Special Masters

September 2, 2022

Special Masters

Special Masters

Mark Rubin

Former Guy wants a new shiny object: a Special Master! A what?

Special Masters

Judges appoint special masters to assist them with some part of a case. Their role depends on the case but every special master acts subject to the limits of the order appointing them. Always, the judge makes final decisions.

Let’s start here: We are dealing with criminal proceedings, albeit at an early stage. Nothing in the Federal Rules of Criminal Procedure provides for appointing a special master. But, federal and state courts believe judges have inherent authority to appoint a special master.

The Federal Rules of Civil Procedure provide for appointing masters expressly in Rule 53. The rule provides for lots of flexibility. Masters can do whatever the parties agree they can do. They can act as the judge at a trial if the facts warrant the appointment. Most often, an appointment occurs in a case that involves complicated accounting issue, or some other issue the master’s expertise might bear upon.

My Experiences

I have served as a special master – where the “special” comes from, I do not know – on several occasions. One case involved the delegation of discovery issues in a case involving an alleged bad tire design. (Injured parties’ lawyers want to see everything. Tire companies want to share nothing. Judges want someone like me to deal with these battles. Been there, and I totally understand why a judge wants someone like me. Bruising!)

Another case involved calculating damages and interest. In that instance the judge who appointed me was, and remains, math challenged.

Still another case involved figuring out what to do with several properties one spouse failed to disclose before the couple entered into a property settlement agreement in connection with a divorce. My duties involved researching the properties and recommending a modification of the agreement.

The last case I recall – I think one or two escape my memory – dealt with the division of assets after a parent died. Complex business issues and agreements made a resolution more difficult.

As a master I have always been a tool. No, not that sort of tool. Instead, judges have appointed me to help effectuate an outcome – an ultimate outcome, subject to judicial review, or an assist concerning the disputes that pay for lawyers’ vacations, cement ponds, and children’s educations.

The Pending Request

I offer my experiences because they reflect the mundane aspects of the master process. Former Guy filed a 21-page Motion for Judicial Oversight and Additional Relief, seeking the appointment of a special master and some other relief related to the execution of the search warrant. (For what it’s worth, the reporting on the matter lacks, shall we say, nuance.) Whatever the judge does or doesn’t do with the Motion matters very little regarding the merits of the case.

The Justice Department uses what it calls a filter team – qualified individuals who have no contact with those who are working on the main case – to review the search results. The team functions, effectively, as a special master, making sure the government took nothing it should not have.

The defense wants neutral eyes. In the abstract, the argument carries weight. However, while judges recognize their inherent authority to appoint masters in criminal cases, the rules of criminal procedure do not contemplate masters where a filter team exists. The U.S. Supreme Court adopts federal procedural rules. If the Court thought judges should appoint masters routinely, one might expect a rule that provides for appointments. Which takes us, maybe to an explanation: Masters are special. Former Guy is special. He should have a special master to validate his specialness!

Former Guy barks a lot. He barks more when reality bites. Here, at least for the moment, there’s nothing to see. How the court resolves the Motion not at all in the short run or the long run. (Prediction: the court will grant the motion, to avoid any potential claims by Former Guy.)

Personal Update

Road Trip! I left Rochester on Thursday morning in a 2022 Blue Nissan Versa. It got me safely to Champaign, IL. Next stop? Shamrock, TX. I expect to be back in Tucson Sunday morning … and a negative test result by then will make me happy. Positive tests since Saturday morning, but I am obviously well enough to drive 700+ miles in a day. (Why not fly? I will not fly with a positive COVID test result, notwithstanding the fact that no one knows.)




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