Articles
The Special Master Program in Northern California Construction Defect Cases
William L. Nagle, Special Master/Mediator
Burlingame, CA
I. Introduction:
In the early 1980's, the creation of the Special Master Program was an innovative, creative, and pragmatic method of controlling complex construction defect litigation in a cost-effective and timely manner. The Special Master managed complex litigation through broad powers granted by the Court and/or stipulated to by the parties. The concept emanated from the Referee references in Code of Civil Procedure Sections 638-645 and in the body of law granting Courts the inherent power to control their own affairs. The Special Master acted as a "traffic controller" who organized the many parties and lawyers, identified and focused the issues, resolved disputes, and recommended orders to the Court for cost-effective, reasonable, and timely management.
The introduction of mediation in the last decade has caused a great deal of confusion in how the parties and the Court can address and control complex construction defect litigation.
II. Background: Litigation Before Special Master Program
- Civil Case Backlog.
In the 1970's, cases were tried as a matter of routine. The system was adversarial. A suggestion that the parties discuss settlement was interpreted as a sign of weakness. It was not uncommon for an insurance defense trial lawyer to be triple set every Monday on the trial calendar. In San Mateo County, guided by Presiding Judge Melvin Cohn, the Court instituted a program of Settlement Conferences backed by firm trial dates. Strong Judges like the Honorable Melvin Cohn, Thomas Jenkins, William Lanam and others in San Mateo County and the Honorable William Fernandez, Edward Panelli, and others in Santa Clara County, were doing their best to control the heavy number of civil cases. Dockets were unduly burdened by the inundation of criminal cases stemming from the drug culture. Criminal cases took precedence, and this created problems getting civil cases out to trial.
In addition to strong settlement programs introduced by the Court, the Legislature passed Court ordered arbitration rules in the late 1970's. By the early 1980's (when bad faith was an entirely different animal than it is today), the legal community began experimenting with binding high-low arbitrations to avoid possible awards that could trigger excess judgments, and to remove cases from the docket. But, more was needed to relieve the burdens at the courthouse.
By 1990, the Legislature introduced Fast Track. The purpose of the legislation was to remove control of the cases from the lawyers (at a time when at issue memorandums filed by counsel determined when a case would be set for trial), and to place the control firmly with the Judges. About the sametime, mediation concepts were being discussed. By the late 1990's, the Legislature promulgated mediation rules. These mediation rules have created considerable confusion and misunderstanding in their interpretation and application in complex litigation cases.
- First Complex CD Cases:
In the late 1970's and early 1980's, our first complex construction cases began being litigated. Pleading battles lasted one to two years and formal discovery consumed approximately three to four years. Cases were always running up against the five year statute of limitation. Cases that were tried, took months to get to verdict. In San Mateo County, we actually converted an old school into a large courtroom to handle the trials.
In early cases, every plaintiff was deposed. Every person who ever stepped on the project or drove by the project was deposed. Word processors had just been introduced to legal firms, and the paper consumed in propounding and answering interrogatories devastated forests.
Our local Courts responded with common sense and pragmatism. When Marvin Church, the Clerk of San Mateo County, complained to the Honorable Thomas Jenkins that he did not have the physical room to handle any more complex construction cases after the Westborough case, the Honorable Thomas Jenkins issued an extremely pragmatic and common sense Pre-Trial Order (which we now refer to as a Case Management Order). Among other things, he ordered that discovery be stayed and only authorized through the Court. To cut down on unnecessary pleadings, the Order included Deemed Pleading provisions. Equitable cross complaints were deemed to have been filed thus avoiding the necessity of filing cross complaints, answers to cross complaints, cross cross complaints and answers to cross cross complaints, etc. Similarly, a sample answer with the usual and customary affirmative defenses was deemed to have been filed. Parties only had to give a Notice of Appearance unless they had some unusual pleading problem that needed to be addressed by the Court.
