Rent-a-Judge : A Shortcut Through the Legal Muck

Late last summer, actress Valerie Harper walked off the set of her television series, “Valerie,” while trying to renegotiate her contract. She returned briefly, but Lorimar Productions told her to forget it, and replaced her with Sandy Duncan, renaming the popular NBC show “Valerie’s Family.”

Citing “disruptive” behavior and “a substandard performance,” Lorimar sued Harper for $70 million for breach of contract. Claiming that she was unfairly fired and that Lorimar executives had spread “lies, half-truths and disinformation” about her, Harper countersued for $180 million, also for breach of contract.

The civil case will go to trial in April, a date amazing to any litigant or lawyer inching through the severely backlogged Los Angeles County Superior Court.

Speedy Day in Court

“We will try the case within less than a year of when it was filed,” said Harper’s attorney, Barry B. Langberg. “It would take over five years in the regular route,” he said, referring to the court’s staggering civil backlog.

Their secret to the speedy day in court is that Harper and Lorimar decided to hire a “rent-a-judge.”

Harper and Lorimar will jointly pay the $250 hourly fee for retired Los Angeles Superior Court Judge William P. Hogoboom, who will conduct the fully legal trial in a courtroom not regularly assigned to a sitting judge. Although the judge will make far more than his active colleagues’ $350 a day, the jurors from the county’s regular jury list will draw their standard $5 a day, which will be paid by the loser, as in all civil jury trials.

And Harper and Lorimar will consider the judge’s fee a bargain because they will save four or more years of attorney fees.

Growing Trend

For speed and efficiency that translate into big savings, and the right to pick a judge all opponents respect, more and more litigants across the country are hiring, or “renting,” retired judges to settle civil disputes through trials, arbitration, mediation or conciliation, mini-trials, or just knocking heads together in a settlement conference. (The system cannot be used in criminal cases where the full power of the court, including bailiffs and secure courtrooms, are required.)

Although nobody is counting these cases segueing into the alternative justice system, the California Judges Assn. by late last year had so many calls for rent-a-judges that it set up a “Retired Judges Registry.” The list now includes 130 of the state’s 500 retired judges.

The Los Angeles County Superior Court, where the movement has had the greatest impetus, now lists 90 available rent-a-judges, a 34% increase from last year.

Judicial Arbitration and Mediation Services, which began in Santa Ana in 1979, now employs 43 retired judges and handles about 350 cases a month throughout Southern California, double its caseload of a year ago.

The first nationwide private court system, Judicate, which is based in Philadelphia, now lists 400 retired judges throughout the 50 states and has increased its caseload from 427 in 1986 to 2,000 in 1987, with a projection of 10,000 cases this year.

The American Bar Assn.’s Commission on Court Costs and Delay estimated two years ago that nearly 400 private companies or groups were marketing private judges for civil disputes.

Even the nation’s best-known judge, retired Los Angeles Superior Court Judge Joseph Wapner of television’s “People’s Court,” can be hired by the hour.

“Using a rent-a-judge is just cheaper, quicker, simpler and better. There are no bad features,” said Los Angeles attorney Hillel Chodos, who along with two lawyers opposing him on a civil case, Seth Hufstedler and Jerome H. Craig, created the modern private judging movement in 1976.

Forty-eight states have statutes permitting private judging. They are rooted in 19th-Century laws such as California’s 1872 “reference” statute providing that a sitting judge can refer certain parts of a case to a private or retired jurist.

Crowded Courtrooms

Even Illinois and Louisiana, which have no such laws, sanction public court enforcement of arbitration awards, so nationwide companies such as Judicate function there successfully.

The movement is growing, say rent-a-judges and the people who hire them, because civil courts have become overcrowded, slowing litigation to a crawl and prompting litigants to seek alternatives.

“Everything that is being done now (by rent-a-judges) could have been done years ago. The law is no different,” said Lester E. Olson, who retired from the Los Angeles County Superior Court in July, 1985, to become a rent-a-judge. “It is just that the system worked better then. The American ingenuity of finding another way wasn’t tweaked.”

