For healthcare entities seeking to avoid costly and time-consuming court battles, Alabama’s Private Judging Act could be the answer. Effective for over a year now, the Alabama legislature passed the Act in July 2012, allowing parties involved in state civil or domestic litigation to hire a qualified retired or former judge to try their cases.

It’s been slow to catch on. “As far as I know, no civil case has been tried under the Act,” says Scott Vowell, a retired Jefferson County circuit judge now at Vowell and Goldsmith. He was one of the first to hang out his shingle as a private judge.

Vowell says domestic relations cases have already utilized the law. “I think one of the issues for civil cases is getting the lawyers used to the idea, and also both sides have to be willing to waive the trial by jury and that makes people a little nervous,” he says. “One side would be more likely to want to retain that option.”
 
But advantages do arise from procuring a private judge. The waiting time no longer depends on the court system. “Unlike an actively serving judge, a private judge doesn’t have hundreds of pending cases,” Vowell says. That can dramatically cut lawyer costs as well as time away from the medical practice. “The advantage is that you can get a trial as quickly as the participants are ready.”

The litigants also get to choose the judge. To qualify as a private judge, the judge must have served at least one full six-year term of office and cannot be currently serving on the bench. They must also be an active member of the Alabama State Bar and qualified by the Alabama Center for Dispute Resolution.

“This means litigants can choose a retired judge who may have some special expertise which makes them particularly well suited to resolve the issues in their case,” Vowell says. Currently, the Alabama Center for Dispute Resolution lists 31 qualified private judges throughout the state.

Utilizing judges with an understanding of healthcare provider concerns could present an advantage. And unlike some other arbitration options, private judging cases still retain their right to appeal. “If you arbitrate a case, like in nursing-home cases, there’s no real chance for an appellate review. Parties are pretty well stuck with the outcome. But in private judging, you can have the judge’s decision appealed,” Vowell says.

Also, unlike with arbitration, during private judging proceedings, the Alabama Rules of Civil Procedure and the Alabama Rules of Evidence still apply to the case. At the conclusion, the judge enters a final judgment that can be reviewed by the appellate courts, just like any other final judgment. “You’re still bound by all the rules of civil procedure and evidence, so that also gives lawyers a sense of certainty they don’t have in arbitration cases,” Vowell says. “Essentially, the trial is exactly the same as a regular trial.”

One big difference would be the cost of hiring the judge. “There’s no fixed rule for the fee,” Vowell says. “It’s whatever the special judge and attorneys who hire him agree to. It’s starting out about the same as the hourly rate a mediator would charge.”

For some cases, the ability in private judging cases to hold the trial in private quarters away from the exposed venue of a public courtroom could be highly appealing. “You do lose that security of the courthouse, but if you have very high feelings and emotions in a case, you could find an unused courtroom to engage,” Vowell says.

Vowell says he could see private judging as useful in almost any legal dispute involving a healthcare provider. “I think it would be ideal for complex medical malpractice cases, especially with a judge who has experience trying those cases,” he says, though the right to a jury might interfere in some of those situations.

For cases where discretion reigns as a primary concern by both parties involved, private judging could be ideal. “It would be a great advantage in business disputes among medical partners where they would not want to air that situation in a public court hearing,” Vowell says.

A common criticism of the judge-for-hire option concerns the risk of creating an elitist judicial system available only to those who can afford it. But Vowell says it’s more like a pressure release valve on an overburdened and underfunded state court system. “What it’s really doing is taking more complex or technical civil cases out of the system, so you’re loosening up the system for all other cases.”

Basically, says Vowell, private judging should be viewed as an additional option in alternative dispute resolution. “We have mediation and arbitration, and this just goes a step further to resolve disputes outside the formal court system,” he says. California has been employing private judging for more than 30 years and at least five other states allow it as well, including Colorado, Indiana, Florida, Texas and Ohio.

But Vowell knows this level of break from tradition will be a slow transition for the Alabama legal system. “It’s a matter of educating the Bar about it and getting people used to it. The court system is inherently conservative and things are slow to change.”