Specmast

Special Masters’ Incidence
and Activity
Report to the Judicial Conference’s Advisory
Committee on Civil Rules and
Its Subcommittee on Special Masters
Thomas E. Willging, Laural L. Hooper,

Marie Leary, Dean Miletich,
Robert Timothy Reagan, and John Shapard
Federal Judicial Center

2000
This Federal Judicial Center publication was undertaken in furtherance

of the Center’s statutory mission to conduct and stimulate research and
development for the improvement of judicial administration. The views
expressed are those of the authors and not necessarily those of the Fed-
eral Judicial Center.
This page is left blank intentionally to facilitate printing this document double-sided.
Contents
Acknowledgments v
I. Background 1
II. Executive Summary 2
A. Incidence: How much activity is enough to justify amending the
rules? 3
B. How and why the special master rules are working despite their limits:
consent and acquiescence 4
C. What is special about these masters? Where did they come from and
how much did they cost? 6
D. How was ex parte communication handled? 7
E. Did special masters fulfill the goals and expectations of their appoint-
ments? 8
F. Were special masters really needed? Could a magistrate judge have
performed the special masters’ roles in these cases just as effectively? 10
G. What rule changes do judges, special masters, and lawyers want? 11
H. Summary and conclusions 12
III. Research Design and Questions 12
IV. Methods 13
V. Findings and Discussion 15
A. Incidence of special master appointments 15
1. Incidence defined and explained 17
2. A technical explanation of confidence intervals and representative-
ness 19
B. Appointment of special masters 21
1. Purposes of appointments 22
2. Origin of special master appointments 27
3. Opposition to proposed special master appointments 28
4. Role of consent in special master appointments 29
5. Outcomes of motions and sua sponte orders of appointment 30
6. Authority cited in orders of appointment 31
7. Effects of limited authority for appointment 33
8. Methods for selecting special masters 35
9. Compensation of special masters 41
iii
C. Postappointment activities of special masters 44
1. Instructions to special master appointees 44
2. Collection of information by the special master 45
3. Ex parte communications in special master cases 46
4. Communications between the special master and the judge 48
5. Communications between the special master and the parties 51
D. Judicial review and impact of special masters’ activities 52
1. Products of special masters’ activities 52
2. Formal review of special masters’ work 54
3. Impact of special masters on the outcome of the case 56
E. Effectiveness of special master appointments and suggested rule
changes 58
1. Pretrial and trial effectiveness 58
2. Posttrial effectiveness 62
3. Suggestions for changes to rules regarding special masters 65
F. A comparison of special master and magistrate judge activities; multiple
appointments of special masters 68
1. Pretrial and trial appointments of special masters 69
2. Posttrial appointments of special masters 70
3. Multiple appointments of special masters 71
G. State court practices and other alternatives to appointing special mas-
ters 74
1. State court practices regarding special master appointments 74
2. Case-management alternatives to appointing special masters 75
H. Conclusion 76
Appendix A. Research Proposal to the Special Masters Subcommittee 77
Appendix B. Research Methods 81
Appendix C. Research Protocol 93
Appendix D. Interview Protocols 107
Appendix D-1. Judge Interview Protocol 109
Appendix D-2. Special Master Interview Protocol 115
Appendix D-3. Attorney Interview Protocol 121
iv
Acknowledgments
This report represents the combined efforts of many Center staff mem-
bers and others. Among staff contributors, the authors gratefully ac-
knowledge the substantial and skillful work of Melissa Deckman Fallon,
Aletha Janifer, Yvette Jeter, Carol Krafka, Jennifer Evans Marsh, Jackie
Morson, Robert Niemic, Carol Witcher, and law students Kristina Gill,
Abena Glasgow, Ross Jurewitz, Nick Merkin, and Colin Ray. We also
acknowledge the indispensable assistance of Professor Edward Cooper in
reviewing the research design proposal and protocol as well as an earlier
draft of this report. We are also grateful to the Honorable Shira Ann
Scheindlin (chair), the Honorable Roger Vinson (former chair), and the
Honorable John Carroll and Myles V. Lynk, Esq. (members) of the Spe-
cial Masters Subcommittee of the Judicial Conference’s Advisory Com-
mittee on Civil Rules for their comments on our proposal, protocols, or
draft reports.
v
I. Background
Federal Rule of Civil Procedure 53 (Rule 53) provides that a “court in
which any action is pending may appoint a special master therein”1 and
that a “reference to a special master shall be the exception and not the
rule.”2 In discussing the powers to be assigned to special masters, Rule
53(c) appears to contemplate the traditional activity of a special master in
holding evidentiary hearings and issuing reports with factual findings to
facilitate a trial. Rule 53 contains neither an explicit authorization for nor
a prohibition of pretrial or posttrial activities of a special master.
Throughout this report, the term “special master” is used in an ex-
pansive sense to refer to adjuncts appointed to address a court’s need for
special expertise in a particular case. The titles most often given to such
adjuncts are “special master” and “court-appointed expert.” Other names
given to judicial adjuncts include auditors, assessors, appraisers, commis-
sioners, examiners, monitors, referees, and trustees. On occasion, because
of interest in their specific use, court-appointed experts appointed pursu-
ant to Federal Rule of Evidence 706 will be discussed as a separate sub-
group of the special master group. For example, in section V.A, we look
at how often experts are appointed and in what types of cases.
A proposal to amend Rule 53 has been pending before the Judicial
Conference Advisory Committee on Civil Rules since 1994.3 The pro-
posed revision “recognizes that in appropriate circumstances masters may
properly be appointed to perform [pretrial and posttrial] functions and
[would regulate] such appointments.”4 At its November 1998 meeting,
the committee discussed Rule 53 and its relationship to contemporary
practice. The committee concluded that “an initial difficulty will lie in
attempting to form a clear picture of the seeming wide variety of present
practices.”5
1. Fed. R. Civ. P. 53(a).

2. Fed. R. Civ. P. 53(b).
3. Edward H. Cooper, Civil Rule 53: An Enabling Act Challenge, 76 Tex. L. Rev. 1607,
1608–09, nn.7–8 (1998). In this article, Professor Cooper presents a reporter’s draft of proposed
changes in Rule 53 as well as an extensive draft committee note explaining the proposed rule
changes. Id. at 1614–35.
4. Id. at 1619 (draft committee note).
5. Judicial Conference of the United States, Civil Rules Advisory Committee Minutes, No-
vember 1998, at 39.
1
In January 1999, Judge Paul V. Niemeyer, chair of the committee,
appointed a subcommittee to study Rule 53 proposals and is-
sues—particularly whether any change in Rule 53 is needed at this
time—and to report back to the full committee at its October 1999
meeting.6 The subcommittee met in January 1999 and asked the Federal
Judicial Center (FJC) to develop a plan to study empirically the use and
nonuse of special masters and other comparable judicial adjuncts. The
subcommittee discussed the FJC plan (Appendix A) during its April 19,
1999, meeting and, after suggesting some additional questions, asked the
Center to proceed with the study.
In October 1999, the Center presented to the subcommittee and to
the committee a preliminary report of the results of the first phase of its
empirical study.7 The preliminary report included data from all of the
cases in the sample described below and in Appendix B. The current,
final report, which was presented to the advisory committee in draft form
in April 2000, eliminates some cases that the committee did not deem
representative or helpful, such as cases involving pro se litigation or the
use of special masters to assist in foreclosure litigation. Accordingly, the
data presented in this final report—and a few of the findings—have
changed from those presented in the preliminary report. This final report
also incorporates the results of interviews with judges, special masters,
and attorneys from a subset of the cases described in the preliminary re-
port.
II. Executive Summary

This report examines how pretrial and posttrial special master activity
can take place under a rule designed to limit special master appointments
to trial-related fact-finding in exceptional cases.8 In commissioning the
Federal Judicial Center to conduct this study, the Judicial Conference
6. Judge Niemeyer originally appointed Judge Roger Vinson (N.D. Fla.) to chair a subcom-
mittee composed of Magistrate Judge John Carroll (M.D. Ala.), Myles Lynk, Esq. (Washington,
D.C.), and District Judge Shira Ann Scheindlin (S.D.N.Y.).
7. At the October 1999 meeting, Judge Vinson stepped down as chair of the subcommittee,
and Judge Niemeyer appointed Judge Scheindlin to replace him. The authors worked with Judge
Scheindlin and Professor Edward Cooper to prepare the April 2000 report.
8. As indicated above, the term “special master” is used in an expansive sense to refer to ad-
juncts appointed to address a court’s need for special expertise in a particular case. The titles most
often given to such adjuncts are “special master” and “court-appointed expert.” Other names given to
judicial adjuncts include auditors, assessors, appraisers, commissioners, examiners, monitors, referees,
and trustees.
2 Special Masters’ Incidence and Activity

Advisory Committee on Civil Rules’ Subcommittee on Special Masters
indicated its awareness that special master activity had expanded beyond
its traditional boundaries. The subcommittee expressed an interest in
learning how that phenomenon occurred in the face of a static and re-
strictive rule.
More specifically, the subcommittee wanted to know how often and
under what authority judges appointed special masters to serve at the
pretrial and posttrial stages of litigation, whether any special problems
arose in using special masters, how courts’ use of special masters com-
pared with their use of magistrate judges, and whether rule changes are
needed. We responded to the subcommittee’s request by examining
docket entries and documents in a random national sample of closed
cases in which appointment of a special master was considered. We fol-
lowed up with interviews of judges, attorneys, and special masters in a
select subset of that sample.
A. Incidence: How much activity is enough to justify amending

the rules?
First, we looked at how often special masters were appointed. By exam-
ining a random national sample of docket entries referring to special
masters (including court-appointed experts), we found that in about 3
cases out of 1,000 (0.3%), judges or parties considered formally, on the
record, whether a special master should be appointed (see Table 1).
Judges appointed special masters in about 60% of these cases, that is, in
fewer than 2 cases in 1,000 (0.2%). Cases involving patents, environ-
mental matters, and airplane personal injuries showed a higher than aver-
age likelihood of such consideration, but even in these types of cases,
judges and parties were not likely to consider appointing a special master
in more than 7 out of 100 cases (7%). Consideration and appointment of
experts under Federal Rule of Evidence 706 represented less than 10% of
the above activity.
During the two years from which our sample was drawn, approxi-
mately 1,500 cases in federal district courts included docket entries re-
flecting judicial consideration of a special master appointment. Although
such cases are infrequent as a percentage of all federal cases, the sub-
committee found this level of activity sufficient to warrant drafting an-
other proposal to revise Rule 53.
Special Masters’ Incidence and Activity 3

B. How and why the special master rules are working despite their
limits: consent and acquiescence
Historically, Rule 53 was designed to help judges resolve fact-intensive
cases. The process involved having a master review facts, organize the
information, and prepare a comprehensive report to assist the judge or
jury. The traditional image is one of a court-appointed accountant poring
over volumes of bookkeeping records, classifying them, and perhaps ap-
plying clear legal formulas to thousands of transactions.
Modern use of special masters, we found, covered a full spectrum of
civil case management and fact-finding at the pretrial, trial, and posttrial
stages (see Table 11). Judges appointed special masters to quell discovery
disputes, address technical issues of fact, provide accountings, manage
routine Title VII cases, administer class settlements, and implement and
monitor consent decrees, including some calling for long-term institu-
tional change.
In our sample, the courts’ rulings cited Rule 53 about as often as they
failed to cite or discuss any authority, but even when judges referenced
Rule 53, they were likely to note it in passing, without comment (see Ta-
ble 5). Parties rarely raised questions of authority.
Pretrial activities, such as a special master’s review of discovery
documents, or posttrial activities, such as a special master’s monitoring of
institutional compliance with a remedial decree, might be interpreted by
a judge as the type of fact-finding permitted by the rule. Rule 53’s struc-
ture, however, does not fit well in these contexts. Because the activities of
a discovery master or a posttrial monitor may be spread over time and
involve minor actions with varying levels of detail, the rule’s requirements
(e.g., that a master file a written report on each action, that the parties
file objections within ten days, and that the court review all of the above)
seem ill-suited for those types of pretrial and posttrial activities.
Despite Rule 53’s failure to address pretrial and posttrial functions,
we found that judges appointed special masters to perform discovery-
management functions at the pretrial stage and decree monitoring or
administration at the posttrial stage. Indeed, the combined number of
pretrial and posttrial appointments was approximately equal to the num-
ber of appointments directed toward trial activities (see Table 11). We
also found that litigants rarely questioned special masters’ authority to
perform pretrial and posttrial functions.

How have courts and litigants managed to expand the apparent
reach of Rule 53? Consent and acquiescence appear to be the driving
forces. Opposition to a proposed appointment, though infrequent (see
Table 3), significantly increased the likelihood that a judge would decide
not to appoint a special master.
How do consent and acquiescence work in practice? We found two
scenarios. In one, the parties agreed with each other that a special master
was necessary to unravel pretrial, trial, or posttrial issues. They identified
what needed to be done and presented a stipulation to the trial judge.
Most judges appeared to have been impressed by the parties’ cooperation
and, what is more important, by their willingness to pay for the services
of someone who would relieve the court’s burden. In all but the most
unusual cases, the parties’ agreement and willingness to pay persuaded
judges to appoint a master.
In the other scenario, a judge faced a mass of complicated activity at
the discovery or posttrial stage of a case. In our sample, a majority of the
proposals to appoint a special master appeared to originate with the judge
(see Table 2). If the judge felt strongly that the work required an inde-
pendent actor and that its demands exceeded the court’s resources, what
one attorney called “litigation dynamics” took over. Unless the parties
came up with a plausible alternative or unless at least one party objected
because it could not afford to pay the master’s fees, the parties consented
to the appointment. If a party could not pay for a special master, courts
attempted to devise other ways to address the need. Appointing a magis-
trate judge was the primary alternative. Otherwise, the parties generally
acquiesced in the judge’s plan to appoint a special master to assist in
managing the litigation.
What our research cannot tell us, though, is whether party opposi-
tion sometimes scuttles special master appointments that judges see as
important case-management tools. Informal opposition to a judge’s
equally informal suggestion—in a pretrial conference, for example—that
a special master be appointed might never appear on a docket sheet.
Without explicit rule-based authority, a judge might hesitate to appoint a
master and impose the costs on a reluctant party. Although none of our
attorney–interviewees reported such lost opportunities for a special mas-
ter appointment, they might be unlikely sources for such information
because, for the most part, they had been willing to consent to, or at least
acquiesce in, such appointments.

C. What is special about these masters? Where did they come
from and how much did they cost?
A recurring problem in appointing adjuncts is for the court to find unbi-
ased candidates who have the special expertise needed. Courts often in-
vited the parties to submit nominations and in some cases simply entered
orders adopting the parties’ stipulated designation of a special master (see
Table 6). Many judges told us the parties were in a better position to
know who had the necessary background and skills to assist them in re-
solving the matter. In a few cases, the parties could not agree on a nomi-
nee or their choices were not acceptable to the judge, so the judge had to
conduct a search.
Some of the judges’ search methods included appointing magistrate
judges, using masters with previous service in another case, selecting
persons whose qualifications were known to the judge (including former
law clerks), and using an outside search agency (see Table 6). Some at-
torneys questioned whether judges should appoint former law clerks.
These attorneys criticized this approach because counsel—presumably
including themselves—would be reluctant to object to the appointment.
In these instances, attorneys commented that the parties had little assur-
ance, other than the judge’s word, that the proposed nominee brought an
unbiased, or even a well-informed, perspective to the disputed issues.
Indeed, we found that attorneys rarely objected to such appointments on
the record, but a few objected in interviews with us.
About three-quarters of the special masters were attorneys, a number
of whom were also magistrate judges or retired state or federal judges
(see Table 7). This finding was not surprising, considering that many
special master duties, such as taking evidence or ruling on discovery dis-
putes, require familiarity with legal procedures. Few special masters,
though, had prior experience as a special master. Most indicated an in-
terest in serving again, and several had done so before we interviewed
them.
Participants in the cases we studied did not indicate that costs asso-
ciated with the appointment of a special master were a major reason for
limiting such appointments. These cases were hardly typical, however.
They generally involved both high financial stakes and parties who were
willing and able to pay the masters’ fees.
Plaintiffs and defendants typically shared the costs of special masters
on an equal basis, except in cases with posttrial appointments (see Table

9). In the latter cases, defendants who had been found liable typically
paid the costs of a master appointed to assist in remedying the matter. A
typical rate was $200 per hour. Half of the rates were between $150 and
$250 per hour. On rare occasions, a monetary cap was placed on the fees,
and in one case, a flat fee of $50,000 was determined by competitive bid-
ding. In a couple of cases special masters declined to charge fees as high
as those offered by the parties.
In twelve appointments, we were able to ascertain the total amount
of compensation paid to a special master. The median amount was about
$63,000, but 25% of the appointments involved total payments of
$315,000 or more. The appointments with the highest payments were,
not surprisingly, all in protracted cases in which special masters served
major roles for an extended time, including one case that lasted more
than a decade.
D. How was ex parte communication handled?

Most special masters face the need to get information about complex
cases in a quick and efficient manner. Generally, their appointments fol-
low a period of preliminary litigation activity that, in turn, arose out of
complex prelitigation interactions between the parties. In this context, we
asked such questions as “What, if any, guidelines did judges issue?” “Did
ex parte communication take place between a special master and a judge
or the parties, and, if so, was it problematic?” “What types of ex parte
communication are ‘acceptable?’” “Does the role of the special master or
the stage of the litigation make a difference in whether such communi-
cations occur?”
Aside from giving masters access to court files, judges appeared to
leave it up to the master and the parties to structure any needed informa-
tion exchange. Sometimes masters held formal hearings on the record,
with a court reporter. Mediators generally started the process by meeting
separately with each party. Judges typically did not give instructions con-
cerning information gathering or communication (see Table 10).
Rule 53 is silent on whether the special master and the judge or the
parties may communicate ex parte during the course of the litigation. We
found that ex parte communication routinely occurred between the spe-
cial master and the judge or the parties. Such communication was gener-
ally not a problem for participants. As one judge said, “the parties know
the rules.” On rare occasions, judges issued formal guidelines setting

forth acceptable parameters of ex parte communication. In one instance,
a judge felt compelled to issue written guidelines to ensure that the mas-
ter was not lobbied by the parties.
In general, we found that the nature of the special master appoint-
ment determined whether ex parte communication was permitted. For
example, judges typically permitted ex parte communication directed to-
ward administrative, procedural, and settlement matters. Whether the
appointment occurred at pretrial, trial, or posttrial stages also played a
role in whether a judge allowed ex parte communication. For example,
posttrial masters appointed to monitor compliance with an order almost
always were expressly allowed, even instructed, to communicate ex parte
with the parties.
Moreover, consent played an important role in whether ex parte
communication occurred. One judge said, “[a]s a judge I [feel] responsi-
ble for ensuring the integrity of the fact-finding process [and] would not
have entered an order permitting ex parte communication [without the
parties’ consent].”
In several cases, judges explicitly prohibited ex parte communications
between the judge and the master, but one judge questioned whether
that was the right approach. Another experienced judge said, “communi-
cations between the court and the adjuncts is a serious problem that I still
struggle with.” One master commented that having no communication
with the judge made him feel “lonely and isolated.” Another master sug-
gested creating a rule that describes issues appropriate for a master to
discuss with the judge.
Overall, judges, attorneys, and special masters do not see an explicit
rule prohibiting ex parte communication between a special master and a
judge or the parties as either necessary or desirable. However, almost all
seem to think that rules clarifying this murky area might be useful for all
concerned.
E. Did special masters fulfill the goals and expectations of their

appointments?
In our sample, we found that judges generally accepted the reports of
special masters, only occasionally modifying a finding, conclusion, or
recommendation (see Tables 12 and 13). Fewer than one in five special
masters’ actions appeared to determine the outcome of the case, and
about the same percentage of appointments appeared to have no influ-

ence on the outcome. Most often, special masters appeared to have had a
substantial or moderate impact (see Table 14).
Almost all of the judges and attorneys told us that the special mas-
ters were effective. Moreover, all judges and almost all attorneys thought
that the benefits of appointing the masters outweighed any drawbacks
and said they would, with the benefit of hindsight, still support the ap-
pointments. Attorneys said this regardless of how the special masters’
appointments initially came about, and even regardless of whether the
masters’ involvement benefited their clients. Likewise, almost all special
masters we interviewed thought that their appointments were warranted
and would not change any terms of their appointments.
Several judges who appointed masters for pretrial and trial-related
purposes, such as supervising discovery-related conflicts or assisting the
court with complex issues, reported that the special master helped them
understand the complex issues, saved the parties’ money, made the case
settle faster, or saved the appointing judge’s time. Several attorneys told
us that although a judge could have performed the master’s pretrial or
trial-related activities, the appointment saved judicial resources in that
the master was able to handle the activities more efficiently—and in
some cases more effectively—than a judge because the master had the
time to devote to them.
Likewise, judges who appointed masters for posttrial purposes, such
as administering settlements and monitoring consent decrees, reported
that “no one could have done it faster, cheaper, or better,” and “appoint-
ment made the difference between success and failure.” Most posttrial
masters believed their presence moved the case along faster. The attor-
neys in two cases in which a master was appointed to administer settle-
ments in class actions reported that the master’s involvement saved their
client’s money and that the case was handled much faster.
Comments were not always favorable. The drawback to appointing a
master cited most often by judges, masters, and attorneys was the addi-
tional cost to the parties. In addition, several attorneys thought the ap-
pointment slowed the case down or, contrary to their expectations, did
not speed up resolution. Yet, none of our interviewees found that these
drawbacks outweighed the benefits in a given case.

