Special/Private Judging
The Gold Standard of Private Trial
The best and most effective means of avoiding the problems with public trials is referral to a “special judge,” which offers a streamlined and efficient alternative to the public courtroom. Referral to a special judge (common called a “private judge”) eliminates the drawbacks of traditional litigation while preserving its benefits and reducing costs. The process (laid out in Tex. Civ. Prac. & Rem. Code § 151) minimizes unnecessary preparatory hours, eliminates scheduling uncertainty, and leads to faster resolutions with minimal disruption to clients’ lives and schedules. (A form motion and order may be found [here].)
Trying your case to a private judge is the only way to:
· Hand-pick an experienced, trusted judge.
· Avoid courthouse waiting, delays, resets, and overcrowding,
· Circumvent repetitive mediation mandates.
· Escape restrictive time limits.
· Schedule hearings at your convenience, not when a court can fit you in.
· Prepare the case only once, and never try the same hearing twice (first to an associate judge and then again de novo to the presiding judge)
· Complete trials efficiently and without interruption, where a day of trial means a full day.
· Be guaranteed by statute a written verdict within 60 days of trial.
· Retain full appellate rights (unlike arbitration).
And perhaps most importantly, private judging ensures unmatched privacy, shielding personal and closely-held financial matters from public scrutiny. Private trials are closed and off limits to the public and press.
The process is simple. Using the forms provided below, parties submit an agreed request to the trial court to refer specific hearings, issues, trial, or the entire case to a private judge of their choice. The referral order can be crafted to meet the unique needs of each case:
· Temporary orders and injunctive issues decided quickly and without restrictive time limits.
· Prompt resolution of discovery disputes.
· Bifurcated trials decided without delay.
· Trials on your schedule, rather than subject to the trial court’s availability.
· Remote proceedings permitted by agreement or when appropriate.
Click HERE to download a template Motion and Order for Referral to a Private Judge.
Arbitration
Trial before a Neutral Judge or Panel
Voluntary arbitration is another process that removes a dispute from the public courtroom to a private forum where a neutral third party resolves the case. By signing a written arbitration agreement, parties ensure their case is heard by a trusted arbitrator with expertise in family law. Voluntary arbitration allows parties to tailor the process to their needs, avoiding many of the traditional criticisms associated with arbitration. An agreement can call for binding or nonbinding arbitration.
Similar to private judging, arbitration offers flexible scheduling, streamlined procedures, trial outside of the courthouse, and a binding resolution far sooner than traditional litigation. However, there are key distinctions between the two methods
- A trial court may reject an agreement for private judging but must enforce a written agreement for binding arbitration.
- Additionally, while verdicts issued by a private judge are binding on the trial court, arbitration awards regarding children are not binding on the trial court if it finds that the agreement is not in the children's best interest, or violates the TAA or FAA.
- Private judge decisions are entitled to full appellate rights, while arbitration awards enjoy severely limited appellate challenges.
When private judging is not an option, arbitration is the next best alternative to avoid the costs, delays, and unpredictability of traditional litigation. Click HERE to download a template sample Arbitration Agreement.
Settlement Facilitation -- the "Mini-Trial"
Quick, Easy, and Effective Guidance from a Trusted Judge
Mediation works well in many cases but is less effective in complex or high-conflict disputes where costly and time-consuming judicial involvement is often required. In these situations, a little-known and even less-utilized alternative—the mini-trial—is particularly effective in encouraging settlement and saving money. Tex. Civ. Prac. & Rem. Code § 154.024.
Despite its name, a “mini-trial” is not a trial in a traditional sense. There is no record. There are no live witnesses (other than the parties), cross-examination, or evidentiary rulings. Instead, a mini-trial is a trial by proffer, where parties submit exhibits and then present evidence in a manner more akin to a detailed opening statement. At the conclusion of the presentation, a neutral third party selected by agreement issues a confidential and nonbinding advisory opinion on the merits of the case, which serves as the foundation for realistic settlement negotiations.
Mini-trials are particularly valuable when entrenched positions or disputed legal issues hinder settlement discussions or stall mediation progress. Instead of declaring an impasse, parties simple suspend mediation, engage in a mini-trial, and return to mediation with the benefit of the advisory opinion. And because court approval is not required, there is no need for seek a court order.
For cases where traditional settlement methods have failed, or where protracted litigation looms, mini-trials provide a streamlined, cost-effective alternative.
Trial Preparation Services
Expert Assistance in Preparing Your Case
Sometimes one side or the other refuses to remove a case to a private setting. Judge Ferguson can help you prepare your case, through mock bench trial, mock mini-trial, or summary jury trial. In hundreds of trials over twelve years on the general jurisdiction district bench, Judge Ferguson never had a trial judgment or verdict reversed by the court of appeals. Tap into his 30 years of experience by obtaining an advisory opinion as to a neutral judge would evaluate the merits of your case. Judge Ferguson is particularly adept at helping build effective trial themes and spotting potential appellate risks.
