the other attorney? Private judges are required to
disclose whether they have worked with either attorney on a case
within two years of accepting an assignment. Also, private judges
are bound by the same ethical rules and disclosures as judges
at the courthouse, and may not take cases where they have a conflict
of interest. They must decline to hear cases where they feel then
cannot be impartial.
16. What kinds of legal issues can we bring to Judges Talia and
Pearce?
Both of them are Certified Family Law Specialists, and
both have extensive experience in all phases of family law litigation.
These include:
a. Property characterization, valuation and division;
b. Business valuation issues;
c. Tracing separate property claims;
d. Stock options, pension rights, and other employee benefits;
e. Child custody and access;
f. Child support orders, collection and enforcement;
g. Spousal support orders, collection and enforcement;
h. Determining the validity and interpreting premarital agreements;
i. Domestic partnerships;
j. Parentage;
k. Attorney fees and litigation costs;
l. All other aspects of family law litigation.
17. If I want a private judge and my spouse doesn’t,
can I force her/him to agree?
No, private judges are always appointed by agreement of the parties.
However, after people have been to the public courts a few times,
perhaps not accomplishing much, they are frequently more interested
in exploring more efficient ways to get their legal matter decided.
Even if your spouse won’t agree at the beginning, circumstances
may make private judging more attractive as the case progresses.
Frankly, it is not only frustrating but very expensive to pay
your attorney to prepare for a legal proceeding and wait around
the courthouse, only to find out that the judge doesn’t
have time to hear your case, or can only hear a part of it, requiring
you to come back another day. After this has happened to your
spouse, s/he may see the wisdom and economy [See FAQ #21] of paying
a private judge to get a speedy and thorough resolution.
18. Can I interview the private judge before agreeing
to the appointment?
Not really, although there are steps you may take to obtain more
information. Judges, whether public or private, are not allowed
to talk to one side “ex parte,” that is, outside the
presence of the other. This is an important rule which protects
their neutrality. You can’t individually interview a prospective
judge, nor can your attorney. If you want to know more about the
judge’s qualifications for your case, you should talk to
your attorney about setting up a conference call between the judge
and both attorneys. Your attorney can ask any questions either
of you may have, and may discuss the case in general terms, to
satisfy him/herself that the judge is impartial, qualified, and
expert in the areas you need.
19. How do I choose the right private judge for my case?
You should always find out about the private judge’s professional
background, experience in practice, and professional specialties.
Many family law attorneys
don’t like to do custody work. If you have a custody problem,
it will be important to select a judge with expertise in that
area. Similarly, if you have an issue involving pension rights,
stock options, business valuation, or other technical areas of
law, you will want to ascertain the level of your private judge’s
experience in those fields.
20. Will I get a different kind of decision from the private
judge?
The private judge is bound by the same law and rules as any public
judge, and must apply the law of the State of California to the
facts of your case. However, you will often get a more detailed
analysis of the reasons for the judge’s decision in a private
judging setting. That is a result of the lack of time available
to most judges at the courthouse. Most judges have only enough
time to make the decision, and cannot draft a lengthy explanation
of why they ruled in a particular way. That often leaves litigants
wondering what it was that caused the judge to rule one way or
another. If asked for a Statement of Decision the public judge
will usually order one of the attorneys to draft it. Not only
might that result in a delay of several weeks, but you will get
the drafting attorney’s analysis rather than the judge’s.
If you request a Statement of Decision from a private judge, you
will get a detailed analysis of the judge’s thinking, and
will know exactly what evidence the judge found to be most persuasive,
and which testimony s/he found credible. Even if you don’t
agree with the result, you will be able to evaluate why it occurred,
which is, in itself, an important factor in keeping your family
law matter in perspective.
21. How does having a private judge save me money? Doesn’t
the fact that I have to pay for this judge’s time while
the judge at the courthouse is free mean that it is cheaper to
go to the public court?
The private judge’s fee is usually a small component of
the total cost of litigation. When going to court, you pay your
attorneys and expert witnesses (accountants, etc.) by the hour.
Since some cases settle at the last minute, the courts substantially
overbook their time. That is, they schedule more trials than the
time allotted. They do this because court time is so limited,
and they want to avoid the possibility that a court sits idle
because of a last minute settlement when it is too late to book
another case into that time slot. Those precious court hours cannot
be recovered, and as a result, the litigants pay a price. You
will pay your attorney and witnesses to prepare for a trial on
a particular day, travel to court and wait through other cases,
only to find that the judge doesn’t get around to your matter.