F. Were special masters really needed? Could a magistrate judge
have performed the special masters’ roles in these cases just as
effectively?
Magistrate judges and special masters sometimes served overlapping
functions in the same case at the pretrial and trial stages, but rarely served
overlapping functions at the posttrial stage (see Figure 1). Specific activi-
ties of magistrate judges and special masters seldom, if ever, overlapped
in a given case.
Half of the masters we interviewed who were appointed for pretrial
and trial-related purposes told us that all of the functions they performed
in their respective cases could have been performed by a magistrate judge.
The majority of these masters were indeed magistrate judges appointed
to carry out their role in the case in the capacity of a special master. Spe-
cifically, they said that magistrate judges could have managed discovery
and ruled on discovery disputes, conducted hearings, ruled on nondispo-
sitive pretrial motions, facilitated settlement, calculated damages, and
prepared findings of fact and conclusions of law. The magistrate judges
appointed as masters told us that they essentially treated the order of ap-
pointment as a routine referral.
The other half of the masters appointed for pretrial and trial-related
purposes thought that a magistrate judge could not have performed the
master’s duties because they required knowledge and expertise about
complex technical issues not possessed by most magistrate judges. One
master–expert explained, “I think the alternatives are few unless you have
a judge who had a background in a technical discipline, such as engi-
neering. Even though the judge asked me to tutor him, I was still doing
all of the substantive work. There is no way a judge can learn this stuff in
a few days or weeks. The issues were highly complex . . . they really could
not have been delegated to a magistrate judge.”
None of the special masters who performed posttrial functions told
us that a magistrate judge could have performed their roles, such as ad-
ministering settlements in class actions and monitoring compliance with
consent decrees. A magistrate judge appointed to handle attorneys’ fee
petitions in a case in which a master was appointed to monitor imple-
mentation of a court order said, “A magistrate judge could not have per-
formed the monitoring function. That would have taken 50% of a mag-
istrate judge’s time for about ten years. In addition, magistrate judges are
not necessarily qualified to do the type of mediating work that monitors

do.” Likewise, attorneys often said that the court did not have sufficient
resources to appoint magistrate judges as posttrial masters.
G. What rule changes do judges, special masters, and lawyers

want?
A majority of judges, special masters, and attorneys did not see any need
for specific changes in rules governing the appointment and activity of
special masters. In the cases we discussed with them, they did not, with
few exceptions, experience problems relating to the authority of the judge
to appoint a special master or the authority of a special master to act,
even at the pretrial and posttrial stages.
Of those suggesting change, most advocated a broad, flexible grant
of authority. Judges, attorneys, and masters argued that conditions vary
among cases and warned against the dangers of specificity, especially the
inadvertent exclusion of cases that need special master treatment. Spe-
cific new rules might be construed to constrain the inherent authority
that currently allows judges to take all the steps necessary to manage
complex litigation.
Despite the reported absence of problems in the cases studied, we
found a surprising number of suggestions for rule changes. Perhaps be-
cause we were asking pointed questions about authority under the federal
rules, a number of respondents called for broad and flexible authorization
of special master appointments for functions not explicitly covered by
current rules. Others called for rules addressing specific problems that
they encountered or subject areas that they imagined could become
problematic. Several addressed the role of a monitor, calling for some
specificity about potential roles of monitors and standards for reviewing
the activities of monitors—issues not found in the lexicon of current
rules. Others called for clear default rules regarding communications
between special masters, especially monitors, and parties and between
special masters and the appointing judge.
Some respondents, even some who earlier eschewed specific rules
and told us the system “ain’t broke,” called for relatively modest house-
keeping rules, such as lengthening the time for objecting to a special
master’s report or authorizing a process for competitive bidding for ap-
pointment as a special master. Most of the specific suggestions could
have been—and often had been—addressed in the consent orders of ref-
erence that parties often prepared in the cases we reviewed. One got the

sense that some of our respondents were saying, in effect, “while you’re
up, get me a rule change.”
H. Summary and conclusions

Looking at the report as a whole, the incidence of special master consid-
eration, appointment, and activity was rare and occurred primarily in
high-stakes cases that were especially complex. Party initiative, consent,
or acquiescence provided the foundation for appointments, and rules did
not appear to be a driving or limiting force. Nonetheless, some partici-
pants offered suggestions for clarifying the rules regarding some problem
areas, especially relating to ex parte communications issues and to meth-
ods of selecting masters. In sum, judges, attorneys, and special masters
indicated that there are problems that might well be addressed by the
rule-making process.
III. Research Design and Questions

As stated in Part 1, the Center’s design called for a two-phased study.
The first phase examined quantitative data extracted from case files. The
second phase consisted of interviews with judges, special masters, and
attorneys from a subset of the Phase 1 cases.
The following are questions the Center’s April 1999 research pro-
posal posed.
• How frequently and in what types of cases have district judges or
parties considered whether to appoint a special master or other
adjunct? (Phase 1)
• In general, what actions have district judges taken regarding spe-
cial masters and what activities have special masters performed?
(Phase 1) For what purposes have masters been appointed to
serve, and what authority have judges cited in making appoint-
ments? (Phases 1 and 2) How effective were the appointments in
meeting those purposes? (Phase 2)
• Who have judges appointed as special masters (magistrate judges,
lawyers, accountants, others)? How have judges identified candi-
dates for appointment? How was compensation established and
paid? (Phases 1 and 2)
• How often have masters been appointed to serve at various stages
of civil litigation, such as (1) pretrial proceedings (e.g., discovery

management), (2) trials (especially jury trials), or (3) posttrial pro-
cedures (including formulating, monitoring, or administering in-
junctive decrees, establishing damages in class actions, or deter-
mining attorneys’ fees)? (Phase 1)
• What is the relationship between the activities of special masters
and the activities of magistrate judges who may perform similar
functions but not necessarily as designated masters? (Phases 1 and
2)
• What problems have judges and litigants encountered in relation
to the appointment of a special master? (Phases 1 and 2)
• What kinds of adjuncts (other than special masters) have judges
appointed to assist them in ways described or permitted in pro-
posed revisions of Rule 53? (Phase 2)
• Given that Rule 53 speaks only to appointment of special masters
at the trial stage, how, if at all, has that apparent limitation con-
strained judges from using judicial adjuncts for other purposes? If
there were a more expansive rule, how might judges use special
masters? In what situations would special masters be likely to be
helpful? (Phase 2)
IV. Methods
For the first phase of the study, we used an electronic database consisting
of docket entries for 445,729 cases terminated in eighty-seven federal
district courts in fiscal year 97 and fiscal year 98. We then electronically
searched that database for variations of the terms “special master,”
“court-appointed expert,” “referee,” “auditor,” “examiner,” “assessor,”
“appraiser,” and “trustee.” As discussed more fully in Appendix B, the
results of our search may understate the incidence of special master con-
sideration.9 “Special master” was by far the term most frequently identi-
fied. Our search identified 1,506 cases in which one of the above terms
was used in a docket entry. Based on a statistical estimate of the number
of cases necessary to address the questions posed by the subcommittee,
9. Our search may have understated special master activity in another respect as well. It would
be extremely difficult to design research to uncover special master appointments that were not re-
corded on docket sheets, and we were unable to do so within the available time. Some judges report
making such appointments, generally for the appointee to serve as a pretrial settlement master, with-
out entering an order or otherwise creating a docket entry. This study did not include any such uses
unless another docketed activity in the same case used one of the above terms.

we drew a random sample of 136 cases.10 We used 115 of the 136 cases
for our analysis of the incidence of special master activity (see § V.A and
especially Table 1). We describe the methods for that analysis more fully
in Appendix B.
We then requested from the clerks of the district courts relevant
documents from the 136 selected cases, such as the motions, orders of
appointment, special master reports, and any judicial actions related to
those reports. To maintain consistency in, and quality of, data collection,
we implemented two measures. First, to enhance the reliability of the
data collected, we trained five law students to complete a standardized
thirty-four-question protocol (see Appendix C). Second, to ensure accu-
racy, one of the authors reviewed every response in every completed pro-
tocol. Data from these protocols were compiled and form the basis for
the quantitative findings reported in Tables 2 through 14.11
After the October 1999 meeting, we modified the database by ex-
cluding certain types of cases in order to focus on the cases that exhibited
the type of special master activity that appeared to be of interest to the
Advisory Committee on Civil Rules. We systematically excluded cases
that ended in a default judgment, cases in which one or more parties
were not represented by counsel, and all foreclosure cases. As a result of
these exclusions, the number of cases analyzed in the report went from
115 to 80. For that reason, some of the results that we presented as sta-
tistically significant in our October 1999 preliminary report are no longer
statistically significant. In this report, we continue to present the same
analyses, but indicate which data are no longer statistically significant.
For the second phase of the study, we conducted telephone inter-
views with judges, attorneys, and special masters in thirty-three of the
eighty cases. We selected cases that illustrated the following:
1. nontraditional uses of special masters;
2. use of multiple adjuncts (including magistrate judges, special
masters, and court-appointed experts in a variety of roles);
10. The October 1999 report was based on data from 115 cases. The difference between the
136 cases in the incidence analysis (see § V.A and Appendix B) and the 115 cases analyzed in the
balance of that report is that a number of cases with special master activity had been consolidated.
To avoid counting motions and rulings multiple times, we collapsed each group of consolidated cases
into a single case.
11. Note that all of these cases were included in the analysis of incidence reported in section
V.A, Table 1.

3. problems that arise in implementing the appointment (such as ex
parte communications);
4. reasons for not appointing special masters (in cases in which the
question was raised in a docketed entry);
5. reasons for appointing or not appointing magistrate judges as spe-
cial masters; and
6. the effects, if any, of retaining the narrow range of authority in
Rule 53.
Most of these cases were complex, but some were relatively routine.
The cases selected for interviews in Phase 2 are not necessarily rep-
resentative of our sample or of the universe of special master activities.
We present the results of our interviews to illustrate the special master
process in some of the types of cases that relate specifically to the com-
mittee’s questions. We do not present the interview results as a basis for
generalizing to the universe of special master activity. In contrast, the
data in the tables are derived from a representative sample of recent spe-
cial master activity in the federal courts.
A more detailed discussion of the methods used for the first phase of
the study is presented in Appendix B.
V. Findings and Discussion

A. Incidence of special master appointments
In this section, we present data concerning how often a party or the
judge raised the question whether a special master (including a court-
appointed expert) should be appointed and how the frequency of consid-
ering a special master appointment varied among different types of cases.
Under Federal Rule of Civil Procedure 53, use of special masters is
to be “the exception, not the rule.”12 Our data suggest that this restriction
was followed, both in the aggregate of cases and in specific types of cases.
Federal Rule of Evidence 706 contains no such restriction, but even
without an explicit restraint, its use has been rare in modern times.13
12. Fed. R. Civ. P. 53(a).

13. See Joe S. Cecil & Thomas E. Willging, Court-Appointed Experts: Defining the Role of
Experts Appointed Under Federal Rule of Evidence 706 7–8 (Federal Judicial Center 1993) (finding
that only 20% of sitting federal judges reported appointing an expert one or more times during their
careers on the bench).

Our data cover two distinct procedural phases relating to special
masters: judicial consideration of an appointment and special master ac-
tivity flowing from such an appointment. We use the term “consideration
of” a special master appointment to refer to on-the-record evidence that
a judge or party thought about such an appointment. Later, we use the
term special master “activity” to refer to the postappointment conduct
and reports of a special master.
Parties to the litigation and the judge rarely raise the question—at
least on the record—whether a special master should be appointed. In-
formal discussion of the issue (for example, during a pretrial conference)
might easily not result in a recorded docket entry. In the study as a
whole, whether to appoint a special master was raised formally in an es-
timated 1,223 out of 445,729 cases, or 2.7 cases in 1,000. Put differently,
in 99.73% of the cases, appointment of a special master was not formally
considered.
Court-appointed experts often serve functions similar to those served
by special masters. Consideration of appointing a Rule 706 expert to tes-
tify was rare and appointment of such an expert, even rarer. Approxi-
mately 10% of the appointments we examined referred to Rule 706 in a
ruling. That figure indicates that Rule 706 experts have been considered
at a rate of approximately 2.7 cases per 10,000 in recent years (.027%). In
our sample of 115 cases, there were sixteen requests that sought ap-
pointments for the purpose of providing testimony. Half of those re-
quests were in cases involving one or more pro se litigants. In all, three-
fourths of the requests were denied. These data indicate that appoint-
ment of a Rule 706 expert can be expected less than once in 10,000 cases.
In some exceptional types of cases—for example, cases involving pat-
ents or environmental matters, or personal injury cases arising from air-
plane crashes—the rates for consideration of special master appointments
were notably higher. In patent cases, 21 cases per 1,000 (2.1%) evidenced
consideration of a special master appointment; in environmental matters,
24 cases per 1,000 (2.4%); and in airplane personal injury cases, 27 cases
per 1,000 (2.7%). Again, the data demonstrate that considering a special
master appointment is a rare event, even in cases reputed to involve the
most complex subject matter. For those types of cases, fewer than 3%
included formal consideration of appointing a special master.
It is important to note that we have defined the incidence of consid-
ering a special master appointment as the rate of such consideration per

filed and terminated case. In two types of cases, personal injury–product
liability and prisoner civil rights, our sample included cases that had been
consolidated. Fourteen prisoner cases had been consolidated into three
cases, and nine product liability cases had been consolidated into three
cases. Based on our definition of incidence, we included all twenty-three
cases in the sample for purposes of calculating the rate of considering
appointment. We could not eliminate consolidations from our calcula-
tions because we had no way of knowing how many consolidated cases
were in the total population from which our sample was drawn. In sec-
tions V.B, C, and D of this report, we discuss specific procedures, such as
the filing of motions, ruling on them, and appointing special masters. To
avoid multiple counting of the same action, we collapsed each set of
consolidated cases into a single case for all of the analyses in sections
V.B, C, and D.
1. Incidence defined and explained

Our definition of incidence (as the rate of considering appointment of a
special master in cases) means that we include cases in which such an
appointment is highly unlikely, such as cases that terminated with a de-
fault judgment or cases involving straightforward legal applications, such
as the collection of student loans. If we were to exclude cases unlikely to
have an appointment, the incidence of consideration would undoubtedly
increase. Of course, the analyses by case types, discussed below, allows
one to focus on cases that are more likely to involve consideration of ap-
pointing a special master.
Table 1 shows the incidence of consideration of a special master ap-
pointment in each type of case for which there was any consideration in
the sample. Column 1 lists the case type (nature of suit) and the number
of cases as identified on the Civil Cover Sheet (JS 44) completed by the
attorney filing a case in a United States district court.
Column 2 presents the estimated rate of considering a special master
appointment per 1,000 cases for each case type. To estimate the extent to
which our results were a product of the particular sample that was se-
lected, we calculated confidence intervals. Columns 3 and 4 present the
lower and upper limits of 95% confidence intervals. These confidence
intervals indicate that, if our data are representative, there is a 95% de-
gree of certainty that the rate falls within the rates stated in columns 3
and 4. For example, in environmental matters we can say with 95% con-

fidence that special master consideration occurred in between 8 and 56
cases per 1,000. Thus, since there were 998 environmental filings in
1998, we can say (with 95% confidence) that consideration of appointing
a special master occurred in at least 8, but no more than 56, of those
cases. In the case types with few cases in the sample, the confidence in-
tervals are wider than in those with more cases in the sample. As the
sample size increases, the width of the confidence interval decreases and
our confidence in the results increases.
Table 1
Estimated Rate of Special Master Consideration Per 1,000 Cases, by Case
Type, in Cases Terminated During Fiscal Year 97 and Fiscal Year 98 in
87 Federal District Courts
Minimum Rate Maximum Rate
(95% Confidence (95% Confidence
Interval Re Interval Re
Estimated Rate Minimum Rate Maximum Rate
of Special Master of Special Master of Special Master
Consideration Consideration Consideration
Case Type (per 1,000 Cases) per 1,000 Cases) per 1,000 Cases)
Railway Labor Act 29 1 153
(n = 1)
Land condemnation 29 4 101
(n = 2)
Airplane personal 27 7 68
injury (n = 4)
Habeas corpus— 26 1 138
death penalty
(n = 1)
Environmental 24 8 56
matters (n = 5)
Patent (n = 8) 21 9 40
RICOa (n = 3) 18 4 53
Antitrust (n = 2) 17 2 59
Foreclosure (n = 11) 14 7 26
Prisoner—civil rights 7 5 9
(n = 32)
Table continued

Table 1 (continued)
Estimated Rate of Minimum Rate Maximum Rate
Special Master of Special Master of Special Master
Case Type (per 1,000 Cases) per 1,000 Cases) per 1,000 Cases)
Civil rights—housing 6 0 32
accommodations
(n = 1)
Other fraud (n = 2) 5 1 18
Personal injury— 5 3 8
product liability
n = 13)
Other contract 4 2 6
(n = 12)
Contract—insurance 3 1 8
(n = 5)
Fair Labor Standards 3 0 18
Act (n = 1)
Civil rights—other 3 1 5
(n = 10)
Civil rights— 3 2 5
employment
(n = 13)
Other statutory 2 1 6
actions (n = 4)
ERISAb (n = 3) 2 0 5
Habeas corpus (n = 2) 1 0 2
Other personal injury 1 0 3
(n = 1)
All types (n = 136) 2.7 2.3 3.2
Note: n = 136 of 445,729 cases.
a
RICO = Racketeer Influenced and Corrupt Organizations Act.
b
ERISA = Employee Retirement Income Security Act.
2. A technical explanation of confidence intervals and representativeness

In Table 1 we present the incidence of consideration of a special master
appointment in different types of cases in which there was such consid-

eration. Here we address how, if at all, the picture changes when there
was no special master consideration. In addition, we address how unique
case characteristics and new legislation affect sample representativeness.
Confidence intervals and number of cases. We found that depending on
the number of cases in the population studied, we can have more or less
confidence that such cases would not have included consideration of ap-
pointing a special master. For example, we found no special master con-
sideration in any of the student loan collection cases in the sample. The
confidence interval for that type of case indicates that we are 95% certain
that the maximum number of defaulted student loan cases considering
special master appointment is 2 per 1,000. We also found no special
master consideration in any of the civil rights—welfare cases in the sam-
ple, but the 95% confidence interval for that type of case is 163 special
master appointments per 1,000. The difference is that there was a large
number of defaulted student loan cases in the sample and a relatively
small number of civil rights—welfare cases. Table 15 (in Appendix B)
presents the confidence intervals for all the case types in which we found
no consideration of appointing a special master.
Representativeness. Particular features of specific types of cases may
affect their representativeness. Our sample of cases terminated in fiscal
years 97 and 98, for example, included relatively few voting rights cases
(323), none of which involved special master activity, probably because
such cases tended to be filed and terminated earlier in the decade, fol-
lowing release of the 1990 census data. Cases filed and terminated earlier
in the 1990s may be qualitatively different from cases in our sample.
Similarly, an employment discrimination case terminated in 1997 or
1998 may have been filed before recent civil rights statutes were enacted.
By introducing new elements of proof or removing old provisions, statu-
tory changes may have affected the number and complexity of more re-
cent cases. Complexity, in turn, might affect the need for assistance from
a special master.
Speaking of representativeness, we should note that our search may
have missed some cases that would have fit within the scope of the study.
Based on our pilot testing and postsampling testing, we think the num-
ber of omissions of cases with docketed special master consideration is
modest. In any event, the data on incidence should be taken as the
minimum level one might find through an exhaustive search of court rec-
ords. For a more in-depth elaboration of these issues, see Appendix B.

In general, the confidence intervals for individual types of cases are
quite wide, but for the case sample as a whole the confidence interval is
much narrower. We can say with a 95% degree of confidence that special
master consideration in the population studied lies between 2.3 and 3.2
cases per 1,000. We realize that with respect to certain case types, our
search may have missed some cases, but we are confident that such
omissions are minimal. In short, consideration of appointing a special
master was the exception, not the rule.
B. Appointment of special masters

In this part we present an overview of motions and rulings on special
master appointments, as well as masters’ selection, instruction, and com-
pensation. Specifically, we consider the following:
• What was the purpose of special master appointments?
• Who raised the question of a special master appointment?
• Was the motion opposed?
• How many motions were granted, denied, or not ruled on? What
authority was cited in a ruling?
• How many appointments were made?
• How were special masters selected, instructed, and compensated?
To provide a context for our discussion of the inner workings of the
special master process, we begin with information relating to the pur-
poses of special master appointments. This information was gathered in
Phase 2 of the study, in which we interviewed judges, special masters
(including a couple of court-appointed experts), and attorneys in thirty-
three cases about the purposes for special master appointments.14 The
14. To structure these interviews, we used the protocols reproduced in Appendices D-1 to
D-3. Sixteen of the twenty-one judges we interviewed from our subset of cases appointed one or
more special masters. We asked these judges what motivated them to consider appointing a special
master. We also interviewed twenty-two individuals (including six magistrate judges) appointed by a
judge to serve as special masters or court-appointed experts in our subset of cases. We asked these
appointees what their understanding was regarding the reason the judge decided to appoint them in
their cases. Finally, we interviewed thirty-two attorneys representing parties in the cases from our
subset in which the matter of appointing one or more special masters was raised. We asked them to
tell us how the subject of appointing a special master initially arose and what they thought motivated
the judge to appoint a master.
Note that the judges, attorneys, and special masters were not always from the same cases. We
sought to interview all judges, special masters, and attorneys in a subset of thirty-three cases. In each
group, some did not respond to our request for an interview and some declined to participate in the

cases from which we drew participants for these interviews were selected
by using criteria described in section IV (“Methods”) above. These cases
are not necessarily representative of the cases in our sample.
1. Purposes of appointments
In this section, we describe the different purposes of special master ap-
pointments during three stages of litigation—pretrial, trial, and posttrial.
Specifically, we were interested in learning about judges’ motivations for
such appointments, the types of cases selected, and the different activities
performed during the different stages.
Pretrial purposes. In twelve cases judges appointed special masters for
pretrial purposes, which generally included managing discovery, mediat-
ing disputes, facilitating settlement, and ruling on pretrial motions and
discovery disputes. In addition, there were four civil rights cases in our
subset in which the judges referred Title VII claims or section 1983
claims to magistrate judges to act as special masters in handling all as-
pects of the case up to and including jury trial, if the parties consented.
Two judges cited “insurmountable discovery disputes” and “tremen-
dous hostility between counsel” over discovery issues as the primary mo-
tivations for their decisions to appoint special masters. In both cases, the
judges issued expansive orders allowing the master to supervise every
phase of the discovery process, including deciding nondispositive mo-
tions and resolving any discovery disputes. The judges indicated that
their goal was to resolve the disputes without requiring further judicial
action. One of the judges made a practice of appointing a special master
when the judge thought “there is undue turbulence and there is enough
money involved.”
Several judges said that the presence of complex technical issues
central to the case was an impetus for appointing a special master. In a
patent infringement case and in an environmental pollution case, counsel
for the parties approached the judge about appointing a special master to
assist in understanding and managing the technical issues. A defendant’s
attorney in the environmental pollution case said that appointment was
“fairly routine in these types of cases,” and the judge agreed to it because
he knew the parties were at a point where they needed assistance. In the
study. In addition, several appointing judges were unavailable, one because of death and two because
of serious illnesses. As noted in the “Methods” section, we do not present the results of our inter-
views as representative of our sample of cases or of the universe of special master activity.

patent infringement case, the special master’s initial role was to manage
discovery, rule on discovery disputes, and rule on several summary judg-
ment motions. His role was expanded so that he handled Markman
hearings15 and a posttrial motion for attorney’s fees. In the environmental
pollution case, the special master managed discovery to facilitate settle-
ment of the case’s many complex issues.
Other reasons judges gave for appointing special masters in the pre-
trial phase of a case included facilitating settlement, responding to one or
more of the parties’ requests for an appointment, and conserving limited
judicial resources. In four cases, judges appointing special masters for
pretrial purposes did so after receiving a request by one or both of the
parties. In two of these cases, it was apparent that party initiative played a
significant role in the judge’s decision to appoint a special master. In one
case, involving an unusual use of a special master, an insured plaintiff
claiming disability benefits stipulated with the insurer defendant to be
bound by a special master’s finding about whether the plaintiff was in-
deed disabled. According to one of the attorneys, the judge adopted the
parties’ stipulation because it was clear to the judge that was what the
parties wanted, even though the case was not complex. One judge cited
his workload as his primary motivation for referring Title VII cases to a
magistrate judge to try as a special master; however, few judges men-
tioned freeing up their time as a factor in their decision to appoint a spe-
cial master.
Another pretrial appointment appears to have been motivated by the
parties’ desire to improve their prospects of having a class settlement ap-
proved. Competing class actions had been filed, the defendant settled
with one set of plaintiffs, and another plaintiff objected. At the sugges-
tion of the plaintiffs’ attorney who negotiated the settlement, the judge
appointed a former judge as a special master to conduct an independent
review of the settlement. That master’s role evolved into helping the par-
ties renegotiate the settlement terms. As the case unfolded, the special
master’s duties expanded further to include reviewing attorneys’ fees, ad-
ministering the settlement, and monitoring compliance.
In appointments that straddled the pretrial and trial stages, magis-
trate judges were appointed in four civil rights cases to hear the cases as
15. See Markman v. Westview Instruments, Inc., 116 S. Ct. 1384 (1996) (assigning construc-
tion of patent claims as a matter of law for judges to determine before trying infringement issues to a
jury, creating the need for a hearing on claims construction before any jury trial).

special masters. Three of these appointments were made in employment
discrimination cases, at least two explicitly pursuant to 42 U.S.C.
§ 2000e-5(f)(5) (allowing such appointment if a district court judge is
unable to schedule a Title VII case for trial within 120 days after the is-
sue has been joined). These courts made such appointments routinely to
address caseload problems. A difficulty arose when Congress extended
the right to jury trial to Title VII cases, because magistrate judges can
preside over jury trials only with the consent of the parties. One district
responded to that problem by transferring the case back to the district
judge if a party objected to the magistrate judge’s presiding at a jury trial.
In another district, the magistrate judge heard testimony as a special
master, and the case was retried in front of a jury. In a case from that
district, the plaintiff objected to the prospect of having duplicate trials.
That objection was resolved by the defendant’s consent to having the
magistrate judge preside over a jury trial.
Special masters and attorneys perceived the judges’ motivations for
pretrial appointments in substantially the same terms as the judge. Two
special masters emphasized the time and effort that would be required to
carry out the assignment, suggesting that the workload was a probable
factor in the appointment even when the judges did not mention it.
Similarly, attorneys were more likely than judges to express the belief
that one of the reasons involved in the judge’s decision to appoint a
master was the judge’s desire to avoid handling the referred matter.
Trial purposes. In seven cases, judges appointed special masters or
court-appointed experts for trial purposes, which generally included con-
ducting an accounting, determining damages, or preparing findings of
fact and conclusions of law on specified issues. In three of the seven
cases, judges appointed neutral independent experts under Federal Rule
of Evidence 706 to assist them by preparing reports on complex technical
issues that the judges felt were beyond their knowledge and resources.
For example, in a case involving competing claims to intellectual property
rights in a computer software program, the judge had to decide whether
one of the parties could have developed it independently without the use
of confidential information regarding the source codes. The judge said, “I
needed an expert to make a recommendation to me on this issue because
I don’t have the requisite understanding of source codes needed to make
this determination.”

