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    Trial by Special Judge

    A Superior Alternative to Arbitration

    What is the Special Judge alternative to arbitration?

    Reduce risk, shorten time investments and lower costs
    by requesting a trial by Special Judge.

    Special Judge in the CPRC

    Chapter 151 of the Texas Civil Practice and Remedies Code allows for an alternative form of dispute resolution called a trial by Special Judge.

    This is a procedure where both parties agree, with the trial court’s approval, to hire a qualified former judge who has served at least four years in a district or county court to determine all or part their dispute.

    The Special Judge charges a fee that is paid equally by the parties and conducts a trial in the same manner as a court trying an issue without a jury. The Texas Rules of Evidence apply in the proceeding and a record of the hearing is made by a certified court reporter.

    After hearing the evidence and arguments of counsel, the Special Judge renders a verdict and Referring district court performs the ministerial act of entering judgment on the basis of such a verdict. This judgment may be appealed in the same manner as any other judgment of a district or country court.

    If you agreed to arbitration, you can agree to trial by Special Judge

    Arbitration is a matter of contract. Just as parties have the power to agree to arbitration as the forum to resolve their dispute, they can agree not to use arbitration as previously agreed and substitute in its place a trial by Special Judge under the Texas Civil Practices and Remedies Code.

       Read the full statute (CH.151, Texas CPRC) →

    A Superior Alternative to Arbitration

    Compared to arbitration, trial by Special Judge offers both parties a more flexible, less costly and less time intensive way to resolve a dispute – while substantially reducing risk.

    The primary benefits of trial by Special Judge include:

    1. The right of appeal is preserved all the way to the Texas Supreme Court.
    2. The refering district court does not “confirm” the Special Judge’s verdict and does not review it. The district court performs the “ministerial act” of signing a judgment.
    3. The Special Judge must have at least four years of experience as a Texas district, appellate or county judge. Therefore, the parties can learn about the judge’s history in similar matters.
    4. The Texas Rules of Evidence and Civil Procedure apply to the trial. A certified court reporter records the proceedings.
    5. Parties to an arbitration agreement could agree to substitute the Special Judge procedure to resolve their dispute.

    Frequently Asked Questions

    Who can serve as a Special Judge?

    A Special Judge must be a retired or former district, statutory county court, or appellate judge who:

    • has served as a judge for at least four years in one of those courts
    • has substantial experience in their area of specialization
    • has not been removed from office or resigned while under investigation for discipline
    • has completed continuing legal education as required by the State Bar or Supreme Court
    How does a trial by Special Judge work?

    Under Chapter 151 of the Texas Civil Practices and Remedies Code, parties can agree to have their pending lawsuit in state court tried by a former judge who qualifies under the statute for such assignment. The case is referred to that judge for trial and the referring district court is no longer involved except to sign the judgment ultimately rendered by the Special Judge. Each party retains the right to appeal the judgment directly to the courts of appeals.

    What are the principal advantages of a trial by special?

    Faster, more flexible scheduling and shorter time requirements

    • Schedule a mutually convenient date for your trial and avoid crowded court dockets, multiple docket calls or standby status.
    • Prepare for trial only once, knowing that your case will be heard at the date and time scheduled.
    • Expedite proceedings through the use of stipulations, summaries and limitation of witnesses.
    • Ensure that all pleadings, stipulations and exhibits have been thoroughly reviewed in advance of trial.
    • Present evidence before a judge who is prepared and conversant with your case.

    Fewer fees and lower overall expenditures

    • No filing fees for Special Judge beyond usual filing fees. Some arbitration proceedings carry significant filing and administrative fees. Employing a panel of arbitrators is significantly more expensive than one Special Judge.
    • The cost of Special Judge is split evenly between all parties (with the exception of witness called only by one party).
    • Uncertainty over when a case will be tried leads to increased costs. The certainty of a trial setting may well offset the per diem expenses associated with the fees of the Special Judge.

    Substantially reduced risk

    • Why waive your right to appeal? There is no appeal from the arbitration decision and it cannot be set aside absent unusual circumstances. Unlike decisions rendered in arbitration, trial by Special Judge preserves the same right to appeal as a jury trial.
    • Arbitration is typically more informal and unpredictable.
    • Lawyers can usually pick preferred dates, which are unlikely to be delayed.
    • An impending trial date is by far the most influential factor in reaching a settlement.
    • A known quantity. Unlike most arbitrators, former or retired judges have a body of rulings from their career on the bench. You’re able to select a judge who has the unique background and experience best suited to hear your case.
    • This form of dispute resolution is uniquely advantageous in complicated commercial cases as an experienced Special Judge can provide a well-reasoned disposition of the issues and correctly apply the law relevant to your dispute.
    What is the process to request a Special Judge?

    In order to have your case heard by a Special Judge, all parties must jointly file a motion with the court in which the case was filed:

    • requesting the referral,
    • waiving their right to trial by jury,
    • stating the issues,
    • stating the time and place agreed upon,
    • stating the name of the Special Judge, the judge’s agreement and the judge’s fee.

    To Get Started

    Maintain your right of appeal with a trial by Special Judge

    Contact Judge Downey’s office to schedule an initial phone conversation.

    If a trial by Special Judge is agreeable to all parties, Judge Downey will coordinate with counsel to set a mutually convenient time and place for the trial and will provide the initial documentation required by the trial court.

    Once the trial court has entered an agreed order, Judge Downey will provide a letter of instruction setting deadlines for the exchange of stipulations, proposed trial exhibits, identification of contested issues and filing of each party’s Motion for Requested Relief.

    Prior to trial, a telephone conference will be scheduled to discuss any unresolved issues or objections and, if necessary, a pretrial hearing will be set to hear objections to exhibits and any remaining pre-trial matters.

    Schedule now with Judge Downey’s live calendar

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