Also, Judge Jenkins established a document depository for the exchange of documents so that everyone had the same information at one source. Plaintiff was required to provide a Statement of Claims (formerly referred to as a "Bill of Particulars"). Consultants were ordered to work together to try to attain a Joint Scope of Repairs. Where they could not agree on the issues, they were instructed to provide scopes in the alternative. Then, these scopes were bid by contractors who could and would perform the repair work. In this way, the dollar figures that Counsel were using to settle the case were real figures that could be used to repair the work and not imaginary "estimate" figures. Interestingly, by settling using figures based on actual repair bids, the Court found that they avoided second and third lawsuits where cases had been settled without sufficient funds to properly fix the construction defect problems.
III. Creation of the Special Master Program
- Birth of the "Special Master"
Judge Jenkins exercised common sense to control the prohibitive costs and the incredible time required to address the issues in these new strict liability construction cases through creative Pre-trial Orders. However, he was only one judge and the plaintiffs, developers, subcontractors, insurance carriers, and counsel needed a common, consistent approach.
At the time of this new wave of litigation, I was a second generation insurance defense trial lawyer grateful to be learning my profession from well-respected senior partners and experienced insurance claim representatives. It was an age of trials and trial lawyers (not litigators). And like many others of my age, I opened and closed 10 to 12 files a month and carried an inventory of 110 to 120 files covering a broad range of subjects, including personal injury (auto, aviation, marine, and premises liability), fire, malpractice, bad faith, governmental entities, and construction defect cases. After several years of representing subcontractors in the CD cases, the carriers began sending me the defense of developers. (Oddly enough, as a plaintiff lawyer, I also obtained the largest single family home construction defect verdict at the time in San Mateo County. A verdict we never collected.)
As developer counsel, I worked with the Court to develop more efficient methods of handling the complex CD files. Plaintiff counsel, Stan Feingold, Judge Jenkins, and I received plaudits from a local paper for our "enlightened approach" in resolving a case called Sand Harbor v. Centex, a condominium project in Foster City. This is the case in which we crafted the Pre Trial Orders that are basically still used today in case management.
We were having success in avoiding unnecessary expenses and in timely addressing issues through our newly created case management orders, but we were having problems at the Courthouse with consistent handling by the Judges. Judge Jenkins could not handle every case.
Ken Torre is presently the Court Executive Officer in Contra Costa County. At the time, he was our assistant Court Executive Officer in San Mateo County and then served as Court Executive in San Mateo County for many years. Ken introduced a number of innovative programs that became models for other counties in many areas ranging from day care to ADR to court consolidation. One day, Ken called me and told me I was to attend a meeting he had arranged with Judges Melvin Cohn and William Lanam. I had floated the idea of a single judge assignment or some type of senior, well-respected retired Judge or member of the bar to act as a referee with court powers to expedite the handling of our complex CD cases. Except for cases before Judge Jenkins, we spent too much time and money on small issues that could and should be resolved in phone calls or meet and confer sessions. It was too expensive and took too much time to file, calendar, and argue a motion before the Court on every little housekeeping issue in these complex cases. In addition, we were not having consistent approaches to the handling of the litigation at the courthouse, and the cases were taking too long to resolve.
Judge Lanam, like Judge Jenkins, was innovative and practical in attempting new methods of controlling these cases. He was one of the first judges to routinely use court consultants when experts could not agree on a scope of repair.
I vividly recall the meeting in the old grand jury room on the second floor. At Ken's request, I made my pitch that the cases needed consistent orders and handling and that we could use some type of referee or "traffic controller" whom the parties would pay. This person needed court powers to move the case along and should be able to control the case, rule on discovery matters, conduct hearings to identify and resolve issues, appoint court consultants, order principals to attend settlement conferences, and conduct settlement conferences. Ex parte communications on non-substantive issues would speed the process. Communications on any substantive matter would require notice and hearing, but on an expedited basis. The point was to appoint someone, well-respected in the legal community, give them some power in order to provide timely, fair, and cost-effective management. I thought it was very important that this person report direct to one supervising judge. I was concerned not only about consistency, but also I wanted to make sure that counsel had a check and balance to avoid arbitrary and rogue behavior by the referee.
