The Ins And Outs Of Consensual Judicial References

This article summarizes key insights from “The Ins and Outs of Consensual Judicial References” by Matt Brady and Pauleen Truong, originally published by Law360 on June 2, 2025. Read the full article here.

In this article, attorneys Matt Brady and Pauleen Truong explore the growing relevance of consensual judicial reference as a dispute resolution method in California's overburdened civil court system. Prompted by Chief Justice Patricia Guerrero’s 2025 address citing a shortage of judges and increasing case complexity, the authors outline how judicial reference provides an alternative to traditional litigation and arbitration — blending the procedural rigor of courtroom trials with the flexibility and efficiency of private adjudication.

Unlike arbitration, judicial reference preserves the right to appeal, enforces civil procedure and evidentiary rules, and maintains a public record, making it particularly appealing for complex or technical cases. The article discusses when judicial reference is most appropriate, such as in commercial contracts, real estate disputes, or family office agreements, and identifies key factors attorneys should consider — including cost, enforceability, and the implications of waiving a jury trial.

Brady and Truong emphasize that enforceable judicial reference provisions must be fair, clearly written, and mutually agreed upon, especially in consumer or employment contexts. The authors also note that both state and federal courts may uphold these agreements, reinforcing their strategic value for certain litigants.

Overall, judicial reference offers a hybrid path between courtroom litigation and private arbitration, giving parties more control over timing and decision-makers — but it demands careful contractual drafting and strategic consideration.