NCJ Number
94904
Journal
Harvard Law Review Volume: 94 Issue: 7 Dated: (May 1981) Pages: 1592-1615
Date Published
1981
Length
24 pages
Annotation
California's practice of allowing litigants to bypass the formal court system and have their cases tried before referees they have selected and paid offers numerous advantages to the litigant but raises numerous problems for the legal system.
Abstract
The major advantage of full reference trials is speed. No backlog of cases awaits trials by referees, and flexibility in scheduling maximizes efficiency and convenience. Quicker reference trials may also mean lower litigation costs; and in States where reference is financed by litigants, State treasuries are not depleted by expenditures for additional judges or courtrooms. Litigants may also value the secrecy some private hearings afford. A case that might prove embarrassing to one or both parties could be tried behind closed doors. However, such closed hearings may be at odds with the public's first amendment right of freedom of communication on matters relating to the functioning of the government. Trials by privately paid judges also raise questions about equal protection and due process. In addition to the constitutional problems full reference trials raise, they may also be contrary to the best interests of the court system and of society as a whole. Referees' decisions do not have a precedential effect, and their use presents an increased danger of procedural abuses. These constitutional and institutional problems in the use of referees as presented in the California statute make their use an unsatisfactory solution to the problem of overcrowded dockets. One chart and numerous references are included.