Académique Documents
Professionnel Documents
Culture Documents
TABLE OF CONTENTS
1. 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)1
AVAILABLE IN CD-ROM ONLY
5. Massachusetts – Suffolk Superior Court – Rules for Filing in Business Litigation Session
and Notice to the Bar
AVAILABLE IN CD-ROM ONLY
8. North Carolina Business Court – Amended General Rules of Practice and Procedures
AVAILABLE IN CD-ROM ONLY
1
Copyright 2004 by the American Bar Association. Reproduced from The Business Lawyer, Vol.
60, No. 1 (November 2004), with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic
data base or retrieval system without the express written consent of the American Bar
Association.
-1-
10. State of Rhode Island and Providence Plantations Business Calendar – Order
AVAILABLE IN CD-ROM ONLY
12. Judicial Council of California -- Fact Sheet – Complex Civil Litigation Program (January
2007)
AVAILABLE IN CD-ROM ONLY
13. Paula L. Hannaford-Agor, Nicole L. Mott and Timothy F. Fautsko, National Center for
State Courts and California Administrative Office of Courts, Evaluation of the Centers
for Complex Civil Litigation Pilot Program (June 30, 2003)
AVAILABLE IN CD-ROM ONLY
14. Complex Civil Litigation Pilot Program in Maricopa County, Joint Report Submitted to
the Arizona Supreme Court submitted by the Superior Court in Maricopa County and the
Complex Civil Litigation Court Evaluation Committee (December 2006)
AVAILABLE IN CD-ROM ONLY
15. The Business Litigation Session Resource Committee, The Business Litigation Session in
Massachusetts Superior Court: A Status Report (February 2003)
AVAILABLE IN CD-ROM ONLY
16. Chief Justice’s Commission on the Future of the North Carolina Business Court, Final
Report and Recommendation (October 28, 2004)
AVAILABLE IN CD-ROM ONLY
17. Report of the Office of Court Administration to the Chief Judge on the Commercial
Division Focus Groups (July 2006)
AVAILABLE IN CD-ROM ONLY
18. Lee Applebaum and Merrick L. Gross, Business Courts (Revised July 2007)
19. Lee Applebaum, Complex Litigation Courts and Business Courts: Some Brief
Observations on Connections and Similarities (August 13, 2007)
20. Bios
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WEBSITES AND LINKS
(Revised July 2004)
Baltimore City Circuit Court, Business and Technology Case Management Program,
www.baltocts.sailorsite.net/civil/BTCMP/BTCMP.html
-1-
Reno, Second Judicial District Court of Nevada, Business Court,
http://www.leg.state.nv.us/CourtRules/SecondDCR.html;
http://www.washoecourts.com/index.cfm?page=courtcal&dept=B9
Arizona, Superior Court in Maricopa County, Complex Civil Litigation Pilot Program
http://www.supreme.state.az.us/courtserv/ComplexLit/default.htm;
1
We are not including complex litigation tracks within differentiated case management systems, unless
specific judges are assigned to those tracks.
-2-
OTHER RESOURCES
Bach, Mitchell L., and Lee Applebaum, A History of the Creation and Jurisdiction of
Business Courts in the Last Decade, 60 Business Lawyer 147 (2004)
http://www.finemanlawfirm.com/publications/final_online.pdf
-3-
BUSINESS COURTS
(Revised July 2007)
A. NATURE OF JURISDICTION
1. Are there specifically defined categories of cases within court’s jurisdiction?
2. Are there specifically excluded categories of cases outside court’s jurisdiction?
3. Is a complexity component required?
4. Is there a jurisdictional amount in controversy for non-equity claims?
B. JUDICIAL ASSIGNMENT
1. All matters typically heard by a single judge.
2. If there is more than one judge on a business court, do judges act as mediators
in each other’s cases?
A. JUDGES
1. How many judges will be assigned?
2. How will judges be selected?
3. What role will judicial education play?
4. How long will judges serve?
B. STAFF
1. Will there be law clerks?
2. Will business court have separate administrative staff?
C. OPINIONS
1. Will opinions be required in any or all cases?
D. USE OF TECHNOLOGY
1. As a case management tool.
2. As a case presentation tool.
2
3. Other cases may be admitted if involve business dispute of a complex nature.
4. Mandatory mediation.
5. Extensive use of technology.
E. NEW JERSEY
1. Two large counties where all complex business cases go to specific judge.
2. Four counties with pilot program where certain business cases may go to
specific Chancery Judge.
3. New Jersey has an existing specialized case track for complex case assignment
to single judge, which includes, but is not limited to, complex business cases.
3
L. BUSINESS CASE DIVISION OF FULTON COUNTY SUPERIOR COURT
(ATLANTA)
1. Pilot program.
2. Limited list of designated areas of dispute that must be heard.
3. Other cases must be complex business and commercial cases.
4. Amount in controversy must be $1 Million or more.
5. Flexible development of this court in pilot process.
6. Extensive use of technology.
7. Recent expansion of a party’s ability to request inclusion
R. OTHER JURISDICTIONS
1. Oklahoma legislature passed law allowing Supreme Court to create business
courts in cities with population in excess of 300,000, but no court rules effecting
that legislation put in place yet.
4
2. Michigan had legislatively created “Cybercourt” which was never funded;
legislation is being studied to create a business court.
3. Business case track being developed in Cobb County, Georgia.
4. South Carolina is moving to develop complex business court pilot program in
three counties.
5. Studies into creating business court program or dockets in Missouri, New
Hampshire and Ohio.
V. OBJECTIVES
5
COMPLEX LITIGATION COURTS AND BUSINESS COURTS:
SOME BRIEF OBSERVATIONS ON CONNECTIONS AND SIMILARITIES
By
Lee Applebaum1
The Honorable Richard A. Posner, Will the Federal Courts of Appeals Survive Until
specific subject matter had largely been rejected in the federal appellate courts.2 He
adduces the less obvious concept, however, that appellate “judges are specialized – to
judging [,a]nd it goes without saying, to the law.” Id. at 778 & n.44.
Complex litigation courts and business courts somewhat map these ideas. The
complex litigation court model is not focused primarily upon subject matter, but on the
1
Lee Applebaum is a litigation partner with Fineman, Krekstein & Harris, P.C. in
Philadelphia. He is Vice-Chair of the Committee on Business and Corporate Litigation’s
Subcommittee on Business Courts within the American Bar Association’s Section of
Business Law. He has written numerous articles on business courts and spoken
extensively on the topic. The observations herein were written in conjunction with the
program, Business and Corporate Litigation Committee Forum: An Introduction to
Business Courts and Complex Litigation Courts - What Works Best and Why, being
presented at the Section of Business Law’s Annual Meeting in San Francisco on August
13, 2007. More elaborate discussions of what makes up business courts and complex
litigation courts can be found in the other materials provided in connection with that
program. These comments address some commonalities that may not otherwise be
addressed in those materials; and hopefully adduce some useful points for discussion.
2
Even the federal appellate courts have a specialized subject matter tribunal, the United
States Court of Appeals for the Federal Circuit. Judge Pauline Newman described the
Federal Circuit’s formation as addressing a demand for coherence in patent law. The
Honorable Pauline Newman, The Sixth Abraham L. Pomerantz Lecture: Commentary on
the Paper by Professor Dreyfuss, 61 Brooklyn L. Rev. 53, 55 (1995).
-1 -
composition of factors affecting the legal process.3 The judge able to handle these cases
well must master the function of judging, and the generally applicable legal principles
Business courts may include a complexity component,4 but always are defined by
a subset of legal subject matter that is less than the universe of all potential disputes. In
3
In California’s complex litigation court these factors may include: numerous pre-trial
motions that raise difficult or novel legal issues requiring time-consuming resolution;
large numbers of witnesses; voluminous documentary evidence; large numbers of parties
with different counsel; coordinated actions; or cases calling for “substantial post
judgment judicial supervision.” California Court Rule 1800(b). See generally Jeffrey W.