When a technical—or even tedious—set of questions was at the
heart of the case, judges sometimes got the parties to agree to let a spe-
cialist answer that set of questions at the outset. One judge found that
sometimes after resolving “the threshold obstacle, the case unravels by
itself.” Another judge appointed a special master to conduct a partner-
ship accounting because complicated factual and legal issues needed to be
classified and prepared for resolution before the case could proceed to
trial. In an interpleader action, the judge appointed a special master to
handle all pretrial activity and issue a report and recommendation deter-
mining the amounts and priorities of various insurance claims. The judge
said that before she could make her final ruling, someone had to sit down
and work out the numbers.
Two additional cases in our subset demonstrated that the judges’
motivations for trial-related appointments were very similar to those for
pretrial appointments. In one case, a master was appointed to assess
damages following the judge’s determination of liability during a bench
trial. Although we were unable to interview the appointing judge, the
attorneys and the master thought that the primary reason for the judge’s
appointment was to avoid the enormous time expenditure necessary to
sort through voluminous evidence and, perhaps, to supplement the rec-
ord through further hearings. In the other case, the judge created a three-
member land commission pursuant to Federal Rule of Civil Procedure
71A to handle all aspects of a series of related land condemnation ac-
tions, prior to and during trial.16 The attorney representing the United
States thought that limited judicial resources and the appointing judge’s
busy caseload were significant motivations behind the decision to create
the commission.
Posttrial purposes. In five cases in our subset, judges appointed special
masters for posttrial purposes, which included administering settlements
in class actions, and implementing and monitoring consent decrees in
employment discrimination class actions. In all of these cases, the pri-
mary motivation for the appointment of the master was the need for ad-
ditional assistance or expertise. Although the motivations for these post-
trial masters’ appointments were similar, the activities that the masters
performed were closely tied to the needs of the particular case, and most
16. Appointment of a land commission under Fed. R. Civ. P. 71A(h) is linked to Rule 53 be-
cause commissioners’ powers, proceedings before the commission, and its findings and report are
specifically governed by relevant provisions of Rule 53.

masters’ roles evolved as these needs changed. Special masters appointed
to play various roles in these cases described the reasons for their ap-
pointment in terms similar to those used by the appointing judge, as did
the attorneys we interviewed.
The attorneys we interviewed identified features that distinguished
cases with a posttrial special master appointment from similar ones in
which a master was not appointed. These features included the complex-
ity and scope of a consent decree, difficulty in administering settlement
funds, political ramifications of enforcement of the decree, parties’ failure
to comply with the original terms of a consent decree, the level of hostil-
ity or frequency of interactions between the adversaries, and the need to
manage a defendants’ class with more than 750 defendants.
In one case the judge who appointed a special master to administer
the settlement in a class action for damages explained that “someone has
to decide the validity of claims” and that “it’s not feasible to have a judge
do all the work.” The judge had people submit claims documenting that
they fit the class definition, allowing a right of appeal if the claim was
denied. The special master’s role in administering the settlement in-
cluded receiving and investing the funds, paying taxes, reviewing the va-
lidity of the claims, recommending distribution of the funds, and dis-
bursing the funds after judicial approval of the distribution.
In an unusual case that involved a defendants’ class of local tax-
assessing bodies, the stipulation settling the class action required that the
judge appoint a special master to assist in administering the settlement.
The judge agreed that it was crucial to appoint a special master who
would correctly perform the accounting tasks so that everyone could see
that it was done right. The special master’s role in administering the set-
tlement included verifying the amounts of each assessment as agreed to
by the parties in settlement negotiations and disbursing funds to the de-
fendants’ class based on those assessments.
Along similar lines, in one of the cases in our sample, the Silicone
Gel Breast Implant Litigation (MDL 926), multiple special masters, ex-
perts, and other adjuncts were appointed to address the unique charac-
teristics of that sprawling litigation. A number of class settlements called
for appointing adjuncts to determine claims, handle the funds, and ad-
minister settlements. Other special master roles evolved as the needs of
the case became evident. One special master was originally appointed to
develop and implement a system for coordinating federal pretrial man-

agement with state court judges and lawyers who had parallel breast im-
plant litigation. His role was flexible. For example, when a global settle-
ment collapsed, he was brought in to mediate the disputes. A former
state judge was appointed to handle the attorneys’ fee claims relating to
the global settlement and later was given the role of reviewing appeals of
claims of the class members to a portion of the settlement. Another for-
mer judge was appointed to administer the claims process for class mem-
bers.
In two class action employment discrimination cases involving public
entities as defendants, judges appointed attorneys to monitor enforce-
ment of multifaceted consent decrees. The object was to eliminate dis-
criminatory practices and produce nondiscriminatory tests and other
methods for hiring, promotion, and retention decisions. The ultimate
goal was to remedy past violations by implementing the institutional
changes agreed to by the parties. A judge described one of the cases as
“big and cumbersome, involving implementation of a consent decree that
required dozens of separate activities.” A magistrate judge described the
other case as including a consent order that “called for deep institutional
change beyond the capacity of any judicial officer to manage while han-
dling their own caseload.” To meet those needs, multiple adjuncts were
appointed. Magistrate judges served adjudicative roles, special masters
addressed individual grievances, monitors gathered information about
compliance and mediated the terms of further changes, and a neutral ex-
pert assisted the court in resolving a technical issue.
Having explored the general purposes of special master appoint-
ments, we move to an examination of the inner workings of the special
master process as seen through the eyes of judges, attorneys, and special
masters. In the following sections we integrate quantitative findings from
Phase 1 of the study with qualitative comments from Phase 2 interviews.
These comments included observations about problem areas and the
adequacy of current rules.
2. Origin of special master appointments

Table 2 presents information on the source of the motion or suggestion
for appointment of a special master. The majority of suggestions for ap-
pointments of a special master (54%) came from judges in sua sponte
orders or discussion in pretrial conferences. Defendants moved for an
appointment about as often as plaintiffs (14% versus 15%). The parties

acted jointly 15% of the time. In some cases there was more than one
motion or suggestion. Judges initiated the process in three out of four
cases that resulted in appointments at the pretrial stage.
Table 2
Source of Motion or Suggestion for Appointment
of a Special Master
Source Number Percentage
Plaintiff 14 15
Defendant 13 14
Joint motion of the parties 14 15
Judge (sua sponte) 51 54
Other 2 2
Total 94 100
Note: n = 94 motions or suggestions in 80 cases.
3. Opposition to proposed special master appointments

Table 3 shows that the majority of motions or sua sponte orders for ap-
pointment of a special master encountered no opposition. Only about
one in three motions or suggestions involved opposition to the proposed
appointment. Just as plaintiffs and defendants moved for an appointment
in approximately equal numbers (see Table 2), they opposed a proposed
appointment in approximately equal numbers.
Table 3
Source of Opposition to Motion or Suggestion
for Appointment of a Special Master
Source Number Percentage
Plaintiff 10 11
Defendant 12 13
Other 7 7
Total 29 31
Note: n = 94 motions or suggestions in 80 cases.
Judges were significantly more likely to grant a motion or affirm a

show cause order when there had been no opposition (79%) than when
there had been opposition (43%).17
17. That difference is statistically significant, using a chi-square test. All comparisons discussed
in this report are statistically significant (p < .05) unless otherwise noted.

The general absence of opposition should not necessarily be inter-
preted to mean that opposition to special masters was infrequent under
all circumstances. It may be that motions or sua sponte orders were for-
malized only when it appeared likely—based on informal discus-
sions—that the parties would agree to such a course of action. In an ear-
lier study of court-appointed experts, Federal Judicial Center researchers
found that judges sometimes deferred to objections by the parties because
the parties generally have to pay the appointee.18 It seems reasonable to
expect that the same reluctance to appoint special masters may have oc-
curred in the cases studied here, since the parties also have to pay special
masters’ fees. If the parties can afford to pay the fees, however, special
masters may expedite the litigation and reduce the parties’ overall ex-
penses.
4. Role of consent in special master appointments

In Phase 2 of the study, our interviews with judges, special masters, and
attorneys confirmed the important role that consent—or at least acquies-
cence—of the parties plays in judicial decisions to appoint special mas-
ters. Of thirty-three Phase 2 cases—including the cases examined in
Phase 1 that had the most extensive special master activity—only one
case involved an appointment made over expressed opposition.19
Judges expressed the importance of consent in terms of the costs im-
posed on the parties, not the limits of the rules. In one judge’s words,
“the biggest limitation on appointing special masters is getting the
money to pay for them, not the language of Rule 53.” That judge went
on to say that “if one of the parties [had] said to me that they couldn’t
afford the $5,000, I wouldn’t have [appointed a special master].” Another
18. Cecil & Willging, supra note 13, at 21 (discussing deference by some judges to objections
from the parties based on costs).
19. That case dealt with opposition based on the additional costs that would be imposed on the
plaintiffs if a magistrate judge were to hear a Title VII case as special master and report to a district
judge who would then preside over a jury trial. The dispute was resolved when the defendant con-
sented to having the magistrate judge preside over the jury trial, eliminating the need for a second
proceeding.
In another case, an attorney for a defendant told us that he did not agree that the appointment
of a special master to make detailed findings about damages was supported by authority. In this
attorney’s opinion, the appointment was an abdication of judicial responsibility to decide the issues,
but the attorney did not raise these objections because the attorney felt it would probably be futile to
do so and because any delays caused by raising the issue or by blocking the appointment might harm
the client.

judge suggested that this is the norm, saying “of course, I don’t appoint a
special master unless the parties agree, because they have to pay for it.”
With two exceptions, special masters reported that there were no
challenges to their authority. Those two challenges were not primarily
rule-based, but were related to the terms of the orders of reference. This
lack of challenges may be a natural outgrowth of party consent. For the
most part, the parties and judges defined the needed range of authority in
custom-made orders of reference. These documents, not Rule 53, pro-
vided the core support and reference for measuring the special master’s
authority. Of course, the lack of a rule prohibiting such appointments
and the inherent authority of judges to take actions necessary to carry out
their judicial duties20 also support these consensual orders.
5. Outcomes of motions and sua sponte orders of appointment

Table 4 shows that 70% of the motions were granted in whole or in part,
that 15% were denied, and that the balance did not receive a ruling.
Table 4
Outcomes of Motions or Sua Sponte Orders for Appointment of
Special Masters
Outcome Number Percentage
Granted motion or affirmed order 64 68
Granted motion or affirmed order in part 2 2
and denied it in part
Denied motion or dismissed order 14 15
Did not rule on motion or order 14 15
Total 94 100
Note: n = 94 motions or orders in 80 cases.
Judges sometimes did not grant motions even though none of the
parties opposed them. In six instances judges denied unopposed motions;
three of the six cases in which unopposed motions were filed ended with
a dismissal of the plaintiff’s claim or a summary judgment for the defen-
dant.
Our interviews shed additional light on factors affecting the denial
of motions. Interviews with six judges included discussion of reasons for
declining to appoint a special master. Three of these instances of declin-
20. See generally Felix F. Stumpf, Inherent Powers of the Courts (1994).

ing the appointment involved requests for appointment of a special mas-
ter to supervise an aspect of discovery. In discussing their actions, the
judges referred to their policies and case-management practices related to
discovery. One judge wanted “to be the person on top of things” and
therefore did not want to appoint a special master to manage discovery.
Another judge did not want to encourage attorneys to depend on the
court to resolve discovery conflicts. A third judge wanted to avoid poten-
tial problems at trial in dealing with special master rulings on objections.
In denying party requests to appoint a special master, the other three
judges cited concerns about unnecessary costs and delays, and, in one
instance, possible creation of a bureaucracy to manage an extremely com-
plex institutional reform case.
Attorneys interviewed in cases in which requests for appointment of
a master were denied corroborated the above findings that decisions not
to appoint one were not based on any perceived lack of legal authority.
When asked about legal authority, none of the attorneys in those cases
expressed the opinion that an appointment could not have been made
because of a lack of such authority, nor did any of those attorneys think
that a more expansive Rule 53 would have changed the judge’s action on
the motion to appoint.
In nine cases a judge did not rule on a motion to appoint a special
master even though that motion was not opposed. Some of those mo-
tions may have been overtaken by events. A majority of cases in which
those motions had been made terminated in a settlement, voluntary dis-
missal, or an arbitration ruling; four of the cases proceeded to summary
judgment or a bench trial without a ruling on the motion. In all of the
cases the actions of the parties or the judge may have implicitly indicated
that a special master was not needed, but further study would be neces-
sary to pin down the judges’ reasons for not ruling on the unopposed
motions.
In all of the sixty-four instances in which a motion was granted, an
appointment was made.
6. Authority cited in orders of appointment

Three out of eight rulings regarding special master appointments do not
cite any authority (see Table 5). What appears to be relatively infrequent
use of authority, however, should be seen in the context of consent. As
described in the preceding section, most appointments occur with the

consent or acquiescence of the parties. Citations to authority may be
perfunctory or unnecessary when the parties do not dispute the court’s
authority to appoint a master and have participated in drafting the order
of reference.
As Table 5 shows, there are seven specific sources of authority that
explicitly refer to special masters or court-appointed experts.21 About
three out of eight cases in which there was a ruling cited Rule 53.
Table 5
Authorities Cited in Rulings on Motions or Sua Sponte Orders for
Appointment of Special Masters or Rule 706 Experts
Number Percentage of
Authority of Rulings Rulings
Fed. R. Civ. P. 53 33 39
Other (e.g., rules and federal statutes) 13 16
Fed. R. Evid. 706 10 12
28 U.S.C. § 636(b)(2) 4 5
42 U.S.C. § 2000(e)-5(f)(5) 3 4
Inherent authority of the court 3 4
Fed. R. Civ. P. 54(d)(2)(D) 1 1
Prison Litigation Reform Act of 1995 1 1
No authority cited 32 38
Note: n = 84 rulings in 80 cases. Percentages exceed 100% because more than one category
might apply to a single ruling.
We searched for evidence of reliance on inherent authority. We hy-

pothesized that a judge’s reliance on inherent authority might indicate
that the judge perceived that existing rules, standing alone, would not
support the desired appointment. In our sample, only three judges (4%)
expressly relied on inherent authority in ruling on a request to appoint a
special master. We do not know, of course, whether a judge may have
implicitly relied on inherent authority in the thirty-two rulings in which
the judge cited no authority, but our interviews suggest that judges were
more aware of their inherent authority than their orders indicated. Six of
the twenty judges we interviewed spontaneously identified inherent
21. In addition, presented in the “Other” category are little-used sources of authority, such as
Federal Rule of Civil Procedure 71A(h)’s authorization for a court to appoint commissioners, with
the power of special masters, to determine the issue of compensation in eminent domain cases, as
well as a number of local rules and federal statutes.

authority as an important source of their authority to appoint, even
though half of those judges did not cite inherent authority in their order
of reference.
It is worth noting, however, that none of these orders of appoint-
ment contained extended discussion of legal authority. Most, if not all,
simply cited an authority in passing. In only two instances did judges
address the question of exceptional circumstances by pointing to the legal
and factual complexity of the underlying litigation. One of those cases
involved complicated calculation of damages, and the other involved a
factually and legally complex commercial case in which a number of
heated discovery disputes occurred early in the litigation.
We found no meaningful differences in citations of Rule 53 for ap-
pointments relating to pretrial, trial, or posttrial stages of the litigation.
We do not and cannot know from this study whether some judges
did not appoint—or did not even consider appointing—a special master
in pretrial or posttrial contexts because they did not think they had the
authority to do so. We did not find any rulings in which a judge stated
that there was no authority to appoint a special master in a given case.
7. Effects of limited authority for appointment

Our interviews with judges revealed that, for the most part, judges found
existing rules, statutes, and inherent authority adequate to support their
uses of special masters. This is not to say that judges had no suggestions
for changes in the rules (see § V.E.3, “Suggestions for changes to rules
regarding special masters”), but none of the judges reported feeling re-
strained from making an appointment because of the narrowness of Rule
53 or other authority.
Nor did special masters feel constrained in carrying out their func-
tions. In interviewing twenty-two special masters appointed in seventeen
cases, we received two reports of challenges to the authority of special
masters. Both challenges were quite specific and pointed to gaps in the
order of reference rather than the lack of power to frame an appropriate
order. One challenge was to a special master’s authority to compel an
insurer’s attendance at a pretrial hearing (which was remedied by the
district judge’s clarifying that authority), and the other was to a master’s
authority to order the deposition of an objector to a class action settle-
ment (a matter arguably permitted by Rule 53(c), but not by the order of
reference in the case).

Attorneys generally told us that the applicable authority supported
the appointment. In one instance, an attorney thought an appointment
was legally unsupportable, but the attorney did not object for strategic
reasons. Another attorney, while supporting an appointment, said that
“the dynamics of a situation like that [reviewing a class action settlement]
are such that a judge can do anything and the parties are not likely to
oppose.” In addition, two attorneys noted specifically that there was no
express authority for appointing a special master in their cases, in one
instance as a monitor and in the other as a mediator. Nonetheless, these
attorneys fully supported the appointments.
At least one judge with extensive experience in complex litigation
challenged the premise that the present Rule 53 is not broad enough to
encompass many of the observed uses of special masters at the pretrial
and posttrial stages. In that judge’s opinion, “the fact that Rule 53 con-
templates fact-finding does not limit it to trial functions.” The judge
found that appointing a pretrial master to examine the factual premises
underlying a motion for summary judgment or for class certification fits
within the Rule 53 framework. Similarly, activity of a master in super-
vising discovery could also be channeled into a report and recommenda-
tion format as contemplated by the current Rule 53. Administering a
class settlement involves fact-finding and reporting that parallels, or per-
haps equals, the processes contemplated in Rule 53(d) and (e).
According to this judge’s interpretation, appointment of a monitor
or special master to assist in implementing a decree also entails the type
of fact-finding and reporting that might arguably be included in the
current rule.22 Although no other judges analyzed Rule 53 in precisely
this manner, this interpretation is consistent with the judges’ expressions
of general satisfaction with the adequacy of Rule 53 and inherent
authority to support their appointments of special masters. An attorney
representing plaintiffs who agreed that a special master should be ap-
pointed to administer a complex settlement opined that “there is nothing
in Rule 53 to indicate that this kind of fact-finding [assessing claims to
portions of a settlement fund] is not within the scope of the rule.”
In contrast, another experienced judge found that of a variety of
22. A counterargument to this interpretation would refer to Rule 53(b)’s distinction between
“actions to be tried by a jury” and “actions to be tried without a jury.” This argument assumes that
“trial” only encompasses a proceeding to determine liability, as opposed to a proceeding for contempt
or other enforcement remedies, following an initial decision on liability.

pretrial appointments in a complex multidistrict litigation, none would
have fit under Rule 53 because they did not involve a fact-finding role
aimed at a trial on the merits. In that judge’s estimation, however, a
combination of inherent authority and the pretrial powers vested in dis-
trict judges by Federal Rule of Civil Procedure 16(c)(12) served to sup-
port the desired use of special masters. The latter rule, rarely cited,
authorizes a judge at a pretrial conference to “take appropriate action,
with respect to . . . the need for adopting special procedures for manag-
ing potentially difficult or protracted actions that may involve complex
issues, multiple parties, difficult legal questions, or unusual proof prob-
lems . . . .” Whether “appropriate action” includes appointment of a spe-
cial master is an open question.23
Other judges noted the limits of Rule 53’s terms. For example, one
judge found that “there is no rule that covers what a monitor may do.”
However, rather than allowing that to deter an appointment, the judge
said, “I had to create the processes that we decided to use for our case.”
8. Methods for selecting special masters

How are special masters selected? What, if anything, do courts do to
ensure that the process of selecting a special master or expert is fair and
designed to discover whether the proposed nominee has a conflict of in-
terest? In most cases, the task to be performed by the special master will
dictate which selection process is used. For example, in some districts
magistrate judges are routinely appointed as special masters to conduct
certain aspects of pretrial discovery management. Parties rarely object to
these appointments.
Table 6 outlines the methods judges relied on in selecting special
masters, as gleaned from the documents relating to each appointment
analyzed in Phase 1 of our study. In instances in which information was
available, the predominant method used was to request nominations
23. A WESTLAW search of the “Allfeds” database (which includes all federal district court,
court of appeals, and Supreme Court cases) uncovered three references to Fed. R. Civ. P. 16(c)(12)
and eleven references to its pre-1993 form, Fed. R. Civ. P. 16(c)(10). None of the citations were in
the context of appointing a special master, but the rule, by its terms, seems to contemplate the possi-
bility of being used to support such an appointment, at least in areas not expressly contemplated by
Fed. R. Civ. P. 53. The Manual for Complex Litigation, Third (1995) cites Fed. R. Civ. P. 16(c)(12)
once, at § 20.1, in the context of a general discussion of the power of a district judge to manage and
supervise complex litigation.

from the parties.24 In more than half of the thirty-nine instances in which
some process was identified, the judge received nominations from the
parties as part of the appointment process. In about two-fifths (41%) of
the appointments, the judge either appointed a magistrate judge or had
personal knowledge of the appointee’s qualifications.
Table 6
Methods Related to Selection of Special Masters
(When a Method Was Identified)
Method Number Percentage
Nominations from the parties 22 56
Magistrate judge appointed 12 31
Judge’s knowledge of special master’s 4 10
qualifications
Special master service in another case 2 5
Search by outside agency, special master, 0 0
or court representativea
Other search process 3 8
Note: n = 39 appointments. Percentages exceed 100% because more than one category
might apply to a single appointment.
a
Documents did not show use of outside agencies, but, as discussed in the text, inter-
views with participants revealed use of outside agencies to assist in selecting special mas-
ters.
In seven (11%) of sixty-four appointments, documents indicated that

the judge or the parties had conducted a search of the appointee’s back-
ground to determine whether there were any conflicts of interest. We
have no way of knowing at this time how frequently such searches may
have taken place but not been recorded. In one case in the sample, the
judge identified a panel of Rule 706 experts by using a team of special
masters to conduct a formal national search, including an examination of
possible conflicts of interest.25
Interviews with judges, special masters, and attorneys conducted
during Phase 2 of the study identified and confirmed the selection meth-
24. Cf. Cecil & Willging, supra note 13, at 31 (The authors found that “it is far more common
for judges to appoint experts that they have identified and recruited, often based on previous per-
sonal or professional relationships, than for judges to appoint experts nominated by the parties.”).
25. In re Silicone Gel Breast Implant Prods. Liab. Litig. (MDL 926), Order 31 (N.D. Ala.
May 30, 1996) (creating a screening panel of special masters to conduct a nationwide search for
candidates for appointment as Rule 706 experts).

ods set forth in Table 6. Again, the most common method involved a
judge seeking or receiving nominations or stipulations from the parties,
especially in cases in which a judge was unfamiliar with the technical or
scientific issues and procedures in a case. A number of judges indicated
that it seemed logical to defer to the parties, since they generally were
more familiar with individuals who possessed the requisite background or
skills. In addition, in some districts it was common practice in certain
types of cases, especially patent cases, for the parties to suggest at the
Rule 16 conference an individual to serve as special master.
We found that defendants and plaintiffs generally nominated candi-
dates by providing either a joint list or independent lists of proposed
candidates for the judge’s review. The judge routinely selected a candi-
date from those lists.
In one case, the judge asked the parties to specify the relevant quali-
fications as well as to suggest individuals. The judge reviewed the list and
ended up appointing someone not on that list, an individual with the
qualifications the parties thought were important.
In another case, the parties provided substantial input into the selec-
tion process. Parties’ counsel nominated candidates, participated in inter-
views of the candidates with the judge, and submitted their recommen-
dations under seal. Counsel for one of the parties had nominated the
master ultimately selected. Although counsel whose nominees were not
selected disagreed with the outcome, all participants perceived this selec-
tion method as being fair.
Courts rarely examined the proposed nominees’ background to de-
termine the presence or absence of a conflict of interest. Courts generally
relied on the parties to raise the issue, if they perceived that one existed.
However, in one case, the judge reviewed the parties’ lists of nominees
and found that some of the candidates had conflicts that were not dis-
covered by the parties.
In other instances, judges routinely entered orders adopting the par-
ties’ stipulation to a specific special master. In these cases, it appeared
that the judge assumed that the nominee had no conflict of interest be-
cause the parties had both agreed to the candidate’s nomination. An in-
teresting occurrence was that in one case, the district judge chose the
parties’ proposed nominee over the recommendation submitted by the
magistrate judge who had been assigned to handle specific discovery is-
sues in the case. The parties persuaded the judge that their candidate was

better qualified because of the candidate’s extensive experience in litigat-
ing patent cases.
In a few cases, soliciting nominations from the parties did not relieve
the judge of the responsibility of seeking candidates. In these instances,
either the parties could not agree on a nominee or the proposed nomi-
nees were not acceptable to the judge. Consequently, the court had to
devise its own methods for identifying an appropriate candidate. For ex-
ample, in a highly contentious patent case in which counsel refused to
conduct discovery in a civil manner, the parties’ nominees did not have
the experience the judge thought would be needed to keep the attorneys
and litigation under control. In this case, the judge appointed a lawyer
who was very well regarded by both plaintiffs’ and defendants’ bars and
whose background included serving as chairman of a bar association and
ruling on attorney misconduct complaints. The judge said, “It was my
hope that by appointing someone like this I would curtail counsel’s out-
rageous and unprofessional behavior. I did not need a patent lawyer to
assist me on technical issues; I needed someone who had had a lot of ex-
perience with civil litigation and could rule on depositions.”
Another common selection method was for the district judge to ap-
point a magistrate judge to perform a range of functions in certain types
of cases. Several district judges told us that they routinely appoint magis-
trate judges to handle Title VII and prisoner cases, as authorized by 42
U.S.C. § 2000e(5)(f)(5) and 28 U.S.C. § 636(b)(1)(B), respectively. In
Title VII cases, the statute authorizes appointment of a magistrate judge
as a special master if the case is unable to be scheduled for trial within
120 days. Some districts used a system whereby a particular magistrate
judge was automatically assigned to a specific district judge and ap-
pointed as special master if the district judge found it necessary. The
parties generally played no role in a district judge’s decision to appoint a
magistrate judge.
In a number of cases, several judges chose persons whose qualifica-
tions were known to the judge or individuals highly recommended by
other judges to serve as special masters. Some attorneys said this informal
approach was problematic because parties’ counsel would be reluctant to
raise an objection to the appointment. In these instances, attorneys
commented that the parties had little assurance, other than the judge’s
word, that the proposed nominee brought an unbiased, or even well-
informed, perspective to the disputed or unresolved issues.

