Resources are finite---overstretch causes proactive judicial shirking.

The third type of case is when resolution of certain issues requires either time or expertise the court simply does not have. Reviewing thousands of documents for privilege, or assessing numerous attorney fee petitions, is not the best use of a judge’s or law clerk’s time. A special master frees the court to focus on larger matters. It can also take an undue amount of time to read and understand patents and construe claims; accordingly, I have helped judges by recommending Markman rulings. The same is true with technical expert witness reports and Daubert rulings, and with monitoring compliance with complex consent decrees. Distilling the parties’ positions in these cases and supplying recommended rulings allows a judge (and chambers staff) to shorten tremendously their time spent deciding an issue, while still achieving finely tuned results. Judges who practice good time management must sometimes delegate tasks that would otherwise require excessive consumption of scarce judicial resources.

Speaking of judicial resources, I offer this final thought regarding a special master’s cost. It is an overstatement to say it is only fair that the more people use a resource, the more they should pay for it. This axiom makes sense regarding electricity; not so much regarding the federal court system. But judicial resources are finite. At some point, increasing caseloads detrimentally affect the level of service—and the correctness of justice—that our federal judges provide. If not using a special master means a judge has less time for other cases, then those other litigants effectively pay the price. Thus, when a court “considers the fairness of imposing the likely expenses” of a special master, that consideration should include the systemic fairness of not imposing those expenses, too.