Stempel, A More Complete Look at Complexity, 40 Ariz. L. Rev. 781 (1998).
4
For example, Maryland Rule 16-205(c), addressing the assignment of cases to
Maryland’s Business and Technology Case Management Program, provides:
On written request of a party or on the court's own
initiative, the Circuit Administrative Judge of the circuit in
which an action is filed or the Administrative Judge's
designee may assign the action to the program if the judge
determines that the action presents commercial or
technological issues of such a complex or novel nature that
specialized treatment is likely to improve the
administration of justice. Factors that the judge may
consider in making the determination include: (1) the
nature of the relief sought, (2) the number and diverse
interests of the parties, (3) the anticipated nature and extent
of pretrial discovery and motions, (4) whether the parties
agree to waive venue for the hearing of motions and other
pretrial matters, (5) the degree of novelty and complexity of
the factual and legal issues presented, (6) whether business
or technology issues predominate over other issues
presented in the action, and (7) the willingness of the
parties to participate in ADR procedures.
There are no specific types of commercial or technological disputes that are mandated for
inclusion in the Maryland business court’s jurisdiction.
In North Carolina, which provided a model for the Maryland program, there are
similar guidelines addressing complexity factors that would indicate a case is appropriate
for inclusion in the North Carolina Business Court. North Carolina Superior Court Rule
2.1(d). More recently, the North Carolina Business Court’s jurisdiction was expanded to
require mandatory inclusion of certain specific types of disputes, e.g., corporate
governance, anti-trust, trademark and cases involving the Internet, electronic commerce,
and biotechnology. N.C. Gen. Stat. § 7A-45.4.
-2 -
these courts, the judge either possesses specialized knowledge of commercial and
business law, or will develop that knowledge through repeatedly hearing cases arising
business court cases.5 There will be certain types of subject matter that tend toward
complexity, and these will repeatedly appear in the complex litigation judge’s court.
Undoubtedly, these will include complex business and commercial cases.6 Thus, the
Likewise, there are business courts that will only hear complex business or
commercial cases, such as the North Carolina Business Court or Maryland’s Business
and Technology Case Management Program8; but even in business courts of broader
5
Nor are the two inherently mutually exclusive. Mitchell L. Bach and Lee Applebaum, A
History of the Creation and Jurisdiction of Business Courts in the Last Decade, 60 Bus.
Law. 147, 205-206 (2004) (hereinafter “Business Court History”).
6
Under California Court Rule 1800(c), cases recognized as provisionally complex
include antitrust, trade regulation and securities claims, among others. As stated in the
December 2006 “Joint Report to the Arizona Supreme Court Submitted by the Superior
Court in Maricopa County and the Complex Civil Litigation Court Evaluation
Committee” concerning the progress of the Complex Civil Litigation Program in
Maricopa County (Phoenix), there were a significant number of contract cases in the
program, along with some cases involving anti-trust, securities and shareholders
derivative litigation; and all but one case involved a business on one or both sides of the
dispute. Id. at page 4.
7
Under Arizona Rule of Civil Procedure 8(i)(2)(F), in addition to the complexity factors
found in the California program, another factor favoring a complex case designation is
whether: “The case would benefit from permanent assignment to a judge who would have
acquired a substantial body of knowledge in a specific area of the law….”
8
Supra note 4.
9
These courts, such as the Supreme Court of New York’s Commercial Division, the
Philadelphia Court of Common Pleas Commerce Case Management Program and the
more recently created business courts in Tampa, Miami and Orlando, Florida, may
include even non-complex cases within their jurisdiction if there is a minimum amount in
-3 -
complex commercial and business actions are inevitably part of the inventory. Thus, the
business court judge in either complex or broad jurisdiction business courts will develop
jurisdiction is that the function of judging itself is a form of specialization, i.e. judges are
people who have dedicated their vocational lives to judging, and in doing so have
developed skill, knowledge and wisdom in being able to make judicious decisions. Such
people stand in contrast to lawyers (who are not making these kinds of legal decisions in
their practice and are dedicating time to non-legal tasks) or those who might be part-time
A complex litigation court is not co-extensive with this idea of judging qua
additional specialization in the judging function. Thus, the complex litigation judge is not
just a specialist because he or she is judging, but is a specialist in judging certain kinds of
cases from a case management perspective. Recognizing the great significance of a well
run and respected legal process, the complex litigation judge specializes in judicial
management skills; in not simply deciding wisely, but in putting difficult cases in a
position where wise decisions can be made.11 Put another way, the complex litigation
judge becomes expert in understanding the interaction between difficult cases and the
dispute and the cases fall into certain defined subject matter categories. See also Business
Court History at 223-228.
10
The thought comes to mind of the professional sports official whose work is seasonal,
rather than dedicated to study and practice on a year-round basis.
11
California Court Rule 1800(a) states that a complex case is one that “requires
exceptional judicial management to avoid placing unnecessary burdens on the court or
the litigants and to expedite the case, keep costs reasonable, and promote effective
decision making by the court, the parties and counsel.” (Emphasis added).
-4 -
legal process, and learns how to manage the forum in which the parties and litigants can
progress in moving toward sound decisions that command respect and appreciation. 12
The complex litigation judge’s specialty is to make the unclear more clear, the
disorderly more orderly and to have the firmness and determination to remove doubt
from those participating in the process. This judge is like the captain of a ship during a
storm. All others may doubt, but the captain maintains the focus and clarity to instruct,
command and guide. The others rely upon the captain’s leadership; and their trust in that
leadership allows them to play their roles fully, without confusion or half-heartedness, in
getting through that storm. A good captain likewise recognizes that he cannot carry out
every function on the ship, but must trust others to do their jobs and provide information
that will inform the decisions that can guide them all to port safely.
specialized set of judges within the judging specialty. The goal of this specialization is to
manage cases in such a way as assure that: (1) a decision can be timely made; and (2) the
case is presented in such a way that a decision can be judiciously made. Complex case
management that fails to meet these objectives could drag on for years, with a series of
12
Of course, our expectations must also be managed. Shortly before his death, Chief
Justice John Marshall wrote: “Though the hope of deciding causes to the mutual
satisfaction of the parties would be chimerical, that of convincing them that the case has
been fully and fairly considered, that due attention has been given to the arguments of
counsel, and that the best judgment of the Court has been exercised on the case, may be
sometimes indulged. Even this is not always attainable. In the excitement produced by
ardent controversy, gentlemen view the same object through such different media, that
minds not unfrequently receive therefrom precisely opposite impressions. The Court,
however, must see with its own eyes, and exercise its own judgment, guided by its own
reason.” Mitchel v. United States, 34 U.S. 711, 723 (1835).
-5 -
more than a global address of all important issues. This is destructive to confidence in
Similarly, business courts are creating a specialized set of judges who can make
timely and informed decisions that instill confidence in the court system and create
efficiency. Where cases are capably handled and decisions are reasoned, explained and
based upon sound and developed knowledge of the relevant law, even the losing party
will have less about which to complain. Weakly reasoned opinions, unexplained results
or an unevenly handled case management process provide the loser with grounds to gripe
about injustice; and may even give the winner a sense that the result was more fortuitous
than fair – likewise creating doubt in the system’s reliability. Under such circumstances,
litigants and lawyers may well turn to other forums (arbitration, mediation, federal court
or even other states’ business courts) to obtain a greater sense of order and predictability.