In one case, a judge selected his former law clerk, who was a top-
ranked graduate of his law school class and who had practiced law prior
to becoming the judge’s law clerk. The judge indicated that he knew his
former law clerk had the intellectual acumen and, what was more im-
portant, the business sense to be able to look at a commercial business
dispute and sort out the players and the theories. The judge stated that
he would never refer anything to anyone unless he really knew the indi-
vidual and was sure that the referral would assist in the resolution of the
case.
In another case, the judge appointed two special masters who were
former associates. One had been a law clerk and the other, a legal associ-
ate. One attorney involved in the case questioned the qualifications of
one of the appointed masters, citing the master’s lack of experience. Ul-
timately, the individual in question was appointed under Rule 706 to as-
sist the judge on a technical issue. In another case, an attorney expressed
some surprise that he had been asked to serve as a special master. The
attorney eventually concluded that his appointment came about because
of the judge’s personal knowledge of his skills as a trial attorney and his
ability to understand the complex accounting issues involved in the case.
One district judge appointed a former state judge who had handled
similar cases and was respected by the parties.
We found that in cases in which the judge had appointed a special
master with no input from the parties, the parties rarely objected for-
mally. One attorney indicated that it would have been an exercise in fu-
tility to object after he had nominated someone that the judge had failed
to appoint.
We found that it was rare for the special masters to have prior expe-
rience serving as a special master or court-appointed expert. In cases in
which the masters had prior experience, their appointment was generally
based on the judge’s personal knowledge (or that of colleagues) of their
skills as exhibited in previous cases. For example, one of the special mas-
ters appointed in the Silicone Gel Breast Implant Multidistrict Litigation
had worked with the transferee judge on the Manual for Complex Litiga-
tion and had served as special master for a number of federal and state
judges in mass tort litigation management and mediation roles. In an-
other case, the district judge, a former state judge, appointed the same
attorney he had appointed as special master in a number of similar state
court environmental cases.

It appeared from our interviews that those masters without prior ex-
perience would welcome the opportunity to serve again. In fact, several of
the interviewees had been appointed as special masters in subsequent
cases.
As Table 7 shows, about three-quarters of the special masters were
identified as attorneys, a number of whom were also magistrate judges or
retired state or federal judges. The predominance of attorneys is not sur-
prising, because many of the duties contemplated for special masters un-
der Rule 53 require familiarity with legal procedures.
Table 7
Positions Held by Special Masters at the Time of Appointment
Position Number Percentage
Attorney 48 76
Magistrate judge 12 19
Professor 6 10
Retired state court judge 5 8
Medical doctor 4 6
Accountant 3 5
Retired federal district judge 2 3
Social scientist 1 2
Engineer 1 2
Retired federal magistrate judge 1 2
Other 16 25
Note: n = 63 appointments. Percentages exceed 100% because more than one
category might apply to a single appointment.
Court-appointed experts (Rule 706). Court-appointed experts warrant

a separate look because appointments of Rule 706 experts for the purpose
of testifying resulted in a mix of positions different from the pattern
shown for all special masters in Table 7. Only two of the five appointees
were attorneys, and both had additional degrees and qualifications. One
of the attorneys was a professor of mathematics, and the other was a
medical doctor serving as the chief of psychiatry at a correctional institu-
tion. The three nonattorneys had expertise in computer science, medi-
cine, and accounting.
Nonattorney special masters. Overall, the functions that nonattorneys
performed clustered at the trial and posttrial stages of the cases (see Ta-
ble 8). Nonattorney appointments were most likely to involve trial activ-

ity (e.g., filing a written report on selected issues or testifying as an ex-
pert) or posttrial activity (e.g., monitoring compliance with a court or-
der). Only one nonattorney master issued a pretrial order. In three in-
stances (23%), nonattorneys issued written reports with findings of fact
on selected issues, and in two instances (15%) they testified as court-
appointed experts pursuant to Rule 706. In one instance, the master rec-
ommended approval of a settlement, and in two instances established
claims processes for distribution of a settlement. On two occasions
(16%), nonattorney special masters addressed issues relating to drafting
of or compliance with a court order. In almost half of the appointments
(6, or 46%), we were unable to determine the activity because there was
no written report by the special master, perhaps because the case settled
or terminated without the need for a report.
Table 8
Activities by Nonattorney Special Masters
Special Masters
Activity Number Percentage
Filing a written report on selected issues 3 23
Testifying to a jury 2 15
Establishing claims process 2 15
Other pretrial activity 1 8
Recommending approval of or implementing 1 8
settlement
Drafting enforcement decree 1 8
Reporting on compliance 1 8
Supervising discovery 0 —
Ruling on discovery disputes 0 —
Facilitating settlement 0 —
Filing a written report on entire case 0 —
Calculating damages 0 —
Reporting on enforcement 0 —
Note: n = 7 appointments. Percentages exceed 100% because more than one category might apply to
a single appointment.
9. Compensation of special masters

Participants in the cases we studied did not indicate that costs associated
with the appointment of a special master were a major reason for limiting

such appointments. In many instances, the parties welcomed an ap-
pointment because they believed the expertise and technical skills needed
to resolve the matter would not otherwise be available to them and the
court. This was especially true in cases with highly complex scientific or
technical issues. In these cases, the parties, in light of the high stakes of
the litigation, were willing to pay the additional costs of having a special
master involved.
Generally, judges did not determine a special master’s rate, although
in one case the judge negotiated a rate with the master and increased it
periodically throughout the lengthy litigation. In the Silicone Gel Breast
Implant MDL proceedings, the judge, with input from the parties, es-
tablished a common rate ($200 per hour) that applied to all appointees,
including special masters, a fiduciary for common funds, court-appointed
experts, and special counsel to the experts. In another case, the parties
solicited bids from accounting firms to work on administering a class
action settlement. The more common practice involved the parties and
master negotiating a rate, usually the special master’s standard hourly
rate. In most cases, costs and expenses were paid in addition to the mas-
ter’s hourly rate.
Plaintiffs and defendants typically shared the costs of special masters
on an equal basis (see Table 9). In six instances (16%), though, defen-
dants had full responsibility for paying the entire cost of the special mas-
ter’s fees. All six of those appointments came after liability had been de-
termined by judgment or settlement. In a number of cases, labeled
“Other” in Table 9, payments were divided among multiple parties.
On a few occasions, the judge or parties placed a monetary cap on
the total amount of a special master’s fees. However, in one case, a flat
fee of $50,000 was determined by competitive bidding.
Table 9
Arrangements for Compensating Special Masters
Arrangement Number Percentage
Plaintiff and defendant to pay equally 22 58
Plaintiff and defendant to pay unequally 1 3
Defendant to pay 100% 6 16
Plaintiff to pay 100% 0 —
Other 9 24
Total 38 101
Note: n = 38 motions.

We found information in the record about the rate of compensation
paid to twenty-one special masters, about one-third of the appointments.
The median rate was $200 per hour. Half of the rates were between $150
and $250 per hour. In the other cases, payments were apparently chan-
neled through the clerk’s office.
During our interviews, we learned that there were a couple of in-
stances in which a judge suggested that a master be paid more than his or
her standard hourly rate because of (1) the nature of work to be per-
formed, (2) the high stakes of the litigation, and (3) the higher hourly
rates being charged by other experts involved in the litigation. An inter-
esting sidelight was that two of the masters chose not to charge the
higher rate and one said he was appalled that some of the other experts
were charging considerably higher fees.
In contrast, a few judges asked masters to reduce their fees as an act
of public service. In one case, the judge deliberately chose a low conser-
vative rate, considerably less than the master could have been paid. In
doing so, the judge indicated that the prestige that went with being
named a special master was a fringe benefit that made up for the master’s
low rate. In this case, the judge had the parties pay the fees up front
rather than order the parties to pay the master directly after the litigation
was resolved. By using this method, the judge avoided the potential sce-
nario of a disgruntled party refusing to pay the special master’s fee later
in the litigation. In another case, a court-appointed expert provided his
services without charge.
Special masters varied in the timing, detail, and frequency of re-
porting their fees and expenses. In some cases, the court required detailed
monthly statements. In other cases—where the master was not serving
for an extended period of time—the master submitted a statement at the
end of the service.
For twelve appointments, we were able to ascertain the total amount
of compensation paid to a special master. The median amount was about
$63,000, but 25% of the appointments involved total payments of
$315,000 or more. The appointments with the highest payments were all
protracted cases in which special masters served major roles for an ex-
tended time, as long as a decade.
We are unaware of any instance in which a party refused to pay its
portion of the special master’s fees. This can be attributed to the fact that
the parties routinely consented to non–magistrate judge appointments.

Furthermore, to prevent any occurrence of a master not being paid, sev-
eral judges included in their order of reference a liquidated penalty that
would automatically apply if the master was not paid within a specified
period of time (e.g., within two weeks after the parties received the mas-
ter’s billing statement).
In one of the few cases in which a judge did not solicit the parties’
consent, an attorney expressed frustration that after a four-day bench
trial, the judge refused to determine damages. The judge on his own
motion appointed a special master to report on damages, making it clear
that this was how he wanted to handle the case. None of the attorneys
formally opposed the decision, but one attorney thought the judge had
not fully carried out his judicial responsibilities after hearing what that
attorney considered to be all of the evidence, including damages. The
attorney believed that the appointment of a special master added a lot of
time and expense to a case that was already fully tried, costing the attor-
ney’s client thousands of dollars without the client’s consent.
C. Postappointment activities of special masters

1. Instructions to special master appointees
As evidenced by their written orders, judges’ instructions to special mas-
ters covered a wide range of topics (see Table 10). In addition, other
topics may have been covered orally, but records of such discussions were
outside the scope of our examination. Generally judicial instructions de-
scribed and clarified the role to be played by the special master and the
issues to be addressed. Special masters told us in interviews that they had
been clearly instructed as to their roles and duties, sometimes through
oral instructions that we could not identify from docket records or orders.
Judges often established a procedure for the special master to report to
the court and the parties. Judges also addressed questions about who
should pay the special master and how much.

Table 10
Content of Instructions to Special Master
Instruction Number Percentage
Defined the role of special master 53 87
Defined the issues to be addressed 36 59
Established who should pay appointee’s 32 53
compensation
Set procedure for appointee to report to the court 28 46
and parties
Established the rate of compensation for appointee 22 36
Fixed a procedure for appointee to obtain 7 12
information
Established a formula for determining fees 4 7
Established a standard for reviewing the 4 7
appointee’s report
Limited the communications between appointee 3 5
and parties
Limited the communications between appointee 2 3
and the judge
Created a power to appoint others to assist 2 3
2. Collection of information by the special master

Judges infrequently broached the subject of how the special master
should proceed with the task of gathering information relevant to his or
her role. How did the masters obtain relevant information? Interviews
with judges, special masters, and attorneys revealed no clear patterns. We
learned that information collection depends on the master’s task or role
as well as, in some instances, the master’s personality and work style.
In cases in which a master was assisting the parties on a highly tech-
nical issue, the court routinely gave the master complete access to the
court file. In one case, the plaintiff objected to the master’s receiving a
copy of the judge’s order granting the plaintiff a preliminary injunction
because of its potential prejudicial effect, but the judge denied the objec-
tion. After reviewing the documents, the master arranged a one-day
meeting in a hotel conference room with both parties and their repre-
sentatives present, and a court reporter transcribed the meeting. The

master used this meeting to understand better what two competing soft-
ware systems did and how they were created and used. In addition, the
master searched for technical literature on the Internet and at the library.
Other masters conducted more formal hearings to gather relevant
information. In one case, the master obtained information through five
days of hearings with both parties present. During the hearings, the
master heard testimony, received exhibits into evidence, and heard argu-
ments from counsel. The master also required the plaintiff to provide live
witnesses to categorize parts of their claim and submit supporting docu-
mentation to the other side. Then the master required the parties to ad-
vise him as to specific disagreements on issues and took testimony on
those issues.
On other occasions, masters asked the parties to submit briefs or
memoranda supporting their positions. Some Rule 706 experts listened
to the parties’ experts testify before the judge in open court; one expert
participated in a pretrial conference attended by the experts, the lawyers,
and the judge’s law clerk.
Masters conducting settlement negotiations routinely obtained in-
formation by interviewing members of the class or the parties. One mas-
ter said, “it’s standard practice for the mediator to talk with the parties
separately and find out what they want. Separate communication with
the parties was critical to resolving the matter.” Similarly, in another case,
the master called on the parties separately, told them of his ignorance
about the details of the case, and invited them to educate him. The mas-
ter especially wanted to uncover the parties’ interests, needs, and con-
cerns about the case and about him. He thought it was important to talk
with the parties separately to establish a mediating relationship.
3. Ex parte communications in special master cases

Rule 53 does not explicitly address the issue whether the special master
and the judge or parties may communicate ex parte during the course of
the litigation. Ex parte communication with special masters and court-
appointed experts has been disfavored in some contexts and debated in
others.26 However, standards seem to be relaxed when there is consent
between the parties or when the master’s assignment is to facilitate a set-
tlement. Ex parte communications were routine with mediators. Work
26. See, e.g., Margaret G. Farrell, Special Masters, in Reference Manual on Scientific Evidence
575, 606–09 (Federal Judicial Center 1994); Cecil & Willging, supra note 13, at 35–45.

with court-appointed experts has shown that ex parte communications
involving such experts can lead to serious problems.27 Although special
masters serve different roles than such experts, problems with ex parte
communications may arise nonetheless.
In Phase 2 of our study, we were interested in learning what, if any,
guidelines about ex parte communication judges gave to the special mas-
ters and the parties. In addition, we wanted to know about incidences of
ex parte communication and whether the participants saw any such oc-
currences as problematic.
In general, our interviews with judges, special masters, and attorneys
revealed that the nature of the special master appointment (e.g., facili-
tating settlement, fact-finding, or monitoring a judicial decree) tended to
determine whether ex parte communication was permitted. Typically, ex
parte communication was permitted to address administrative, proce-
dural, and settlement matters. In addition, whether the appointment oc-
curred at pretrial, trial, or posttrial stages played a role in whether ex
parte communication was allowed.
When such communications occurred, the parties rarely had given
explicit prior consent to such an arrangement. Instead, in most instances,
the participants were put on notice, usually by the master during a con-
ference, that such communications were occurring. Judges and special
masters interpreted the parties’ failure to object as implicit consent or, in
a word, acquiescence.
Generally, judges did not issue specific guidelines regarding ex parte
communications. Most of the participants considered themselves bound
by the rules of ethical conduct for judges and attorneys. A couple of
judges explicitly told the parties to treat the masters as if they were
judges. In one case, the judge indicated that there was no need for guide-
lines because the expert’s only assignment was to file a written report.
In cases in which the court appointed a special master to facilitate
settlement, guidelines about ex parte communication did not seem to be
as necessary as in other types of cases. One plaintiff’s attorney com-
mented that ex parte communication with a special master in a settle-
ment context was almost a necessity and should always be permitted. The
master was routinely seen as a facilitator who elicited information that
helped him or her accommodate all interests. Another attorney com-
27. Cecil & Willging, supra note 13, at 35–45 (discussing communications of experts with
judges and parties, and procedures that courts have used to prevent problems from arising).

mented that “masters need to be able to discuss settlement issues and
terms separately with the parties.”
In cases in which guidelines were issued, the judge usually did so
orally and rather informally. For example, a judge would say at a hearing
or conference, “the rules prohibit ex parte communication.” In the rare
instance when written guidelines were provided, one judge indicated he
did so because “he didn’t want the expert lobbied by either side.” As a
result, the judge ordered that both parties be present (either in person or
by phone) during any conversation with the expert.
In another case, a judge indicated that the parties’ consent order
permitted ex parte communication, so he allowed such communication.
Otherwise, the judge said, “[a]s a judge I would feel responsible for en-
suring the integrity of the fact-finding process [and] would not have en-
tered an order permitting ex parte communication.”
In one case, the judge indicated that almost everything was done at a
hearing or by written submission, thereby giving everyone full access to
all communications. Ex parte communication appeared never to be a
problem.
Magistrate judges handled all nonadministrative matters on the rec-
ord. They were not any more likely than other special masters to issue
guidelines on ex parte communication. Several magistrate judges noted
they had already established a working relationship with the attorneys
and that guidelines were not necessary.
4. Communications between the special master and the judge

Ex parte communication allowed. A number of special masters and
judges reported having ex parte communications. Most thought they
needed to have access to the district judge to carry out their role. This
was true for both magistrate judges and other special masters. One judge,
for example, noted that in a case in which the special master and that
judge were both involved in case management, ex parte communication
was critical.
Considerable variation existed in the matters that were discussed ex
parte and the safeguards for dealing with substantive discussions. For
example, even when one judge appointed a Rule 706 expert to provide an
independent assessment as a technical advisor, that judge took steps to
avoid improper communications. The master in that case commented
that he “communicated directly with the judge during breaks in the pro-

ceedings” and “advised him about the testimony of the experts and the
type of questions that he might ask or the type of assessment he might
give to the expert’s testimony.” This judge “was pretty careful not to let
an important fact or opinion be kept off the record.” In fact, “if he
wanted to rely on my advice, he would raise it on the record at the hear-
ing or in a conference.” Beyond that, ”every time he wanted my opinion
to be on the record directly, I would file a report.”
Another judge commented, “my conversations generally clarified
what [the special master’s] role would be, the background of the case;
these conversations never involved matters that I could potentially have
to rule on.” Because the conversations were strictly administrative, the
judge “did not inform the parties of these communications, so consent
was not an issue.” That judge indicated that “if anything had been ap-
pealed to me, I would have treated it the same way I treat a magistrate
judge’s report and recommendation.”
Even in a case in which the parties had consented to ex parte com-
munication, a special master provided notice and opportunity for the
parties to participate in conference calls, but most declined. The master
maintained a list of issues that needed the judge’s attention and when
necessary scheduled a meeting with the judge and the parties. Another
master commented that “[t]he parties, the judge, and I had an explicit
understanding that I would be able to talk with the judge outside the
presence of the parties.”
In contrast, one judge permitted extensive communications without
any apparent boundaries. In that case, the information provided by the
special master was quite substantial and substantive. The judge indicated
that the special master informed the court where he stood on “a number
of substantive issues, the nature of various sticking points or hang-ups
between the parties, and whether he thought the case would settle.”
Furthermore, the master sought feedback from the judge regarding
whether he was “performing the task the way the court envisioned.”
In another case, a special master had initially communicated ex parte
with the judge, but then ceased. The master indicated that he changed
because “99% of his work was getting the parties to work together.” He
thought that if he communicated ex parte with the judge, it would ulti-
mately harm his credibility and his ability to work with the parties. The
master said, “if the judge acts and the parties think it was based on in-
formation he provided, someone would be [angry]” at him. The master

believed that the parties have to be able to object to the content of com-
munications between a special master and a judge. He thought the only
way to allow for objections is to have all reports in writing and available
to the parties.
Another judge stated, “I’ve never had any problems or issues arise re-
garding ex parte communications, because I feel it is a matter of common
sense to realize that there are some subjects you do discuss and some you
do not. There is no need for rules in this area.” Another judge com-
mented, “I do not believe that there were any instances of ex parte com-
munication between the special master and either of the parties. And I
would never discuss the merits of the litigation with any party or master
under any circumstance. But it should be clear that the court should be
able to talk with the master about any matter other than the substance of
the case.”
Still another judge permitted ex parte communication with special
masters, but reflected that “communications between the court and the
adjuncts is a serious problem that I still struggle with.” This judge con-
cluded that there “are many forms and purposes for adjuncts, and maybe
the rules on communication should vary with the form.” That judge dif-
ferentiated between a special master who finds facts and reports to the
court on the record and an expert who “might serve to advise the court,
like a law clerk.” He found that “there is just not much guidance on this
point. Maybe all a rule can do in this area is point the judge [in] the di-
rection of asking the right question.” This judge was certain, however,
that “there should not be one rule for all situations.”
Ex parte communication prohibited. In several cases, interviewees indi-
cated that no ex parte communication occurred or such communication
had been strictly prohibited by the court, but at least one judge was not
sure that was the right decision. That judge commented, “I prohibited ex
parte communication, but I’m not convinced that was the best approach.
We do everything in the open, but I’m not sure that works in all situa-
tions. Communication is definitely a problem, and I am unclear about
what the rule should be.”
More than one special master or Rule 706 expert found their lack of
communication with the judge to be problematic. Because of their lack of
familiarity with legal processes, nonlawyers may be particularly vulnerable
to the effects of a lack of communication. One nonlawyer Rule 706 ex-
pert said, “Besides one phone conversation at the time of my appoint-

ment, I had no other direct communication with the judge. If I had
questions, I contacted his law clerk.” The master said, “I would have felt
better if I was able to speak with the judge a bit more. I felt sort of lonely
and isolated. I feel the judge should keep in touch with the expert peri-
odically to make sure he or she is on the right track.” A special master
also noted his frustration with not being able to communicate with the
judge on a regular basis. The master was unfamiliar with court proce-
dures and reported receiving little assistance from court staff.
Along the same line, another master commented that “perhaps a rule
or a comment to the rule could illustrate that it would be appropriate to
communicate with the judge about a, b, or c on the record, with the dis-
cussion remaining under seal but available for inspection by a reviewing
court.” That master found that “occasionally, for example, it would have
been useful to tell the judge that the number of issues and deadlines
sometimes worked at cross-purposes [with the master’s mediation ef-
forts].” Furthermore, he said, “it also might be useful to tell the judge
about the impact that the timing of a ruling might have on settlement,
that the parties are close to resolving the issue to be addressed in a ruling,
or that the parties are not seriously close to resolving the issue.” This
master thought a rule should permit special master reports of the rela-
tionship between settlement discussions and the resolution of issues, as
well as the need for coordinating and prioritizing the treatment of issues
by the parties and the court.
5. Communications between the special master and the parties

Generally, ex parte communications occurred between the special mas-
ters and the parties. These communications were rarely problematic if
they involved administrative matters (e.g., where and when to conduct
hearings) or settlement matters. Most of the district and magistrate
judges clearly thought ex parte communication between the participants
was not a problem. A common response was, “as long as everyone was
kept aware of what is going on, there were no problems.”
Several attorneys noted that because the master was serving as me-
diator, all the parties were put on notice early that there would be ex
parte communication. Similarly, another attorney commented that “[w]e
had frequent and regular communications with the special master, and
we never knew whether he was saying the same thing to the other side.
We knew this was the price that had to be paid for this type of appoint-

ment.” Another attorney commented that the “special master did a great
job letting us know when he spoke to opposing counsel. We weren’t
privy to the content of those conversations, but we trusted the master.”
In several instances, though, ex parte communication was a problem.
In one of the study cases, communications by a special master with one
of the parties outside the presence of another party led to a hotly con-
tested and apparently disruptive motion to recuse the special master. In
another case, the special master held meetings with some parties, but not
others, based on the master’s judgment of settlement opportunities and
priorities. This exclusion resulted in a tense environment and unproduc-
tive working relationship between the master and one party’s attorney.
The attorney told us that he was not sure if clear rules would help, but he
thought there should be a common understanding among the parties
about the ground rules. He indicated that there should be some flexibil-
ity, but the parties need to have an opportunity to address questions
about communications.
Several masters noted that having a rule setting forth the parameters
of acceptable ex parte communication would have been useful. For ex-
ample, one master commented, “I would question whether I should
speak to one of the attorneys by phone without the other party present. I
used my best judgment in each case, and none of the parties ever com-
plained to the judge or me that I am aware of.”
In short, to a number of the study participants, communications
between special masters and the appointing judge, as well as communi-
cations between special masters and the parties, appear to suggest a need
for rule making. Specifically, some participants expressed a need for
guidance in distinguishing permissible communications from harmful
ones.
D. Judicial review and impact of special masters’ activities