“When I began practicing law 30 years ago, we could try a case every other week. Now you can’t try 25 cases in a lifetime,” said former Orange County appellate Justice John K. Trotter, who retired last year to join Judicial Arbitration and Mediation Services.

5-Year-Old Cases

The rent-a-judge concept has become such a success that the Los Angeles County Board of Supervisors recently agreed to hire 15 retired judges at $350 a day through June 30, 1989, to help deal with the civil backlog of 5-year-old cases.

Rent-a-judge blossomed early in Los Angeles because the civil courts here backed up so dramatically.

Until a decade or so ago, the state reference statutes were used primarily for tedious parts of cases. A sitting judge, for example, would assign lengthy debates over accounting to a retired judge and then incorporate his report into the final decision.

The broader application spread rapidly, however, after Craig convinced his partner, Hufstedler, and their then-opponent, Chodos, that the California law enabled a retired judge to handle an entire case. They got the approval of the court’s presiding judge and created the modern rent-a-judge system.

Grudging Acceptance

The descriptive term “rent-a-judge,” which caught on with lawyers and litigants, was originally disdained by the retired judges, who use “private judging” or “private dispute resolution” on their cards and letterheads. But the tag has now won even the judges’ grudging acceptance.

“I have acquiesced to it only because I have racked my brain to come up with an alternative and I can’t,” Olson said. “Anything I come up with is so pompous and convoluted nobody could use it.”

The rent-a-judge’s decision can be appealed, just like the ruling of a jury or active judge, which is one of the strongest complaints about the system. Other criticisms include:

- Hearings are conducted in secrecy, excluding the public and press from public business.

- The option of hiring rent-a-judges detracts from the need to improve public courts.

- The system lures judges into early retirement with the promise of $200 to $300 hourly fees, creating a “brain drain” for courts.

- Rent-a-judges, unlike sitting judges, are not required by law to disclose their financial interests or any relationship (such as frequent employment) with parties or lawyers.

Prompted by Robert Gnaizda, attorney for Public Advocates of San Francisco, which represents poor and minority clients, and former California Chief Justice Rose Elizabeth Bird, the California Judicial Council and State Bar investigated the rent-a-judge system six years ago. The organizations found no serious abuses and urged the system’s expansion.

Criticized as ‘Elitist’

Gnaizda and Bird have repeatedly criticized the system as “elitist.”

They claim that the rent-a-judge system is unconstitutionally discriminatory because it permits those able to pay for judges to get to appellate court, where precedent is established or cases finalized, five years faster than those who must wait for a public courtroom.

Chodos calls the charge a “nonsensical idea,” saying there are “500 ways to make a fast track to the appellate court” in the public route.

Judge Jerry Pacht, who became a judge for hire three years ago, said most parties who can agree on a rent-a-judge also agree to make the decision binding, with very few cases appealed. No statistics are kept on appeals any more than on the number of rent-a-judge trials. But Gnaizda believes, based on conversations with retired appellate clerk Clay Robbins, that about the same percentage of rent-a-judge cases as public cases are appealed.

‘It’s a Myth’

Chodos and other rent-a-judge advocates reject the idea that the out-of-court system is only for the wealthy.

“It is a myth that people can’t afford it. Even without regard to the public cost for trial, the cost to litigate is in every instance greater in the public courthouse than with a private rent-a-judge,” Chodos said.

(Most rent-a-judges submit bills at the end of a hearing or trial, regardless of whether the case is appealed. Some companies, such as Judicial Resources in San Francisco, pay the judge up front the day he works, worrying about the billing and collection later.)

The president of Philadelphia-based Judicate, Alan Epstein, agrees that the time and legal fees saved more than compensate for the cost of hiring a judge.

And, he added, if a litigant can prove to a court’s satisfaction that he has no funds, Judicate even lets him proceed with the case without paying, just as a public court permits an indigent to proceed without fees.

