Use Commissioners to Relieve Judges

* Re “Growing Use of Private Judges Raises Questions of Fairness,” Dec. 26: Many, and I hope most, judges have used restraint in appointing discovery referees and have followed the directions of the appellate courts and the California court rules in giving parties and attorneys some input in the appointment process. I cannot justify or explain judges who have not done so.

The new legislation will, I hope, mitigate the abuses you have pointed out. There is an additional remedy that has been available for many years: the use of court commissioners. Commissioners are appointed by the judges and are authorized to perform “subordinate judicial duties” that judges would prefer to avoid, i.e., such matters as preliminary hearings in domestic relations cases. Some commissioners, however, are assigned to regular trial courts and hear nonjury and jury civil and criminal trials. There is no legal reason that at least some of the discovery matters cannot be referred to court commissioners, in which case there would be no expense to litigants. If the attorneys and parties wanted to retain, at the clients’ expense, a private attorney or retired judge to hear a discovery matter, they could still arrange to do so.

I am a partially interested party. I was a judge for over 21 years and a court commissioner for over two. I have handled a number of discovery matters, many of which did not need to be referred to an outside referee, and I occasionally handle a new one. It is certainly true that some discovery referees misuse their discretion. I believe that most retired judges are conscientious, work efficiently and do not overbill the parties.

GEORGE M. DELL

Superior Court Judge (Retired)

Los Angeles

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The Times is quite correct when it concludes that the biggest losers in the private judging system are the “common citizens--litigants of modest means--who increasingly are being pinched as the size, cost and use of the private judiciary grow” (editorial, Dec. 27).

Now add this to the disparity between the “wealthy impatient client” and the rest of us in our present judicial system: Under the 1999 California Supreme Court decision of Scott Co. vs. Blount Inc., if you’ve signed an agreement with the “wealthy” client which contains a provision that the “prevailing party” shall be entitled to its attorney fees and costs from the losing party (most agreements contain such a clause) and the “wealthy” client makes you a statutory settlement offer in the litigation that you refuse to accept, if you do not win a judgment that exceeds the amount of the offer, even though you win the case (and thus think you are the “prevailing party” under the attorney-fees clause), under the Scott decision you have to pay all the losing wealthy party’s attorney fees incurred after the offer, along with its other litigation costs, including the very high private judging fees, which can amount to more than the actual judgment in which you “prevailed.” Think twice before you agree to one of those attorney-fees clauses in a contract--they are extremely dangerous to litigants of modest means.

DONALD M. FENMORE

Los Angeles