Chris WIlmoth | Farrow-Gillespie & Heath LLP

Advantages of Trial by “Special Judge”

Under Chapter 151 of the Texas Civil Practices and Remedies Code, parties to any civil litigation, including probate litigation, may choose to retain a “Special Judge” instead of proceeding to trial before the court or a jury. In a 2015 article appearing in Headnotes, published by the Dallas Bar Association, Judge Marty Lowy (Former) analyzed the advantages of using a Special Judge for litigation:

“Advantages of a trial by special judge as compared to ordinary litigation include privacy, the ability to select a judge with experience suited to the case, and the ability to set the trial for a date certain without competing with other cases on the referring judge’s docket. The parties will avoid the expense of preparing—perhaps several times—for trial settings that do not pan out. The unpredictability and additional time and costs of trial by jury can be eliminated. If the entire case is referred to the special judge, there should be ready access to the judge for the resolution of discovery disputes and other pretrial matters.

As compared to arbitration, the principal advantages are that the special judge will try the case under all applicable statutes and rules, and that the parties’ rights of appeal are fully preserved. Many parties who have been through high-stakes arbitrations have found that the savings of time and money purportedly offered by arbitration are largely illusory. And it has become increasingly common for the losing party to engage in protracted litigation seeking to vacate the award, even though the grounds for vacating an award are extremely limited, and do not include errors of fact or law committed by the arbitrator(s).

Obviously, the cost of a trial by special judge is a factor to be considered. However, as indicated above, there can be offsetting savings derived from the certainty of the trial setting. The cost of a trial by special judge also should be comparable to the cost of arbitration with a single arbitrator, and will almost certainly be much less than arbitration before a panel.”

Using a Special Judge gives the parties the ability to streamline the proceedings, obtain a quicker judgment (appealable to the appeals court), and have a more predictable timeline to give to the client. It is a desirable “third path” to traditional litigation or arbitration.

Former district court judge Marty Lowy and FGHW partner and former probate judge Chris Wilmoth are both qualified to serve as Special Judge.