Hired Judges, Real Results: Why Lawyers Should Reconsider Voluntary Trial Resolution

Introduction

By any measure, the civil litigation docket of most court systems is overcrowded. Even in federal district courts, where resources are comparatively robust, high case volumes can shape everything from pretrial case management deadlines to the cadence of trial. In state trial courts, those pressures are even more acute.

Having spent years on the bench as a U.S. magistrate judge, and many more in the trenches as a litigator representing clients nationally, I have seen firsthand how delay, uncertainty, and procedural friction can distort the value and outcome of a case. Against that backdrop, Florida’s “voluntary trial resolution” statute — referred to colloquially as “private judging” — offers something both familiar and quietly transformative: a way to try a case before a qualified, hand-picked judge on the parties’ preferred timeline, without competing for the finite attention and resources of the public court system.

The statute, codified in Florida Statutes section 44.104, is not new. But few lawyers seem to have heard of it, and as a result, it is grossly underutilized relative to its potential. For lawyers and litigants willing and financially able to step outside the default public court system, private judging under this statute can deliver something exceedingly rare in modern litigation: control and speed.

What Is Florida’s Voluntary Trial Resolution Statute?

At its core, voluntary trial resolution is exactly what it sounds like. It is not alternative dispute resolution in the traditional sense. It is an actual adjudication by a privately retained adjudicator.

Under the statute, “[t]wo or more opposing parties who are involved in a civil dispute may agree in writing to submit the controversy to ... voluntary trial resolution, in lieu of litigation of the issues involved, prior to or after a lawsuit has been filed,” according to section 44.104(1). So the procedure can be invoked pre- and post-suit.

Certain types of cases are expressly excluded under section 44.104(1) and (14): (1) child custody, visitation, or child support disputes; (2) disputes involving the rights of a third party when the third party would be an indispensable party if the dispute were resolved in court; and (3) cases involving constitutional issues.

As part of their agreement, the parties must decide upon a method for appointing a Florida Bar member in good standing for more than five years to act as a trial resolution judge, as required by section 44.104(2). Once the parties agree, the statute directs that the trial court “shall proceed with the appointment as prescribed.” Section 44.104(4) further provides that, within 10 days after the request, the court must appoint the trial resolution judge.

By use of the word “shall,” the statute strongly suggests that the trial court lacks discretion to reject the parties’ agreement or appointment where the statutory requirements have been satisfied. At least one Florida intermediate appellate court decision supports that conclusion.

In Community/Condotte/De Moya JV v. Circuit Court Judge, the Third District Court of Appeal held that “the trial court’s views about the best and most expeditious method to resolve the dispute must yield to the parties’ legislatively given right to jointly agree to submit their case to a private judge,” emphasizing the mandatory nature of section 44.104(4).

Section 44.104(2) also provides that “[i]n the absence of an agreement, or if the agreement method fails or for any reason cannot be followed, the court, on application of a party, shall appoint ... the trial resolution judge, as the case requires.” Thus, where the parties have agreed to voluntary trial resolution but cannot finalize the appointment process or the agreed method of selection, the statute appears to authorize the court, upon a party’s application, to appoint the trial resolution judge.

How Private Judging Works Under Florida Law

Notably, the selected trial resolution judge does not function as a mediator or arbitrator. The judge is a qualified private lawyer selected by the parties who, for all practical purposes, presides over the agreed-upon issues or matter as permitted by the statute. Section 44.104(7) authorizes the trial resolution judge to “administer oaths or affirmations and conduct the proceedings as the rules of court shall provide.” The statute also authorizes the trial resolution judge to “issue subpoenas for the attendance of witnesses and for the production of books, records, documents, and other evidence and may apply to the court for orders compelling attendance and production.”

Further, the voluntary trial resolution proceeding itself looks and feels like a bench or jury trial. The statute requires the trial resolution judge to “conduct a voluntary trial resolution hearing” upon notice to the parties and provides that the trial resolution judge “may determine any question and render a final decision” under section 44.104(4) and (8). Although the statute itself does not speak directly to trial resolution judges’ ability to conduct jury trials, case law supports that they can. In Merritt v. OLMHP LLC, the Second District Court of Appeal affirmed a judgment entered following a jury trial conducted before a trial resolution judge. In any event, at all proceedings under the statute, “[t]he Florida Evidence Code shall apply,” according to section 44.104(9).

Are Private Judging Decisions Binding and Enforceable?

The results of voluntary trial resolution proceedings are not advisory. They are binding upon entry of judgment by the circuit court.

A final decision rendered in voluntary trial resolution proceedings may be enforced by any party “by filing a petition for final judgment in the circuit court in the circuit in which the voluntary trial took place,” under section 44.104(11).

Why Lawyers and Litigants Choose Private Judging

The short answer is threefold: control, speed, and confidence.

