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Birmingham Bar Association Bulletin Fall 2015

Private Judging Retired Judge R.A. “Sonny” Ferguson, Jr., Christian & Small Your Day In Court: Sooner or Later To the parties litigating, nothing is more important than having their legal matter concluded sooner rather than later. Having said that, one should always be ready to go forward with settlement of the trial of their case by completing their discovery. So, what can you do to conclude your legal matters? I am reminded of a recognizable ad campaign several years ago for a particular oil filter: “You can pay me now or you can pay me later.” Does it sound familiar? The ad attempted to imply that the consumer could either get work done sooner for less money or wait until more serious issues surfaced and have to pay more money down the road. In some respects, that ad can be tied into the concept of using a Private Judge. In 2012, the State of Alabama passed what is known as the Private Judging Act, Act. No. 2012-266 and Codified at §12-17-350 et seq. with an effective date of July 1, 2012. Now, almost three years later, said Act has received little attention, and for the most part few lawyers and their clients have heard about Private Judging – much less know how it can work for them. Here is a quick summary: the parties and their lawyers can opt to use a Private Judge sooner rather than waiting to get their day in Court on some date in the future. So, if this is such a good option, why is it not being used on a regular basis and why do lawyers, much less their clients, not know about this option? As one of the authors of the Act and now a retired judge, I can only speculate as to the reason for its slow acceptance. One reason, and I think the most important one, is that not many lawyers know that it is available. That is somewhat surprising inasmuch as there have been articles published in the Birmingham News, the Birmingham Bar Bulletin and the Alabama Lawyer. In addition to educational information among lawyers, there are many judges in this state who are not familiar with the Act and how it can help to move their dockets. As a former judge, I would have welcomed this process because it would have eased an already-crowded docket. So, here are some frequently asked questions about the use of a Private Judge in Alabama: 1. What is a Private Judge and what are the qualifications? A. A Private Judge is a person qualified to act as a judge of a case. B. Qualifications are: (1) Have been but not currently serving as judge of a District or Circuit Court; (2) A former judge for at least six (6) consecutive years; (3) Be admitted to practice law in Alabama; (4) Be an active member in good standing of the Alabama State Bar; (5) Be a resident of Alabama; 2. What type of cases can be heard by a Private Judge? A. All domestic relations cases; B. Contract cases; C. Tort cases; D. Combination of contract and tort cases; E. No utilities cases or cases in which the State of Alabama is a party; F. “A” through “D” are non-jury cases; 3. How do you select a Private Judge? A. A Private Judge who has met the qualifications must register with the director of the Alabama Center for Alternative Dispute Resolution. B. A roster of qualified judges will be published and made available to the public and all actively-serving judges in the state. C. The parties shall select a judge from the roster, with that judge’s consent, and submit a motion for appointment with the Circuit Clerk in which said case is pending and the Presiding Judge shall enter the Order of Ap- 16 Birmingham Bar Association


Birmingham Bar Association Bulletin Fall 2015
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