Private Trials/Judge Pro Tem

A private trial most closely resembles an actual court trial and procedurally they are virtually identical. The main difference is that in a private trial, the parties have agreed to an individual, usually a retired judge, to sit as a “judge pro tempore” and render a decision. A private trial is also held out of the public eye and may be confidential.

Neutrals selected as private judges are appointed by a stipulation that is signed by the parties and filed with the Court. The Court then endorses the stipulation and the dispute is held in abeyance by the Court until a decision is reached. All law and motion matters, discovery disputes and case management conferences, as well as the trial, are heard by the temporary judge. During a private trial, all original documents must be filed with the Court, which maintains the records for the case. The temporary judge is then provided with file-stamped copies of the documents.

Once the private trial is completed, a judgment is rendered by the temporary judge which is then entered in the court as if the trial were conducted there. Consequently, judgments following private trials are appealable under the same grounds as a judgment rendered in court. In California, this right is granted under Article VI, §21 of the California Constitution.

Temporary Judge/Pro Tem (Cal. Const. Art. VI, §21):

  • Has the same powers as a trial court judge;
  • Must be a member of the State Bar;
  • Only “parties litigant”” may stipulate to having their controversy decided by a temporary judge (Cal. Const. art. VI, § 21) after a lawsuit has been filed;
  • Appointment must be approved by the Presiding Judge;
  • The temporary judge must take an Oath of Office (Cal. Rules of Court, rule 2.831(b));
  • May punish a party or attorney for contempt (see Nierenberg v. Superior Court (1976) 59 Cal.App.3d 611);
  • Has no set time limit on rendering a decision; and
  • Has the power to hear post-trial motions – authority continues until a final determination of the case (Cal. Rules of Court, rule 2.831(c)).