When parties agree to voluntary trial resolution, they step off the court’s calendar and onto their own. Hearing and trial dates are not set months or years out based on docket congestion. They are scheduled when the parties and the private judge are ready. Moreover, discovery and other pretrial disputes can be addressed in real time rather than through extensive motion practice that takes the public court system time to prioritize and resolve. The pace of the case becomes strategic and intentional rather than reactive. And proceedings can be scheduled over holidays and weekends for the convenience of the lawyers and litigants.

From the bench, I often watched litigants spend extraordinary resources fighting over everything from modest to more complex issues, not because the issues themselves necessarily demanded it, but because of inherent procedural inefficiency and delay. Private judging strips much of that away by affording the parties and the trial resolution judge greater flexibility and efficiency. The same rules of procedure may apply, and the same substantive law governs. But the administrative, procedural, and logistical friction that typically slows the progression of public court cases is substantially reduced in voluntary trial resolution proceedings.

There is also a human element that should not be underestimated. When parties select their judge, they choose someone they mutually trust to understand the subject matter and to manage the proceeding efficiently. That choice alone can increase confidence in the outcome. Even losing parties are more likely to accept a result when they believe the process is fair, focused, and competently administered.

What Type of Case Is Best Suited for Voluntary Trial Resolution?

Voluntary trial resolution is not appropriate for every case.

As a threshold matter, the parties must be able to afford it. Further, some disputes require the public forum of a courtroom, including those specifically excluded under section 44.104(1), such as cases involving constitutional issues.

Additionally, some litigants may prefer the default processes, even with their imperfections, or arbitration, even with its informality and more limited appellate review.

But voluntary trial resolution offers a compelling alternative in:

• Cases involving sophisticated, well-resourced parties who value expediency;
• High-stakes cases requiring regular judicial monitoring and frequent judicial intervention;
• Cases where the parties anticipate frequent discovery disputes that must be resolved quickly;
• Cases that can be trial-ready quickly without waiting for distant trial dates or revolving trial calendars;
• Cases — like trade secret disputes and sensitive employment disputes — where confidentiality is desired; and
• Cases where the judge having specialized expertise would be helpful.

What Does Private Judging Cost?

This is usually the first question — and a fair one — lawyers ask when considering the voluntary trial resolution option. Unlike a publicly funded judge, a trial resolution judge is paid by the parties. Under section 44.104(3), the trial resolution judge “shall be compensated by the parties according to their agreement.” In practice, that compensation is negotiated, most often on an hourly or daily basis, and typically shared equally unless the parties agree otherwise.

As with lawyer rates in general, trial resolution judge rates vary greatly based on the locality, experience, and subject-matter expertise of the person selected to serve as the judge. For example, a former judge with significant experience practicing in a major metropolitan area may command a premium. In contrast, a less senior but highly capable practitioner with no judicial experience practicing in a smaller legal community may warrant a lower rate. The market, as in most things, finds its equilibrium.

In negotiating rates with a prospective trial resolution judge, the parties can request a proposed budget, which provides an indication of the likely total spend through summary judgment proceedings and trial. This has the added benefit of forcing the parties and their counsel to think through each likely stage of the proceedings and how much time, effort, and additional expense they want to invest in each stage. For example, the parties may agree to complete discovery in two months instead of six, or the parties may agree that summary judgment motions are not needed, and the case can proceed directly to trial after the close of discovery.

Why Private Judging Can Reduce Overall Litigation Costs

At first glance, paying for a judge can feel like an added cost layered on top of already expensive litigation. But that framing is incomplete. Cost in litigation is not just about line items in a budget. It is also about duration, uncertainty, and the cost of missed opportunities for the parties.

A case that lingers for years accumulates expenses in ways that are not always obvious at the outset. Lawyers prepare for hearings and depositions that get continued. Experts revisit opinions as the factual record evolves. Business principals remain distracted by unresolved disputes. The carrying cost of litigation is not always quantifiable and can eclipse the value of the claims at issue.

Private judging’s primary benefit is that it compresses the timeline for case progression. When a case is tried in months rather than years, the total spend often decreases, even after accounting for the trial resolution judge’s fees. More importantly, the parties get to a result sooner. That has a certain psychological value that does not show up neatly on the budget or invoice.

In state court litigation, judicial reassignments are common and can create significant inefficiencies as a newly assigned judge invests the time to become familiar with the case. Agreeing to a trial resolution judge removes the possibility of judicial reassignment over the life cycle of the case, creating more stability in the process and reliability in the outcome.

In state courts where cases are placed on revolving trial calendars instead of being set for a date certain, private judging allows the parties to pick a specific date for the trial and minimize scheduling uncertainties and unwanted trial continuances.

There is also efficiency within the proceedings themselves. A private judge with a manageable docket can devote focused attention to the case. Hearings start on time. There are no cattle calls. Rulings are issued promptly because the private judge is held to account by the parties to a greater degree than public judges. The absence of backlog is not a luxury in voluntary trial resolution proceedings. It is a structural advantage.

What Appellate Rights Exist in Voluntary Trial Resolution Proceedings?

As it relates to appeals, the statute strikes a careful balance between finality and oversight.