I remember Judge Bill Lanam suggesting that the parties could stipulate to such an appointment under CCP 638, but that he was unsure whether the Court could use CCP section 639 for such an appointment. Judge Cohn who was known for his decisiveness, simply stated that this would assist the Court and the parties and the authority was in the Courts inherent power to control its own affairs. Then, we had a discussion as to what to call this person. We noted that under the code that this would be a referee. Judge Lanam suggested that because this person was holding a high office we would borrow the term "Special Master". I was asked to promulgate some rules for San Mateo County and advise Judge Fernandez in Santa Clara County what we were doing in San Mateo County. I called my good friend and right arm coverage counsel, Gordon McClintock, and we authored the first Special Master rules for the County. We asked Tom Reese, a well-respected lawyer in Santa Clara County, to assist us in coordinating efforts with the bench and bar in Santa Clara County to assure consistent approaches in handling the cases.
We experimented with four different people in San Mateo County in the Special Master role. None were a tremendous success. Then, fortune smiled. Gordon McClintock had a case in Santa Clara County and Judge Fernandez gave Gordy the choice of sitting in the hallway for a week or two until a Courtroom became available or paying to go to some fellow named John Griffiths, Esq. (who was well-respected in the Santa Clara County Court) to see if attorney Griffiths could help him settle the case. This was the start of John Griffiths role as a Special Master, and he became the perfect prototype and role model with his fine intellect, common sense, tremendous people skills, humor, and sense of fairness. Unfortunately, John died a few years ago, but his contributions to the Special Master Program were immeasurable.
- Legal Authority
Initially, the Court used CCP sections 638 and 639, and the Court's Constitutional inherent power to control it own affairs (also referenced in CCP sections 187 and 128) as authority for the Special Master Program. With the promulgation of the Trial Court Delay Reduction Act (Fast Track) in 1990, a strong emphasis was placed on judicial control of cases. Govt. Code section 68607 makes the judges responsible to eliminate delay, exercise control, and reduce delay. The Courts, not the lawyers, were to control the pace of litigation. The judges were mandated to not only "actively monitor, supervise and control the movement of all cases," but also to "…establish procedures for the early identification and timely and appropriate handling of cases within the program which may be amenable to settlement or other alternative disposition techniques." Govt. C. section 68607 (d).
In Cottle vs. Superior Court, 3 Cal.App.4th 1367 (1992), the Court provides an excellent discussion of the Court's "broad and inherent powers to control" cases in the context of complex litigation.
At 1377, the Court observes:
The instant litigation was designated as complex litigation…. For purposes of complex litigation: 'Principal objects of the preliminary pretrial conference are to expose at an early date the essential issues in the litigation and to suppress unnecessary and burdensome discovery procedures in the course of preparing for trial of those issues.' (Cal. Standards Jud. Admin. Sect. 19(h).)
- Furthermore, courts have inherent equity, supervisory and administrative powers (Bauguess v. Paine (1978) 22 Cal.3d 626, 635 [150 Cal.Rptr. 461, 586 P.2d 942]) as well as inherent power to control litigation before them. (Western Steel & Ship Repair, Inc. v. RMI, Inc. (1986) 176 Cal.App.3d 1108, 1116-1117 [222 Cal.Rptr. 556].) Inherent powers of the court are derived from the state Constitution and are not confined by or dependent on statute (Walker v. Superior Court (1991) 53 Cal.3d 257, 267 [279 Cal.Rptr. 576, 807 P.2d 418].)
California courts have fashioned new forms of procedures when required to deal with the rights of the parties and to manage the caseload of the court….
And, at 1380, the Court uses "the totality of the circumstances" concept harkening some of us back to law school days:
In view of all these authorities… it is apparent that courts have the power to fashion a new procedure in a complex litigation case to manage and control the case before it. Although it is not possible to set forth precise guidelines as to when such an order can be issued or what other kinds of procedure can be used, we conclude that a court should consider the totality of the circumstances of the particular case in deciding how to manage a complex litigation case.
The Court addressed the specific issue of whether a referee or Special Master could be appointed in a complex construction case in Lu v. Superior Court (1997) 55 Cal.App.4th 1264. In addition, the court specifically addressed the issues of whether the Court could empower the referee (or Special Master) to conduct settlement conferences and compel the compensation of the referee by the parties.
