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Establishing
Business Courts
in Your State
2008 – 2009
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What are the objectives/goals for creating
a business court?
❖ Cases will be heard by judges uniquely experienced in business and
commercial law and in handling business and commercial cases.
❖ Create a body of case law that promotes consistency and increases guidance
for parties and lawyers so that litigation risks can be informatively assessed.
❖ Have business and commercial cases move more expeditiously and reduce
litigation costs for the parties and the court system.
❖ Establish specialized dispute resolution programs and procedures which
promote earlier and more frequent settlement of business and commercial
cases, which are more amenable to ADR resolutions.
❖ Move non-business cases more expeditiously by removing complex,
time-consuming, business cases from general docket.
❖ Be competitive from an economic development standpoint with other
states/jurisdictions which have established business courts.
❖ Improve overall infrastructure of entire community by creating a forum that
makes conducting business in that region more attractive, predictable and reliable.
Objections to business courts and responses.
❖ Business courts will siphon off best judges.
There are good judges who will have no interest in a docket full of
paper-intensive cases. Business courts will attract only judges who have an
interest in that subject matter.
❖ This creates a two-tiered system of justice for businesses and individuals.
There are specialized courts for a variety of disputes: e.g., many courts have
special programs for mass torts, complex cases, medical malpractice and class
actions. Family courts and drug courts are specialized. The issue is one of
managing cases better by creating courts designed to handle specific matters.
This benefits the entire system.
❖ Business courts are biased toward businesses and against individuals or
consumers.
Business courts are typically designed for disputes between businesses, and do
not involve consumers or individuals. In cases where consumers can bring
claims against businesses in a business court, there is no track record to show
such courts will automatically favor businesses over consumers rather than
ruling on the basis of legal precedent.
❖ Business court judges will become insulated from new ideas.
To the contrary, specialized business courts make it more likely that judges
will become familiar with innovations. Just as lawyers are becoming more
focused and specialized because of the complexity and volume of case law in
particular areas of the law on the belief that this will provide a more thorough
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understanding, judges need the same sort of immersion to fully understand a
wide body of law and new developments.
❖ A limited number of business court judges will prevent the benefit and
opportunities provided by the potential for multiple judges hearing cases
on similar subjects, as in the federal system.
Absent good judges, no system works well. Every effort should be made to
establish the court with well seasoned judges and/or judges with a strong
level of interest and experience in business and commercial law.
The desire for diverse views must be weighed against the idea of creating a
predictable body of law and having a judge or judges who grow in depth of
knowledge and experience by hearing many cases.
A court may want to consider some form of rotation, as well, with tenures
long enough to benefit from specialization.
❖ Court administrators will face case management/allocation problems.
To address concerns over any court administrator’s ability to efficiently
allocate cases from a single case pool, instead of having to additionally cull out
business cases to go to specific judges, consider keeping and monitoring yearly
case load statistics and other docket metrics to enable informed evaluations,
on at least a year-to-year basis, of resource allocation issues to ease any
inequities or imbalances.
Who should be included in the effort to
create a business court?
❖ Regional business leaders and in-house counsel.
Their support is more likely to demonstrate that a broad community benefits
from a business court, beyond the bench and bar. Also, such broad support
for a business court reflects that a business court can play a role in a region’s
overall economy; and may facilitate a willingness for greater administrative
or legislative funding.
❖ All members of the litigation bar, not only business lawyers.
Commercial and business litigators are the most obvious, but any effort should
include at least a dialogue with other litigators so that the effort is not mistakenly
seen as elitist or preferential, but as something that is of general benefit.
❖ Members of the trial bench where you are seeking to create a business court,
the state’s highest court if it is to be involved, and the Administrative Office of
the Courts in the state.
❖ Persons in the executive and legislative branches of government so that they
understand the benefits and can have a stake in a court that can bring benefits
to their constituents and community.