The next chance to get to court may be weeks or months later.
You not only have to pay your attorneys to sit and wait through
the other cases, but will pay them to prepare again when the new
date comes around. You want your attorney to be sharp and have
all of the relevant facts and law well in mind, and the only way
to do that is to prepare again. It is not unusual to return to
court three or four times before actually getting your case before
the judge. Sometimes, too, you really need more time than the
court can give you, and your attorney is forced to squeeze the
case into a smaller time slot than would otherwise be desirable.
This means that issues which you would like to pursue don’t
get presented, or perhaps the evidence isn’t developed as
thoroughly as you would wish. This always creates a risk of an
incorrect or incomplete ruling.
In private judging, the time is set aside for you and your case.
You aren’t waiting for another case to finish, and you get
to book as much time as you need to thoroughly present your evidence.
As a result, you aren’t paying your attorney to wait in
the hall for another case to finish, nor are you paying for multiple
preparations of the same trial. The case is done in a single setting,
and your attorney is doing what you are paying him to do…trying
your case… and not killing time until another case is finished.
This is a significant savings in time and money. Even when you
factor in the cost of the private judge (which you are sharing
with your spouse), it is much cheaper to pay half of the judge’s
hourly rate than all of your own attorney’s and expert’s
time to return repeatedly to court.
22. Does the private judge use a courtroom?
Private judges are precluded by law from using the public court
facilities. As a result, most private judges use conference rooms
instead of courtrooms. Judge Talia and Judge Pearce feel strongly
that people should have access to the same kind of physical plant
in the private arena, and have created their own private courtroom
which is designed to be comfortable and private, but provide the
same amenities (witness stand, court reporter’s stand, judge’s
bench) as are available at the public courts. [Click
here to see courtroom]
23. Why is the private courtroom facility designed as
it is?
Judges Pearce and Talia carefully studied the courtroom arrangements
which work best for family law litigants. In addition to the usual
facilities (judge’s bench, witness stand, court reporter’s
stand and computer to perform support calculations), they provided
separate rooms where you can confer with your attorney and witnesses
in private. At the public court, you are frequently required to
consult with your attorney and discuss your case in public in
the hallway, for want of a more private location. Our facility
includes two breakout rooms so that you and your attorney can
confer about your legal matter in confidential and comfortable
surroundings. [Click here to see courtroom]
24. Is there a bailiff?
Private judges are not allowed to use the public facilities or
court staff, including the security at the courthouse. Security
is rarely an issue in private judging. Since the agreement to
a private judge must be a joint one, if people can agree on that,
they are unlikely to be a security threat to each other. Sometimes
emotions do run high, and the private judge’s Stipulation
for Appointment may provide that if the private judge determines
that there is a need for security, the judge may hire an off-duty
law enforcement officer, or other security person, and charge
the cost to the party who is creating the need for security. If
you have a concern regarding security, you should ask your attorney
to raise the issue with the private judge at the earliest possible
opportunity.
25. What if my spouse’s lawyer has appeared before the private
judge, but mine hasn’t?
All judges are required to decide each case on its own merits.
Private judges are required to disclose all cases which they have
had with either attorney before any new appointment.
Just because one attorney may have appeared before the private
judge and another may not has no bearing on the judge’s
decision. Private judges, just like judges at the courthouse,
are required to be fair and impartial, and to “recuse”
themselves (that is, withdraw from or decline a case) if they
feel there is any reason why they cannot be.
26. What if I just need a quick decision on a single issue?
This is one of the best uses of private judging. Often there is
a single issue (such as the validity of a premarital agreement
or the determination of a separate property claim) which, if resolved,
will allow the balance of the case to be settled. Until it is
resolved, you may often be forced to prepare the whole case for
trial. In private judging, it is easier to split off (“bifurcate”)
a single issue for trial. That trial can often happen in a very
short time. You get a prompt decision, and then, with that information
in hand, can evaluate your position for the balance of the case.
Instead of waiting months to find out the answer, you can find
out quickly, make your analysis based on the result, and get on
with your legal proceeding and your life.
27. How do I get a copy of the judge’s standard order for
appointment?
Since each case is different, Judge Pearce and Judge Talia have
not posted their agreements on this website. There are generally
three types of forms, one for cases where the private judge is
appointed for the entire case, one for settlement conferences
only, and one for situations where the private judge is going
to only hear limited issues, while the others remain in the public
courts. Your attorney should contact the judge to get a copy of
the stipulated order applicable to your case.
