It has become common in recent years for attorneys to agree to the appointment of Special Masters. This development is unexpected especially in light of the provisions for Masters in Utah Rules of Civil Procedure 53(b). It states: “A reference to a master shall be the exception and not the rule. . . . in actions to be tried without a jury [appointment of a Special Master can] in the absence of the written consent of the parties, be made only upon a showing that some exceptional condition requires it.”
In other words, it is unlikely that the court would appoint a special master in your case.
There may be a good reason to have a Special Master in certain custody cases, but for every good reason, there are other reasons to be cautious. Before you agree to appoint a Special Master in a custody case, consult an attorney.
Attorneys who advocate appointing Special Masters often want to give broad powers to the Special Master that make them essentially Court Commissioners who function outside of the court system. Appointing Special Masters can result in waiving certain rights.
Before you agree to a Special Master in your custody case, consider my list of 3 basic reasons not to agree to a Special Master in a custody case:
1. Special Masters can make custody case more expensive, not less.
One reason advanced for use of a Special Master is to avoid the expense of prolonged litigation. However, Special Masters are usually decision makers that you pay out of pocket. They are not people who assist you to resolve issues by agreement. Adding another decision maker into a case will likely make the case more complicated, not less. Utah has a two tier system in metropolitan areas where most matters must first go to a court commissioner before reviewed by a judge. This can result in going to court twice for a motion. If you agree to go to a Special Master first, you may be creating a three tier system where you have to pay a Special Master out of your pocket to consider your dispute first. Then you may want to take it to the commissioner and then the judge.
2. You may be helping your opponent to build a case against you by agreeing to a Special Master.
Even though a Special Master usually functions as a decision maker in a custody case, courts have used Special Masters as witnesses as well. Some courts have not only considered a Special Master as a witness in a case but have also considered the testimony of a Special Master as an expert testimony in determining the credibility of one of the parties: “After considering the evidence and legal arguments, the district court found that the expert witnesses who all testified that Mother was not cooperative were credible and, conversely, that Mother was not credible.” Wolferts v. Wolferts, 2013 UT App 235, Par. 6.
Witnesses usually testify about what they have heard and seen. But expert witnesses can testify about what they think–they can give an opinion. The use of expert testimony has become a well developed and recognized evidentiary procedure. The use of a Special Master as an expert witness poses several potential problems, however.
First, a Special Master is not bound by the rules of evidence in reaching his or her opinions. Those opinions could be based on who pays him or her or on hearsay evidence that is not reliable. Second, the Special Master may have added credibility with the court because both parties have agreed to use him or her. Therefore a Master appears to the court to be a neutral, disinterested witness who carries additional weight. If you engage a Special Master, you take the risk that the Special Master will use his or her influence to sway the court’s determination against you based on unreliable information and opinions.
3. You may be waiving rights to appeal a decision of a Special Masters in your agreement.
One reason advanced for use of a Special Master is to avoid going to court. However, courts provide you with constitutional protections. You should only agree to give up those constitutional protections if you know what the decision is going to be or if you are comfortable with the possible outcomes that a Special Master could reach.
You might give up the right to appeal the decision of a Special Master. This could happen because a court typically will not look to see if the Special Master made the right decision; just whether the agreement authorized the action by the Special Master. Because the role of a Special Master is based upon an agreement, the court is likely to enforce the agreement. On the other hand, if the decision were left to the court, you can generally appeal a decision. This would happen because the judge abused their discretion or because they did not follow the law.