❖ Consumer groups need to know that the creation of a business court does not
mean that the judges’ decisions will favor businesses as opposed to consumers,
but that it is simply a forum for resolution of business cases; with the majority
of cases being business to business disputes in most events.
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What persons and resources can be
consulted in creating a business court?
❖ There are a number of individuals who are associated with the creation of
business courts who have given their time to consult in the creation of
business courts:
Judge Ben F. Tennille, Superior Court of North Carolina
Judge Steven I. Platt, The Platt Group, Inc.
Judge Leonard B. Austin, Supreme Court, New York
Robert L. Haig, Kelley Drye & Warren LLP
Mitchell L. Bach, Eckert Seamans Cherin & Mellott, LLC
Martin J. Newhouse, New England Legal Foundation
Lee Applebaum, Fineman, Krekstein & Harris, P.C.
Merrick L. Gross, Carlton Fields
Cory E. Manning, Nelson, Mullins, Riley & Scarborough LLP
❖ Bar Association, Organization and Court Resources.
The Business and Commercial Courts Committee of the National
Conference of State Trial Judges, chaired by Judge Ben F. Tennille of the
Superior Court of North Carolina.
The American College of Business Court Judges.
The Subcommittee on Business Courts of the Committee on Business and
Corporate Litigation in the ABA’s Section of Business Law.
In addition, a number of state committees exist which have participated in
the creation and/or development of business courts in those states, and
have considerable practical experience in investigation, dialogue, advocacy,
implementation and developing guidelines.
❖ Some other basic documentary and internet sources include:
ABA Ad Hoc Committee on Business Courts, Business Courts: Towards a More
Efficient Judiciary, 52 Bus. Law. 947 (1997)
Haig, Robert L. Should Your State Create a Business Court? If So, How? Taking
Care of Business: Business and Technology Courts in the 21st Century
(November 7, 2003).
Mitchell L. Bach and Lee Applebaum, A History of the Creation and Jurisdiction
of Business Courts in the Last Decade, 60 Bus. Law. 147 (2004)
Tim Dibble and Geoff Gallas, Best Practices in U.S. Business Courts, Court
Manager, Vol. 19, No. 2, 2004
National Center for State Courts, resources page
www.ncsconline.org/wc/CourTopics/ResourceGuide.asp?topic=SpecCt&guide=170
U. of Maryland Journal of Business and Technology Law, resource on business courts
www.law.umaryland.edu/journal/jbtl/index.asp
U. of Cincinnati College of Law Commercial Court Project, resource links
www.law.uc.edu/academics/corporate_commercialct.shtml
Mississippi Business Courts Study Group,
www.sos.state.ms.us/Policy_Research/Business_courts.asp
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Business court web sites or sites with at
least some business court opinions.
Atlanta, http://sca.fultoncourt.org/superiorcourt/business_po.php
Baltimore, www.baltocts.sailorsite.net/civil/BTCMP/BTCMP.html
Boston, www.mass.gov/courts/courtsandjudges/courts/superiorcourt/businesslitigation.html
Chicago, www.cookcountycourt.org/divisions/law/CommercialCalendars.asp
Delaware, courts.delaware.gov/Courts/Court%20of%20Chancery
Eugene, www.ojd.state.or.us/lan/Commercial%20Court/Comm%20Court.htm
Ft. Lauderdale, www.17th.flcourts.org/Complex_Litigation_Unit/complex_litigation_unit.html
Gwinnett County, GA, www.gwinnettcourts.com/#courtsjudges_superior_businesscourt/
Maine, www.courts.state.me.us/maine_courts/specialized/business/index.shtml
Maryland, www.courts.state.md.us/businesstech
Massachusetts, socialaw.gvpi.net/sll/lpext.dll/sll/bls?f=templates&fn=main.htm*
Miami, jud11.flcourts.org/programs_and_services/complex_business_litigation.htm
Nevada, www.nvsupremecourt.us/documents/orders/ADKT398_Business_Court.order.pdf
New York, www.nycourts.gov/comdiv
North Carolina, www.ncbusinesscourt.net
Ohio, www.sconet.state.oh.us/boards/commDockets/default.asp
Orlando, www.ninja9.org/Courts/Business/Index-BC.htm
Philadelphia, courts.phila.gov/common-pleas/trial/civil/commerce-program.html
Pittsburgh, www.alleghenycourts.us/civil/commerce_complex_litigation.asp
Rhode Island, www.courts.state.ri.us/superior/publisheddecisions.htm
South Carolina, www.sccourts.org/whatsnew/displaywhatsnew.cfm?indexID=408
Tampa, www.fljud13.org/CBLD.htm
*Fee
Should the business court be created by
legislation or by administrative court order?