The specialized business court is aimed, in part, at reducing this doubt and stopping this
flight. Mitchell L. Bach and Lee Applebaum, A History of the Creation and Jurisdiction
of Business Courts in the Last Decade, 60 Bus. Law. 147, 152, 183 (2004); Ad Hoc
In sum, both the complex litigation court and the business court are based upon
establishing courts that engender public trust. Ultimately, both are anchored in having
13
See, e.g., John J. Gibbons, The Quality of Judges is what Counts in the End, 61
Brooklyn L. Rev. 45 (1995).
-6 -
Lee Applebaum
Lee Applebaum is a partner in the Philadelphia firm of Fineman, Krekstein & Harris,
P.C.’s litigation group, focusing his work on business and commercial matters. He is the
long standing vice chair of the Business Courts Subcommittee of the ABA Committee on
Business and Corporate Litigation, and was chair of the Philadelphia Bar Association’s
Business Litigation Committee in 2005 and 2006, which works co-operatively with
Philadelphia’s Commerce Court. He is co-author of A History of the Creation and
Jurisdiction of Business Courts in the Last Decade, 60 Bus. Law. 147 (2004), and over
the last 4 years has been the coordinating editor and a co-author of the Business Courts
chapter in the ABA’s Annual Review of Developments in Business and Corporate
Litigation. Mr. Applebaum has spoken nationally on business courts numerous times,
including at the first two meetings of the American College of Business Court Judges.
He has written and spoken extensively on Philadelphia’s Commerce Court, and is
coordinating a project between Philadelphia lawyers and law students in creating a
summary, by topic, of the over 700 opinions issued by that business court.
{00053409;v1}
SUPERIOR COURT OF ARIZONA
IN MARICOPA COUNTY
From the Chambers of Central Court Building Phoenix, Arizona 85003
Hon. Janet E. Barton 101/201 West Jefferson PHONE (602) 506-5340
Suite 7A
BIOGRAPHICAL INFORMATION
Janet E. Barton, a Judge of the Maricopa County Superior Court, obtained her
undergraduate degree in Accounting from the University of Kentucky in 1975. After
working for nearly seven years in private industry in Lexington, Kentucky, Janet enrolled
in the University of Kentucky College of Law, graduating With Distinction in 1985.
Janet was admitted to the State Bar of Arizona and joined the law firm of Snell & Wilmer
in 1985. From 1991, until her appointment to the bench in July of 2000, Janet was a
partner in the firm. During her 15 years with Snell & Wilmer, Janet practiced primarily
in the areas of commercial and state and local tax litigation.
Janet is a Fellow of the Arizona Bar Foundation and a member of the American, Arizona
State, and Maricopa County Bar Associations. She is also a member of the National
Conference of State Trial Judges and the American College of Business Court Judges,
serving as the Treasurer for that organization. Within the Maricopa County Superior
Court, Judge Barton is the Associate Presiding Judge for the Civil Department, one of the
three Complex Civil Litigation Court Judges, Chair of the Court’s Jury Management
Committee and a member of the Court’s Judge Pro Tem Committee. Judge Barton also
serves on the Board of Directors of the Arizona Trial College, and is a member of the
Lorna Lockwood Inn of Court, the Arizona Town Hall and Soroptimist International of
Phoenix.
Judicial Appointment
1999-present Civil trials (jury and non-jury); individual direct calendar court
Stanley Mosk Courthouse (Central Civil)
Los Angeles, California
Judicial Activities
1
Judicial/Professional Organizations
Other Publications
abtl Report, "A Modest Proposal from the Bench," Vol. XX,
No. 1 (1997)
abtl Report, "The Case for the Master Calendar System," Vol. IV,
No. 1 (1979)
2
Lectures and Programs
3
4
5
JUDGE ALBERT DIAZ
North Carolina Business Court
832 E. 4th St. Suite 9600
Charlotte, North Carolina 28202
(704) 686-0114 albert.diaz@aoc.nccourts.org
EXPERIENCE
Serve on trial court of general jurisdiction. Presiding judge in over 100 civil/criminal jury and bench trials
throughout the state of North Carolina. Rule on pretrial motions and prepare written orders. Serve as one of three
North Carolina Business Court Judges. Present continuing judicial education courses at Conference of North
Carolina Superior Court Judges. Serve as faculty member for orientation of new superior court judges.
Handled general commercial litigation--trial and appellate--for international law firm. Represented clients in cases
involving construction law, bankruptcy, international commercial law, labor law, professional malpractice,
insurance law, copyright and trademark law, lender liability, consumer finance, energy and telecommunications,
and environmental law. Appeared in state and federal trial and appellate courts, arbitration hearings, and
mediations. Supervised document discovery for complex business cases, including preparation of document
databases.
Represented United States in criminal appeals before the U.S. Navy-Marine Corps Court of Criminal Appeals,
U.S. Court of Appeals for the Armed Forces, and U.S. Supreme Court. Drafted over 200 briefs and made 18 oral
arguments. Drafted briefs in opposition to certiorari petitions. Collaborated with Solicitor General in drafting
brief and preparing for oral argument in court-martial appeal heard by U.S. Supreme Court. Served as member of
capital litigation team responsible for briefing and arguing death penalty appeals. Rated top appellate advocate in
the division. Awarded two decorations for outstanding meritorious service.
Prosecuted courts-martial and represented clients in over 80 felony and misdemeanor jury and bench trials.
Supervised three attorneys and 10 staff in the processing of a daily docket of over 100 criminal cases.
EDUCATION
“The Least Among Us,” Mecklenburg County Bar Newsletter, March 2005
“Professionalism,” Mecklenburg County Bar Newsletter, July 2003
Speaker, “Forum Selection—Has the Business Court Changed the Equation,” North Carolina Association
of Defense Attorneys, June 2007
Speaker, “An Introduction to Business Courts,” ABA Business Law Section, March 2007
Speaker, “Minorities in the Law,” Charlotte School of Law, February 2007
Speaker, “Business Court Perspectives,” American College of Trial Lawyers, February 2007
Speaker, “Increasing Diversity in the Legal Profession,” Mecklenburg County Bar, February 2007
Speaker, “Diversity Matters,” Mecklenburg County Bar, February 2007
Speaker, “All-Star Trial Advocacy, Mecklenburg County Bar, January 2007
Speaker, “Orientation for New Superior Court Judges, UNC-Chapel Hill School of Government, Dec. 2006
Speaker, “North Carolina Unfair and Deceptive Trade Practices Act,” Conference of North Carolina
Superior Court Judges, June 2006
Speaker, “Beyond the Basics of Civil Litigation, North Carolina Bar Association, May 2006
Speaker, “Nuts and Bolts of Practice in the Business Court,” Sole Practitioner/Small Firm Section,
Mecklenburg County Bar, May 2006
Speaker, “Business Court Update,” Conference of North Carolina Superior Court Judges, October 2005
Speaker, “Deposition Evidence,” Joint session, Conference of North Carolina Superior Court Judges and
Litigation Section, North Carolina Bar Association, June 2005
Speaker, “Update on Civil Practice Basics,” Mecklenburg County Bar, February 2005
Speaker, “Findings of Fact and Conclusions of Law,” Conference of North Carolina Superior Court
Judges, November 2004
Speaker, “South Carolina Oath Affirmation Program,” North Carolina Bar Association, November 2004
Co-Course Planner, “All-Star Trial of a Business Case,” North Carolina Bar Association, May 2004
Secretary, Justice Bobbitt Inn of Court, Charlotte, North Carolina, 2004-Present
Member, American College of Business Court Judges, 2005-Present
Member, State Judicial Council, 2001-2002
Vice-President, North Carolina Bar Association, June 2007-Present
Member, Litigation Section Council, North Carolina Bar Association, 2003-2007
Member, Conference of State Trial Judges, American Bar Association, 2001-Present
Member, Business and Commercial Courts Committee, ABA Conference of State Trial Judges, 2004-Present
Member, Minorities in the Profession Committee, North Carolina Bar Association, 1998-Present
Member, Hispanic-Latino Lawyers Committee, North Carolina Bar Association, 1998-Present
Member, Special Committee on Diversity in the Legal Profession, Mecklenburg County Bar, 2005-Present
Member, Board Nominating Committee, Mecklenburg County Bar, 2006-Present
Member, Hispanic National Bar Association, 2004-Present
Presiding Judge, Charlotte Mecklenburg Schools Truancy Court (Aug 2005-Present)
Presiding Judge, National High School Mock Trial Championships, May 2005
Presiding Judge, Mecklenburg County Drug Treatment Court, 2002-Present
Adjunct Faculty, Central Piedmont Community College, 2006-Present
NEW YORK (1989), DISTRICT OF COLUMBIA (1990) and NORTH CAROLINA (1995)
March 2005-October 2006: Reserve Appellate Judge, U.S. Navy-Marine Corps Court of Criminal Appeals,
Washington Navy Yard, Washington, D.C. Presided over oral arguments and prepared opinions resolving
appeals of service members convicted of criminal offenses at courts-martial.