1. Products of special masters’ activities
Rule 53 contemplates reference of matters to a special master in a trial
setting. There is objective, albeit anecdotal, evidence that special masters
have been used in a host of pretrial and posttrial settings as well. Super-
vising discovery and monitoring consent decrees in institutional litigation
are two of the more familiar uses.28 By its terms, though, Rule 53 does
28. See generally Geoffrey C. Hazard, Jr., & Paul R. Rice, Judicial Management of the Pretrial

not limit appointments to the trial stage. In fact, the rule begins with the
following sweeping authorization: “The court in which any action is
pending may appoint a special master therein.”29
The extent of special master activity outside the trial setting is of
special interest in determining whether a rule change is needed. Rela-
tively frequent appointment in nontrial settings in comparison with ap-
pointments in the trial setting, especially if referenced to Rule 53, might
refocus the question whether a rule change is needed.30 Any rule change
in that context might only make explicit what judges and litigants have
found to be implicit in the current rule. However, a paucity of use of spe-
cial masters outside the trial setting might suggest that the lack of explicit
authorization in a national rule has inhibited such use of special masters.
Any inference, however, must be tempered by our finding (discussed in
section V.A, above) that judges and parties rarely raised the question
whether to appoint a special master.
Special masters engaged in a wide range of activities at pretrial, trial,
and posttrial stages of the litigation (see Table 11). About a third of the
appointments involved some activity at the trial stage. Written reports
with recommendations were filed in about a third of the cases. Testi-
mony or advice to a judge or jury was rare, occurring in only about 5% of
the appointments.
Special masters performed pretrial functions in about one-third of
the appointments. About one-sixth (17%) of the appointments consisted
of rulings on discovery disputes. Special masters participated in settle-
ment activities in six cases, all of which ended with a settlement.
Special masters performed posttrial functions in about one-twelfth
of the appointments. Generally, these activities involved reports discuss-
ing enforcement of a court’s order, describing and monitoring the parties’
compliance with such an order, or establishing a procedure for disbursing
a settlement. Thus, it appears that special masters were primarily active
Process in Massive Litigation: Special Masters as Case Managers, in Wayne D. Brazil, Geoffrey C.
Hazard, Jr., & Paul R. Rice, Managing Complex Litigation: A Practical Guide to the Use of Special
Masters 305 (1983) (special master supervising discovery in massive commercial litigation); Vincent
Nathan, The Use of Masters in Institutional Reform Litigation, 10 U. Tol. L. Rev. 419 (1979) (special
master monitoring and enforcing prison conditions cases).
29. Fed. R. Civ. P. 53(a).
30. See Cooper, supra note 3, at 1609–10 (noting that “even a confident judgment that masters
are frequently appointed for purposes not contemplated by Rule 53 need not dictate revision” and
warning about the “law of unintended consequences”).

in the pretrial and trial phases of litigation. The amount of posttrial ac-
tivity was not negligible, however.
Table 11
Products of Special Master Activity
Product Number Percentage
Pretrial
Rulings on discovery disputes 11 17
Pretrial case-management orders 8 13
Facilitating a settlement 6 9
Recommendation regarding court approval of a 2 3
settlement
Trial
Rulings on admissibility of evidence 4 6
Written report with findings of fact on selected 17 27
issues
Written report with findings of fact on all issues 1 2
Report recommending an outcome for the entire 6 9
case
Advice or testimony (in a bench trial) to the judge 1 2
on scientifically or technically complex matters
Calculating damages 2 3
Testimony to a jury on scientifically or technically 2 3
complex matters
Posttrial
Recommended decree to enforce court judgment 1 2
Report discussing enforcement of a court order 1 2
Establishing a claims procedure 3 5
Report describing parties’ compliance with a court 2 3
order
Other
Other report or product 5 8
2. Formal review of special masters’ work

In 24 (63%) of the 38 reports for which information was available, a
judge formally reviewed and acted on the special master’s initial report.
Table 12 shows the outcomes of those reviews. In addition, we found

that judges were twice as likely to review and act on trial-related reports
than pretrial or posttrial reports.
Table 12
Outcome of Judicial Review of Special Master’s Initial Report
Adopted findings of fact 15 63
Adopted conclusions of law 10 42
Modified findings of fact 1 4
Modified conclusions of law 1 4
Rejected findings of fact 0 —
Rejected conclusions of law 0 —
Accepted recommendations 11 46
Modified recommendations 4 17
Rejected recommendations 0 —
Took other action 4 17
Note: n = 24 reports. Percentages exceed 100% because more than one category
might apply to a single report.
When findings of fact and conclusions of law were included in the

special master’s report, judges generally accepted them. In only two in-
stances (in two separate cases) did a judge modify findings of fact or con-
clusions of law. In four instances (two of which involved the modification
of the findings of fact and conclusions of law discussed above), the judge
modified a special master’s recommendations. In the remaining in-
stances, judges adopted the findings, conclusions, or recommendations in
the special master’s report.
Many cases had multiple special master reports. Including those re-
ports adds thirty-four reports to the twenty-four reports presented in Ta-
ble 12. Table 13 presents the actions judges took on all fifty-eight re-
ports. Adding the supplemental reports changed little about the rate of
modification of reports shown in Table 12. One change is that judges
rejected special master recommendations twice, whereas in reviewing
initial reports, judges never rejected recommendations. The number and
rate of rejections are small and not statistically meaningful.

Table 13
Outcome of Judicial Review of All Special Master Reports
Adopted findings of fact 25 43
Adopted conclusions of law 20 35
Modified findings of fact 3 5
Modified conclusions of law 3 5
Rejected findings of fact 0 —
Rejected conclusions of law 0 —
Accepted recommendations 30 52
Modified recommendations 9 16
Rejected recommendations 2 3
Took other action 15 26
Note: n = 58 reports. Percentages exceed 100% because more than one
category might apply to a report.
3. Impact of special masters on the outcome of the case

To measure the impact special masters had on case outcomes, we exam-
ined all special master activity in a given case. After reviewing the rele-
vant documents and records, one of us determined which of the catego-
ries in Table 14 best described the impact of the special master’s activities
on the outcome of the litigation. We used the phrase “determined the
outcome” to indicate that the special master (1) produced a report or
other work product that was totally consistent with the outcome and that
was neither altered nor explained by a judge, or (2) produced a final de-
termination based on the parties’ stipulation. Assessments of lower levels
of influence followed a sliding scale as described in Table 14, which re-
ports those assessments.

Table 14
Assessments of the Perceived Impact of Special Master Activities on
Case Outcomes
Assessment Number Percentage
Special master activity determined the outcome 10 16
Special master activity appeared to have a substantial 22 35
influence on the outcome
Special master activity appeared to have a moderate 13 21
influence on the outcome
Special master activity appeared to have no influence 12 19
on the outcome
Other (e.g., no special master activity) 6 10
Total 63 101
Note: n = 63 appointments.
Evaluated by these standards, special masters generally did not ap-

pear to have determined the outcome of the case,31 but as Table 14
shows, in roughly half of the cases a special master had a substantial or
determining influence on the outcome of the case. In slightly fewer cases,
the special master had a moderate influence or no influence at all on the
case’s outcome. We found no meaningful differences in the impact of
special masters’ activities at the pretrial, trial, and posttrial stages.
Looking only at the five cases in which a Rule 706 expert was ap-
pointed for the purpose of providing testimony, in three of those cases
the experts’ activities were judged to have had a substantial influence on
the outcome of the case. In one case, the expert was seen to have had a
moderate influence. In the one case in which the expert testified to a
jury, the expert appeared to have had no influence; in fact, the jury’s ver-
dict was contrary to the expert’s testimony. We found no indication in
the five cases that the court-appointed expert determined the outcome of
the litigation.
31. Compare Cecil & Willging, supra note 13, at 52–56 (finding that case outcomes were al-
most always consistent with the testimony or report of a court-appointed expert and that such ex-
perts exerted a strong influence on those outcomes).

E. Effectiveness of special master appointments and suggested
rule changes
We asked judges, special masters, and attorneys how effective the special
master was in meeting the expressed goals and expectations and how the
appointment made a difference in the case. We prompted respondents to
describe any drawbacks or limitations relating to the appointment, and to
explain whether hindsight would have caused them to do anything dif-
ferently. We also asked them whether on the whole the benefits of the
appointment outweighed any drawbacks, or vice versa.
We also asked special masters whether the judge clearly communi-
cated the goals of the appointment to them and whether the judge was
available to clarify those goals as the case progressed.
We also asked the attorneys to tell us how the master’s activities
compared with how a judge could have handled them, whether the mas-
ter’s activities met their clients’ goals and expectations, and whether there
were any unexpected advantages or disadvantages of the appointment.
1. Pretrial and trial effectiveness32

All of the judges interviewed who appointed a special master to play vari-
ous roles in the pretrial or trial-related phase of their cases indicated that
the special masters were effective in meeting their objectives, and most
judges described the level of effectiveness as “extremely” or “very” effec-
tive. Almost all of the pretrial and trial masters and court-appointed ex-
perts we interviewed thought that their appointment was warranted and
would not change any terms of their appointment.
Almost all of the attorneys representing parties in cases in which a
master was appointed for pretrial or trial purposes reported that the
master effectively met the purposes and goals of the appointment; re-
sponses ranged from “good job” and “reasonably effective” to “very effec-
tive” and “extremely effective.” The attorneys also reported that the
masters’ activities generally met their clients’ goals and expectations, ex-
cept in one case in which a six-month delay forced a client to settle.
These attorneys gave favorable reports regardless of who initially
suggested the special master’s appointment, and even regardless of
32. We discuss the effectiveness of appointments made for pretrial and trial purposes together
because, although the functions performed by the masters or court-appointed experts are distin-
guishable, we found the motivations for these appointments to be similar.

whether the master’s involvement favored the attorney’s client. In fact,
several attorneys reported that although they did not like the end result
because it did not benefit their client, they were still satisfied with the
masters’ involvement because the masters fairly and efficiently did what
they were appointed to do, and helped resolve the case faster.
We asked attorneys whether the case was handled faster and more
economically because of the master’s appointment. Their responses were
mixed. About half reported that the master’s involvement led to a quicker
resolution of the case; the other half either thought that the appointment
slowed the case down or thought that it did not help speed up resolution.
In addition, most of these attorneys reported that the master’s involve-
ment made the case more expensive, but some qualified this by adding
that it was worth the added expense because the appointment helped
resolve the case faster or avoided an appeal.
How did the faster and more economical resolutions come about?
Attorneys said the masters’ appointments made a difference by making
scheduling easier for both parties, clarifying preliminary issues, acceler-
ating settlement, avoiding trial, and resolving issues and therefore pre-
venting appeals of those issues.
Discovery supervision. The two judges who appointed special masters
to supervise discovery in cases that were being held up by discovery-
related conflicts reported that the master met all of their goals and ex-
pectations. The special masters in those cases had similar assessments.
One of the judges, however, thought that the expense of the master may
have been a drawback, although a necessary one. One judge wished he
had appointed a discovery master earlier.
One special master raised issues that may be relevant to rule making.
This special master had incidental responsibility to deal with discovery
issues, and a serious dispute was raised by a third party who had not par-
ticipated in formulating the terms of the order of reference or consented
to the master’s appointment. Based on the experience in dealing with the
third party’s objections, this special master expressed a desire for more
specificity in the order of reference—or in a rule—particularly with re-
gard to a special master’s role and authority to resolve discovery disputes,
to issue a subpoena, and to order attendance at a deposition.
Addressing technical issues. In cases for which assistance with complex
issues or the need to resolve a specialized question was the primary pur-
pose for appointment, all of the judges felt the master was very effective

in helping them understand complex issues and thus move the case
along. Several of these judges reported that the appointment saved the
parties’ money, made the case settle faster, or made better use of judicial
time. Again, the special masters’ assessments paralleled those of the
judges.
In one case involving a Rule 706 expert who assisted with compli-
cated issues, though, both attorneys thought that a drawback to having
an independent expert was that the expert’s conclusions dominated the
case, overwhelming the views of the parties’ experts. Even the attorney
whose client benefited from the court-appointed expert’s findings com-
plained that “the independent expert is essentially going to decide those
issues he or she was asked to look at,” which is “a drawback for either
side.” The opposing attorney did not think the appointment was effective
and said that, in hindsight, it should not have been made.
Title VII cases. Two district judges who appointed magistrate judges
to act as special masters in Title VII cases thought that the practice was
very effective in providing prompt trials when settlement couldn’t be
achieved and that it allowed the district judges to work on other cases.
The appointed magistrate judges tended to agree, but one thought that
attorneys would be more responsive if district judges tried Title VII
cases.
Three magistrate judges found the Title VII case appointments to be
outside the normal pattern for using special masters, because the cases do
not demand special skills or technical knowledge. Despite that view, one
magistrate judge thought his appointment was warranted because only a
magistrate judge could try the case under 42 U.S.C. § 2000e-5(f)(5). The
other two did not think their appointments were warranted.
A judge who appointed a magistrate judge to act as a master to hear
a Title VII case said the practice was routine and generally beneficial.
One disadvantage of the practice, however, is that it occasionally results
in two hearings on the same case. A magistrate judge appointed to serve
as a master in such a case thought that a disadvantage of routinely refer-
ring these cases is that some magistrate judges feel “dumped on” because
they “get the cases the district judges have no interest in hearing.” This
magistrate judge also felt that district judges apply subtle pressure to en-
courage the parties to consent to a magistrate judge’s handling of the en-
tire case.

Overall evaluations. All of the judges appointing pretrial and trial
masters or experts, almost all of the special masters or experts they ap-
pointed, and almost all of the attorneys thought that, on the whole, the
benefits of the appointments outweighed any drawbacks. One judge, af-
ter being reversed on appeal, would have looked more carefully at all of
the steps that the master used in arriving at the final report. Two attor-
neys would have, in hindsight, changed the terms of appointment, but
their experiences pull them in different directions. One would have made
the terms of the appointment as broad as possible so that the master’s
authority to take on additional activities to move the case along would
have been absolutely clear. In contrast, the other attorney thought the
master’s role in regulating discovery should have been more “scripted.”
He felt that the master permitted unnecessary hearings and depositions.
Four attorneys said that the pretrial or trial master should not have
been appointed at all. In one case, the attorney would have preferred to
try the case, but the attorney’s client wanted to settle the case quickly
without litigation. In another case, a judge appointed two attorneys as
masters to evaluate the parties’ arguments on a very narrow fraud issue,
and one attorney expressed doubts about whether that legal question
should have been referred to a master at all. In yet another case, after an
independent expert issued a report unfavorable to his client, an attorney
found that the expert became an advocate for his own conclusions. The
attorney found it impossible to convince the judge or arbitrators that the
expert might be mistaken. In one case attorneys for the defendants ob-
jected to an appointment on the grounds that the judge, by refusing to
decide the issues on the basis of evidence presented at a bench trial, failed
to carry out core judicial duties. Those attorneys argued that the ap-
pointment added time and expense to a case that was already, in their
opinion, fully tried.
Almost all of the special masters appointed for pretrial and trial-
related purposes reported that the judges were either “very clear” or
“clear” in articulating the goals of their appointments. Most of the mas-
ters also told us either that the judge was responsive to any questions they
had or that they thought the judge would have been available to clarify
these goals, but did not find clarification necessary as the case progressed.
In one case, the expert said that although the judge was not directly
available to the expert, he made himself indirectly available through his
law clerk, who was helpful to the expert.

Half of the twelve special masters or court-appointed experts who
were appointed for pretrial or trial-related purposes reported no draw-
backs or limitations to their appointments. Two special masters and two
court-appointed experts thought that the additional expense that the
parties had to incur because of their appointments was a drawback to the
parties.
Several attorneys told us that although a judge could have performed
the masters’ pretrial or trial-related activities, the appointment saved ju-
dicial resources in that the master was able to handle the issues more effi-
ciently—and in some cases more effectively—than a judge because the
master had the time to devote to the matter. For example, in a land con-
demnation case in which a three-person commission was appointed by
the judge to dispose of a case and future cases over the next ten years, the
attorney representing the United States reported that despite the expense
of the commissioners’ fees, using a commission was more efficient than
allowing the judge to try all the cases and more objective than trying the
cases to a jury.
2. Posttrial effectiveness
Three of the four judges who appointed special masters for posttrial pur-
poses reported that the master was effective in meeting their objectives
for appointment. All four judges reported that, overall, the benefits from
appointing the masters for posttrial purposes outweighed any drawbacks
or limitations.
All of the posttrial special masters thought that their appointments
made a difference in the case, and most thought that their presence
moved the case along faster than would have been possible if they had
not been appointed.
Except for several attorneys in one case, the attorneys interviewed
thought the posttrial masters were effective in meeting the goals of the
appointment, describing the appointments as “a good idea,” “100% ef-
fective,” “very effective,” “excellent,” or “extremely effective.” Likewise,
these attorneys said that the masters met their clients’ goals and fulfilled
their expectations “fully,” “very well,” or “totally.” In two cases in which
the master was appointed to administer settlements in class actions, the
attorneys reported that the master’s involvement saved their clients’
money and the case was resolved much faster. In the one exception, case
activity is ongoing, and some attorneys reserved judgment about the ef-

fectiveness of one appointee. In the same case, an attorney said he
thought that a special master’s actions exceeded the scope of the ap-
pointment, a matter that remains in litigation.
Specific cases. In the two class settlements mentioned in the previous
paragraph, the judges reported that the master “did a good job . . . it was
done right” and “no one could have done it faster, cheaper, or better.”
However, the judge who appointed special masters to make findings on
individual claims found one use to be ineffective because he had to redo
some of the work. That judge had employed a “de novo” standard of re-
view; in hindsight, he would have followed Rule 53(e)(2)’s default provi-
sion for “clearly erroneous” review. A judge who appointed a Rule 706
expert to review a complex matter thought that the expert’s work was
“very good,” but that the expert’s advice could have been more helpful if
he had better defined the expert’s task.
Another judge told us that appointment of a monitor in one case
“made the difference between success and failure,” as evidenced by the
fact that there were no contested hearings after the monitor’s appoint-
ment. A judge who appointed multiple adjuncts thought that the process
was both “effective and critical” and that the appointments worked well
because he had the parties’ consent.
A special master appointed to assess the validity of claims in a class
action for damages thought that he was able to settle claims at lower
amounts and faster than the court would have if it had to do it alone.
Another special master appointed to handle more than 100 attorneys’ fee
petitions reported that the appointing district judge did not have to hold
any hearings on the petitions.
Almost all of the ten special masters interviewed who were ap-
pointed to serve posttrial purposes reported that the appointing judge
was either “clear” or “very clear” in communicating the goals of the ap-
pointment. With only one exception, all of the posttrial masters were
very complimentary about their appointing judge’s availability and will-
ingness to answer any questions that arose. In the one case, though, the
judge’s appointment contemplated a multifaceted role that turned out to
be beyond the resources and ability of the special master to fulfill. That
master adjusted his role to the situation but reported that he felt some-
what frustrated that the judge was not available to clarify his role.
A special master who faced the challenges of integrating an institu-
tion by race and gender, and changing practices that went back for at

least a century thought the appointment made the implementation both
faster and less expensive. Although the defendant’s attorney did not
agree, citing the special master’s costs, the master pointed out that with-
out the consent decree, each matter would have been litigated, the defen-
dant would have lost, and the defendant would have had to pay fees for
both sides of the litigation and still face the costs of enforcing an order.
The master said, “What they bought . . . was an ability to negotiate their
way out of trouble.” A magistrate judge assigned to a different role in the
case said that the special master “[did] . . . achieve compliance with the
order, and that was a major accomplishment that would not have been
possible without hands-on work . . . . It involved nothing less than
changing an archaic institution.”
Overall evaluations. The majority of special masters appointed for
posttrial purposes did not identify any drawbacks or limitations to their
appointments. An expert appointed by the judge under Federal Rule of
Evidence 706 rather than Rule 53 found that the type of appointment
prevented him from conducting a fact-finding hearing that would have
been helpful in gathering input for his decisions. A special master ap-
pointed to handle individual claims felt at a disadvantage because “a spe-
cial master has no teeth.”
None of the posttrial masters interviewed said that their appoint-
ment was not warranted in the case, but several did have suggestions for
how the terms of their appointment could have been different. For ex-
ample, one suggested that a monitor should have been appointed sooner.
Another would have included in the order of appointment an explicit
mechanism for talking with the judge outside the presence of the parties
(but with the prior consent of the parties). Laying out clear authority for
a mediator to communicate separately with the parties was another sug-
gestion. Sometimes a special master can have too much authority. One
master thought that an order of reference was too broad and encouraged
the master to micromanage by allowing appeals of individual grievances
to that master.
All of the posttrial masters and all of the attorneys reported that, on
the whole, the benefits to the case from the posttrial masters’ appoint-
ments outweighed any drawbacks; several respondents said that this was
“definitely” or “absolutely” the case.

3. Suggestions for changes to rules regarding special masters
When asked whether having a revised national rule would have been
helpful in the litigation being discussed, district judges were about
equally divided in their responses. Judges were more in favor of rule
changes than were special masters or attorneys. About half of the judges
said that a rule change would have been helpful and offered specific sug-
gestions, and about half did not favor a change. Several discussed the
advantages and disadvantages of various types of changes. Few of the
special masters saw any need for rule changes, and many expressed con-
cern that any changes might impede the current flexibility of the rules.
About two-thirds of the attorneys we interviewed wanted either no rule
changes or broad, flexible grants of authority to appoint masters.
One judge expressed a viewpoint held by about half of the judges we
interviewed. That judge identified a dilemma facing rule makers and, in
the end, made a case for the status quo:
[A revised rule] would not have changed what I did in the case, but a
change might have clarified my authority to do what I did. The situa-
tion might be improved through general language authorizing use [of
special masters] for purposes not currently allowed under Rule 53, but I
can see some problems with that. If the language is too broad it might
invite opposition from those who would say “Surely you can’t mean to
authorize special masters to do that.” On the other hand, if written
narrowly, a change in the rule might be seen as too restrictive and it
might be interpreted to limit inherent authority. There is certainly a
good argument for doing nothing.
Another judge would have found it useful to have a road map to
identify the types of functions monitors might perform, but cautioned
that “the roles should not be too specific. . . . There needs to be room to
let a rule evolve.”
The sentiment against changing Rule 53 seemed to be grounded in
the sentiment, discussed earlier, that the rule is sufficiently flexible. One
judge said he used Rule 53 “because it is generally interpreted broadly,
and I seriously doubt that anyone would ever challenge it.” That judge
found that “using Rule 53 for so many different things is fairly common
and generally accepted.”
More than half of the special masters we interviewed specifically
urged that any change in the national rules provide the breadth and flexi-
bility that currently allow for creative adaptation of procedures to the

needs of a given case. Several special masters observed that the judge or
the parties or both shaped procedures to support the special master’s ac-
tivities in the case at hand. These masters all supported having suffi-
ciently flexible rules to allow the participants to create ad hoc procedures
and rules that fit the needs of a given case.
Along similar lines, about a third of the attorneys we interviewed
(more than half of the attorneys who supported rule changes) urged that
any changes be limited to broad, flexible grants of authority to appoint
special masters. Many of these attorneys were concerned that national
rules would not retain the plasticity of the current combination of rules
and inherent authority. Narrow, specific rules might be read to bar ac-
tivities permitted under inherent authority.
In addition, several masters and attorneys noted that there was too
much variation among cases to allow for a rigid set of rules. It would be
difficult, they posited, to control for the nuances of each case or to pre-
dict the needs of a variety of cases. For example, in one case a judge, with
input from the parties and the master, formulated procedures to ensure
accountability of the fiduciary managing a common fund. The procedure
required notice to the parties, a brief opportunity to object, and a court
order before a bank could issue a check requested by the fiduciary. In
another case, the judge authorized the master to preside over settlement
conferences, limit discovery to that necessary to evaluate the merits of the
case, and issue pretrial orders with the authority of a judge.
Among judges, support for changing Rule 53 focused on two types
of issues: defining the exceptional circumstance that would justify an ap-
pointment and flagging issues that should be addressed in an order of
reference to a special master. The first issue was raised far more fre-
quently than the second.
A number of judges and one special master urged that the concept of
exceptional circumstances be expanded. One judge who had just com-
pleted a ten-week jury trial in a securities case thought that a special
master could have helped organize and summarize the thousands of
documents used in the case. Another judge thought it would be helpful
to have a rule that identified specific examples of appropriate uses of spe-
cial masters. Another thought that explicit authorization for pretrial use
would be helpful, especially if the rule expressly authorized a judge to
impose the costs on the party or parties judged to be the source of the
pretrial problems.

