Legal Update: What is a private judge? Should I consider hiring one for my divorce case?

November 2020

– by Gina Cortese

In the midst of the pandemic, with court closures and trial continuances into 2021 and perhaps beyond, more parties are considering whether to retain a private judge to determine their divorce case.  But what exactly is a private judge and what should be considered in deciding whether to retain one?

What is a private judge?

In California, under the California Constitution, Article XI section 21, parties to a case may stipulate for the court to appoint a temporary judge empowered to act until final determination of the case, in lieu of having their case heard by a superior court judge.  The private judge must be a member of the California State Bar and the superior court having jurisdiction over the case must sign off on the stipulation for appointment of the private judge.  California Code of Civil Procedure section 638(a) also authorizes parties to stipulate to a referee and to decide the scope of authority that person will have.  Parties can determine, for example, whether the private judge will serve for all purposes by acting as both a settlement judge and a trial judge, or whether the private judge will hear all issues in the case or only select, agreed upon issues.

What should I consider when deciding whether to retain a private judge for my case?

  • A private judge has agency over his/her own schedule and caseload, whereas a superior court judge has a case load impacted by the number of litigants coming through the judicial system
  • Private judges often provide parties more opportunity to control the litigation process because the private judge can more easily accommodate requests for hearings and status conferences on a more expedited basis than can a superior court judge
  • Private judges often come at a premium—parties will need to pay for the private judge—most charge a retainer and bill at an hourly rate (the cost of which is often split between the parties) in addition to each party’s own counsel’s fees
  • A private judge will likely engage with the litigants more frequently than a superior court judge and therefore he/she has more opportunity to familiarize him or herself with the case issues and the parties
  • Having the case heard by a private judge can provide clients with a stronger sense of confidentiality in hearings and status conferences done virtually or in conference rooms than they might feel in a superior court courtroom, which are often crowded with other litigants observing the proceedings