May 2000-February 2005: Reserve Military Judge, U.S. Navy-Marine Corps Trial Judiciary, Piedmont
Judicial Circuit, Camp Lejeune, North Carolina. Served as presiding judge in courts-martial cases.
October 1995-April 2000: Reserve appellate defense counsel, Office of the Judge Advocate General,
Washington, D.C. Represented over 200 clients in criminal appeals before the military appellate courts.
Rated top reserve appellate advocate in the division. Received Reserve Navy Judge Advocate General’s
“Award of Excellence” for outstanding meritorious service.
Andrew M. Federhar
{00057899;v1}
Transportation
Past Member, Arizona Board of Regents
Former Special Assistant of the
Chairman of the President's Nuclear
Safety Oversight Committee
Admissions
U.S. Supreme Court, 1983
Arizona, 1980
Education and Honors
Best Lawyers in America®, Commercial
Litigation, 2007
Chambers USA, Leading Lawyers for
Business
J.D., University of Arizona, 1980
B.A., in Political Science, with honors
and distinctions, University of Arizona,
1977
{00057899;v1}
Merrick L. Gross
Shareholder
One Southeast Third Avenue
25th Floor
Miami, FL 33131-1714
Direct: 305.982.5638
Fax: 305.374.5095
merrick.gross@akerman.com
Practice Areas
Commercial Litigation
Banking and Lending, Litigation, Class Actions, Construction, Bankruptcy and Creditors' Rights, e-Discovery
Industry Experience
Banking and Financial Institutions, Insurance
Recognition
AV rated by Martindale-Hubbell
President, Dade County Bar Association, 2006-2007
Chair, Florida Bar Business Law Section, 2007-2008
Florida Bar Business Law Section, Section Member of the Year Award, 2002-2003
Dade County Bar Association, Committee Chair Exceptional Service Award, 1999-2000, 2001-2002,
2003-2004, 2004-2005
American Bar Association Section of Litigation Outstanding Subcommittee Chair Award, 2004-2005
Listed in Florida Trend's Legal Elite, 2006, 2007
Florida Super Lawyer, 2006, 2007
Fellow, The Florida Bar Foundation
Fellow, The American Bar Foundation
Appointed by Chief Justice R. Fred Lewis to the Florida Supreme Court Task Force on Management of
Cases Involving Complex Litigation
Bar Admissions
1987, Florida
Court Admissions
U.S. Court of Appeals, Eleventh Circuit
U.S. District Court, Middle District of Florida
U.S. District Court, Southern District of Florida
Email: btennille@ncbusinesscourt.net
PRESENT POS1TION
In January of 1996 Judge Tennille was sworn in as the first Special Superior Court Judge for
Complex Business Cases in North Carolina and charged with creating the first state-wide
Business Court in the nation. He was the only judge until the fall of 2005 when, on
recommendation of the Chief Justice’s Commission on the Future of the Business Court, the
court’s jurisdiction was expanded and two new judges were added. At that time Judge
Tennille was appointed Chief Judge of the Business Court. The Business Court is similar to
a Federal District Court in that its judges try cases and write opinions designed to create a
body of case law involving issues of importance to business and industry in North Carolina.
In establishing the court Judge Tennille designed a model paperless court, which employs a
free electronic filing system using the Internet. It was one of the first successful efiling
systems in the country. The Court was one of the first to maintain a website where all the
opinions were accessible as soon as they were filed and all pleadings were accessible on the
website.
Judge Tennille currently maintains his chambers and his courtroom in the new Elon
University School of Law, the only trial court in the country to be housed in a law school.
ABA
Judge Tennille served as the only judge on an American Bar Association Corporate
Responsibility Task Force, a panel charged with examining the framework of laws and
regulations and ethical principles governing the roles of lawyers, executive officers and
directors. The goal of this Task Force on Corporate Responsibility was to design a system of
checks and balances to enhance public trust in corporate integrity and responsibility
following the Enron and Worldcom failures. The panel held hearings during Fall 2002 and
submitted a final report to the ABA in April 2003.
Judge Tennille serves as Judicial Division Liaison to the Business Law Section of the ABA.
He is also Co-Chair of the Judges Initiative Committee of the Business Law Section and
serves on the Business Courts Committee and the Business Law Section Institutes and
Seminars Board.
Judge Tennille serves as Chair of the Business and Commercial Courts Committee of the
National Conference of State Trial Judges, a newly formed committee which will provide a
forum for the exchange of information, best practices and technology developments among
ABA-member judges who are presently sitting on, planning to organize, or simply interested
in the concept of, courts or divisions of courts dedicated to the trial of business and
commercial cases. This committee will also coordinate with other ABA committees such as
the committee on Business Courts of the Business Law Section and the Judges Initiative
Committee.
North Carolina Bar Association
Judge Tennille is currently serving as Vice President of the North Carolina Bar Association.
He has served on the Technology Advisory Committee, the Dispute Resolution Council and
been active in the General Counsel Section. He is a certified mediator.
Judge Tennille helped found the American College of Business Court Judges and served as
its president from 2005 to 2007.
Advisory Boards
Judge Tennille serves on the AEI-Brookings Judicial Education Advisory Board, the ALI-
ABA Advisory Board on Business Law and the American Scientific and Technological
Adjudication Resource Center Planning Committee.
Judge Tennille is a Master of the Joseph Branch Inn of the American Inns of Court.
Previous Experience
1971-1985 Associate and Partner, Smith Moore Smith Schell & Hunter
(now Smith Moore LLP), Greensboro, N.C.
Educational Background
PERSONAL BACKGROUND
Judge Tennille was born in Winston-Salem, North Carolina where he currently resides with his
wife Marty. They share six children and four grandchildren.
He received an Honorable Discharge from the United States Marine Corps Reserve in 1975.
Copyright 2004 by the American Bar Association. Reproduced from The Business
Lawyer, Vol. 60, No. 1 (Nov. 2004) with permission. All rights reserved. This
information or any portion thereof may not be copied or disseminated in any form
or by any means or stored in an electronic database or retrieval system without the
express written consent of the American Bar Association.
TABLE OF CONTENTS
I. INTRODUCTION .................................................................. 151
II. SUPREME COURT OF NEW YORK COMMERCIAL DIVISION ...... 152
A. Introduction .................................................................... 152
B. The Commercial Division’s Evolution .................................... 153
C. Commercial Division Jurisdiction ......................................... 156
D. The Commercial Division’s Effect and Influence ...................... 158
* Mitchell L. Bach is a Member of Eckert Seamans Cherin & Mellott, LLC, and a commercial litigator
in its Philadelphia office. He is Chair of the Committee on Business and Corporate Litigation of the
ABA Section of Business Law and is Chair of the Business Courts Subcommittee. Mr. Bach was among
those who worked towards the creation of Philadelphia’s Commerce Case Management Program.
Lee Applebaum is a Partner with Fineman, Krekstein & Harris, P.C. in Philadelphia. He is Vice
Chair of the ABA Section of Business Law’s Subcommittee on Business Courts, and the incoming Chair
of the Business Litigation Committee of the Philadelphia Bar Association’s Business Law Section.
The bulk of this Article was originally presented on November 7, 2003 at the Symposium “Taking
Care of Business: Business & Technology Courts in the Twenty-First Century,” sponsored by the
University of Maryland School of Law and the Business and Corporate Litigation Committee of the
ABA Section of Business Law.
The authors wish to give special thanks to Diane Akers, Esquire, who drafted the section on Michi-
gan, and to thank the following people for their time and assistance in providing information, insight,
and/or editorial comments that went into our preparing this Article, though any flaws herein solely
belong to us: The Honorable Brent Adams, R. Franklin Balotti, Esquire, The Honorable Elihu Berle,
Howard J. Berlin, Esquire, The Honorable Mark I. Bernstein, Edward G. Biester III, Esquire, Beth I. Z.
Boland, Esquire, Professor Richard Booth, George Burns, Esquire, Jane F. Castner, Esquire, The Hon-
orable William B. Chandler III, Henry Chatham, Esquire, Professor Kathleen Coles, Peter L. Costas,
Esquire, Ellen Davis, Tim Dibble of AEQUITAS, Inc., The Honorable Timothy C. Evans, Thomas
Feinberg, Esquire, The Honorable Peter Flynn, Raymond Fortin, Esquire, John P. Fowler, Esquire,
Allen C. Goolsby III, Esquire, Gary Grimmer, Esquire, Robert L. Haig, Esquire, Professor Lawrence
Hamermesh, Sarah Herlihy, Esquire, The Honorable John W. Herron, Michael J. Higer, Esquire, Julie
Holmes, Stephen Hope, Esquire, Jack S. Kennedy, Esquire, G. Marcus Knight, Esquire, Thomas F.
Kummer, Esquire, Alan Lefkowitz, Esquire, Warren Lupel, Esquire, The Honorable William D. Mad-
dux, Gael Mahony, Esquire, Harry D. Mercer, Esquire, Lawrence Okinaga, Esquire, Eric Orlinsky,
Esquire, Michelle Perone, Esquire, The Honorable Steven I. Platt, The Honorable Gene T. Porter, Jason
B. Schaeffer, Esquire, David G. Shuford, Esquire, The Honorable Albert W. Sheppard, The Honorable
Michael A. Silverstein, The Honorable Thomas Smith, The Honorable Ben C. Tennille, The Honorable
Allan Van Gestel, and Ms. Bonnie Venturo. We also wish to thank Richard Kraemer for his research
assistance, and Lisa Raudenbush, Ann Delaney, Elaine Null-Corrento, Tiffany S. Hubbard, and S.
Ahsiyah Applebaum for their clerical assistance.
147
148 The Business Lawyer; Vol. 60, November 2004
APPENDIX A
WRITTEN PARAMETERS OF BUSINESS COURT JURISDICTION
Colorado .................................................................................... 229
Delaware .................................................................................... 229
Florida ....................................................................................... 231
Illinois ....................................................................................... 238
Maryland .................................................................................... 240
Massachusetts .............................................................................. 241
Michigan .................................................................................... 243
Nevada ...................................................................................... 245
New York ................................................................................... 248
New York County ..................................................................... 248
Albany County ......................................................................... 250
Erie County ............................................................................. 251
Kings County ........................................................................... 254
Monroe County ........................................................................ 256
Nassau County ......................................................................... 258
Suffolk County ......................................................................... 260
Westchester County .................................................................. 261
North Carolina ............................................................................ 264
Oklahoma .................................................................................. 268
Pennsylvania ............................................................................... 269
Rhode Island ............................................................................... 271
150 The Business Lawyer; Vol. 60, November 2004
APPENDIX B
EXPERIENCES IN SOME OTHER JURISDICTIONS WITH EFFORTS TO
ESTABLISH BUSINESS COURTS
Hawaii ....................................................................................... 273
Maine ........................................................................................ 273
Minnesota .................................................................................. 273
Mississippi .................................................................................. 274
Ohio ......................................................................................... 274
Virginia ...................................................................................... 274
Wisconsin .................................................................................. 275
The Creation and Jurisdiction of Business Courts in the Last Decade 151
I. INTRODUCTION
The creation of specialized business courts in the United States has expanded
greatly in the last ten years. Business courts, or more accurately business programs
or divisions within existing trial level courts, have been established and are op-
erating in New York, Chicago, North Carolina, New Jersey, Philadelphia, Penn-
sylvania, Reno and Las Vegas, Nevada, Massachusetts, Rhode Island, Maryland,
and Orlando, Florida. In May 2004, Oklahoma’s Legislature created a state-wide
business court. In New York, Chicago, Philadelphia, Massachusetts, and New
Jersey, the original business programs have been expanded by adding additional
judges and/or by expanding into additional counties.
One new aspect of the “traditional” business court is the creation of specialized
courts that include technology disputes as part of their express jurisdiction.
Through legislative effort and court rule, effective January 1, 2003, Maryland
established a Business and Technology Case Management Program.5 In May 2003,
1. The phrase “business courts” is used as a generic term for the variety of courts and programs
that have been created which are not separate courts at all, but divisions or programs within an existing
court.
2. There are specialized business and commercial courts in other nations. We include a very brief
description of commercial courts in England and Ireland, as well as a “Commercial List” in the Superior
Court of Justice in Toronto, Ontario, Canada. See infra Section XV. We also note England’s specialized
Technology and Construction Court. See infra note 433. The express reasons for creating or refining
these specialized courts are similar to purposes behind the creation of American business courts.
3. The authors do not purport to have obtained or analyzed all available statistics; nor do we intend
to portray this piece as encompassing a comprehensive statistical review of business courts. That being
said, we believe that the information is valuable with regard to the numbers and types of cases being
heard and resolved in business courts, with the caveat that these numbers may have different meanings
depending on the jurisdiction of each business court, the practical meaning of the term “case,” and
each jurisdiction’s goals. By way of a single example, as will be discussed below, North Carolina has
established a respected and valued business court that by its nature may not involve a high volume
of cases in comparison to New York, Chicago, or Philadelphia.
4. This piece will not focus on procedural rules, technology used to enhance business court pro-
grams or the extensive application of Alternative Dispute Resolution (“ADR”). There is no question
that integrating ADR methods as adjuncts to the judges’ work in business court litigation is an essential
part of many business courts. Integrating computer and other technology into business court practice
also appears to be approaching a new standard, rather than a novelty. Although these elements are
important to a successful business court, our research is most clear that it is the judge that is the
single most important factor in creating a court that is successful in balancing the qualities of fairness,
attention, care, and expeditiousness that make for an exemplary court.
