Using a Private Judge in Trust and Estate Litigation

by C. Jean Stewart

In 1981 the Colorado Legislature approved a measure allowing parties to litigation to hire a former judge to serve on their case instead of the judge assigned by the district.  C.R.S. §13-3-111 and Rule 122, CRCP.  In some states, California, for example, this system is called “private judging.”  In Colorado, it is simply called “appointed judges.”  Under the new ICCES filing system the title is “judge pro tem.” 

After the appointment, all of the costs of the case, including the “appointed judge’s fees and costs,” must be paid by the parties “at no cost to the state.”  The appointed judge, or the parties, may later return the case to the original judge and the appointment terminates.

Cases with appointed judges are not procedurally different than routine court cases in Colorado; they are neither more nor less private.  Pleadings are filed in the normal course and records are maintained as part of the routine court files; the Rules of Civil or Probate Procedure apply as appropriate and decisions are appealable.  However, each case will constitute a single or small caseload for the appointed judge and consequently will receive heightened attention and speedier resolution.

All parties in the case must agree on the selection of an appointed judge.  The parties may request that their case be heard by a jury and the case may even be heard in the same courthouse where originally filed, if space and time are available, although cases can also be heard in rented space or in conference rooms made available at no cost by one of the parties’ attorneys.

To have a private judge appointed, the parties must submit a motion to the Colorado Supreme Court that includes all of the statutory requirements, complies with C.R.C.P., Rule 122, sets forth the parties’ request for and agreement to the appointment, and includes the proposed judge’s signed approval of the motion. The actual appointment is accomplished on an Order Appointing Judge that must be signed by the Chief Justice. The estimated fees and costs of using any appointed judge must be referenced in the Motion for Appointed Judge and deposited in advance of the appointment into an “escrow” account.

Counsel for the parties should plan a joint conference call with the proposed appointed judge to discuss the nature of the appointment, the anticipated time commitment, and any special circumstances as early as possible after it is anticipated that an appointment may be sought. Because of the nature of any case involving an appointed judge, all contacts should include notice to all parties and counsel in the case. There should be no actual or attempted ex parte communication.