The ACAN Benchbook has for years collected and organized invaluable information for judges and lawyers regarding the best use of court-appointed neutrals. in 2022, ACAN changed its name from what had been the "Academy of Court-Appointed Masters" because "Court-Appointed-Neutral" better served and better described this incredibly diverse profession and ACAN is also working to try to change the name used in riles. However, neutrals appointed in accordance with Rule 53 of the Federal Rules of Civil Procedure and in many states are still referred to as "masters." The latest edition of the Benchbook dates from January 2020 and uses these historic terms. We intend to update the termination when the Benchbook is next revised.
The appointment order is the fundamental document that establishes the judicial adjunct’s powers, limits, and responsibilities. This order is often referred to as an “order of reference.”
In all jurisdictions, a court has the authority to appoint a neutral if the parties consent. In some jurisdictions or in some cases, the court may only appoint a master to perform specific duties if all the parties consent. The issue of whether consent is necessary may depend upon the applicable law and what specific services the master will provide.
Federal Rule 53(a)(1)(a) empowers a judge to appoint a neutral to perform duties consented to by the parties. Rule 53(a)(1)(b) allows for an appointment of a master to conduct appropriate trial proceedings or to recommend findings of fact if an exceptional condition exists or there is a need to perform an accounting to resolve a difficult damage computation. And Rule 53(a)(1)(c) permits a master appointment to address pretrial and post trial matters in certain circumstances. Neither of the latter two subsections requires the consent of the parties, although a court may seek their agreement to an appointment.
In state court cases, the applicable law may or may not require consent, or an appellate decision may have decided whether consent is needed. A court usually has the power by applicable rule, statute, or judicial decision to appoint a special master. If a party does object, the duties of the master can be limited to those that are appropriate under the circumstances. If all parties object, the court may reconsider the appointment.
Judges, clerks, and attorneys will find these models useful in preparing appointment orders: