News Post

By Eileen Harris

The pandemic of 2020 has certainly posed challenges for our Alabama court system and contributed to a backlog of cases. This backlog creates a hardship for litigants in civil matters seeking resolution to their legal matters. Private judging offers a means for litigants to have their day in court while avoiding a potentially lengthy period of time.

Alabama’s Private Judge Acts allow parties to hire qualified former judges to hear certain types of cases and make decisions, bypassing the court system to streamline the process. Private judges may preside over a case in which the former judge served would have had subject matter and monetary jurisdiction. These are cases which have a CV or DR case number by the Alabama Administrative Office of Courts.[1]

Who Are Private Judges?

Private judges (1) have been, but are not actively serving as, a judge of a district, circuit, or probate court and have served in the capacity of judge for at least six consecutive years; (2) are admitted to the practice of law in Alabama; (3) are active members in good standing of the Alabama State Bar; and (4) are residents of Alabama.[2]

How Do I Find a Private Judge?

Private judges must register with the Alabama Center for Dispute Resolution per Ala. Code § 12-11A-2(a). Litigants may search for a private judge by name, location, and/or subject matter by visiting the center’s website at www.alabamaadr.org.

How Can I Get My Case Before a Private Judge?

The process is not as complicated as one would think.

All parties to the action file a written petition with the circuit clerk of the court where the action is pending requesting a private judge and naming the person whom the parties wish to have serve as private judge. Accompanying the petition is a form signed by the private judge selected consenting to the appointment.[3]

The clerk forwards the petition to the presiding judge of the circuit who verifies that the former judge is registered with the Alabama Center for Dispute Resolution. The presiding circuit judge enters an order granting the petition and appoints the private judge selected by the parties.[4]

You may file a petition for appointment of a private judge in any proceeding contemporaneously with the filing of the action or any time after the action has been filed, but before the beginning of a trial.[5]

Private Judging Procedures

Trials conducted by private judges are without a jury.

The private judge has the same powers as the judge of the circuit court in relation to the following as set out in Ala. Code § 12-11A-4(b). These include:

• Court procedure,
• Deciding the outcome of the case,
• Attendance of witnesses,
• Punishment of contempt,
• Enforcement of orders,
• Administering oaths, and
• Giving all necessary certificates for the authentication of records and proceedings

Private judges have judicial immunity.[6] All proceedings in an action heard by a private judge are of record and must be filed with the clerk of the circuit court in the county of proper venue under the Alabama Rules of Civil Procedure and made available to the pubic in the same manner as circuit court records.[7]

The Alabama Rules of Civil Procedure apply for all actions brought before a private judge. The private judge maintains jurisdiction over all matters before him or her to the same extent as matters before a trial court, including all post-trial proceedings and subsequent proceedings between the same parties arising from the same case. An appeal from an action or a judgement of a private judge may be taken in the same manner as an appeal from the circuit court of the county where the case is filed.[8]

Are There Costs Associated with Hiring a Private Judge?

Yes. Per Ala. Code §12-11A-5, there is a filing fee required with every petition to appoint a private judge. Further, costs in an action heard by a private judge are taxed and distributed in the same manner as costs in the circuit court of the county where the case is filed.

There is also compensation of the private judge to consider. Private judges are compensated by the parties subject to the terms and conditions agreed to by the private judge and the parties. The contract for services must provide for the payment of the judge’s compensation, compensation of all personnel (for example, court reporters), and costs of all facilities and materials that are used in relation to the case and not otherwise covered. See Ala. Code § 12-11A-8.

When Will Your Case Be Heard?

A case may be heard at any time and at any place. The private judge and the parties have greater flexibility with scheduling the hearing. Private judges typically do not have a full docket to contend with which provides greater latitude for scheduling.

The private judge will provide the clerk of the court the dates, times, and places of any proceeding that could result in a judgment. The notice is provided to the clerk and entered in the clerk’s record at least three days before the proceeding is conducted.[9]

Private Judging in Alabama

Private judging in Alabama is one form of alternative dispute resolution (ADR) available to litigants. The Alabama Center for Dispute Resolution maintains the state court roster of registered private judges. Litigants may search for a private judge by name, location, and/or subject matter by visiting the center’s website at www.alabamaadr.org.

While the concept has been around since 2012, there hasn’t been widespread use of this resource. There were 19 private judges registered with the center at the end of 2020. Private judges reported 26 cases went to trial with two cases pending as of December 31, 2020.[10] The vast majority of cases tried by private judges have been in the realm of domestic relations according to the center’s statistics. If you have any questions, you may contact the center at assistant@alabamaadr.org or (334) 356-3802.

Conclusion

Private judging offers litigants a means by which their case may be heard timelier given the backlog of cases facing our courts as a result of the pandemic. Private judges do not have the concerns of a “full” docket and may be in a better position to hear the case. The result is the parties may have a decision sooner rather than later. Judge Scott Vowell, a registered private judge, noted, “…private judging provides a method of ADR which could be a good choice in certain civil litigation. It provides another alternative to litigation and to arbitration and helps the parties reach the goals of the Alabama Rules of Civil Procedure: to obtain a just, speedy, and inexpensive conclusion of their legal disputes.”[11]

Endnotes
[1] Ala. Code § 12-11A-2(b)(3).
[2] Ala. Code § 12-11A-2(a).
[3] Ala. Code § 12-11A-2(b)(1).
[4] Ala. Code § 12-11A-3(c).
[5] Ala. Code § 12-11A-3(d).
[6] Ala. Code § 12-11A-4(c).
[7] Ala. Code § 12-11A-4(d).
[8] Ala. Code § 12-11A-4(e).
[9] Ala. Code § 12-11A-7.
[10] As reported by registered private judges with the Alabama Center for Dispute Resolution 2020 year-end survey.
[11] The Alabama Lawyer, November 2018, “Update on Private Judging in Alabama,” J. Scott Vowell, p.404.