In Lu, supra, at 1270, the Court noted that the term "mediation" was used by the Court. After observing that parties could not be required by the Court to participate in mediations, the Court looked at the intent, not language of the Order.
Here, although the order used the term "mediation," the trial court by providing "all mediation sessions are deemed to be Mandatory Settlement Conferences of this Court," in effect charged the discovery referee to conduct settlement conferences. We will not use this case as a vehicle to attempt to determine how or whether mediation differs from traditional court supervised settlement conferences. Suffice to say, the net effect of the order is to have a referee, rather than a judge, conduct settlement conferences.
In addition, in Lu, supra, at 1271, the Court underscored the significance and flexibility of CCP section 187 recognizing the court's inherent power to control its own affairs.
We need not here determine whether courts have authority under Code of Civil Procedure section 639 routinely to appoint referees to conduct settlement conferences. This is not a routine case but a complex case under the complex litigation standard. It is within the spirit of the standard and trial judges should be encouraged to use their inherent powers under Code of Civil Procedure section 187 to manage such complex cases in the most efficient and expeditious manner. Section 187 provides: "When jurisdiction is, …conferred on a court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code."
The flexibility afforded courts by Code of Civil Procedure section 187 is particularly apt in cases managed under the complex litigation standard.Cottle v. Superior Court (1992) 3 Cal.App4th 1367 [5 Cal.Rprt.2d 882], illustrates the type of creativity courts are permitted to exercise in dealing with complex cases. There, in a complex toxic tort case, the trial court commendably devised an efficient nonstatutory procedure, considerably simpler than the traditional procedure…. The Cottle court responded to plaintiff's complaint the trial court lacked authority to issue such an order by noting the case was designated as complex under the complex litigation standard (3 Ca.App.4th at p.1377) and stated, relying in part on Code of Civil Procedure section 187, "Case law and various statutory provisions give courts broad and inherent powers and serve as the sources for the authority to issue such an order." (3 Cal.App.4th at p.1376.) The flexibility afforded courts under Code of Civil Procedure section 187 and the complex litigation standard provides authority to the trial court to empower the referee to conduct settlement conferences in a case which has been determined to be complex.
The control of complex litigation is the subject of California Standards of Judicial Administration Rule 3.10, (formerly Rule 19) and Rules of Court 3.400 et. Seq. (formerly 1800 et. seq). The Rules of Court addressing Court Ordered References Under Code of Civil Procedure sections 638 and 639 are now Rules 3.900 et. seq. (formerly Rules 244.1 and 244.2). The Federal Court recognizes the Special Master through Rule 53.
- The Mediation Quandary
In the last decade, a great deal of confusion has surrounded the use of mediation in complex litigation. The cultural popularity of mediation compelled the Legislature to promulgate rules by 1997. Unfortunately, the Mediation swath created some basic and fundamental problems the Legislature and Courts are still dealing with ten years later.
Mediation is a voluntary process. A facilitator works with the parties in a confidential, nonadversarial environment. The participants attempt to resolve their disputes by and among themselves using terms of art like: empowering, actively listening, recognizing, caucusing, and validating. While it is an extremely useful process to resolve disputes, I sometimes think that in its purist form it was created by sociology majors (the study of the obvious) with minors in psychology (thus, the emphasis on the importance of feeling good about the process, the result, and one self). Reading articles like, "Defining The Ethical Limits Of Acceptable Deception In Mediation" provide an interesting insight into the Mediation realm.
While it is always important to try to get a mutually agreeable resolution, those of us who grew up in the adversarial realm realize that a more realistic result in settlement is often to make everyone equally unhappy.
In its rush to embrace the Mediation process, the Legislature created some problems which need to be readdressed.
Perhaps the largest was the repealing of Evidence Code section 1152.5 when the Legislature promulgated Evidence Code section 1119. This, of course, deals with confidentiality and the inadmissibility of communications, negotiations and settlement discussions. Undoubtedly the authors believed it was unnecessary to have both sections. However, they missed a fundamental point. A Mediation is not a Court supervised process. It is purely voluntary. By repealing 1152.5, the legislature created a concern as to whether or not communication in a Court process could be confidential.
