Tell It to the Rent-a-Judge

By Richard Lacayo

When TV Actress Valerie Harper and Lorimar Productions sued each other last year, it looked as if the case might drag on until 1992 before it even went to trial. After all, the Los Angeles court system is clogged with 150,000 new civil cases a year. But, instead, the mutual breach-of-contract suits -- a fallout from Harper's departure last summer from the NBC series Valerie -- went to trial together last week. The shortcut? With the blessings of the state court, both sides got together and hired a private judge. "I'm very happy to have my day in court so quickly," says Harper.

Former Los Angeles Superior Court Judge William Hogoboom, who is hearing the suits, is one of several hundred so-called rent-a-judges active across the nation. The judges, who are retired from the regular bench, preside for fees that usually range from $150 to $300 an hour. In many cases, they act merely as arbitrators or nonbinding mediators. But in California and in at least a dozen other states, they can also conduct proceedings -- like the Harper- Lorimar trial -- that have most of the trappings of regular court sessions, including depositions, witnesses and verdicts. The parties in the Harper- Lorimar dispute will jointly pay court costs of $15,000 a week, including $250 an hour for Judge Hogoboom. The case will be decided by a panel of jurors selected from the public jury rolls.

"More and more parties are agreeing to use the system," says Harper's attorney, Barry Langberg. The major reason is cost control. An early court date saves on attorney fees. So does the shorter proceeding that often results from special agreements between the two sides, such as a pact not to challenge the credibility of each other's expert witnesses. The parties can also select a judge with experience relevant to their case, instead of taking the randomly assigned jurists of the public courts.

The rent-a-judge option began in 1976 in California, the state that still accounts for more than half of all such proceedings. It is also the home of the country's most famous hired judge, Joseph Wapner of TV's People's Court, which is in effect a televised private proceeding. But the system has spread. Judicate, a Philadelphia-based network of some 450 judges, has handled nearly 800 cases this year in 34 states. In some of the states where hired judges can conduct virtual trials, the verdicts can also be reviewed by the regular appeals courts.

Where rent-a-judge trials are appealable, those involved contend that only about 5% to 10% of such cases are taken to a higher court. Because both sides have chosen the judge, "it is hard, even for the losing party, not to accept the decision," says William Polkinghorn, senior counsel for Bank of America, who takes part in about half a dozen such proceedings each year. Though popular first in contract and labor disputes, rent-a-judging has spread to malpractice, family law and other areas: 70% of Judicate's caseload involves personal-injury suits.

Critics of the rent-a-judge system call it Cadillac justice, which lets more affluent litigants evade the problems of the judicial system. "The elite abandoning a public system in decay ensures that it will never be improved," argues Robert Gnaizda of Public Advocates, a San Francisco public interest group. Critics also charge that rent-a-judging lures experienced jurists into early retirement to collect the combination of public pensions and private fees. Another complaint against private judging is that it lets corporations and other litigants shield their doings from public scrutiny. In normal civil- court proceedings, hearings are generally open to the press and public.

Skeptics, and supporters as well, say the growth of private judging is limited by the fact that it works mostly in the relatively small number of cases in which both parties want to come to agreement -- for example, in disputes between business partners who want to go on working together. But to keep growing, the private outfits continue to come up with new offerings. If either side in the Harper-Lorimar case is unhappy with the eventual verdict, for example, some of the rent-a-judge outfits have a new option they could always look into: rent-an-appeals-judge.

With reporting by Nancy Seufert/Los Angeles, with other bureaus