Beneficial to Poor

Epstein said the rent-a-judge system is not only affordable to all but also may be most beneficial to the poor. While wealthy people or companies suffer little if they have to wait several years for a public court trial, he said, a poor accident victim or small businessman can go bankrupt waiting.

“The people who can least afford to wait,” Epstein said, “are those without much money.”

Gnaizda also complains that most people who hire rent-a-judges “want a public trial that is secret.”

News reporters also object that out-of-court hearings are closed, although they are sanctioned by a public court system and should be conducted in public.

Rent-a-judge trials are conducted in a variety of places--unused courtrooms, law offices, rented hotel conference rooms, meeting rooms at private dispute resolution companies such as Judicial Arbitration and Mediation Services or Judicate, at the site of the incident prompting the dispute and, infrequently, at judges’ homes. Pacht held one trial at the edge of a swimming pool whose construction was in contention.

Can Be Open

Hired judges, court administrators and lawyers agree that rent-a-judge hearings can be and are open to the public and the news media if they are complete trials directly assigned or “referred” by a sitting judge and conducted in courtrooms or other public property, and perhaps even on private property if they involve public entities.

Chodos and others say there are certain cases--financial tangles in the breakup of a law firm or a marriage, for example--that they prefer to keep secret, but agree that secrecy is a minor motive for seeking a rent-a-judge and that all cases involving public money or services should be public.

Often, however, a rent-a-judge is hired not for trials but to handle settlement conferences or arbitrations or non-binding mediations, which are customarily not open to public scrutiny even if done in a judge’s chambers.

“The real complaint is that this doesn’t work like City Hall or the Hall of Justice where calendars are posted,” said Dan Kelly of Judicial Resources, whose 25 retired San Francisco Bay Area judges do open their trials to the public. “But just phone us. We have even had Cable News Network filming our cases.”

Appearance of Secrecy

Gnaizda agrees that the worst problem may be the appearance of secrecy because of difficulty in tracking the cases to hearings, rather than actual locked doors.

“Intervention is an essential aspect of litigation,” said Gnaizda, whose stands have been supported by the American Civil Liberties Union. “This shuts out parties who might be affected and want to intervene.”

Another complaint is that the option of hiring a rent-a-judge for a speedy civil trial detracts from any strong push to expand and streamline public courts.

“You cannot allow the powerful to abandon the system when it is near collapse or it will go further down,” Gnaizda said. “The only way to correct it is when the powerful band together to do it. Otherwise the court system will be like our education system. If the powerful were forced to send their children to the public schools, Los Angeles would be a model school district.”

Chodos called that a “specious argument” and said it would be unfair to force litigants to suffer indefinitely in overcrowded, understaffed courts just to prompt the Legislature into improving them.

“Rent-a-judge will probably have the opposite effect,” Chodos said. “If people see how comfortable and worthwhile it is to have efficient courts, maybe it will inspire the Legislature to act to provide the courts they should.”

Another concern of some observers is a possible “brain drain” for public courts as judges retire to work their own hours for higher pay.

In California, Superior Court judges can retire with 75% of their $84,765-a-year salary after 20 years’ service. Those who work for companies such as Judicial Arbitration and Mediation Services or Judicial Resources make about $135 to $200 an hour, and those who work privately charge $250 to $300 to sit as rent-a-judges, easily earning six-figure incomes.

Brain Drain Denied

The busiest rent-a-judges say the “brain drain” concern is groundless.

“I do not believe that anyone is going to leave the bench before their right to retirement is maximized,” said Olson, who retired at age 57 after 20 years as a judge. “What I do believe is that the minute they are vested they will leave, as compared to years ago when sometimes they would stay on because they had nothing better to do.”

Said Pacht, who retired at age 63 after 20 years: “I only know of one or two who left before their pension vested, and they went back to the practice of law.”