5. MD. R. 16-205.
152 The Business Lawyer; Vol. 60, November 2004
Monroe Counties.21 Consistent with the pilot program’s creation, the new Com-
mercial Division’s goals included the intention to “expedite the processing of cases
and develop judicial expertise in doing so, and to return the New York courts to
a leadership role in adjudicating major commercial disputes.”22
Success in New York and Monroe Counties “led the bar and business com-
munity to call for Commercial Division expansion to other counties.”23 The Com-
mercial Division’s success had “helped to stem the flight of commercial litigants
from New York’s courts, and to maintain New York’s status as the premier state
for the conduct of business.”24 In December 1998, Chief Judge Kaye announced
the expansion of the Commercial Division to Nassau, Erie, and Westchester Coun-
ties.25 In 2002, the Commercial Division expanded to Albany, Suffolk, and Kings
Counties.26
By 1998, the New York County Commercial Division’s average disposition rate
in contract cases was 552 days, compared to an average of 648 days for contract
disputes in 1992.27 By the end of 2000, that disposition time had fallen to 412
days, a 36 percent improvement from the pre-pilot days.28 By 2002, the average
time for disposition in contract cases brought within the Commercial Division
was down to 364 days, a 44 percent decrease from ten years earlier.29
Although each Commercial Division judge has more than the approximately
300 cases on a comparable federal judge’s docket, cases reportedly do not get
caught in the mire as the judges “make it a priority to decide motions and other
issues quickly and efficiently.”30 Currently, seven justices sit in the Commercial
Chief Judge Kaye as the only truly indispensable person in creating the Commercial Division. The
Commercial Division of the State of New York, Commercial Division Law Report ( Jan. 2000), at http://
www.nycourts.gov/comdiv/law_report_-_january_2000.htm. In light of New York’s influence on cre-
ating business courts nationally, her efforts and decisions lay behind more than the creation of New
York’s Commercial Division.
21. NYS Unified Court System, supra note 10, at III.1.
22. Id.
23. Id.
24. Restructuring Plan, supra note 15, at 948.
25. State of New York, Twenty-First Annual Report of the Chief Administrator of the Courts for Calendar
Year 1998, at 40 (Dec. 1998) [hereinafter 1998 New York Report].
26. The Commercial Division of the State of New York, A Brief History of the Commercial Division,
at http://www.nycourts.gov/comdiv/Brief_History_of_CD.htm (last visited Sept. 12, 2004).
27. NYS Unified Court System, supra note 10, at III.1. Monroe County showed a similarly high
degree of judicial involvement and success in resolving cases. Id.
A comparison from 1992 through November 1996 in New York County showed that in the Com-
mercial Division’s first year, the average disposition time improved by 29 percent; the number of cases
settling before trial increased 85 percent; the total number of pending cases was reduced by 26 percent;
the number of dispositions a year increased by 6 percent; and a court annexed ADR program “resulted
in a 43 percent settlement rate.” State of New York, 1997–98 Executive Budget: Appendix I, Part III,
Appropriations Requested by the Judiciary and Legislature, The Judiciary, Judiciary 1997–98 Budget
Request, Executive Summary at 19 (on file with The Business Lawyer, University of Maryland School
of Law).
28. Sharon M. Porcellio, Innovation, Successes for Litigation, N.Y. L.J., Jan. 22, 2001, at 3.
29. Letter from Robert L. Haig, Esquire, to Mitchell L. Bach, Esquire ( July 3, 2003) [hereinafter
Haig Letter].
30. Tamara Loomis, Commercial Division: High-Profile Case Casts Spotlight on Well-Regarded Court,
N.Y. L.J., June 20, 2002, at 5.
The Creation and Jurisdiction of Business Courts in the Last Decade 155
Division in New York County,31 two in Nassau County,32 two in Kings County,33
and one justice each in Monroe,34 Erie,35 Suffolk,36 Albany,37 and Westchester38
Counties.
The Commercial Division’s design is for “hands-on” judicial involvement, oc-
curring early in the case and continuing through to disposition.39 This includes
the ability to refer cases to the Commercial Division’s own ADR program.40 The
New York County Commercial Division established an ADR process in early
1996.41 This program includes more than 250 volunteer neutrals who handle
mediation or other forms of ADR that the parties might seek.42 Through the use
of its ADR process in 1998, close to 60 percent of the Commercial Division’s cases
have settled at or near their commencement.43 The number was similar two years
later.44 In 2002, over 60 percent of cases referred to the Commercial Division’s
mediation program in New York County settled.45 In 1998, 87 percent of cases
filed in New York County’s Commercial Division were disposed of prior to action
being taken to put the cases on the court’s trial calendar, as compared to 75
percent for the rest of the court.46 Commercial Division ADR has expanded to
other counties as well.47
31. The Commercial Division of the State of New York, Justices of the Commercial Division, at http://
www.nycourts.gov/comdiv/cd%20justices.htm (last visited Sept.12, 2004). There are six full time jus-
tices, and one additional justice has a part time role as a judicial hearing officer. Michael Bobelian,
Commercial Part Experiments With Category, Caseload, N.Y. L.J., Apr. 6, 2004, at 4.
32. The Commercial Division of the State of New York, Justices of the Commercial Division, at http://
www.nycourts.gov/comdiv/nassaujustices.htm (last visited Sept. 12, 2004). Kevin Schlosser, Commer-
cial Division Judges Help Shape Procedure and Law, N.Y. L.J., Sept. 23, 2003, at 16.
33. The Commercial Division of the State of New York, Justices of the Commercial Division, at http://
www.nycourts.gov/comdiv/Kings_Justices.htm (last visited Sept. 12, 2004).
34. The Commercial Division of the State of New York, Justices of the Commercial Division, at http://
www.nycourts.gov/comdiv/biography_of_justice_stander.htm (last visited Sept. 12, 2004).
35. The Commercial Division of the State of New York, Justices of the Commercial Division, at http://
www.nycourts.gov/comdiv/Erie_County.htm (last visited Sept. 12, 2004).
36. The Commercial Division of the State of New York, Justices of the Commercial Division, at http://
www.nycourts.gov/comdiv/Suffolk_County.htm (last visited Sept. 12, 2004). The Suffolk Commercial
Division has attempted to adopt procedures consistent with the other Long Island Commercial Division
in Nassau County. Schlosser, supra note 32, at 16.
37. The Commercial Division of the State of New York, Justices of the Commercial Division, at http://
www.nycourts.gov/comdiv/Albany_County.htm (last visited Sept. 12, 2004).
38. The Commercial Division of the State of New York, Justices of the Commercial Division, at http://
www.nycourts.gov/comdiv/WestChester_presiding_judge.htm (last visited Sept. 12, 2004).
39. NYS Unified Court System, supra note 10, at III.1.
40. Id.
41. The Commercial Division of the State of New York, A Brief History of the Commercial Division,
at http://www.nycourts.gov/comdiv/Brief_History_of_CD.htm (last visited Sept. 12, 2004).
42. Id. A link to the roster of neutrals is available at http://www.courts.state.ny.us/comdiv/
alternative_dispute_resolution_program.htm (last visited Sept. 12, 2004).
43. 1998 NEW YORK REPORT, supra note 25, at 40. A March 1997 survey showed a high level of
satisfaction among the neutrals and attorneys involved in the Commercial Division’s ADR process.
Robert C. Meade, Jr., Outside Counsel, Commercial Division ADR: A Survey of Participants, N.Y. L.J., Oct.
3, 1997, at 1.
44. Porcellio, supra note 28, at 3.
45. Haig Letter, supra note 29.
46. NYS Unified Court System, supra note 10, at III.1.
47. See, e.g., The Honorable Joseph G. Makowski, Mediation Training for Commercial Division Com-
pleted, 41 BAR ASS’N OF ERIE COUNTY BULL. 14 ( July–Aug. 2001) (twenty-six “skilled and experienced
156 The Business Lawyer; Vol. 60, November 2004
commercial practitioners” received twenty-five hours of mediation training to serve in matters assigned
to Commercial Division) (on file with The Business Lawyer, University of Maryland School of Law).