Voluntary trial resolution is not arbitration, where appellate review is tightly constrained. A party dissatisfied with the result of a voluntary trial resolution may seek review in the appropriate intermediate appellate court, just as it would from a circuit court judgment. However, the scope of review is significantly limited. As the Second District Court of Appeal observed in Merritt, “[l]itigants who agree to the use of a voluntary trial resolution judge should be well-advised by their counsel of the ramifications of such an agreement.”

The statute provides that “[u]pon entry of final judgment by the circuit court, any party may appeal to the appropriate appellate court,” under section 44.104(11). With regard to the scope of review, the statute states that factual findings are not subject to appeal. The Third District Court of Appeal confirmed in Pardes v. Pardes that section 44.104(11) precludes appellate review of a trial resolution judge’s factual findings, as did the Second District Court of Appeal in General Star Indemnity v. West Florida Village Inn Inc.

Case law makes clear, however, that questions of law are reviewed de novo, as the Third District Court of Appeal explained in Witt v. La Gorce Country Club Inc. Further, the harmless error doctrine applies in all appeals under section 44.104(12). And “[n]o further review [is] permitted unless a constitutional issue is raised.”

In the absence of an appeal, section 44.104(13) states that the trial resolution judge’s decision “shall be referred to the presiding judge in the case, or if one has not been assigned, then to the chief judge of the circuit for assignment to a circuit judge, who shall enter such orders and judgments as are required to carry out the terms of the decision, which orders shall be enforceable by the contempt powers of the court and for which judgments execution shall issue on request of a party.”

Private Judging vs. Arbitration: Key Differences Under Florida Law

Is this an alternative to arbitration? It is. And in some cases, it is a better one.

Arbitration has long been marketed as faster and cheaper than litigation. In certain contexts, particularly where specialized expertise is needed, it can be. But arbitration has also developed its own complexities. And the more limited scope of appellate review of arbitration decisions can be unsettling to parties, especially in high-stakes cases.

Voluntary trial resolution offers a different path. It preserves the adjudicative framework of a trial, including the application of the rules of evidence, the preservation of the right to a jury trial, and the availability of meaningful appellate review. At the same time, it captures many of the efficiencies that might draw parties to arbitration in the first place.

Also, unlike some arbitrations, voluntary trial resolution proceedings involve the creation of a formal record (i.e., transcripts) just like regular public court proceedings.

The anchoring in familiar procedural and evidentiary rules can be a significant benefit. Lawyers know how to prepare and try cases in court. Voluntary trial resolution allows them to do so without abandoning the guardrails of the public judicial system.

Clients who are wary of arbitration’s perceived informality or limited review often find private judging to be a more comfortable alternative. It feels more like a traditional court because, in all the ways that matter, it is.

How to Select the Right Private Judge

Choosing a trial resolution judge may be the most important decision in the process.

Section 44.104(2) sets a baseline, requiring only that the person must be Florida Bar member in good standing for more than five years. Beyond that, the choice is left to the parties. That freedom is both an opportunity and a responsibility.

As a litigator who also serves as a private judge, I would approach the selection the same way I would approach any critical strategic decision. At a minimum, I would ask:

• What is the nature of the dispute? Does this judge have meaningful experience with the specific type of dispute involved?
• What is this judge’s reputation for decisiveness, efficiency, and case management?
• What is the judge’s reputation for moving cases along expeditiously?
• How does this judge approach temperament, courtroom management, and professionalism?
• What are the judge’s procedures, availability, and expectations?
• Is the judge likely to inspire confidence in the enforceability and legitimacy of the outcome?

Experience matters, but so does temperament. A judge who manages the proceeding efficiently, who rules decisively, and who commands the respect of counsel can make the difference between a process that delivers on its promise and one that does not.

Reputation in the legal community — particularly among members of the judiciary who might sit in review of the trial resolution judge’s decisions — is also a useful guide.

Many former judges — like me — now offer voluntary trial resolution services, and their prior judicial experience can be a significant asset, particularly when it comes to effective case management, procedural know-how, jury management, reputation with other judges, and decisiveness. But excellent private judges also come from the ranks of seasoned, skilled litigators who understand how to make decisions and try cases. Someone who has inhabited both roles — as a judge and a seasoned litigator — may be an ideal candidate.

Compatibility between counsel also plays a role. Because the selection is by agreement, the process itself can be a moment of collaboration. Choosing someone both sides respect can set the tone for the entire proceeding.

Closing Thoughts

Having seen the civil justice system from both sides of the bench, the draw of private judging is strong for the right kind of case, especially where the litigants have the means to pay for it. At base, the voluntary trial resolution statute gives lawyers and their clients an extraordinary tool to shape their own path to resolution. It says, in effect, that you do not have to wait. You do not have to accept delay as inherent and inevitable. You do not have to waive significant jury or appellate rights. You can choose your judge, set your schedule, get your pretrial motions heard, try your case, and obtain a final judgment that carries the full weight of the court and preserves meaningful appellate review. Those advantages can make a huge difference in overall cost and confidence in the outcome.