This is now a constant concern whenever we hold meetings with consultants or counsel during the course of Court supervised complex litigation. Arguably the privilege is still provided in Evidence Code section 1152. However, the repealing of Evidence Code section 1152.5 and the creation of Evidence Code 1119 for Mediation purposes demonstrates the substantial influence the Mediation lobby exerted on the Legislature.
This confusion has further been fomented by recent amendments to Rules 244 (now Rule 3.900 et. seq.) and the whole issue of whether or not the Court needs dual appointments. Clearly, the issues should be addressed and resolved at some point by the Legislature. While I am fearful that making rules often leads to rules for rules sake and results in form over substance, I believe the Legislature could provide some assistance in this area similar to Rule 53 used by the Federal Courts. However, I caution that anything promulgated by the Legislature should provide reasonable flexibility by the Courts in the use of Special Masters in complex cases. Local flexibility should be preserved.
- Southern California Orders
Mediation legislation essentially resulted in two different interpretations of ways of controlling the complex cases at the courthouse. In Southern California, Case Management Orders routinely referred to the appointment of a referee or Special Master who would conduct mediations. On its face, these Orders confused the voluntary process of mediation with the court ordered process of settlement conferences. The recent case, Jeld-Wen v.Superior Court of San Diego, (2007) 146 Ca.App.4th 536, should have been a very short decision. The issue before the Court was whether a party could be compelled to attend a mediation ordered by the Court. The Court could have simply held: No, a mediation is a voluntary process and the Court cannot compel attendance. Instead, of keeping it simple, the Court launched on a poorly reasoned and ill-informed discussion of CD case management, critical of the Lu case, supra. In the ultimate non-sequitur, the court concluded that even though the parties were not compelled to attend mediations, the parties would undoubtedly voluntarily choose to do so because these cases were so complex. This conclusion was rather incredible considering the whole reason the court was dealing with the issue was because a party had refused to continue to go to mediation.
But the confusion in the Southern California standard case management order found its genesis in trying to use a mediator as part of the court process. In Northern California, we were a little more cautious about intertwining the roles of referee and mediator and clearly specified in our orders that the referee or Special Master was not a mediator, but someone with the authority of a court officer conducting judicially supervised settlement conferences.
- Northern California Orders
While the biggest difference in the Northern California orders avoided the mediation trap by clearly distinguishing between court ordered judicial settlement conferences and voluntary mediations, there are other fairly distinct differences. For instance, when we first managed these cases with the help of a paid referee or Special Master, we usually apportioned the statement for services: 1/3 Plaintiff, 1/3 Developer/General Contractor, and 1/3 subcontractors. However, we discovered that this formula was not fair to the parties, particularly when issues involving three or four subcontractors (e.g., concrete, roofer, framer, or stucco) might be driving the costs of the case and requiring most of the efforts and time. Accordingly, we changed very early in the process to one based on reasonable apportionment based on a number of factors including time spent on issues more akin to Rule 53.
Another major difference involved use of consultants in case management. This could be a topic for a separate article. Basically, early in our program years ago, the strong judges that instituted it, also educated the consultants to use their expertise to work together to identify and to solve the problems in these cases, rather than waste time arguing. Consultants were to problem solve, not advocate legal positions. Similarly, lawyers were to concentrate on the law and not to practice contracting, engineering, or designing. Through the efforts of the judges, consultants in the Bay Area worked very well together during the late 1980's and 1990's to cost-effectively identify and resolve construction defect issues. There seemed to be a certain accountability in the local area which greatly assisted the process. It has been interesting to watch the influx of Southern California litigation techniques within the last six or seven years. Experts from Southern California, for the most part, were trained to be advocates and were much less likely to sit down in candid scoping sessions to discuss real problems and real solutions.
Regardless of their regional roots, it is always a pleasure to work with counsel and consultants who immediately concentrate on timely, fair, and realistic case management.
