The caseload demands on New York state court judges are well documented, and the court system has addressed this, in part, by implementing ADR initiatives. Because there are fewer court employee referees and judicial hearing officers have been eliminated, trial capacity for cases that are not resolved is more limited than in the past. One option that has been discussed in recent articles in this publication is "private judging." The phrase is somewhat unclear because, of course, these individuals are not state court judges. Rather, they are private compensated individuals who can hear and determine matters pursuant to provisions in the CPLR. Nonetheless, since the phrase has taken hold, I will use it in this article. (Although some people use the term to refer to all forms of ADR including arbitration, this article is focused on trying cases. It also is possible to send cases only to hear and report, but then the referring judge must confirm the decision.)
Lawyers and judges can work together to identify cases that may be appropriate for private judging. Experienced practitioners should be used to this process since for years, court based referees have been hearing and determining matters with the consent of the parties and a court order. Individual private judges will have preferences for the length and complexity of the proceeding they want to conduct and will have different substantive expertise. An obvious benefit of private judging is the ability to have input into the selection of the decision maker. (Some cases require the court's consent for referral to a private judge. See CPLR §4317(a).) Another benefit, if the case is in a busy court part, is the ability to get a trial sooner than the assigned judge can try it. Unlike in arbitration, a motion to confirm is not required, and the ruling is appealable. CPLR §4319, 5016c; see, e.g., Muir v. Cuneo, 251 A.D.3d 638 (2d Dept. 1998).
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