One judge called for rule changes that would better identify issues to
be addressed in an order appointing a master. Communications between
the special master and one or more parties and communications between
the special master and the judge were two such issues (see “Ex parte
communications in special master cases,” section V.C.3, above, for fur-
ther discussion of those issues). Also, one judge thought that the stan-
dard of review should be identified as an issue, replacing the current
rule’s single standard of “clearly erroneous” review of facts with a more
flexible approach. In the cases examined in the study, judges and parties
sometimes modified that standard, for example, to provide finality for
special master action taken regarding discovery disputes or to provide de
novo review for findings of fact in individual administrative appeals.
Several special masters also had specific suggestions for rule changes.
One suggestion would address a threshold omission in the current rule:
provide authority for the parties to consent to appointments and specify
the powers and procedures. Stressing the need for flexibility, some mas-
ters suggested that the rule should contain provisions explicitly granting
judges and parties authority to agree to deviate from the rule to meet spe-
cial circumstances. Without calling for rule changes, other special mas-
ters, a clear majority, emphasized the need for flexibility.
One special master urged that the issues to be addressed by the
master be presented clearly and the boundaries of permissible inquiry be
defined. Another special master, reacting to a situation in which an in-
tervening party complained about not being invited to a settlement con-
ference involving the primary parties to the litigation, called for clear de-
fault rules about ex parte communications between the master and parties
in multiparty litigation (see “Communications between the special master
and the parties,” section V.C.5, above, for further discussion of this sub-
ject). Another called for procedures that would permit a special master to
modify a report after an error was discovered; the case that triggered the
suggestion involved a mathematical error.
Finally, about a third of the attorneys offered specific suggestions for
rule changes. Several of the suggestions focused on the role of the moni-
tor, a term that is not found in Rule 53(a)’s listing of special master roles.
One attorney called for a clear delineation of the roles of mediator,
monitor, and special master with a view toward establishing standards for
communications between the parties and the appointee. In this attorney’s
view:

A mediator may need to communicate ex parte with the parties. A spe-
cial master serving in an adjudicatory role generally should not so
communicate. A monitor may have some need to communicate ex
parte but should probably also report the results of those communica-
tions. A monitor who is tasked with making a report and recommen-
dation that might lead to contempt findings should have different con-
straints than a monitor who is mainly trying to formulate a schedule.
Another attorney in a case with a monitor suggested a rule author-
izing a monitor to consult with experts and directing the monitor to
“keep in touch” with the parties. Yet another attorney called for a rule
regarding the deference, if any, to be provided the activity of a monitor.
Other attorney suggestions for rules included rules regarding house-
keeping matters, such as providing longer than ten days for a party to
object to a special master’s report; authorizing a process for competitive
bidding before appointing a master; and establishing whether an interve-
nor has standing to appeal an order based on special master activity.
In sum, judges, special masters, and attorneys came up with a num-
ber of specific suggestions for changes in the rules. In a way, their list of
suggestions belies the dominant impression conveyed in the inter-
views—that the current rules have adequately served the court and liti-
gants in the cases studied and that change should be undertaken with
great caution, if at all.
F. A comparison of special master and magistrate judge activities;

multiple appointments of special masters
Two questions the subcommittee posed were “Why are magistrate judges
ever used as special masters?” and “Why are magistrate judges not always
used as special masters?” Magistrate judges were sometimes—but cer-
tainly not always—used as special masters. In Phase 1 of the study, we
found that magistrate judges were appointed as special masters in 11
(17%) of 64 appointments (in 59 cases, some of which had more than
one appointment). In Phase 2, we explored through interviews with
judges and attorneys the reasons why magistrate judges were and were
not appointed to serve as special masters.
In cases in our Phase 2 subset in which one or more masters were
appointed, we asked whether the judges or attorneys considered ap-
pointment of a magistrate judge in the case and whether the activities of
these special masters related to activities performed in other cases by

magistrate judges. In addition, we wanted to learn about appointment of
multiple adjuncts and the division of responsibility between the special
master and a magistrate judge or other adjuncts.
1. Pretrial and trial appointments of special masters

We asked appointing judges to discuss why they either chose to or chose
not to appoint a magistrate judge to serve as a special master. In six cases
in which masters were appointed for pretrial and trial-related purposes, a
magistrate judge was appointed to serve as the special master. Note that
all except one of these appointments were in Title VII, prison conditions,
or “other civil rights” cases. The other appointment was in an inter-
pleader action in which the judge appointed a magistrate judge to deter-
mine priorities for distributing insurance proceeds.
The most commonly reported reason for appointing a magistrate
judge as the special master was to avoid imposing the cost of a special
master on the parties. Other reasons cited for appointing a magistrate
judge were ease and convenience, workload, court-wide policy, and faster
resolution in the civil rights cases. The two reasons most frequently pro-
vided for not appointing a magistrate judge were workload (i.e., the
magistrate judges were already too busy) and technical competence (i.e.,
the judge needed someone with specialized technical expertise not com-
monly possessed by magistrate judges).
We asked attorneys in cases in which one or more masters were ap-
pointed whether they presented any arguments for or against the ap-
pointment of a magistrate judge, and to explain why or why not. None of
the attorneys representing parties in cases with non-magistrate-judge
pretrial or trial masters had presented any arguments for the appointment
of a magistrate judge as the special master. The most frequently cited
reason was that most magistrate judges do not possess the necessary spe-
cialized technical knowledge needed to resolve the issues. Other reasons
they gave were that the magistrate judge would have taken longer to re-
solve the case and that the cost of the master was outweighed by savings
from a prompt settlement. In addition, several attorneys admitted that
they accepted the judge’s suggestion for appointment without opposition
either because they did not want to challenge the judge or because they
felt the judge had decided the matter and opposition would have been
futile.

Of the attorneys interviewed in cases with pretrial or trial masters
who were magistrate judges, none expressed any opposition to the ap-
pointment. These attorneys said they accepted the judge’s decision. One
attorney told us that although he didn’t present any arguments for or
against a magistrate judge, he and his client were very satisfied that a
magistrate judge was appointed in the role of the master. He thought a
magistrate judge would have more standing than an outside attorney be-
cause the magistrate judge would lend more authority to the master’s de-
cisions and actions.
Six out of the twelve masters we interviewed who were appointed for
pretrial and trial-related purposes told us that all of the functions they
performed in their respective cases could have been performed by a mag-
istrate judge. Four of those interviewees were indeed magistrate judges
who were appointed to perform their roles in the capacity of a special
master. Specifically, the functions identified by the six masters were
managing discovery and ruling on discovery disputes, conducting hear-
ings, ruling on nondispositive pretrial motions, facilitating settlement,
calculating damages, and preparing findings of fact and conclusions of
law. The four magistrate judges told us that they could have carried out
their roles acting in the capacity of a magistrate judge, and they essen-
tially treated the order of appointment as a routine referral. They also
said that their appointments as special masters did not interfere with
their ability to perform their other assignments.
In contrast, several masters appointed for pretrial purposes thought
that a magistrate judge could not have performed the master’s duties be-
cause they required knowledge and expertise about complex technical
issues not possessed by most magistrate judges. Two masters appointed
as experts to assist the judge in dealing with highly technical, complex
issues thought that an outside expert was the only alternative, since these
matters could not be taught to the judge or delegated to a magistrate
judge.
2. Posttrial appointments of special masters

We interviewed several judges who appointed magistrate judges to serve
as posttrial adjuncts for certain aspects of a case. All of these appoint-
ments were made in class actions in which the judge had also appointed
one or more outside masters to assist with administering the settlements.
In one of these cases, the judge explained that he rejected a proposal to

appoint an outside master to deal with plaintiffs’ attorneys’ fee requests.
The judge decided to appoint a magistrate judge instead because of the
cost and concerns about compartmentalizing the litigation and creating
additional layers of administration. The judge also felt he would have
more control over choosing the appropriate magistrate judge.
Judges making posttrial appointments gave various reasons for not
appointing a magistrate judge to carry out certain other posttrial master
functions: magistrate judges’ workload (“The magistrate judges work for
the court, and I did not want to monopolize their time.”); appropriate-
ness of the role (“The functions of handling and distributing money
should not be performed by a judicial officer . . . . The role of the judge is
to adjudicate, not administer funds.”); and lack of technical competence.
None of the special masters who performed posttrial functions told us
that a magistrate judge could have performed their roles (e.g., adminis-
tering settlements in class actions, implementing and monitoring consent
decrees). A magistrate judge appointed to handle attorneys’ fee petitions
in a case in which a monitor was appointed to implement a consent order
said, “[A] magistrate judge could not have performed the monitoring
function. That would have taken 50% of a magistrate judge’s time for
about ten years. In addition, magistrate judges are not necessarily quali-
fied to do the type of mediating work that monitors do.”
As we found in relation to the pretrial process, none of the attorneys
interviewed about the use of posttrial masters reported arguing for the
appointment of a magistrate judge as a master.
3. Multiple appointments of special masters

All judges who appointed masters for pretrial purposes told us that they
did not consider appointing any other nonjudicial adjuncts in the case.
Most of these judges explained that they did not find it necessary to do
so because the appointed master was competently meeting all of their
needs for additional assistance. In one case, both an attorney and a mas-
ter (who had been appointed to review and evaluate the fairness of a pro-
posed settlement) told us that the judge had refused a party’s motion to
appoint an independent expert because the appointed master was per-
forming the same function. Several attorneys in cases in which pretrial
masters were appointed to address complex technical issues reported that
the judge had referred the case to a magistrate judge for discovery-related
matters. In these cases, the attorneys said there were no problems with

the division of authority between the master and the magistrate judge
because their roles in the case were separate and distinct.
In contrast, all of the judges we interviewed who appointed posttrial
masters appointed more than one adjunct in the case. The division of
responsibilities between adjuncts seemed to be based upon the needs of
the particular case, the skills of the adjunct, and a conceptualization of
the adjudicatory roles to be played by a magistrate judge and the admin-
istrative or fact-finding roles to be played by a special master.
One of the judges articulated a bright-line rule for distinguishing the
roles of magistrate judge and of special master: “The line between ap-
pointing a special master and a magistrate judge is one of adjudication
versus administration.” This judge “would not use a [nonjudicial or out-
side] special master to adjudicate claims and would not use a magistrate
judge to administer the details of the settlement.”
Another judge explained that dividing responsibility between an
outside master and a magistrate judge was a matter of matching the
function to be performed with the skills needed. In one class action, the
judge thought that implementation of the consent decree required four
separate functions, which were each assigned to separate individuals.
None of the posttrial masters or attorneys interviewed reported ex-
periencing any problems that were due to the division of responsibility or
authority between the multiple adjuncts involved in these cases, including
magistrate judges. In addition, most masters and attorneys reported that
there was no overlap of functions.
Even when they were not appointed as special masters, magistrate
judges played roles in more than two-thirds of the cases in the study.
Figure 1 portrays the division of activities between special masters and
magistrate judges in cases in which a judge appointed one or more special
masters. Cases in which a magistrate judge was appointed as the special
master were excluded.

Figure 1
Special Master Activities and Magistrate Judge Activities Compared
25
20
Frequency of Activity
Special master only

15 Magistrate judge only
Both magistrate judge and
special master
10
0
Discovery Pretrial Settlement Admission Trial Advise/ Allocate Recommend Enforce- Compli- Manage
manage- of evidence testify damages decree ment ance entire
ment case
Pretrial Trial Posttrial

Activity
Note: N = 46 cases in which the special master appointed was not a magistrate judge.
Figure 1 reveals some important points. First, there was no function

that judges reserved for special masters who were not magistrate judges.
There was only one function, labeled “advise/testify,” that was not per-
formed by magistrate judges, but that function was primarily filled by
Rule 706 experts, not Rule 53 special masters.
Second, as the white bars in Figure 1 show, there was a notable
overlap of functions performed by special masters and magistrate judges
at the pretrial stage, some overlap of functions at the trial stage, and very
little overlap at the posttrial stage. Both types of judicial adjuncts were
involved in discovery, pretrial management, and settlement activities.
Third, magistrate judge activity occurred far more frequently at the
pretrial stage than did special master activity; special master activity oc-
curred more frequently than magistrate judge activity at the trial stage;
and special master and magistrate judge activity occurred in approxi-
mately equal numbers of cases at the posttrial stage. However, in the
posttrial stage, there appears to have been only two assignments of a spe-
cial master and a magistrate judge to perform the same type of activity.

G. State court practices and other alternatives to appointing
special masters
To gain some understanding of the choices available to litigants, we
asked attorneys in cases in which a federal judge appointed a special
master how frequently special masters are appointed in a similar type of
case in state courts and whether a state judge or a federal judge is more
likely to appoint a special master. To look at the options available within
the federal courts, we asked judges, attorneys, and special masters what
alternatives to appointing a master a judge might have used to accom-
plish the same goals.
1. State court practices regarding special master appointments

We found that special masters were rarely appointed in the thirteen
states for which we obtained usable information. Two states appeared to
be exceptions. In California, discovery masters are authorized by statute
and appointed routinely, as are mediators. Not coincidentally, California
district courts experienced by far the most special master activity in our
study, two and one-half times more cases than would be expected.33 In
South Carolina, two attorneys reported that use of special masters is
common in complex cases and almost automatic in cases like the case in
our sample (which involved an accounting of partnership activity).34
With those two exceptions, attorneys invariably reported that special
masters were more likely to be appointed in federal courts than in state
courts in the type of case being studied.
In a few instances, attorneys noted that the state did not have Rule
53 or an equivalent as part of its rules. In two large institutional reform
cases, plaintiffs’ attorneys said the cases were filed in federal court be-
cause the federal courts had experience with using special masters and
monitors to enforce consent decrees. Several attorneys noted, though,
that state courts often had more of a need for special masters because
they generally do not have magistrate judges or the equivalent.
33. The four districts in California had 18 (22%) of the 80 cases studied. Based on these four
courts’ share (9%) of cases terminated in 1997 and 1998, one would expect 7 of the 80 cases to come
from the California districts. Figures were derived from Leonidas Ralph Mecham, Judicial Business
of the United States Courts, at 136–38 tbl. C (Administrative Office of the U.S. Courts 1998).
34. South Carolina had too few cases in the sample or the population to support a meaningful
comparison of expected use and actual use of special masters.

2. Case-management alternatives to appointing special masters
Several judges reported managing complex cases by keeping them on a
short leash, either by personally managing all aspects of discovery or by
closely supervising the case through very frequent, regular status confer-
ences and staying abreast of scheduling changes. Judges and attorneys
told us that courts often use magistrate judges for discovery-related pre-
trial purposes when masters are not appointed in complex cases. With his
judicial colleagues’ blessing, one judge refers different aspects of complex
cases to different magistrate judges, depending on their specific talents.
Six of the twelve masters appointed for pretrial and trial purposes
told us that all of the functions they performed in their respective cases
could have been performed by a magistrate judge. Those functions in-
cluded managing discovery and ruling on discovery disputes, conducting
hearings, ruling on nondispositive pretrial motions, facilitating settle-
ment, preparing findings of fact and conclusions of law, and assessing
damages. In fact, four of these six masters were magistrate judges ap-
pointed to act as a special master. They told us they could have carried
out their roles in the cases acting in their capacities as magistrate judges,
without a special master designation.
In contrast, in cases in which a pretrial or trial master was appointed
to assist the court with complex technical issues, both attorneys and
masters thought that having the district judge or magistrate judge try the
case without assistance was not a viable alternative because judges do not
have the necessary skills and expertise to rule on the complex technical
issues involved in these cases. Several judges and attorneys mentioned the
use of tutorials as a way to educate the judge and parties’ counsel on cer-
tain technical issues. One judge reported holding three-hour tutorials in
patent cases or criminal cases with DNA issues.
Likewise, several attorneys and all posttrial special masters reported
an absence of satisfactory alternatives to using special masters to carry out
certain posttrial activities, such as administering settlements in class ac-
tions. The master appointed to implement and monitor a consent decree
in an employment discrimination class action explained: “There are not
really any good alternatives . . . . Any case with complex compliance is-
sues needs a monitor if it can be expected to last more than a year.” The
monitor and an attorney in this case suggested that the only alternatives
to a monitor in an employment discrimination class action were ap-
pointing a receiver for the state agency, more directly supervising the

hiring and promotion of employees, or ordering quotas. Each of these
more intrusive alternatives to a monitor faced strong objections from de-
fendants and intervenors.
Other alternatives to using special masters mentioned by respon-
dents included requiring written status reports, sending parties to a me-
diation service (if not to mediate the whole case, at least to establish a
structure for settling some of the issues), and requiring attorneys to pre-
pare discovery disputes for the judge’s disposition or face sanctions for
inadequate responses.
Judges, attorneys, and special masters were not optimistic about the
opportunities for resolving these cases without a special master’s assis-
tance. The alternatives found seem more suitable to the more routine
cases in our sample than to the complex technical litigation or the post-
trial enforcement of class remedies.
H. Conclusion
Our findings as a whole indicate that the incidence of special master
consideration, appointment, and activity was rare and occurred primarily
in high-stakes cases that were especially complex. Party initiative, con-
sent, or acquiescence provided the foundation for appointments, and
rules did not appear to be a driving or limiting force. Nonetheless, some
participants offered suggestions for clarifying or creating rules relating to
problem areas, such as methods of selecting masters and ex parte com-
munications with special masters.
For a comprehensive summary of the results of the study, see section
II, “Executive Summary.”

Appendix A
Research Proposal to the Special Masters Subcommittee
To: Special Masters Subcommittee

From: Tom Willging
Date: April 2, 1999
Subject: Research proposal
This is a proposal to study the use and nonuse of special masters and
other comparable judicial adjuncts.* The proposal is designed to address
various questions posed by the subcommittee and its reporter and is ex-
pected to lead to two or more reports to the subcommittee over the next
year.
Here is a summary of the questions to be addressed:
• What experiences have district judges had with special masters?
• How often have masters been used in pretrial proceedings, such as
discovery management? What authority has been cited to support
such uses?
• Have judges used masters in jury actions? Have judges used mas-
ters in trial settings and, if so, what problems have they encoun-
tered? Do judges tend to require a stipulation as to the finality of
findings of fact? Do they require a draft report?
• How have judges used masters in posttrial settings, specifically in
monitoring or administering injunctive decrees, in establishing
damages and implementing other remedies in class actions or
cases with large numbers of plaintiffs, or in determining attorneys’
fees, as contemplated in Fed. R. Civ. P. 54(d)(2)(D)?
• Have masters been used in Title VII cases, invoking the statutory
provision (42 U.S.C. § 2000e-5(f)(5)) that permits appointment
of a special master to determine the action if a judge cannot hear
it within 120 days? How has that provision been applied and in-
terpreted since jury trials became available in Title VII cases?
• Who have judges appointed as special masters (lawyers, account-
ants, magistrate judges, others)? For what purposes? How have
*
The term special master is meant to include references to a referee, auditor, examiner, or as-
sessor as well as a magistrate judge appointed to act as a special master as permitted by Fed. R. Civ.
P. 53(b).
77
judges identified those appointed? Why are magistrate judges ever
used as special masters? Why are magistrate judges not always
used as special masters? What duties have been assigned to mag-
istrate judges that might have otherwise been assigned to special
masters, especially in the pretrial stages?
• How was compensation determined and paid?
• What kinds of adjuncts (other than special masters) have judges
appointed to perform functions that might otherwise be covered
under a more expansive Rule 53 (e.g., an expert witness appointed
under Rule 706 for purposes other than testifying, a technical ad-
visor appointed using inherent authority, or a law clerk with spe-
cial skills related to a specific case)?
• Given that Rule 53 speaks only to appointment of trial masters,
how has that formulation constrained judges from using judicial
adjuncts for other purposes? What would judges like to do with
special masters if there was a more expansive rule? In what situa-
tions would special masters be likely to be helpful?
To address these questions, we propose a two-staged approach.
Stage 1. We would draw a random sample of docket sheets in closed
cases in a random number of districts and search for docket entries with
the terms “special master,” “monitor,” “auditor,” “examiner,” “referee,” or
“assessor.” Using data from published cases and other sources, we would
estimate the incidence of special master appointments and select a sam-
ple of terminated cases sufficient to yield a return of at least 100 cases.
To account for a possible time lag in appointing masters in postdecree
cases, our sample would comprise cases terminated in 1998 and 1997.
For those 100 or so cases, we would request from the clerks of court
copies of documents for each relevant docket entry. Using these docu-
ments, we would identify the authority invoked for the appointment, the
functions described in the judge’s instructions to the master, the payment
terms, the outcome, and any motions activity relating to the judicial ad-
junct.
For the 100 cases, we will also be able to describe the types of cases
in which special masters or other judicial adjuncts are appointed, the in-
cidence of such appointments by district, the stage at which the cases
were terminated (e.g., after issue joined, during or after jury trial, during
or after bench trial), the type of disposition (e.g., judgment on motion,
jury verdict, bench verdict, settlement), and any other statistical informa-

tion regularly reported to the Administrative Office.
Stage 2. For a random subsample of about 25% of the cases identi-
fied in the docket search, we would interview the special master, judge,
and attorneys to discuss the issues raised by the subcommittee. We
would examine the process of making the appointment, the alternatives
that were considered, the anticipated and actual benefits they attributed
to the appointment, and any problems they may have experienced in re-
lation to the appointment. Judges and other interviewees would also be
asked about other conceivable uses of special masters, especially uses that
the judge considered but discarded because of an apparent lack of
authority under the federal rules.
Once we have established the uses to which special masters and other
judicial adjuncts have been put, we will be in a position to ask judges why
they have not used judicial adjuncts in those ways. We would interview
judges who had not appointed judicial adjuncts to discuss why they had
not used judicial adjuncts and how they handled cases like those in which
other judges used adjuncts. To identify these non-appointing judges, we
would match cases in which a special master was appointed with cases
having the same nature of suit and apparent level of complexity (meas-
ured by the number of parties and docket entries) in which a special
master was not appointed. Judges presiding in the latter cases would be
approached for an interview.
The timetable for the two stages would be approximately as follows:
Stage 1 Select sample of docket sheets/
request documents 5/1 to 5/31
Code docket sheets and documents 6/1 to 8/31
Analyze results/draft report 9/1 to 10/15
Stage 2 Identify interviewees/send letters 11/1 to 11/30
Conduct interviews 12/1 to 1/31
Analyze results/draft report 2/1 to 3/31
As with previous Center empirical research for the Advisory Com-
mittee, we can respond to additional questions as they arise throughout
the rule-making process.
We welcome any comments and suggestions.
cc: Honorable Paul V. Niemeyer

Mr. James Eaglin
Mr. John Rabiej

Appendix B
Research Methods
Sample Selection
We submitted to our contractor, MarketSpan, a list of all civil cases ter-
minated in fiscal 1997 or fiscal 1998, a total of 511,739 cases. Market-
Span, a commercial vendor that retrieves federal docket sheets and other
information from Public Access to Court Electronic Records (PACER)
and Internet sources, was able to identify docket records in its Case-
Stream Historical Database for 445,729 of those cases. The cases for
which MarketSpan did not have dockets included 14,521 cases from the
districts of Nevada, Indiana Southern, Wisconsin Western, Alaska,
Guam, the Northern Mariana Islands, and the Virgin Islands. Market-
Span also did not have docket sheets for 15,724 cases filed after May 15,
1998, and terminated before October 1, 1998. MarketSpan also did not
have docket records for 35,765 (7%) of the remaining 481,494 cases.
Presumably those missing cases include cases that were terminated in the
relevant years but removed from the PACER system and archived by
courts before MarketSpan conducted its search. We have no reason to
believe that the cases that were not in MarketSpan’s database differ in
any systematic way from the cases in the database. On the other hand,
we have no reason to believe that they are not different. We simply have
no reliable information on the subject at this time and no reliable way,
within the time frame for this report, to test the assumption that the
missing cases are not systematically different.
At the Center’s request (pursuant to a contract), MarketSpan then
electronically searched the 445,729 dockets and identified those that
contained any of the phrases in the following list. We used a pilot search
to determine which terms to use. We did not, for example, search for the
term “master” not preceded by “special” because we found no instance
that met the criteria for our study in which the two terms were not used
together. However, we found many instances in which “master” was used
in ways that did not meet our criteria. The following is the list of phrases
that MarketSpan searched for in the dockets.
• special master
• appoint~ * auditor~
• independent * auditor~
81
• appoint~ * examiner
• expert * examiner
• expert * 706
• 706 * expert
• appoint~ * expert
• appoint~ * referee
• referee~ *appointed
• referee~ *report
• report * referee
The tilde (~) sign represents a word ending. Thus, “appoint~” would
include “appointed,” “appointing,” “appointment,” and so forth. An as-
terisk (*) between two words means that other words or characters may
appear between the two words (or not). For example, if a docket entry
read “Court appointed a certified public accountant to serve as an audi-
tor,” that entry would have been captured. In fact, if one docket entry in
the case included the term “appoint” and another docket entry included
the term “auditor,” that case would also have been captured. Once the
initial search was conducted, one of the researchers reviewed the docket
entries to determine whether there was any special master activity.
The words would also have to be found in the sequence presented
above. For example, we searched for “appoint~ * auditor” but not for
“auditor * appoint~”. It is possible that we missed an indeterminate but
probably small number of cases as a result of our failure to think of all
plausible search terms. We may also have missed cases in which a special
master was appointed but the docket does not make that clear (e.g., “the
Court appoints Sam Smith to conduct hearings on such and such and
report his conclusions to the court.”).
Given these limitations, we present the data on incidence as showing
the minimum level of activity that may have occurred. In pretesting and
posttesting the search terms, we examined a substantial number of false
positives. That experience leads us to believe that the extent of any un-
dercounting is modest.
MarketSpan provided the Center with a list of the 1,506 cases found
with this search. To meet or exceed our goal of examining approximately
125 cases, we selected a one-ninth sample of these cases by randomly
ordering the cases, randomly choosing a starting point (n) between 1 and
9, and selecting the nth case and every ninth case thereafter. Through
this process we obtained docket sheets for 167 cases. We reviewed those

167 docket sheets and excluded 34 (20%) because they did not in fact
indicate any activity that might be relevant to the study. This left us with
133 cases.
Several aspects of the search may have resulted in a modest under-
count of instances in which appointing a special master was considered.
We did not include the term “Rule 53” in the search. To test whether we
may have missed some appointments of special masters because of this
omission, we later ran a search for the terms “Rule 53” or “Fed R Civ P
53.” This search yielded four cases that fell within our expansive defini-
tion of special masters. This represents approximately 0.3% of the 1,506
cases turned up by our search. Because our sample consisted of one of
every nine cases in which the terms appeared, the failure to detect these
four cases can be expected to result in a negligible undercount of cases
that considered a special master appointment.
In addition, possible misspellings or abbreviations of the search
terms (e.g., “spec” or “mster”) or failure to record relevant docket entries
may have caused us to miss some cases. We were also aware that the
dockets were not necessarily up to date (e.g., for cases terminated but
then reopened) and that some—presumably modest—number of cases in
the 445,729 population had evidence of considering special master ap-
pointments that we did not detect. In all, the results may represent a
modest undercount of special master consideration in the 445,729 cases.
Later, at the request of the chair of the Judicial Conference Sub-
committee on Special Masters, we repeated the identical sampling exer-
cise, but searched for the following terms:
• appoint~ * trustee
• appoint~ * appraiser.
This MarketSpan search yielded 23 dockets, from which we again
selected one-ninth using the same selection procedure noted above. This
yielded a sample of 3 cases. With this addition, the total number of cases
in the sample became 136, selected from a population of 1,529 cases.
Estimating Incidence Overall and by Case Type

We assumed that the 136 cases selected are representative of all of the
cases, including the cases for which we could not locate docket sheets
and cases in districts from which we could not obtain docket numbers.
Based on that assumption, the rate of correct hits among the docket
sheets approximates the rate of correct hits among all of the cases termi-

nated in fiscal 1997 and fiscal 1998. We can refer to this as P(M), or the
probability of there being special master consideration in a case:
136 1, 529
P(M) = ⋅ ≈ .80 ⋅ .0034 ≈ .0027
170 445, 729
We obtained case-type information for the 445,729 docket numbers.
We can represent the rate of each case type as P(Ti), where Ti refers to
case type i.
We also obtained case-type information corresponding to our one-
ninth sample of hits. We can represent the rate of each case type among
our sample of correct hits as P(Ti|M), or the rate of each case type
among cases with special master consideration.
We used the following formula to compute an estimate of the rate of
special master consideration for each case type, which we can represent as
P(M|Ti):
P(Ti | M)
P(M | Ti ) = P(M) ⋅
P(Ti )
We computed these estimates for each case type by multiplying our
overall estimate of the rate of special master consideration (.0027) by the
rate of each case type in our sample of correct hits and dividing by the
rate of each case type in our docket numbers.
Precision of the Estimate of Overall Rate of Special Master

Consideration
To estimate the precision of an estimated proportion it is necessary to
know the size of the sample used to estimate the proportion. We esti-
mated an incidence of .0027 based on a count of 136 correct hits. In
computing the sample size, we reasoned that the sample size is neither
the 170 hits nor the 445,729 docket sheets searched. If the number of
correct hits is 136 and this is 0.27% of the sample, the sample size must
be 136/.0027, which is 49,558 (correcting for rounding error).∗ This
corresponds to approximately one-ninth of the 445,729 docket sheets.
∗
Several computations in this appendix may appear to be errors, because the numbers used in
the computations are more precise than the numbers represented in the text. Here, for example,
.0027 actually is rounded from the more precise figure of .002744268, which divided into 136
rounds to 49,558.

