Helpful Tips for The Practitioner: 1-5

1. “Magistrates” have replaced “masters” in Florida state courts. Effective October 1, 2004, the Supreme Court of Florida amended Rule 1.490, Rule 12.492 and Rule 5.697 so that all references to “master” thereafter became “magistrate.” “Special masters” became “special magistrates.” The change was essentially administrative and cosmetic.

2. Rules governing appointment of special magistrates. At the state court level in Florida, the appointment of special masters in civil cases is now governed by: Rule 1.490 of Florida Rules of Civil Procedure; Rule 12.492 of the Florida Family Law Rules of Procedure; and Rule 5.697 of the Florida Probate Rules. At the federal level, appointment is governed by Rule 53 of the Federal Rules of Civil Procedure.

3. Federal Rule 53 continues to use the term “master” but has abandoned the term,” special master.” A careful reading of Rule 53, however, suggests that Rule 53 uses “master” synonymously with the historic term “special master.”

4. Under Rule 1.490(c) and Rule 12.492(b) no reference may be made to a special magistrate without the consent of the parties. Several Florida appellate decisions have held lack of consent fatal to the appointment of a special master. Mandamus is appropriate to correct a trial court’s referral without consent.

5. On the face of Probate Rule 5.697, there is no requirement for consent by the parties to the appointment of a special magistrate, and as yet there are no appellate decisions addressing this point.

- Howard R. Marsee

hrmarsee@cfl.rr.com

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