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How to Relieve the Civil Trial Backlog: Trials by Special Judge

How to Relieve the Civil Trial Backlog: Trials by Special Judge

Partner Dan Hinde, a former Harris County District Court Judge, offers this solution to ease the backlog of cases in trial limbo due to overbooked court facilities: The Special Judge Trial. Here’s his article as it ran in the Houston Business Journal.


By Dan Hinde

Harris County’s court system is swamped. Although the floodwaters unleashed by Hurricane Harvey have long receded, the damage to the Criminal Justice Center forced the felony trial courts to move in the Harris County Civil Courthouse—which was already filled to capacity.

To accommodate their sister courts, the civil district courts doubled up, with 2 courts sharing a single courtroom. The result? Each court essentially gets a courtroom for half a month to try a full-month’s worth of cases.

Predictably, the backlog of lawsuits ready—and waiting—for trial has swelled enormously.

What can we do?

One suggestion: Agree to a trial by a special judge. Sitting quietly in Chapter 151 of the Civil Practices and Remedies Code, the Special Judges Act allows parties in civil and family cases waiting to go to trial to opt for trial by a former judge (i.e., a “Special Judge”).

A special judge trial is a hybrid of a bench trial and an arbitration. The parties agree to have a former judge hear their case, choose the venue, set a specific start date, and have their case heard by that special judge. But unlike arbitration, the parties retain their full rights to appeal the result to the courts of appeals. Special judge trials combine some of the best qualities of bench trials with those of arbitrations—while avoiding many of the drawbacks of each.

To start, the special judge’s decisions are appealable. For attorneys leery of arbitrations because they are virtually unappealable, special judge trials are different: Once the special judge issues a decision, the case returns to the trial court, where the parties can seek a new trial and appeal the result to the court of appeals just like any other bench trial.

Another advantage over arbitration: Lower costs. First, the parties do not pay arbitration filing or administrative fees. After all, filing fees were already paid to the trial court when the case was filed.

Next, the special judge’s fees will be lower than those in an arbitration because the time the special judge spends on the case is smaller. Since the special judge only handles the trial and issues a decision, the special judge’s fees are limited to time

preparing for trial, attending trial, and preparing and issuing a decision. The state trial judge handles all of the pretrial motion practice, such as discovery disputes and dispositive motions, so the parties do not have to pay the special judge for handling such pretrial decision making. Conversely, with an arbitrator, litigants pay arbitrator fees for every hearing as well as time spent on every motion.

Another advantage over arbitration: The familiar rules of procedure and evidence from state court govern the special judge trial. The lawyers do not have to learn and adjust to an arbitration organization’s rules.

But special judge trials also have advantages over bench trials—particularly, quicker trials and schedule certainty.

Trial courts often give priority to jury trials ahead of bench trials, so parties in nonjury cases must give way to jury cases when it is time for trial. The relentlessly growing trial backlog I mentioned earlier has led to increasingly interminable waits for nonjury cases to go to trial. Special judge trials solve that problem.

But a special judge trial also provides scheduling certainty by allowing parties in nonjury cases to try their case on a specific, certain date with almost no risk of being bumped by a jury trial. Out-of-town parties and witnesses can schedule their travel well in advance, saving expenses. The lawyers on the case can schedule work in other matters—like depositions, mediations, brief-writing, etc.—around the trial date without concern that the court may call them to trial on short notice.

Another advantage: The parties pick the special judge. If a trial might involve a highly specialized area of law, the parties can agree to choose a special judge with advanced expertise in that area.

Finally, special judge trials can be held almost anywhere (except an actual courtroom), such as the numerous mediation and arbitration centers that have opened. But law firm conference rooms are fine, as well as hotel conference rooms or even law school mock trial courtrooms.

The special-judge solution may not be appropriate for every civil litigant. Special judges only try nonjury cases, so the parties cannot used it for jury cases.

But for parties who already have agreed to a bench trial, a special judge trial is a great option to end the increasingly interminable and go to trial promptly.

Indeed, businesses with complex, nonjury cases are probably the best candidates for special judge trials.

So, when appropriate, attorneys should talk to their clients and opposing counsel about the option of a trial by special judge under Chapter 151. Trial judges with growing backlogs of pending bench trials should consider suggesting it. Special judge trials just might be the right tool for unlocking the logjam of cases waiting for trial.

Dan Hinde is the previous judge of the 269th District Court, where he served for more than 10 years and tried almost 300 cases. He is now a partner at Hicks Johnson PPLC, where he handles civil trials and appeals in complex commercial suits. Dan is Board Certified in Civil Trial Law.