COVID19 Options Within Litigation – Judge Pro Tempore and Commissioner in Chancery

Catherine Croft

The Commonwealth of Virginia has slowly begun its phased reopening. And the courts of Prince William County are beginning to phase more in-person matters back into the courthouse. The courts have started allowing counsel to argue more pretrial motions. They have implemented a plan to start allowing multi-day trials to again be scheduled, beginning July 13, 2020. There is likely to be a huge influx of cases being scheduled for trial, causing a tremendous backlog of cases. Parties will be lucky to have their multi-day trials heard by a sitting judge within the next six months.

The reality of the matter is that many of our cases requiring litigation will go unresolved by the court for months, if not a year or more. As such, we want to provide our clients with other viable options for cases that require litigation. Alternative dispute resolution methods such as mediation and negotiation may not be an option for our more complex and contentious cases. That does not mean, however, that these cases are limited to the normal route of trial by a sitting judge. Judges pro tempore and commissioners in chancery are two other individuals who may be right to hear your case. And – they may be able to do so much sooner than any sitting judge.

Judges Pro Tempore

The first alternative to having a case heard by a sitting judge is to request a judge pro tempore be appointed to the matter. A judge pro tempore is a citizen of the Commonwealth of Virginia and is licensed to practice law in Virginia. Typically, a retired judge or a highly experienced trial attorney will serve as a judge pro tempore when needed. Judges pro tempore may be appointed by the court when the court itself is disqualified to hear the given matter or when the court is “unable for any reason to try the same.” Va. Code Ann. §17.1-109 (1950).

Parties who seek to have a judge pro tempore appointed to hear their case will be required to enter into a stipulation to have the judge pro tempore try the case. Both parties must agree to the stipulation in order to proceed. The judge pro tempore takes an oath and tries the case to the same standards as a sitting judge. A judge pro tempore has the same authority and duty to the case as if he were a regularly elected, sitting judge. Va. Code Ann. §17.1-110 (1950). At the conclusion of a case, the judge pro tempore will issue its ruling and enter a final order, just as a sitting judge would. This order is as binding as if it were issued by a seated judge.

Commissioner in Chancery

The second alternative to litigating in front of an elected judge is to call upon a commissioner in chancery. A commissioner in chancery is an individual to whom the court has the ability to refer matters. Commissioners in chancery are appointed to cases through the agreement of the parties, with the concurrence of the court. Commissioners may also be appointed via motion from a party or the court, sua sponte, for good cause shown. Va. Code Ann. §8.01-607 (1950). A commissioner in chancery is charged by the court to hear the issues and evidence. The commissioner is ultimately to provide the court with a report encompassing its findings of fact and conclusions of law. Rules of Supreme Court of Virginia, Rule 3:23.

At the conclusion of a case, the commissioner’s report is submitted to the court. It is then the court’s responsibility to accept the commissioner’s report, reject it, or modify it; “[w]hen a court refers a cause to a commissioner in chancery, it does not delegate its judicial functions to the commissioner…. Rather, the court must review the evidence, apply the correct principles of law, and make its own conclusions as to the appropriate relief required.” Dukelow v. Dukelow, 2 Va. App. 21 (1986). While the commissioner in chancery is charged with initially investigating the case and answering the questions the court refers to it, the court still maintains a roll of judicial oversight.

Pros and Cons to Each Option

There are pros and cons to the use of both judges pro tempore and commissioners in chancery. There is potential for a case to come to its conclusion more quickly through one of these alternatives. But both options require the parties to bear a financial burden; it is on the parties to pay the fees associated with a judge pro tempore or commissioner in chancery’s services. Additionally, both parties must agree to the use of a judge pro tempore. Both parties must agree to the matter being referred to a commissioner in chancery, more often than not.

Sometimes agreement is not an easy thing to obtain from your opposing party in contentious matters. And even if the financial burden and agreement are not issues for your particular case, there is no guarantee that your case will be tried more quickly and efficiently by a judge pro tempore or a commissioner in chancery.


Generally speaking, judges pro tempore and commissioners in chancery have the potential to speed up the litigation process of a given case, especially given the current backlog of cases. While judges pro tempore can issue final rulings, commissioners in chancery must report their findings to the court. It is then on the court to issue a final ruling. Having your case referred to a commissioner in chancery may speed up the initial stages of the litigation process. However, the parties must still depend on the court, and its busy schedule, in order to reach the conclusion of their case.

The best chance of maintaining economic and temporal efficiency for your case is to enlist the services of a judge pro tempore. Often, you can find a retired judge willing to serve in this role. By enlisting such a judge pro tempore, you get the benefit of the retired judge’s knowledge and ability to issue a final ruling, while also having your case expedited.

Not every option is right for every case. We at Farrell & Croft, P.C. can help you to determine which options are most viable for your case and your priorities. We remain ready to serve you.

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