- Cost-effective and Timely Case Management
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- Need for Early Control and Realistic Timetable
The costs in complex litigation are prohibitive. Unbridled cases have been known to run up $1,000,000 in just Court reporting fees. Through the Special Master system, the Court tries to control these costs. The first job of the Special Master is to halt unnecessary expense. This invariably requires a stay on discovery to stop the lawyers from costly formal exchange of information through traditional means, such as interrogatories and depositions. Instead, information is shared for purposes of settlement in an informal and non adversarial manner. Status Conferences are held on a regular basis in order to assure that all parties have the same information, and in order to constantly identify issues and keep the case moving toward a resolution. The clients save legal fees and costs because very expensive formal discovery is curtailed, Court appearances are minimal, and information is exchanged in a cooperative manner.
In other words, cost savings are achieved through timely and focused management of the case by the Special Master. Information is more rapidly disseminated. Realistic goals and expectations should be set and met. Reasonableness and common sense should prevail. These cases become more costly when information is not cooperatively exchanged and formal discovery is required.
Among other things, the Special Master, through broad powers, can conduct Status and Settlement Conferences, recommend findings to the Court, set deadlines for work to be completed, etc. Primarily, the Special Master keeps the parties focused on the case moving toward a swift and cost effective resolution.
The use of a separate Discovery Referee is kept to a minimum. In my experience, I need to appoint a separate Discovery Referee in less than 5% of my cases.
2. Observations from a Special Master
It has been my experience that the sooner a complex CD case is put into a Pre Trial or Case Management Order the quicker and more cost effectively it can be resolved. Formal discovery should be stayed except in extraordinary circumstances. Peripheral Defendants should be provided with a protocol to either identify that they should not be involved in the case or to try to expedite their departure from the case.
The case begins with a timetable that includes a date for Plaintiff to prepare and file a statement of claims. This is followed by the General Contractor filing his cross complaint and naming subs that are relevant to the case. Formal discovery should be stayed, except in extraordinary circumstances. A document depository should be established. Insurance and scope of work interrogatories should be exchanged. Peripheral defendants should be provided with a protocol to determine if they are really necessary to the case.
Once parties are in the case, a show and tell session might be scheduled where the Plaintiffs present the claims they have found. This may or may not be helpful in the case. The parties then have an opportunity to inspect the premises. If destructive testing is necessary parties are given an opportunity to perform it. In many instances, we will permit the Defense to avoid the expense of Defense destructive testing until after an initial round of settlement discussions. In this way their right is preserved, and they do not incur the expense if the case can be settled before destructive testing.
We then have scope of work sessions where we make sure that everyone understands what work was done by that particular party on the project. We may have separate consultant meetings to see if we can get common agreement. We may appoint a Court Consultant to assist the parties with specific issues. We may hold mini-trials on specific issues.
We will either have a formal Defense Response to Plaintiffs Statement of Claims or we will skip that and get right to allocations. We will have an Allocation Conference and make sure everyone is up to speed on their issues and possible exposure in order to report to principals and set reserves.
I prefer to have the lead defense counsel send a letter to each cross-defendant prior to an allocation conference setting forth three possible dollar exposures: the pass through number based on plaintiffs Statement of Claims, the defense allocation based on the defense response, and a realistic settlement range based on an overall evaluation of the reasonable value of the case and the reasonable exposure to that cross-defendant.
Then, I strongly believe that for most cases we should only have three Settlement Conferences. If we have not already helped extricate minor subcontractors from the litigation through a peripheral defendant protocol, then in the first Settlement Conference we should concentrate on successfully resolving issues with minor subcontractors and middle stage subcontractors. In the second one, we get rid of most of parties with the exception of three or four major parities or parties with particularly difficult issues. And, in the last one, we either obtain a global settlement or we have discovery starting immediately thereafter for nonsettled parties.
I have never believed setting a trial date at the outset of case management is a good idea. There are too many complications in a complex case: identifying parties, identifying issues, site inspections, testing, etc. These involve coordination of the numerous parties, counsel, consultants, and insurance claims people. Realistically, I think you can only plan a timetable about three to five months out with success. I do not recommend opening up "full blown" deposition and interrogatory discovery until after early settlement negotiations have broken down. Usually, I want a discovery plan in effect and a timetable set for formal discovery to start after the third settlement conference. And, I usually recommend a trial date to the Court after we have entered into the stage.