❖ If established by legislation, the court may have a stronger foundation, though
this can be a long process with a number of obstacles.
❖ Legislation can provide the broad outlines, leaving the details of specific rules
and jurisdictional case type to the Supreme Court or court within which the
business court will be established.
❖ A number of business court programs have been created by judicial
administrative order.
❖ A pilot business court program may be considered for jurisdictions with the
largest concentration of business and commercial cases before expansion into
other jurisdictions.
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How will the court be funded?
❖ Is there only going to be a reassignment of judges with no other additional
resources, which may require no additional funding; or will additional funds
be sought?
❖ Consider the need for establishing a mechanism for oversight, data-gathering,
and reporting as part of the funding process. The mechanism can either be
part of the office of court administration and funded through it, and/or some
separate group so long as it has sufficient resources.
❖ Is there adequate funding for law clerks to assist with opinions?
❖ Will the business court seek to use technology in case management, electronic
filing and/or courtroom presentation that will require funding? If so, can
private business sources or bar sources be considered, without objection in
the community, to solely fund technology and not in any way fund a judge
or clerk? If so, should they remain anonymous?
How will judges be selected?
❖ The business court judge should typically be a person who is enthusiastic
about the court and wants to sit as a business court judge.
❖ Must the judge have commercial and business litigation experience, or can
the court accept seasoned judges who will learn the nature of the law and
procedures through sitting on the court?
❖ How will the judge be appointed, how long should his or her appointment
last, and should there be any organized bar participation in advising on the
appointment(s)?
❖ The selection of the first judge(s) is critical in assuring the program’s taking
root and succeeding.
What type of business court should
we seek?
❖ A court of broad jurisdiction based on a list of case types and a minimum
dollar amount in dispute if it is solely for money damages.
Consider whether the jurisdiction has a large body of business and
commercial cases annually.
All cases fitting into the case definitions in excess of the minimum damage
amount will automatically be included in the program.
Some mechanism to determine whether or not a case fits the criteria.
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❖ A court of limited jurisdiction where the cases include some level of
procedural or substantive complexity, involve certain specified types of
disputes or statutes, or involve important areas of the law which are novel
and have not yet been decided.
Consider whether the jurisdiction has a sufficiently large enough volume
of such cases.
Develop a gatekeeping function to determine which cases will be included.
Possibilities include allowing the complex business court judge to make the
determination, allowing an administrative trial court judge to do so, allowing
an appellate level judge to do so, allowing a court administrator to do so, or
allowing one or more of the parties to do so.
❖ If certain criteria are met, should cases be required to go into the business
court, or should all parties be required to agree to the business court’s
jurisdiction, assuming other criteria are met, i.e. should the program have
a mandatory or voluntary basis?
Should the court have unique features
such as a single judge, or fast tracks that
limit discovery or jury trials?
❖ The hallmark of every business court is that the case is assigned to a single
judge from start to finish.
❖ The business court judge is typically the trier of fact in all cases, whether
the cases are essentially in equity or not, though jury trials are available.
If there are to be no jury trials and/or expedited procedures, shall the
program be voluntary or mandatory?
If the program is voluntary, how many parties will choose not to participate
because they want a jury or a full set of procedures, potentially limiting the
court’s usefulness?
What are the positive and negatives of not having a jury?