28. What if I need an emergency hearing?
Sometimes emergencies arise which require immediate orders. Since
their dockets are so full, the public courts have limited time
set aside for such cases, and it is rare to get a full and thorough
hearing on short notice. Judge Talia and Judge Pearce believe
that the private judge system must be flexible enough to accommodate
the emergencies which are facts of life in family law. They can
usually find a few hours in their schedules to address these issues
on short notice.
29. How private is “private”?
“Private” as used in “private judging”
means “privately compensated,” as opposed to paid
by the State. Some people assume that, because they use a private
judge, there is no possibility of someone at the public court
learning their personal business. This is largely a function of
the formality of the proceeding. The attorneys and litigants may
agree to a high degree of informality in procedures, either to
reduce cost, or insulate them from the public eye. The proceedings
themselves do take place in a private courtroom. However, by law,
members of the public must be admitted on request. This rarely
happens unless the parties involved are newsworthy and the press
becomes involved.
However, if you file declarations and other pleadings with the
court, they will become part of the public record, just as in
any other legal proceeding. In this day of increasing access to
private information, identity theft, and court files available
online, it is always a good idea to be careful what personal information
you put in the public record, and disclose only so much information
as is absolutely necessary to protect your legal rights. And of
course, whether using a private or a public judge, you should
never put your social security number, bank or credit card information
in a public record.
30. What if I want the same judge to hear later motions
in my case?
You can provide in your private judge stipulation that the private
judge will hear post judgment motions as well. Unlike civil cases,
this can be particularly important in family law, where people
frequently return to court years after their initial case. Sometimes
this happens because one side requests a change in custody, or
because income changes and someone requests a change in support,
or termination of support. This is particularly important if the
facts are complex, and you want to ensure that you don’t
have to keep paying your attorney to educate a new judge each
time an issue comes up. Since public judicial assignments frequently
change, you may have no idea who the judge will be who decides
a later request for a change in custody. It is generally much
more cost effective to return to the judge who already knows your
case for later proceedings. You can specifically provide that
the private judge will hear subsequent proceedings.
31. What if I don’t want the private judge to be
involved indefinitely?
You can always include what is called a “sunset provision”
in the private judge agreement, so long as all parties agree.
A common one provides that the private judge’s appointment
will terminate at the end of the trial, or when appellate rights
expire, or at some designated future time (assuming that no proceedings
are actively pending.) This preserves your right to either return
to the private judge, select another private judge (both by agreement,
of course) or return to the public courts if you cannot agree.
32. What if I opt for a private judge, and then decide
I don’t like the rulings? Can I opt out?
No. This is called “forum shopping” and is frowned
on by the law. You can’t try out a judge, decide if you
like their rulings, and then opt out if you don’t. If the
law allowed that, everyone could undercut the legal system by
simply refusing to go back to a judge who doesn’t give them
whatever they want. The same rules for removing a judge from a
case in a public forum apply in private judging. If you think
your private judge is ruling inappropriately, you must go through
the same procedures to have them removed from the case as you
would with a public judge. The rules are quite specific that adverse
rulings alone are not sufficient to remove a properly appointed
public or private judge. That’s why it is so important to
do your homework at the outset and select the best judge for your
case.
33. What if I think I might want to appeal the judge’s
order?
If you want to preserve your appellate rights (and many who opt
for private judging do), you must be sure that you follow the
technical rules and procedures, just as if you were at the courthouse,
and that you preserve a “record” by using a court
reporter to take down the testimony. Paying a court reporter in
addition to the private judge will increase the cost, or course,
but is essential to have a transcript if you want to preserve
your right to appeal. Remember, the private judge is bound by
the same laws as the judges at the courthouse, and you may well
want to preserve the right to question a ruling if you believe
it was made in error. You can generally only do that if you have
a transcript to refer to.
34. Do the same rules apply on appeal?
Yes, the private judge is held to the same standard as a public
judge, and the rules of appellate review are exactly the same
for both public and private judges.
35. Can I bring other legal matters (not family law) to
these judges?
While there are many qualified private judges in other areas of
law, Judge Pearce and Judge Talia limit their assignments to areas
where they have particular training and expertise. These facilities
and judges are available only for family law matters such as divorce,
custody, parentage, restraining orders, domestic partners, and
other domestic relations issues.
36. If I don’t use Judge Pearce or Judge Talia,
can I still rent the private courtroom facilities for another
private judge? [Click here to
see the courtroom]
No. These facilities have been designed by Judge Pearce and Judge
Talia for their own use, and are not available to other private
judges.
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