48. The Commercial Division of the State of New York, Commercial Division Operating Statement—
Part I, Explanation of Filing and Other Procedures ( June 2001), at http://www.courts.state.ny.us/comdiv/
CD%20Operating%20Statement%202002%20-%20Part%20I.htm.
49. See John F. Werner, Guidelines for the Assignment of Cases: Court Note (Feb. 23, 2004); John F.
Werner, Guidelines for the Assignment of Cases: Court Note (May 25, 2004), both available at http://
www.nycourts.gov/comdiv/Guidellines_for_Assignment_of_CasesNYC.htm. This experimental pro-
gram occurred from March 1, 2004 through May 28, 2004. The February 23, 2004 Court Note states:
Effective March 1, 2004, and until further notice, the Commercial Division of Supreme Court,
Civil Branch, New York County will suspend operation of the transfer and preliminary review
mechanisms set out in the Guidelines for Assignment of Cases to the Commercial Division. Cases
that have been designated “Commercial” on the Request for Judicial Intervention will not be
assigned to a General Part after preliminary review nor transferred out of the Division and reas-
signed for failure to meet a monetary threshold or because of the nature of the subjects at issue
(except for matters that are manifestly not commercial in character, such as a dispute over the
valuation of assets in a matrimonial proceeding). The Division will study the effects of this
suspension and will make such permanent adjustments to the Guidelines as may be advisable in
light of the results, notice of which will promptly be provided to the Bar.
Id.
50. Bobelian, supra note 31. The Commercial Division justices have transferred and regularly re-
jected cases. “The pilot program may lead to the development of more uniform guidelines among the
division’s judges. . . .” Id.
51. The guidelines, as now in effect, state:
In general, the Commercial Division entertains complex commercial and business disputes in
which a party seeks compensatory damages totaling $125,000 or more (exclusive of interest,
costs, and attorney’s fees). Due to caseload considerations, the Justices of the Division are em-
powered to transfer out of the Division cases which, in their judgment, do not fall within this
category notwithstanding that a party has described the case as “commercial” on the Request for
The Creation and Jurisdiction of Business Courts in the Last Decade 157
dollar thresholds, ranging from $25,000 to $100,000.52 Erie County’s rule re-
quiring a $25,000 minimum damage claim is footnoted, with the comment “[i]t
should be noted that the dollar amount at issue to qualify a case as Commercial
may be changed from time to time in order to adjust the workload of the Court.”53
Assuming that the jurisdictional amount is reached, the types of cases that are
listed as within New York County’s Commercial Division jurisdiction include
claims arising out of business dealings such as securities transactions, business
sales, business agreements, trade secrets and restrictive covenants, breach of
contract, breach of fiduciary duty, fraud, misrepresentation, business torts, and
statutory violations arising out of business dealings.54 Other claims within the
Commercial Division’s parameters include Uniform Commercial Code (U.C.C.)
transactions, complicated commercial real estate transactions, shareholder deriv-
ative suits, commercial class actions, commercial bank transactions, internal affairs
of business organizations or liability to third parties of officials thereof, accountant
or actuarial malpractice, and complicated environmental insurance coverage liti-
gation.55 Other Supreme Court Commercial Divisions in New York State pre-
sumptively include within their jurisdictions declaratory judgment actions and
third-party indemnification claims against insurers in cases where the underlying
dispute involves contract claims within the Commercial Division’s scope,56 and
breach of contract actions involving security interests in or leases for personal
property.57 In Kings and Westchester Counties, counsel must certify that the case
is appropriate for the Commercial Division.58
In New York County, if the case is filed under the court’s electronic filing
guidelines, case type jurisdiction expands and the minimum jurisdictional amount
falls to $25,000.59 Thus,
commercial cases in which compensatory damages of $ 25,000 or more are
sought will not be transferred out of the Division if filed in accordance with
Judicial Intervention. The principles set out below will guide the exercise of this authority. Parties
should adhere to these principles when designating a case type on the RJI.
Appendix A, infra p. 248.
The Commercial Division of the State of New York, Guidelines for Assignment of Cases to the Com-
mercial Division, Supreme Court, New York County ( July 3, 2001), available at http://www.courts.state.
ny.us/comdiv/Guidellines_for_Assignment_of_CasesNYC.htm (last visited Sept. 12, 2004).
52. Albany County ($25,000); Erie ($25,000); Kings County ($50,000); Monroe County ($25,000);
Nassau County ($75,000); Suffolk County ($25,000); Westchester County ($100,000). See Appendix
A, infra pp. 250, 252, 254, 256, 258, 260, 262.
53. Id. at 252 n.1.
54. Id. at 248–49.
55. Id.
56. Albany County, Kings County, Monroe County, and Westchester County all have jurisdictions
of this sort. Id. at 251, 255, 257, 263.
57. Albany County, Monroe County, and Westchester County have jurisdictions of this sort. See id.
at 250, 256, 262.
58. See id. at 254, 263–64.
59. The Commercial Division of the State of New York, The Commercial Division of the State of New
York, Electronic Filing Overview, at http://www.nycourts.gov/comdiv/electronic_filing_main%20page.
htm (last visited Sept. 18, 2004).
158 The Business Lawyer; Vol. 60, November 2004
60. The Commercial Division of the State of New York, Guidelines for the Assignment of Cases, at
http://www.nycourts.gov/comdiv/Guidellines_for_Assignment_of_CasesNYC.htm (last visited Sept. 12,
2004).
61. Id. See also Appendix A, infra p. 248.
62. Id.
63. Id. at 251.
64. Id. at 255–56.
65. Id. at 255, 258.
66. Loomis, supra note 30, at 5.
67. The Commercial Division makes many of its judicial opinions available on its website via “Law
Reports.” The Commercial Division of the State of New York, Commercial Division Law Report, at http://
www.nycourts.gov/comdiv/law_report.htm. These reports begin in March 1998. The New York Law
Journal has begun publishing columns looking at the decisions issued by the State’s Commercial
Division Judges on the same subject matter. See, e.g., Jeffery A. Miller, Admitting Expert Testimony, N.Y.
L.J., May 29, 2003, at 5.
The Creation and Jurisdiction of Business Courts in the Last Decade 159
experience and expertise of the Commercial Division judges and other court
personnel, their use of advanced case management techniques, the ADR
opportunities available in the Division, and its technological innovations.68
New York’s efforts also have had a powerful impact in other jurisdictions. New
York’s Commercial Division has been studied and/or emulated in greater or lesser
degrees in Philadelphia,69 Massachusetts,70 Maryland,71 and Florida.72 The partic-
ular role played by New York’s Robert L. Haig, Esquire, co-chair of the Commer-
cial Courts Task Force, in spreading knowledge about New York’s experience and
the potential offered through the creation of business and commercial courts must
also be recognized.73
This also brings up the distinct and important impact of the ABA Ad Hoc
Committee on Business Courts.74 This Committee, chaired by R. Franklin Bal-
otti, Esquire, and Roland E. Brandel, Esquire, which included Mr. Haig, and
other such national figures as Dennis J. Block, Esquire, Helen D. Chaitman,
Esquire, William H. Clark, Jr., Esquire, Gandolfo V. DiBlasi, Esquire, Campell
A. Griffin, Jr., Esquire, James J. Hanks, Jr., Esquire, Robert L. Nutt, Esquire, and
David R. Woodward, Esquire, jointly presented the 1997 Report, Business Courts:
Towards A More Efficient Judiciary,75 which was published in The Business Law-
yer.76 This Report, approved by the ABA’s Section of Business Law, recommended
“that courts which hear a substantial number of corporate and commercial dis-
putes establish specialized court divisions to provide the expertise needed to
improve substantially the quality of decision making and the efficiency of the
courts with respect to such business cases.”77 The words in the Ad Hoc Com-
mittee’s Report resonate through the later national dialogue on the creation of
business courts.78
75. ABA Ad Hoc Committee on Business Courts, Business Courts: Towards A More Efficient Judiciary,
52 BUS. LAW. 947, 947 (1997).
76. This article was substantially the same as the Committee’s August 1, 1996 Report, which was
approved by the American Bar Association’s Section of Business Law. Id. at 947 n.1.