The number of correct hits in a sample of docket sheets is a binomial
random variable with parameters n = number of docket sheets and p =
proportion of docket sheets that are correct hits.
We approximated this binomial random variable with the normal
random variable to compute a confidence interval for p. Observe that
P(M) is an estimate of p. The standard deviation of a binomial random
variable is
σ = n ⋅ p ⋅ (1 − p )
The standard deviation for p, then, is
n ⋅ p ⋅ (1 − p )
σp =
n
Using the normal distribution to approximate the binomial random
variable, a confidence interval for p is
n ⋅ p ⋅ (1 − p )
P(M) ± Z * ⋅
n
where Z* is the critical value of the standard normal random variable Z
corresponding to whatever level of confidence we select. For a two-tailed
95% confidence interval, Z* = 1.96. If n = 49,558, and we use P(M) =
.0027 to estimate p, then the 95% confidence interval for p is
49, 558 ⋅ .0027 ⋅ .9973
.0027 ± 1.96 ⋅ ≈ .0027 ± .0005
49, 558
That means that if our data are representative, then the rate of spe-
cial master consideration is probably from about 2.2 to 3.2 cases per
thousand. At the 95% level of confidence, the margin of error is .0005.
The relative margin of error is .0005/.0027 ≈ 17%.
Precision of Estimates of Rate of Special Master Consideration

Per Case Type
As indicated above, information on special master consideration per case
type is based on a one-ninth sample of hits in a search of 445,729 docket
files. We believe these files are representative of 474,802 docket num-
bers, about which we have case-type information. Our information on
special master consideration per case is effectively based on a one-ninth

sample of the 445,729 docket files. That equals approximately 49,558
cases. This represents 10.4% of the 474,802 docket sheets about which
we have case-type information. That means that each of the 474,802
cases had a 10.4% chance of being examined to determine whether it had
evidence of special master consideration.
Therefore, the effective sample size for each of our estimates of rate
of special master consideration per case type is 10.4% of the number of
cases of that type in the 474,802 cases with case-type information. For
example, we observed 5 cases of type “Contract—Insurance” with special
master consideration. Among all the docket numbers, we observed
14,416 cases of that type. The effective sample size, then, of cases for this
type among those we examined for special master consideration is 14,416
× .104 ≈ 1,505 (correcting for rounding error). Of these, 5 had special
master consideration, for a rate for this case type of 5/1,505 = .0033.
The above calculation is the same as computing the rate for this case
type by multiplying the overall rate of special master consideration
(.0027) by the relative frequency of this case type among examined cases
with special master consideration (5/136), divided by the relative fre-
quency of this case type among the docket numbers (14,416/474,802).
The effective sample size also can be computed by dividing the num-
ber of cases with special master consideration by the estimated rate of
special master consideration: 5/.0033 ≈ 1,505 (correcting for rounding
error).
The Normal Approximation

We could compute the margin of error for rate of special master consid-
eration for a specific case type analogously to how we computed it for the
overall rate of special master consideration, but the normal approxima-
tion does not work well for individual case types.
n ⋅ p ⋅ (1 − p )
P(M | Ti ) ± Z * ⋅
n
For “Contract—Insurance” cases:
1, 505 ⋅ .0033 ⋅ .9967
.0033 ± 1.96 ⋅ ≈ .0033 ± .0029
1, 505

As discussed above, the precision of the overall rate of special master
consideration is quite respectable—17% of the estimate: .0005/.0027.
The precision of our estimate of special master consideration for an indi-
vidual case type, however, is not nearly as good—88% of the estimate in
this case.
Using the normal random variable to approximate estimates of pre-
cision for special master consideration rates for individual case types is
compromised by high relative margins of error. Among the case types in
which we actually observed special master consideration, the relative
margins of error at the 95% level of confidence range from 35% to 196%.
If the relative margin of error is greater than 100%, then the confidence
interval includes negative values, which, of course, are impossible for
proportions.
Binomial Computations
Because the number of cases with evidence of considering special master
appointment that we observed for each individual case type is relatively
small in magnitude—ranging from 0 to 32—it was possible to estimate
confidence intervals without using the normal approximation.
First, we considered all of the case types for which the estimate of
rate of special master consideration was zero. (These are the case types
for which we had no observations among our 136 correct hits.) We com-
puted rates of special master consideration that would have resulted in
probabilities less than 5% of observing no cases in the population we ex-
amined.
For example, we observed no “Contract—Marine” cases with special
master consideration. There were 4,967 such cases among the 474,802,
which is an effective sample size of 518 (10.4% of 4,967). If the real rate
of special master consideration among these cases were .0050, then the
probability of observing no cases among 518 would be equal to .9950
raised to the 518th power: .9950518 = .07. If the real rate were .0060, then
the probability of observing no cases among 518 would be .9940518 = .04.
The upper limit on a 95% confidence interval for the rate of special
master consideration among “Contract—Marine” cases must be some-
where between .0050 and .0060. It is equal to one minus the 518th root
of .05:
1 − 518 .05 = .0058

The 95% confidence interval for rate of special master consideration
among “Contract—Marine” cases, therefore, ranges from 0 to .0058. For
the other case types not included in our observed cases with special mas-
ter consideration, the 95% confidence intervals range from zero to one
minus the nth root of .05, where n is equal to the effective sample size for
each case type.
For the case types in which we did observe evidence of considering a
special master appointment, the computations are a little more compli-
cated. Consider again the case type “Contract—Insurance.” We observed
5 cases with special master consideration, the effective sample size is
1,505, and our estimated rate of special master consideration for this case
type is .0033.
In general, for a 95% confidence interval, the real value will be less
than the lower limit 2.5% of the time and greater than the upper limit
2.5% of the time. For the upper limit one wants to know for what value
of the real rate of special master consideration one would observe as few
as 5 cases among 1,505 2.5% of the time. We can compute this probabil-
ity using the formula for the frequency distribution of a binomial random
variable:
5
 1, 505 x
.025 = ∑ 
x=0 x
 ⋅ p ⋅ (1 − p )

(1, 505 − x )
We used Microsoft Excel’s “Solver” feature to solve for p. The solu-

tion was p = .0077.
As for the lower limit, we want the lowest value for p such that the
probability of observing 5 or more cases with special master consideration
among 1,505 is less than or equal to .025. The probability of observing 5
or more cases is equal to one minus the probability of observing 4 or fewer
cases.
4
 1, 505 x
.025 = 1 − ∑ 
x=0 x
 ⋅ p ⋅ (1 − p )

(1, 505 − x )
The solution was p = .0011.

A 95% confidence interval for the rate of special master considera-
tion in “Contract—Insurance” cases is from .0011 to .0077, or from ap-
proximately 1 per thousand to approximately 8 per thousand.

Using this method, we computed 95% confidence intervals for all of
the other case types for which we observed special master consideration.
In Table 1, we presented the rates and confidence intervals for all cases in
which appointment of a special master was considered. Table 15 presents
the confidence intervals for all types of cases in which there was no such
consideration. The case types are presented from the highest confidence
intervals to the lowest. At the higher levels, there were few cases of that
type among cases terminated in fiscal 1997 and fiscal 1998. As the num-
ber of cases in the population increases the 95% maximum confidence
interval decreases.
Table 15
Confidence Intervals Per 1,000 Cases, by Case Type, for Cases with No
Observed Special Master Consideration, in Cases Terminated During Fiscal
1997 and Fiscal 1998 in 87 Federal District Courts
Estimated Rate Minimum Maximum
of Special Rate of Special Rate of Special
Master Master Master
Case Type (per 1,000 cases) per 1,000 cases) per 1,000 cases)
Energy Allocation Act 0 0 1,000
Liquor laws 0 0 1,000
Appeal of fee determination 0 0 997
Economic Stabilization Act 0 0 890
Local question—other 0 0 890
State reapportionment 0 0 871
Selective Service 0 0 762
Airline regulations 0 0 668
Social Security—black lung 0 0 655
Railroad & truck 0 0 616
Occupational safety/health 0 0 604
Customer tax challenge 0 0 592
Marine product liability 0 0 247
Table continued

Table 15 (continued)
Tort product liability 0 0 228
Civil rights—welfare 0 0 163
Social Security—HIA 0 0 163
Recovery of overpayment 0 0 132
on veterans benefits
Contract—Medicare Act 0 0 131
Internal Revenue 0 0 118
Service—third party
Deportation 0 0 114
Food & drug 0 0 103
Agriculture 0 0 102
Airplane product liability 0 0 92
Labor/Management 0 0 86
Reporting & Disclosure
Act
Civil rights—voting 0 0 85
Rent lease & ejectment 0 0 59
Contract product liability 0 0 53
Contract—stockholder suits 0 0 51
Constitutionality of state 0 0 49
statutes
Recovery of overpayment 0 0 48
& enforcement of
judgment
Torts to land 0 0 46
Banks & banking 0 0 42
Table continued

Agricultural Acts 0 0 39
Freedom of Information 0 0 36
Act
Property damage product 0 0 35
liability
Truth in lending 0 0 35
Motor vehicle product 0 0 28
liability
Social Security—RSI 0 0 26
Commerce/ICC rates, etc. 0 0 25
All other real property 0 0 20
Prisoner—mandamus 0 0 19
& other
Assault, libel & slander 0 0 18
Contract—Miller Act 0 0 18
Forfeiture & penalty—other 0 0 17
Bankruptcy—withdrawal 0 0 16
Contract—negotiable 0 0 15
instrument
Drug forfeiture 0 0 14
Other personal property 0 0 12
damage
Personal injury—medical 0 0 11
malpractice
Other labor litigation 0 0 10
Labor–management 0 0 8
relations
Table continued

Securities/commodities/ 0 0 8
exchange
Taxes 0 0 8
Copyrights 0 0 7
Federal employers’ liability 0 0 7
Marine personal injury 0 0 7
Contract—Marine 0 0 6
Trademark 0 0 5
Bankruptcy—Appeals Rule 0 0 4
801
Motor vehicle 0 0 3
Social Security—SSID 0 0 3
Asbestos personal injury 0 0 2
product liability
Motions to vacate sentence 0 0 2
Prisoner—prison conditions 0 0 2
Recover defaulted student 0 0 2
loans
Social Security—DIWC 0 0 2
Note: HIA = Health Insurance for the Aged Act; RSI = Retirement and Survivors Insurance;
ICC = Interstate Commerce Commission; SSID = Supplemental Security Income/Disability Only;
DIWC = Disability Insurance/Worker or Child Only.

Appendix C
Research Protocol
Date: ____/____/____
Recorded by: _________
I.D. Number: _________
Sequence Number: ___________
(Use only if there is more than one motion/request/order)
Protocol for reviewing special master and court-appointed expert

docket sheets and documents
Background
1. Case name: ___________________________________________

2. Docket number: ____- ________
XX - XXXXX
3. District: ____________________________________________
4. Filing date: _____/_____/_____
(MM/DD/YY)
5. What is the date and item number of the last entry on the docket
sheet?
a) _____/_____/_____ b) ___________
(MM/DD/YY) (Item Number)
93
Motion/request/sua sponte order
[NOTE: If there is more than one motion/request/order, fill out another

one of these forms for each such motion/request/order, using the same
I.D. Number and a new Sequence Number.]
6. a) A motion/request/or sua sponte order for appointment of a special
master or expert was made by (Check one):
❏ 1) plaintiff
❏ 2) defendant
❏ 3) third party defendant
❏ 4) joint motion of (specify) ____________________________
❏ 5) a judge (sua sponte)
❏ 6) other (specify) ____________________________________
b) What is the date and the item number from the docket sheet of
the motion/request/order?
1) _____/_____/_____ 2) _____________
7. The motion/request or sua sponte order was opposed by (Check all

that apply):
❏ a) plaintiff
❏ b) defendant
❏ c) third party defendant
❏ d) none of the parties
❏ e) other (specify; note if there was a joint response and indicate
the parties who joined it) _______________________________
8. The motion/request/sua sponte order sought appointment of a spe-
cial master or expert for the purpose of (Check all that apply):
❏ a) supervising discovery
❏ b) ruling on discovery disputes
❏ c) other pretrial management
❏ d) facilitating settlement
❏ e) arbitrating case
❏ f) early neutral evaluation
❏ g) ruling on the admissibility of evidence
❏ h) requiring the production of evidence specified in the
reference

❏ i) undertaking independent investigation of the facts
❏ j ) receiving and reporting evidence on the following issue(s)
_______________________________________________
_______________________________________________
❏ k) receiving and reporting evidence for the entire case
❏ l) rendering a statement of accounts
❏ m) advising a judge on scientific or technical matters
❏ n) testifying as an expert
❏ o) calculating individual damages for a group of litigants
❏ p) establishing a claims procedure or otherwise allocating an
award among a group of litigants
❏ q) assisting in drafting a decree to enforce an order of the court
❏ r) taking action to enforce an order of the court
❏ s ) monitoring the parties’ compliance with an order of the
court
❏ t) developing a trial or litigation plan or structure for a class
action
❏ u) other (specify) ___________________________________
9. Did a magistrate judge perform any of the following functions in the
case?
(Check all that apply):
❏ a) supervising discovery
❏ b) ruling on discovery disputes
❏ c) other pretrial management
❏ d) facilitating settlement
❏ e) arbitrating case
❏ f) early neutral evaluation
❏ g) ruling on the admissibility of evidence
❏ h) requiring the production of evidence specified in the refer-
ence
❏ i) undertaking independent investigation of the facts
❏ j ) receiving and reporting evidence on the following issue(s)
_______________________________________________
_______________________________________________
❏ k) receiving and reporting evidence for the entire case
❏ l) rendering a statement of accounts
❏ m) advising a judge on scientific or technical matters
❏ n) testifying as an expert

❏ o) calculating individual damages for a group of litigants
❏ p) establishing a claims procedure or otherwise allocating an
award among a group of litigants
❏ q) assisting in drafting a decree to enforce an order of the court
❏ r) taking action to enforce an order of the court
❏ s ) monitoring the parties’ compliance with an order of the
court
❏ t) developing a trial or litigation plan or structure for a class
action
❏ u) other (specify): ___________________________________
Ruling on motion/request/order
10. a) The judge (Check one):
❏ 1) granted the motion/request or affirmed the sua sponte order
❏ 2) granted/affirmed the motion/request/order in part and de-
nied it in part
a) Which of the purposes described in question 8, above,
were included?
___________________________________________
b) What, if any, purpose was added or modified by the
judge?
_______________________________________________
❏ 3) denied the motion/request or dismissed the sua sponte or-
der
❏ 4) did not rule on the motion/request/order because it was
withdrawn
❏ 5) did not rule on the motion/request/order for some other
reason
❏ 6) other (specify): ___________________________________
b) Specify the date and the item number from the docket sheet of the
ruling (if any): 1) _____/ _____ / _____ 2) ___________

11. What source(s) of authority did the judge cite in the above ruling?
❏ a) Fed. R. Civ. P. 53. Specify any exceptional circumstances that
the court cited in support of the appointment _______________
_______________________________________________________
_______________________________________________________
❏ b) Fed. R. Civ. P. 54(d)(2)(D) (attorneys’ fees)
❏ c) Fed. R. Evid. 706
❏ d) 42 U.S.C. § 2000e-5(f)(5) (Employment discrimination cases)
❏ e) Prison Litigation Reform Act of 1995 (18 U.S.C. § 3626)
❏ f) Inherent authority of the court
❏ g) Other (specify): ___________________________________
❏ h) None
Appointment process
12. The judge appointed a special master or expert based on (Check all
that apply; also specify the appointment date(s) and the item num-
ber(s) from the docket sheet):
(1) (2)
Appointment Date Item
(MM/DD/YY) Number(s)
❏ a) nominations from the ___/___/___ ______
parties
❏ b) a report of a search by an ___/___/___ ______
outside agency, special master,
or other representative of the
court
❏ c) the special master’s service in ___/___/___ ______
another case
❏ d) the judge’s personal knowl- ___/___/___ ______
edge of the special master’s
qualifications
❏ e) using another search process ___/___/___ ______
(specify):
_______________________

13. If a special master or expert was appointed, was there any indication
that the appointee’s background was examined—by the parties or
otherwise—to determine the presence or absence of a conflict of in-
terest? (Check one)
❏ a) No
❏ b) Yes—Describe the screening method used
__________________________________________________
__________________________________________________
Field of expertise/instructions/compensation
14. What is the name and title of the special master or expert?
___________________________ ____________________________
Name Title
15. The special master or expert held a position at the time of appoint-
ment as an
❏ a) attorney
❏ b) magistrate judge
❏ c) professor
❏ d) arbitrator
❏ e) mediator
❏ f) physical scientist
❏ g) social scientist
❏ h) medical doctor
❏ i) accountant
❏ j) economist
❏ k) engineer
❏ l) retired federal district judge
❏ m) retired federal magistrate judge
❏ n) retired state judge
❏ o) other (specify)
____________________________________________

16. In instructing the special master or expert the judge
❏ a) defined the issues to be addressed
❏ b) defined the role of the special master/expert
❏ c) limited ex parte communication between the appointee and
the parties
❏ d) limited ex parte communication between the appointee and
the judge
❏ e) set a procedure for the appointee to report to the court and
the parties
❏ f) established the rate of compensation to be paid the appointee
❏ g) established who should pay the appointee’s compensation
❏ h) established other procedures (specify) ___________________
____________________________________________________
17. Compensation for the special master or expert was set at a rate of
a) $ _________ per (Check one): ❏ hour
❏ day
❏ other (specify)
_________________
b) A maximum payment of $ ____________ was established.
18. At the outset, compensation was to be paid by (Check one):
❏ a) plaintiff and defendant equally
❏ b) 1) plaintiff to pay: ________ % and
2) defendant to pay: _________ %
❏ c) plaintiff to pay 100%
❏ d) defendant to pay 100%
❏ e) other (specify) ____________________________________
❏ f) No allocation specified
19. At a later time, the court reallocated responsibility for payment to
(Check one):
❏ a) plaintiff and defendant equally
❏ b) 1) plaintiff to pay: ________ % and
2) defendant to pay: _________ %
❏ c) plaintiff to pay 100%
❏ d) defendant to pay 100%
❏ e) other (specify) ____________________________________
❏ f) Not applicable

20. In the entire case to date, a total of $ ____________ has been paid to
the special master or expert who is the subject of this sequence num-
ber.
Report & findings/review

21. Did the special master’s or expert’s work product include (Check all
that apply):
❏ a) rulings on discovery disputes
❏ b) rulings on the admissibility of evidence
❏ c) pretrial case management orders
❏ d) announcement of a settlement
❏ e) a recommendation regarding court approval of a settlement
❏ f) an arbitration award
❏ g) a written report with findings of fact on selected issues
❏ h) a written report with findings of fact on all issues
❏ i) a written report with findings of fact and a recommended out-
come for the entire case
❏ j) advice or testimony (in a bench trial) to the judge on scientifi-
cally or technically complex matters
❏ k) testimony to a jury on scientifically or technically complex mat-
ters
❏ l) a recommended decree to enforce the court’s order
❏ m) a report discussing enforcement of the court’s order
❏ n) a report describing the parties’ compliance with the court’s order
❏ o) any other type of report or product (specify) _______________
22. a) What was the date of the first report or other product issued by
the special master or expert? _____/____/____
(MM/DD/YY)
b) What item number is this report on the docket sheet and what is
the title of the report? 1)_____________ 2) _________________
Item Number Report Title
23. Did a party file objections to the report “by motion and upon notice”
as provided in Fed. R. Civ. P. 53(e)(2)? (Check one):
❏ a) Yes
❏ b) No
❏ c) No, but objections were filed in the following manner: _____
__________________________________________________

24. Did the judge modify Fed. R. Civ. P. 53(e)(2)’s 10 day time limit for
filing written objections? (Check one):
❏ a) No
❏ b ) Yes, the judge allowed an additional ______ days to file objec-
tions.
25. Did the judge encourage or order the parties to consider stipulating
that the master’s finding would be final, as permitted under Fed. R.
Civ. P. 53(e)(4)?
(Check one):
❏ a) No
❏ b) Yes and the judge’s action is recorded (specify the date and the
item number from the docket sheet):
1) _____/ _____ / _____ 2) ______________
26. Did the parties stipulate that the master’s finding would be final, as
permitted under Fed. R. Civ. P. 53(e)(4)? (Check one):
❏ a) Yes
❏ b) No
27. Was that report reviewed by a judge? (Check one):
❏ a) No
❏ b) No information about judicial review
❏ c) Yes, and the judge took the following action(s) after reviewing
the report:
❏ 1) adopted the findings of fact
❏ 2) adopted the conclusions of law
❏ 3) rejected the findings of fact
❏ 4) rejected the conclusions of law
❏ 5) modified the findings of fact
❏ 6) modified the conclusions of law
❏ 7) accepted recommendations (specify) _____________
_______________________________________________
_______________________________________________
❏ 8) rejected recommendations (specify) ______________
_______________________________________________
_______________________________________________

❏ 9) modified recommendations (specify) _____________
_______________________________________________
_______________________________________________
❏ 10) other (specify)_______________________________
_______________________________________________
_______________________________________________
28. Was there a jury trial?
❏ a) No
❏ b) Yes, and the master’s testimony or report was (Check one):
❏ 1) admitted into evidence in whole
❏ 2) admitted into evidence in part
❏ 3) denied admission into evidence
❏ 4) not ruled on
❏ 5) other (specify): ____________________________
29. How many reports or products were issued by the special mas-
ter/expert? _______
NOTE: If there was more than one report or product from the same
special master, complete the attached supplemental form for each
additional report.
30. What was the date and item number from the docket sheet of the
last report or other product issued by the special master or expert?
a) ____/ _____/ _____ b) _______________
Appeals
31. Was an appeal filed relating to activity of the special master or expert?
❏ a) No
❏ b) Yes (below specify):
1) How many such appeals were filed? _________
2) Describe the special master issues in any such appeal (if
available) _____________________________________
_____________________________________________
3) What is the status of the last such appeal in the case?
(Check one):
❏ a) pending
❏ b) voluntarily dismissed
❏ c) appeal dismissed on procedural grounds