Each case depends upon the preparation and reasonableness of the lawyers and claims people. I have long believed that if a case if properly managed, we should never have to get into expensive, formal discovery. This does not mean I do not believe some limited discovery should be granted from time to time based on good cause. It means that in the run of the mill, complex strict liability construction defect case, controlling the cost of formal discovery should always be a major consideration. Issues such as contractual indemnity and additional insured status often drive these strict liability cases, not standard of care.
The old adage says two heads are better than one. However, my experience has been that two heads in a construction case result in too many chefs stirring the broth. Years ago, when I moved from representing subcontractors to developers, I found it much more cost-effective and much less time consuming to have just one person controlling the case. We could discuss settlement on an ex parte basis in a confidential matter. Anything of a substantive nature, would require noticed telephone hearings or status conferences to avoid any impropriety or substantial prejudice to the parties involved.
Frankly, I enjoy settling cases more than I enjoy managing the cases. I would much prefer to be brought in at the end of the case in a mediation or settlement role. However, I have found that by serving as a Special Master and performing both management and settlement functions, usually I can assist both the Court and the parties in a much more cost-effective and timely resolution of the case.
Nothing is more frustrating than having parties come in for a mediation and discovering that the case either has been mismanaged or had no management and the parties are simply not prepared to discuss a reasonable resolution.
3. Learning from the Past
Years ago, the San Mateo County Superior Court organized a series of roundtable discussions with: the Judges involved in complex litigation, the Court Administrator, key Plaintiff Counsel, key Lead Defense Counsel (for developers and subcontractors), and claims managers from Insurance Carriers who were involved in the cases. This was shortly after Fireman's Fund had formed the first major litigation unit in California followed by Royal and others. These roundtable communications were extremely productive and assisted all of the participants in understanding the various problems each confronted in these cases. I encourage the Courts to renew this informal format of communication. I applaud and appreciate the long hours and hard work of our local judges who exclusively handle complex litigation in our area including (but not limited to) Judges Dave Flinn, Terry Bruiniers, Jack Komar, and recently retired Ron Sabraw.
In addition, I thank the following judges for their efforts in these difficult cases: Judges Forcum, Miram, and Foiles in San Mateo County; Judges Vortmann and Hicks in Tulare County; Judges Chittick, Snauffer, Black, Smith, and Corona in Fresno County; Judges Chapin and Wallace in Kern County; Judges Taylor (retired), Duryee, Dufficy, Sutro in Marin County; Judge Holly in San Joaquin County; Judge Hansen in Merced County; Judge Rodda in San Francisco County; and Judge O'Farrell in Monterey. And, I appreciate the sanity checks provided from time to time by my fellow Special Masters in Northern California: Gordy McClintock, Dan Winters, Tom Castle, Jon Margolis, Peter Dekker Ann Goyette, Bruce Edwards, and my brother, Gary Nagle.
The role of Special Master or Referee in these cases should not be taken lightly. It is a high office and the person holding it should reflect the integrity and dignity of the Court.
With active management and good faith cooperation, the cases that twenty years ago would take us five or six years to settle or to get to trial, now should resolve in only eighteen to twenty-four months. When all is said and done, the issues in most of our cases can be simplified as follows. This is a complex, construction defect case. The developer is strictly liable. The subcontractors owe indemnity. What are the problems? What are the most cost-effective ways to repair the problems? How do we fund the repair?
There is no right or wrong way to handle these cases. Each case has similarities and differences that cannot be ignored. I have shared with you how and why we created the system we have successfully used for many years in Northern California. The system evolves. Hopefully, my recollections and comments will assist in a better understanding of how and why we should manage these cases in the future.
I have always thought that the keys to success are early control by the Court with candid discussions among the parties. Counsel must act in good faith and exercise common sense. The Court and the parties must maintain flexibility. And above all else, we must strive for a fair and reasonable result.