The appointment order is the fundamental document that establishes the judicial adjunct’s powers, limits, and responsibilities. This order is often referred to as an “order of reference.”
In all jurisdictions, a court has the authority to appoint a master if the parties consent. In some jurisdictions or in some cases, the court may only appoint a master to perform specific duties if all the parties consent. The issue of whether consent is necessary may depend upon the applicable law and what specific services the master will provide.
Federal Rule 53(a)(1)(a) empowers a judge to appoint a master to perform duties consented to by the parties. Rule 53(a)(1)(b) allows for an appointment of a master to conduct appropriate trial proceedings or to recommend findings of fact if an exceptional condition exists or there is a need to perform an accounting to resolve a difficult damage computation. And Rule 53(a)(1)(c) permits a master appointment to address pretrial and post trial matters in certain circumstances. Neither of the latter two subsections requires the consent of the parties, although a court may seek their agreement to an appointment.
In state court cases, the applicable law may or may not require consent, or an appellate decision may have decided whether consent is needed. A court usually has the power by applicable rule, statute, or judicial decision to appoint a special master. If a party does object, the duties of the master can be limited to those that are appropriate under the circumstances. If all parties object, the court may reconsider the appointment.
Judges, clerks, and attorneys will find these models useful in preparing appointment orders: