In Federal Court, Federal Rule of Civil Procedure 53 authorizes judges to appoint special masters to aid in handling pretrial and post-trial matters tried without a jury “that cannot be addressed effectively and timely by an available district court judge or magistrate judge of the district.” Such matters include resolution of pretrial or non-dispositive matters, mediation of settlement negotiations, or post-trial implementation of a decree.
A special master is appointed by a judge to oversee one or more aspects of litigation. They may be appointed pre-trial, during trial, or post-trial. Judges appoint special masters for a variety of reasons. These masters are almost always attorneys. In construction defect litigation, the special master manages pre-trial discovery and facilitates settlement before trial. In divorce cases, a special master makes recommendations to the judge regarding division of assets and child custody. A special master may also be appointed pre-trial to manage part of a complex case involving many parties and issues that will take years to litigate (i.e., environmental contamination cases involving numerous personal injury plaintiffs). Special masters have increasingly been appointed for their expertise in particular fields, such as accounting, finance, science, and technology. In public disputes, special masters may be appointed to implement a court order following trial.
Also, a special master may be appointed where the purpose is to collect, assemble, and distill voluminous data presented by the parties and where the primary qualifications are objectivity and familiarity with evidentiary hearings rather than expertise in some technical field. Appointment of a special master to supervise discovery may be appropriate where the financial stakes justify imposing the expense on the parties and where the amount of activity required would impose undue burdens on the court.
Subject to the terms of the order of reference, a special master may take all appropriate measures to perform the special master’s duties, including requiring production of tangible evidence and examining witnesses under oath. The special master may call parties to testify (see FRCP Rule 53(d)), and other witnesses may be subpoenaed by the parties. Under Rule 53(b), the order of reference may direct a special master to make findings of fact based on evidence presented at an adversarial hearing. Unless otherwise directed by the order of reference, the special master may evaluate and rule on the admissibility of evidence. The special master will then produce a report on the matters submitted by the order of reference.