❖ The court can have a variety of tracks depending on complexity.
In complex business courts, the judge can determine the schedule based
on the unique nature of the case.
The court can be limited to a fast track, with limited discovery; but if so,
a potentially limited use of the court by litigants must be assessed.
Should the court have written opinions?
❖ Does the funding exist for law clerks to assist in this?
❖ Is one of the court’s objectives to create a body of case law for the guidance
of the business and legal community?
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Procedures to be used.
❖ Should the court establish case tracking plans generally?
❖ Should the court set an early conference for individualized case management
plans/orders?
❖ Determine the frequency of meetings between the business court judge and
counsel based on the nature of the case.
❖ Should the parties be required to confer to submit joint case management
plan proposals?
❖ Should there be case scheduling orders, and what should be included in
such orders?
❖ Should cover sheets tied to the business court program be used to have the
filing and/or responding party set forth the case type by describing the nature
of the dispute; the amount in issue or whether it is a claim in equity; whether
or not the case is complex, and if so why; a first estimate of how long
discovery should take; whether or not a jury is requested; and/or whether
or not alternative dispute resolution of some form has (a) been attempted
or (b) is believed to be worthwhile?
❖ Should there be any limits on discovery?
❖ Is it possible to create form document requests or interrogatories in some
types of cases to limit discovery disputes?
❖ Is there any limit in state-wide or local rules of procedure on the powers of
the business court in handling its docket, or is there some leeway?
❖ Should there be any additional forms or rules beyond the state or local rules
governing what should be included in any motions, pre-trial conferences
and/or pre-trial memoranda or filings?
❖ Should there be any form of mediation or alternative dispute resolution
connected to the business court (other than the assigned judge in jury trial
cases) or should the parties be left solely to private mediation or ADR?
❖ Consider the use of volunteer mediators from the local business litigation bar
who have a minimum level of twenty years of experience, or less if they have
significant trial and litigation experience.
❖ Consider the use of judges with business litigation experience to mediate
cases in which they are not presiding. Retired judges may provide a source
of experienced mediators.
❖ Consider the appointment of special masters, or non-lawyer experts in the
relevant field, paid either by the court or the parties.
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Should business court judges participate in
training and ongoing education?
❖ Look at the judicial education components of the Maryland Business and
Technology Case Management Program for a broad program of training, and
judicial seminars for commercial judges in New York and other jurisdictions.
❖ Determine if there are types of cases that the court expects to hear repeatedly
to determine the focus of the kind of education that would be most useful.
What resources are available for the
training and ongoing education of business
court judges?
❖ Are there programs offered by universities or private institutions that would be
useful? If cost is an issue, determine if such programs either exist locally, or if
local universities or law schools would be amenable to creating such programs.
❖ The American College of Business Court Judges conducts an annual education
program devoted to current topics of interest to business court judges.
❖ Northwestern University School of Law Judicial Education Program,
Searle Center on Law, Regulation and Economic Growth, Henry N. Butler,
Executive Director is an excellent resource for judicial education in business
and commercial law.
What role should technology fill in a
business court?
❖ The use of the internet and a court web site to permit electronic filing, service
and notice of all “papers” filed with the court; to provide general notice of
court policies, practices, calendars, rules, forms, etc.; and to post opinions.
❖ The use of courtroom technologies to accommodate the realities that many
business disputes involve parties and counsel outside the jurisdiction, e.g.,
videoconferencing, and to deal with document intensive cases, e.g., the ability
to use computer displays in the courtroom for the judge and jurors.
❖ Will technology be maintained and operated by court personnel and/or
private service providers?
❖ Can the business court be used as a technology laboratory to test innovations?
How will appeals from the business court
be handled?
❖ Is there a need for specialized panels at the appellate level?
❖ Should there be a direct appeal to the Supreme Court or a procedure for
certification by the trial court?
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Notes:
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ABA Section of Business Law
321 North Clark Street
Chicago, IL 60654
312-988-5588
www.ababusinesslaw.org