❏ d) appeal decided: judgment affirmed
❏ e) appeal decided: judgment reversed
❏ f) appeal decided: other (specify) _____________
_______________________________________
Outcome
32. What was the outcome of the litigation? (Check all that apply)
❏ a) judgment for plaintiff after jury trial
❏ b) judgment for plaintiff after bench trial
❏ c) judgment for defendant after jury trial
❏ d) judgment for defendant after bench trial
❏ e) settlement
❏ f) voluntary dismissal
❏ g) other (specify) ____________________________________
33. a) How did the activity of the special master/expert relate to the out-
come?
(Check one):
❏ 1) The special master/expert’s activity determined the outcome
(e.g., the court adopted the findings of fact and conclu-
sions of law on all issues or a settlement tracked the special
master’s or expert’s findings and conclusions).
❏ 2) The special master/expert’s activity appeared to have a sub-
stantial influence on the outcome (e.g., the court adopted a
substantial portion of the findings of fact and conclusions
of law).
❏ 3) The special master/expert’s activity appeared to have a mod-
erate influence on the outcome (e.g., the court adopted the
findings of fact and conclusions of law on a single issue).
❏ 4) The special master/expert’s activity appeared to have no in-
fluence on the outcome (e.g., the court rejected or ignored
the findings of fact and conclusions of law or they were not
relevant to the final disposition).
❏ 5) Other (specify): ___________________________________
_______________________________________________

b) Please summarize the basis for your response above.
__________________________________________________
__________________________________________________
__________________________________________________
34. Summarize any significant docketed activities relating to the special
master/expert that have not been captured by the above questions.
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________
_______________________________________________________

Supplemental form for additional reports of masters or experts
Date: ____/____/____
Recorded by: _________
I.D. Number: _________
Supplemental Form Number: ____________
1. What was the date and item number from the docket sheet of the
report or other product issued by the special master or expert?
a) _____/_____/_____ b) _____________
2. What was the title of that report? _________________________

3. Was that report reviewed by a judge? (Check one):
❏ a) No
❏ b) No information about judicial review
❏ c) Yes, and the judge took the following action(s) after reviewing
the report:
❏ 1) adopted the findings of fact
❏ 2) adopted the conclusions of law
❏ 3) rejected the findings of fact
❏ 4) rejected the conclusions of law
❏ 5) modified the findings of fact
❏ 6) modified the conclusions of law
❏ 7) accepted recommendations (specify): ___________
__________________________________________
❏ 8) rejected recommendations (specify): ____________
__________________________________________
❏ 9) modified recommendations (specify): ___________
__________________________________________
❏ 10) other (specify): ____________________________

Appendix D
Interview Protocols
107
Appendix D-1
Judge Interview Protocol
Case:
Judge’s name:
Judge’s title (USDJ/USMJ):
Interviewer’s initials:
Date of interview:
In the above-captioned case, you considered appointing a special

master. A copy of your order was enclosed in the letter we sent to set up
this appointment. We wish to address the following questions in the
context of that case. If, however, your recollection of that case is not
clear, we would like to get responses to such questions according to your
general experience or your usual practice in such matters.
Definitional Note: We are using the term “special master” to cover a
host of judicial adjuncts, including court-appointed experts, referees,
monitors, auditors, appraisers, and the like.
Appointment
1. What motivated you to consider appointing a special master (e.g., a
party’s motion or suggestion, the demands of the case on the court’s
time, the complexity of the case, the factual uncertainties, the need
for special expertise, the desire to foster acts that do not fit the judi-
cial role, such as investigating, negotiating, or enforcing)? What did
you expect to accomplish by the appointment? If you decided not to
make an appointment, what were your reasons?
2. What, if anything, about this case distinguished it from any other
_______________ (nature of suit) cases in which you have not ap-
pointed a special master?
3. How did you identify the master you appointed?
109
4. If the master was a magistrate judge, why did you choose to appoint
a magistrate judge (whose appointment might reduce the court’s re-
sources)? If the master was not a magistrate judge, why did you not
appoint a magistrate judge (whose appointment would not cost the
parties)?
5. What, if any, other adjuncts (such as a magistrate judge, court-
appointed expert, technical adviser, special law clerk or court consult-
ant) did you appoint or consider appointing in this case? If you con-
sidered but did not appoint other adjuncts, why did you decide not to
make such an appointment?
6. How did you determine the special master’s rate of compensation,
any caps on total payments, and who should pay? Who paid? Was
the cost of the master shifted at the end of the case?
Authority
1. What authority did you consider in making the appointment (rule,
statute, inherent authority, none)?
2. Did you have difficulty finding authority for the precise function(s)
you wanted the special master to perform? If you contemplated an
appointment under Rule 53 for activity at the pretrial or posttrial
stage, did Rule 53’s lack of explicit authority for such activity dis-
suade you from making an appointment, limit the scope of any ap-
pointment you made, or cause you to have concerns about deciding
to proceed with an appointment despite Rule 53-inspired doubts?
3. If you contemplated an appointment under Rule 53, did the restric-
tiveness of that rule’s reference to “exceptional circumstances” dis-
suade you from making an appointment, limit the scope of any ap-
pointment you made, or cause you to have concerns about deciding
to proceed with an appointment despite Rule 53-inspired doubts?
What were the exceptional circumstances in this case (if not already
covered in discussing the reasons for the appointment)?
4. If Rule 53 or some other rule had a more explicit view of the cir-
cumstances in which a special master may be appointed or of the
functions that a special master may perform, would that have
changed anything that you did or refrained from doing in this case?

Activity—Pretrial Level (If applicable)
1. What role, if any, did the special master play in the pretrial process
(e.g., supervising discovery, facilitating settlement, general pretrial
management and scheduling, deciding special issues (such as ac-
counting or Markman issues in a patent case))?
2. Did you establish any special procedures for implementing that role
(e.g., authorizing the special master to conduct hearings regarding
discovery disputes, or authorizing a settlement master to order the
parties to attend settlement conferences, to impose confidentiality
constraints on participants, etc.)?
3. How useful would it have been to have a national rule regarding such
matters?
Activity—Trial Level (If applicable)

1. Did the special master issue a report? Did you require the special
master to produce a draft report, as permitted by Rule 53(e)(5)?
2. Did any of the parties object to any part of the report? Did the par-
ties file their objections within the ten-day period provided by Rule
53(e)(2) for non-jury actions?
3. Were the procedures and standards for reviewing the report clear and
suitable for this case? If not, would changes in Rule 53 (or any other
rule) help to clarify the review process?
4. Was the report used at trial? How was it presented to the jury? What
problems, if any, did you, the parties, or the jury experience in using
the report at trial? Did you ask for a stipulation regarding the finality
of the special master’s findings of fact, as permitted by Rule 53(e)(4)?
Did the parties so stipulate?
Activity—Posttrial Level (If applicable)

1. What role did the special master play in the posttrial process (e.g.,
administering a settlement, monitoring enforcement of a court or-
der)?
2. Did you establish any special procedures for implementing that role
(e.g., authorizing the special master to establish an office, hire staff
and experts, develop forms and notices, receive complaints)? How

useful would it have been to have a national rule regarding such
matters?
Activity—General
1. What, if any, guidelines did you give the special master and the par-
ties regarding ex parte communication between the master and a
party to the litigation? Was ex parte communication necessary be-
cause of the special master’s role (e.g., as settlement facilitator or as
monitor of enforcement of an order)? If so, did you invoke any spe-
cial rules or procedures regarding such communications (e.g., that
settlement communications be held in confidence, that complaints of
a violation of the court’s order be reduced to writing or otherwise
communicated to the defendant)? Did the parties consent to ex parte
communications?
2. Did you communicate with the special master outside of the pres-
ence of the parties? If so, what, if any, procedures did you establish to
inform the parties about such communications? Did the parties con-
sent to such communications?
3. Did any problems or questions arise regarding such communications?
If so, what was the nature of any problem or question? If problems or
questions arose, would clear rules on this subject have helped? If so,
what should the rules be?
4. If more than one adjunct was appointed, or if part of the case was
referred to a magistrate judge, how did you divide responsibility be-
tween the special master and the other adjunct(s) or the magistrate
judge? How well did that division of responsibility work?
5. What, if any, (other) problems did you encounter in relation to the
special master’s activity?
Effectiveness
1. How effective was the special master in meeting the goals and ex-
pectations you described in response to my first question? What dif-
ference did the appointment make in the litigation? Was the litiga-
tion faster and cheaper because of the special master? How did the
special master’s activity compare to what you might have been able
to do without a special master?

2. What, if any, drawbacks or limitations did the appointment present?
3. With the benefit of hindsight, what would you have done differently
regarding this appointment?
4. On the whole, did the benefits of the appointment outweigh any
drawbacks, or vice versa?
Alternatives
1. In this case, or in any similar type of case, did you consider and reject
the idea of appointing a special master? Why? Were the limits on the
authority to appoint a factor?
2. In cases that are complex (and perhaps the same case type as the
study case) and in which you have not appointed a special master,
what alternatives have you pursued? Have you adopted any special
case-management procedures for such cases?

Appendix D-2
Special Master Interview Protocol
Case:
Special Master’s name:
Special Master’s title:
Date of interview:

Appointment
1. What is your understanding of why Judge _______ decided to ap-
point a special master in this case (e.g., a party’s motion, the de-
mands of the case on the court’s time, the complexity of the case, the
factual uncertainties, the need for special expertise, the desire to fos-
ter acts that do not fit the judicial role, such as investigating, negoti-
ating, or enforcing)?
2. If you know, what, if anything, about this case distinguished it from
any other _______________ (nature of suit) cases in which, in your
experience, judges have not appointed a special master?
3. Before this appointment, had you ever served as a special master with
this judge? With other judges? Have you served as special master in
any other cases after you were appointed in this case?
ant) did the judge appoint or consider appointing in this case? If the
judge considered but did not appoint other adjuncts, why do you
think the judge decided not to make such an appointment?
115
5. [If not a magistrate judge] In this case, how was your rate of com-
pensation, any caps on total payments, and the source of payment
determined? Were costs shifted to the losing party at the end of the
case?
Authority
1. What authority did the judge appear to have considered in making
the appointment (rule, statute, inherent authority, none)?
2. Did the authority relied on support the roles you played in the case?
If your appointment was under Rule 53 for activity at the pretrial or
posttrial stage, did Rule 53’s lack of explicit authority for such activ-
ity lead to challenges to any of your activities? Did that lack of ex-
plicit authority cause you, as master, to define your role in ways you
would not if left free?
3. If your appointment was under Rule 53, did the restrictiveness of
that rule’s reference to “exceptional circumstances” lead to challenges
to any of your activities or appeals or talk of appeals on those
grounds? Did the reference to “exceptional circumstances” cause you,
as master, to define your role in ways you would not if left free?
changed anything that you did or refrained from doing in this case?

1. What role, if any, did you play in the pretrial process (e.g., supervis-
ing discovery, facilitating settlement, general pretrial management
and scheduling, deciding special issues (such as accounting or Mark-
man issues in a patent case))?
2. Did the judge establish any special procedures for implementing that
role (e.g., authorizing you to conduct hearings regarding discovery
disputes, to order the parties to attend settlement conferences, or to
impose confidentiality constraints on participants, etc.)?
3. If no special procedures were in place, would it have been helpful to
have had such special procedures? Did any questions arise as to your

authority to take certain steps? How useful would it have been to
have a national rule regarding such matters?

1. Did you issue a report? Did the judge require you to produce a draft
report, as permitted by Rule 53(e)(5)?
2. If you issued a report, did any of the parties object to any part of the
report? Did the parties file objections within the ten-day period pro-
vided by Rule 53(e)(2) for non-jury actions?
4. Was the report used at trial? If so, how was it presented to the jury?
What problems, if any, did you, the judge, the parties, or the jury ex-
perience in using the report at trial? Did the judge ask for a stipula-
tion regarding the finality of your findings of fact, as permitted by
Rule 53(e)(4)? Did the parties so stipulate?

1. What role did you play in the posttrial process (e.g., administering a
settlement, monitoring enforcement of a court order)?
role (e.g., authorizing you to establish an office, hire staff and ex-
perts, develop forms and notices, receive complaints)?
3. If no special procedures were in place, would it have been helpful to
have had such special procedures? Did any questions arise as to your
authority to take certain steps? How useful would it have been to
have a national rule regarding such matters?
Activity—General
1. How did you obtain the information necessary to carry out your as-
signed duties? Did your duties require that you speak with one or
more of the parties separately (e.g., to mediate a settlement or to re-
ceive complaints about failure to comply with the court’s order)?

2. What, if any, guidelines did the judge give you and the parties re-
garding ex parte communication with the parties (e.g., that settle-
ment communications be held in confidence, that complaints of a
violation of the court’s order be reduced to writing or otherwise
communicated to the defendant)? Did any of the parties object to
such guidelines?
3. Did you communicate with the judge outside the presence of the
parties? Did the parties consent to such communications? Did they
seem to care?
4. Did any problems or questions arise regarding your communications
with the parties or the judge? If so, what was the nature of any prob-
lem or question? If problems or questions arose, would clear rules on
this subject have helped? If so, what should the rules be?
5. If more than one adjunct was appointed or part of the case was re-
ferred to a magistrate judge, how did you divide responsibility with
the other adjunct(s) or the magistrate judge? How well did that divi-
sion of responsibility work? [If the interviewee is a magistrate judge,
what impact did the appointment have on your ability to perform
other assignments for the court?]
6. What, if any, (other) problems did you encounter in relation to your
activity in the case?
Effectiveness
1. How clear was the judge in communicating the goals of the ap-
pointment in the initial order of appointment or otherwise? How
available was the judge to clarify the goals of the appointment as the
case progressed?
2. What difference did your appointment make in this litigation (if you
can tell)? Was it faster and cheaper than similar cases?
3. What were the drawbacks or limitations of appointing a special
master in this litigation?
4. With the benefit of hindsight, what suggestions would you make
regarding whether an appointment should have been made in this
case or whether the terms of the assignment should have been differ-
ent?

5. On the whole, did the benefits of the appointment in this case out-
weigh any drawbacks, or vice versa?
Alternatives
1. In your experience with this type of case, what alternatives does a
judge have to appointing a special master to perform the functions
you performed?
2. Are there any special case-management approaches that you would
suggest for such cases?

Appendix D-3
Attorney Interview Protocol
Case: ___________________________
Attorney’s name:
Date of interview:

Appointment
1. How did the subject of appointing a special master come up first
(e.g., a party’s motion or suggestion, the demands of the case on the
court’s time, the complexity of the case, the factual uncertainties, the
need for special expertise, the desire to foster acts that do not fit the
judicial role, such as investigating, negotiating, or enforcing)?
2. What, if anything, about this case distinguished it from any other
____________ (nature of suit) cases in which, in your experience,
judges have not appointed a special master?
3. (If a special master was appointed), what do you think motivated the
judge to appoint a special master in this case? (If the judge decided
not to appoint), what do you think were the reasons?
4. What role, if any, did the parties play in identifying the master who
was appointed? If you played a role, how was this implemented? Did
your client support or oppose the appointment? Do you have an im-
pression of what might have influenced the judge’s selection of a
master other than party suggestions?
5. Did you present any arguments for or against appointment of a
magistrate judge? Why or why not?
121
ant) did the judge appoint or consider appointing in this case? If the
judge considered but did not appoint other adjuncts, why do you
think the judge decided not to make such an appointment?
7. How did the judge determine the rate of compensation, any caps on
total payments, and who should pay it? Who paid? What was the
approximate cost to your client of the special master appointment?
Were the special master’s costs shifted at the end of the case?
Authority
1. What authority did the judge appear to have considered in making
the appointment (rule, statute, inherent authority, none)?
2. Did the authority cited provide support for the precise function the
special master was to perform? If the appointment was under Rule 53
and contemplated activity at the pretrial or posttrial stage, did Rule
53’s lack of explicit authority for such activity lead you to consider
challenging the judge’s or special master’s authority? On the other
hand, did the lack of explicit authority unduly narrow the master’s
role?
3. Did Rule 53’s reference to “exceptional circumstances” lead you to
consider challenging the judge’s or special master’s authority? On the
other hand, did the reference to “exceptional circumstances” unduly
narrow the master’s role?
changed anything in this case? Specifically, would you have sought
an appointment for functions that were not covered under the cur-
rent rule?

1. What role, if any, did the special master play in the pretrial process
(e.g., supervising discovery, facilitating settlement, general pretrial
management and scheduling, deciding special issues (such as ac-
counting or Markman issues in a patent case))?

role (e.g., authorizing the special master to conduct hearings regard-
ing discovery disputes, or authorizing a settlement master to order
the parties to attend settlement conferences, to impose confidential-
ity constraints on participants, etc.)?
matters?

1. Did the special master issue a report? If so, did the special master
produce a draft report, as permitted by Rule 53(e)(5)?
2. If the special master issued a report, did you or any of the parties ob-
ject to any part of the report? Did you or your opponent file objec-
tions within the ten-day period provided by Rule 53(e)(2) for non-
jury actions?
4. Was the report used at trial? How was it presented to the jury? What
problems, if any, did you, your opponent, the judge, or the jury ex-
perience in using the report at trial? Did you offer or agree to stipu-
late regarding the finality of the special master’s findings of fact, as
permitted by Rule 53(e)(4)?

1. What role did the special master play in the posttrial process (e.g.,
administering a settlement, monitoring enforcement of a court or-
der)?
role (e.g., authorizing the special master to establish an office, hire
staff and experts, develop forms and notices, receive complaints)?
matters?

Activity—General
1. What, if any, guidelines did the judge establish regarding ex parte
communication between the special master and a party to the litiga-
tion? Was ex parte communication necessary because of the special
master’s role (e.g., as settlement facilitator or as monitor of enforce-
ment of an order)? If so, did the judge invoke any special rules or
procedures regarding such communications (e.g., that settlement
communications be held in confidence, that complaints of a violation
of the court’s order be reduced to writing or otherwise communicated
to the defendant)? Did you and your client consent to such ex parte
communications?
2. Did the judge communicate with the special master outside the pres-
ence of the parties? Did you/your client consent to such communica-
tions? If not, would you/your client have consented, if asked to do
so?
3. What, if any, communications did you or your adversary have with
the special master? Did any problems or questions arise regarding
such communications? If problems or questions arose, would clear
rules on this subject have helped? If so, what should the rules be?
4. If more than one adjunct was appointed or part of the case was re-
ferred to a magistrate judge, how did the judge divide responsibility
between the special master and the other adjunct(s) or the magistrate
judge? How well did that division of responsibility work?
5. What, if any, (other) problems did you encounter in relation to the
special master’s activity?
Effectiveness
1. How effective was the special master in meeting the purposes and
goals of the appointment (e.g., facilitating settlement, planning dis-
covery, resolving discovery disputes, finding facts, enforcing a decree,
administering a settlement)? Was the case handled faster and
cheaper because of the appointment? How did the special master’s
activities compare with what a judge might have been able to do?
2. How well did the special master’s activities meet your client’s goals
and expectations? Were there any unexpected advantages or disad-

vantages? What difference did the appointment make in this litiga-
tion?
3. What, if any, drawbacks or limitations did appointing a special mas-
ter contribute to this litigation?
4. With the benefit of hindsight, what suggestions would you make
regarding whether an appointment should have been made in this
case or whether the terms of the assignment should have been differ-
ent?
5. On the whole, did the benefits of the appointment outweigh any
drawbacks, or vice versa?
Alternatives
1. In this case or any similar type of case did the judge or the parties
consider and reject the idea of appointing a special master? Why?
Were the limits on the authority to appoint a factor?
2. In cases that are complex (and perhaps the same case type as the
study case) and in which the judge has not appointed a special mas-
ter, what alternatives did the court pursue in managing the litigation?
Did the court or the parties adopt any special case-management pro-
cedures for such cases?
Local Practices
1. How frequently are special masters used in a ______________ case
in the state courts of _______________ (state in which federal court
is located)?
2. Is a special master more likely to be appointed in state or federal
court in a case like this (if the case is a type that might be filed in ei-
ther court)?

The Federal Judicial Center
Board
The Chief Justice of the United States, Chair
Judge Stanley Marcus, U.S. Court of Appeals for the Eleventh Circuit
Judge Pauline Newman, U.S. Court of Appeals for the Federal Circuit
Chief Judge Jean C. Hamilton, U.S. District Court for the Eastern District of Missouri
Senior Judge Robert J. Bryan, U.S. District Court for the Western District of Washington
Judge William H. Yohn, Jr., U.S. District Court for the Eastern District of Pennsylvania
Judge A. Thomas Small, U.S. Bankruptcy Court for the Eastern District of North Carolina
Magistrate Judge Virginia M. Morgan, U.S. District Court for the Eastern
District of Michigan
Leonidas Ralph Mecham, Director of the Administrative Office of the U.S. Courts
Director
Judge Fern M. Smith
Deputy Director
Russell R. Wheeler
About the Federal Judicial Center
The Federal Judicial Center is the research and education agency of the federal judicial system. It
was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judi-
cial Conference of the United States.
By statute, the Chief Justice of the United States chairs the Center’s Board, which also includes
the director of the Administrative Office of the U.S. Courts and seven judges elected by the Judicial
Conference.
The Director’s Office is responsible for the Center’s overall management and its relations with
other organizations. Its Systems Innovation & Development Office provides technical support for
Center education and research. Communications Policy & Design edits, produces, and distributes all
Center print and electronic publications, operates the Federal Judicial Television Network, and
through the Information Services Office maintains a specialized library collection of materials on
judicial administration.
The Judicial Education Division develops and administers education programs and services for
judges, career court attorneys, and federal defender office personnel. These include orientation semi-
nars, continuing education programs, and special-focus workshops. The Interjudicial Affairs Office
provides information about judicial improvement to judges and others of foreign countries, and
identifies international legal developments of importance to personnel of the federal courts.
The Court Education Division develops and administers education and training programs and
services for nonjudicial court personnel, such as those in clerks’ offices and probation and pretrial
services offices, and management training programs for court teams of judges and managers.
The Research Division undertakes empirical and exploratory research on federal judicial proc-
esses, court management, and sentencing and its consequences, often at the request of the Judicial
Conference and its committees, the courts themselves, or other groups in the federal system. The
Federal Judicial History Office develops programs relating to the history of the judicial branch and
assists courts with their own judicial history programs.

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Special Masters’ Incidence

Thomas E. Willging, Laural L. Hooper,

Federal Judicial Center

This Federal Judicial Center publication was undertaken in furtherance

1. Fed. R. Civ. P. 53(a).

II. Executive Summary

2 Special Masters’ Incidence and Activity

A. Incidence: How much activity is enough to justify amending

Special Masters’ Incidence and Activity 3

4 Special Masters’ Incidence and Activity

Special Masters’ Incidence and Activity 5

6 Special Masters’ Incidence and Activity

D. How was ex parte communication handled?

Special Masters’ Incidence and Activity 7

E. Did special masters fulfill the goals and expectations of their

8 Special Masters’ Incidence and Activity

Special Masters’ Incidence and Activity 9

10 Special Masters’ Incidence and Activity

G. What rule changes do judges, special masters, and lawyers

Special Masters’ Incidence and Activity 11

H. Summary and conclusions

III. Research Design and Questions

12 Special Masters’ Incidence and Activity

Special Masters’ Incidence and Activity 13

14 Special Masters’ Incidence and Activity

V. Findings and Discussion

12. Fed. R. Civ. P. 53(a).

Special Masters’ Incidence and Activity 15

16 Special Masters’ Incidence and Activity

1. Incidence defined and explained

Special Masters’ Incidence and Activity 17

18 Special Masters’ Incidence and Activity

2. A technical explanation of confidence intervals and representativeness

Special Masters’ Incidence and Activity 19

20 Special Masters’ Incidence and Activity

B. Appointment of special masters

Special Masters’ Incidence and Activity 21

22 Special Masters’ Incidence and Activity

Special Masters’ Incidence and Activity 23

24 Special Masters’ Incidence and Activity

Special Masters’ Incidence and Activity 25

26 Special Masters’ Incidence and Activity

2. Origin of special master appointments

Special Masters’ Incidence and Activity 27

3. Opposition to proposed special master appointments

Judges were significantly more likely to grant a motion or affirm a

28 Special Masters’ Incidence and Activity

4. Role of consent in special master appointments

Special Masters’ Incidence and Activity 29

5. Outcomes of motions and sua sponte orders of appointment

30 Special Masters’ Incidence and Activity

6. Authority cited in orders of appointment

Special Masters’ Incidence and Activity 31

We searched for evidence of reliance on inherent authority. We hy-

32 Special Masters’ Incidence and Activity

7. Effects of limited authority for appointment

Special Masters’ Incidence and Activity 33

34 Special Masters’ Incidence and Activity

8. Methods for selecting special masters

Special Masters’ Incidence and Activity 35

In seven (11%) of sixty-four appointments, documents indicated that

36 Special Masters’ Incidence and Activity

Special Masters’ Incidence and Activity 37