Some attorneys, such as Los Angeles business lawyer Richard Mosk, who has hired rent-a-judges, are concerned about possible conflicts of interest because the private judges are not required to tell litigants and lawyers about their financial investments or any previous associations with the parties and attorneys involved.

Fair and Unbiased

The rent-a-judges counter that lawyers on both sides of a case agree to hire them specifically because they know them to be fair and unbiased.

“I think . . . rent-a-judges have to be scrupulous about disclosing their relationships with any parties or law firms,” Mosk said, “and maybe they should have to file Proposition 9 financial statements like (sitting) judges have to do.”

Contrary to his predecessor, Rose Bird, Chief Justice Malcolm Lucas supports the system, pointing out another advantage--easing public court congestion--cited by advocates:

“Every long and complex case that is taken out of line and is tried separately through some alternative dispute resolution allows the common folk like you and me to move along much quicker.”

Rent-a-judges set up shop one of two ways--independently handling their own scheduling, billing and clerical work, or working for a company that provides those services for part of the fee.

Different Styles

The more popular judges who want to work nearly full time and are confident of attracting customers usually do it all themselves. Judges who prefer to work less and do none of the clerical details, and may be uncertain as to their own popularity, sign up with companies that have promotion budgets.

Olson is a one-man operation, with his Pasadena den converted to an office containing a telephone and answering machine to assist with conference calls and scheduling, and a computer to assist with marshaling evidence, billing and writing opinions. He dons a robe for hearings in courtrooms, but avoids it for those in law offices or hotel meeting rooms.

Olson works about 10 months of the year, taking time off for trips to Europe, Hawaii and the ski slopes.

Pacht, who also works virtually full time, also has an answering machine as his “lifeline” in his West Los Angeles home, despises computers and writes everything longhand on yellow legal paper. A part-time secretary handles the typing and billing.

‘It’s Just Easier’

Raymond Choate, who like Olson and Pacht retired from the Los Angeles County Superior Court, decided to join Judicial Arbitration and Mediation Services last September, where he works almost full time.

“They offer the space for trying a case, so that I don’t have to go from office to office,” he said, “and they provide secretarial services and keep the calendar. It’s just easier.”

Despite the proliferation of marketing companies and retired judges hanging out their own shingles, nobody seems too worried about competition. The organizations and individuals are finding their own niches.

The nationwide Endispute tried organizing judges to handle disputes in several major cities but quickly abandoned that movement in Los Angeles and elsewhere, deciding regional organizations such as Judicial Arbitration and Mediation Services were better suited. Vice President William E. Hartgering said Endispute has evolved into designing new, primarily non-binding ways to resolve massive disputes such as nationwide asbestos claims against Manville Corp. once it is out of bankruptcy.

‘Great for Users’

“I don’t think the well is endlessly deep,” said Jerrold L. Murase, regional director of the American Arbitration Assn., which since 1926 has engaged lawyers and retired judges to handle binding arbitrations. “There will be a time when we are stepping on each others’ toes. But that would be great for users--it would let them choose what they want.”

“The marketplace is so enormous,” Judicate’s Epstein said, “that considering anyone else a competitor is absurd.”

Most users and observers of the rent-a-judge system are happy to have it as an alternative procedure.

Los Angeles County Bar Assn. President Larry Feldman, a veteran trial lawyer who has hired rent-a-judges, recently encouraged attorneys and businessmen attending a conference on alternative dispute resolution sponsored by his association and the AAA to use all peaceful methods to resolve problems, including rent-a-judges.

“In our courts, the winners are now the losers. They cannot afford to litigate because it costs so much,” Feldman said. “The one caveat is that we have to be careful that we don’t start two systems of justice, one for the rich and one for the poor.”

Even lawyers concerned about the rent-a-judge system, such as Mosk, admit that they are glad it is available.

“Although I grumble about rent-a-judge,” Mosk said, “when I look at it objectively, it is something I like to have. It makes life easier, more convenient, and I think it may be cheaper in the long run.”