reference trial judge. The benefit of this procedure under Code Civ. Proc. § 638 is that you retain your right to appeal an adverse judgment against you, unlike with an arbitration award that is reviewable only on very narrow circumstances2 at all.
or an expedited trial that is not reviewable
Under § 638 “[a] referee may be appointed upon the agreement of the parties filed with the clerk . . . (a) To hear and determine any or all of the issues in an action or proceeding, whether of fact or of law, and to report a statement of decision.”
The hearing pursuant to a judicial reference (who is often called a “referee”) is conducted in the same manner as it would be before a court under the rules of evidence ap- plicable to judicial proceedings. (
Evid.Code, § 300.) The referee must prepare a statement of decision, which stands as the decision of the court and is reviewable on appeal in the same manner as if the court had rendered it. (Code Civ. Proc. §§ 644, 645; Jovine v. FHP, Inc., supra, 64 Cal. App.4th at 1522, 76 Cal.Rptr.2d 322; In re Marriage of Demblewski (1994) 26 Cal.App.4th 232, 236; 31 Cal. Rptr.2d 533 6 Witkin, Cal. Procedure, supra, §§ 68, 69, 466–468.)
under this procedure, since they cannot assume any larger cases will ever get out to trial in the Superior Court. The downside of this procedure is that it costs a lot of money to pay a judge for a full trial, which many litigants cannot afford. This in turn may lead to a two-tier system of those who can afford justice and those who cannot.
No matter how bad things get, we should keep in mind that cases can move forward and settle even without the help of a hamstrung judicial system, especially if attor- neys do what they should and really prepare cases to help them settle.
Notes 1. If you are representing a minor or incompetent who has a conservator appointed, you have a right to a one-day trial, even without stipulation of the other side.
2. Code of Civil Procedure §§ 1280–1294.2. Section 1286.2 sets forth the grounds for vacation of an arbitrator’s award and limits such grounds to fraud, corruption, or misconduct of the arbitrations, or where the arbitrators exceeded their pow- ers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.
“WE WILL PRIORITIZE CRIMINAL, JUVENILE, AND OTHER MATTERS THAT MUST, BY LAW, BE ADJUDICATED WITHIN TIME LIMITS. BEYOND THAT,
JUSTICE WILL BE NEITHER SWIFT NOR ACCESSIBLE.” Presiding Judge Katherine Feinstein, San Francisco Superior Court
However, be careful how you write a stipulation to assure that it’s proper under § 638. If you use loose language such as stipulating to have a “private judge resolve your dispute” without referencing § 638, you may unintention- ally wind up in binding arbitration and lose your right to appeal (see Sy First Family Ltd. Partnership v. Cheung, 83 Cal.Rptr.2d 340, 344).
There is no question that many attorneys will be look- ing more closely at using private judges to try their cases
Morgan C. Smith is the owner of Cogent Legal (
cogentlegal.com), a legal graphics and consulting firm that develops visual presentations and strategy for mediation and trial. Prior to founding Cogent Le- gal, Morgan was a partner at the Arns Law Firm in San Francisco, where he specialized in complex liti- gation, class actions, personal injury, and product liability. A version of this article originally appeared on Cogent Legal’s blog.
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 29
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