77. Id. at 947.
78. For example, the Committee report is cited in the Massachusetts Status Report, supra note 70,
at 5; the Colorado Report, supra note 72, at 14 n.2; and by Clifford E. Haines, It’s Time to Create a
Special Business Court, LEGAL INTELLIGENCER, May 5, 1997, at 4 (Philadelphia).
79. Individual Calendar Call, General Administrative Order 92-2, In the Circuit Court of Cook
County, Illinois, County Department—Law Division, Sept. 9, 2002 [hereinafter Cook County General
Order]. See Appendix A, infra pp. 238–39.
80. Id. at 238.
81. John Flynn Rooney, Individual Calendar Pilot Project to Start Next Month in Law Division, CHI.
DAILY L. BULL., Aug. 19, 1992, at 1.
82. David Bailey, Commercial Litigation Heads to New Calendar in Law Division, CHI. DAILY L. BULL.,
Aug. 27, 1993, at 1.
83. Id. (quoting the Law Division’s then Presiding Judge Donald P. O’Connell). The first Commercial
Calendar Judge, the Honorable Martin Ashman, stated the primary point of the Commercial Calendar
was not speed and efficiency, but “to give substantial individual justice to individual cases.” Jill Chanen,
The Creation and Jurisdiction of Business Courts in the Last Decade 161
der creating the Commercial Calendar was effective as of September 14, 1992,84
the Commercial Calendar component did not start up immediately on that date.
The Commercial Calendar was introduced in 1993, as the second phase of the
Individual Calendar pilot project, which began with individual calendar assign-
ment of tort cases in the first phase.85 At that point, the intention was to assign
hundreds of cases involving commercial litigation to three Commercial Calendar
judges.86 The Circuit Court brought in the initial three Commercial Calendar
judges seriatim in 1993–94.87
The next goal was to add three more individualized commercial calendars by
the end of 1995.88 In fact, two judges with Commercial Calendars were added in
April 1995,89 and no new positions were added until February of 1997.90 The
1997 addition was required by the increase in commercial calendar case filings.91
Then Presiding Judge Judith N. Cohen stated in 1997 that the “[individual
calendar] program has been tremendously well-received by the commercial liti-
gation attorneys. . . .”92 She described the case load as involving generally “difficult
cases that take a lot of time, and with the increase in commercial filings, the
caseloads that the judges have must remain manageable to achieve the efficiency
that we aim for.”93 A month earlier, Judge Cohen called the Commercial Calendar
a proven “‘success story and a favored forum’ in the business community,” with
most cases being filed without a jury demand.94 Thus, the Commercial Calendar
Judges were chosen to hear most of these cases in the Law Division.95
Judge Sees Justice, Not Speed, As Commercial Calendar Goal, 16 CHI. LAW. 19 (Nov. 1993). The Honorable
Donald O’Connell, Cook County Circuit Court presiding Judge, also described his goals:
I also am hoping to foster the commercial environment in Cook County and the metropolitan
Chicago area by providing the specialized courts for commercial disputes so that commercial
cases won’t have to wait in line behind medical malpractice, structural work act and product
liability cases, and the vast amount of time it takes to prepare those cases for trial. So, commercial
cases would be given some priority toward earlier disposition.
Id.
84. See Cook County General Order, supra note 79.
85. Rooney, supra note 81 (The first phase involved the assignment of tort cases). Today there are
currently four general individual calendar judges in Cook County. Among the variety of case types
heard are “medical malpractice, products liability and contract actions.” John Flynn Rooney, She Has
‘Greatest Assignment’ on Trial Court, CHI. DAILY L. BULL., Aug. 14, 2002, at 3.
86. Bailey, supra note 82, at 1.
87. Mike Austin, Law Division Adds Judge to Handle Commercial Cases, CHI. DAILY L. BULL., Feb. 10,
1997, at 1. See also David Bailey, 2d Individual Calendar Set for Law Division, CHI. DAILY L. BULL., Jan.
28, 1994, at 1.
88. Bailey, supra note 87, at 1.
89. David Bailey, [Chief Judge Donald P. O’Connell] Puts His Stamp on Circuit Court, CHI. DAILY L.
BULL., Apr. 22, 1995, at 17.
90. See Austin, supra note 87, at 1.
91. Id. Presiding Law Division Judge Judith N. Cohen stated that “[t]he new calendar was created
to alleviate the burdens on the already-operating commercial calendars and to make sure that the
division remains functioning as smoothly and efficiently as it has in the past.” Id.
92. Id.
93. Id.
94. David Bailey, Case Disposition Time Continues to Drop, CHI. DAILY L. BULL., Jan. 8, 1997, at 1.
95. Id.
162 The Business Lawyer; Vol. 60, November 2004
A seventh judge was added in 2000, as the Commercial Calendar case load
continued to expand.96 Then Chief Judge O’Connell observed that “[t]he success
of the nearly seven-year-old Commercial Calendar Section is demonstrated by an
increased caseload, which necessitated adding another calendar. . . .”97 In Septem-
ber 2001, new Chief Judge Timothy C. Evans of the Circuit Court of Cook County
expanded the number of judges assigned to the Commercial Calendar to eight.98
His reasoning focused on the continued heavy workload, and the fact that judges
in two of the Commercial Calendar sections were overworked.99
96. John Flynn Rooney, Popularity of Commercial Calendar Necessitates New Judge, CHI. DAILY L.
BULL., July 12, 2000, at 1.
97. Id.
98. Press Release, Office of the Chief Judge, Chief Judge Evans Announces New Assignments in the
Law Division (Sept. 21, 2001) (on file with authors).
99. Id. As stated above, Cook County also has an individual general calendar, in which complex
cases are identified early and assigned to an individual judge. In early 2002, the Law Division went
from a system of assigning complex cases, e.g., toxic torts, from two specific judges assigned to a
complex litigation section, to assigning such cases among thirty-five judges in the Law Division; with
one of those judges hearing the cases from beginning to end. John Flynn Rooney, Law Division Chief
Moves to Cut Disposition Rate, CHI. DAILY L. BULL., Mar. 8, 2002, at 1. There remain four individual
general calendar judges, who, according to the court’s website “hear cases of every variety pending
and filed within the Law Division in numbers as shall be from time to time designated by the Presiding
Judge of the Law Division.” Circuit Court of Cook County, General Calendars, at http://www.cook
countycourt.org/divisions/index.html (last visited Sept. 21, 2004). The general calendar judges do
sometimes receive a commercial case assignment in addition to cases assigned to the Commercial
Calendar judges. Telephone Interview with Warren Lupel, Esquire (Oct. 2, 2003) (on file with authors)
[hereinafter Lupel Interview]. Mr. Lupel is with Weinberg Richmond LLP in Chicago and was the first
chair of the Chicago Bar Association’s Commercial Litigation Committee, a Committee that includes
a number of Commercial Calendar Judges. Mr. Lupel has been a commercial litigator in Cook County
for thirty-five years and is familiar with practice before and after the establishment of the Commercial
Calendar.
100. Bailey, supra note 82, at 16.
101. Id.
102. Id.
103. Id. at 1.
The Creation and Jurisdiction of Business Courts in the Last Decade 163
Judge Ashman, and each month thereafter he would be assigned one-sixth of all
currently pending two-year-old cases and one-sixth of the new filings.104
The Commercial Calendar’s case load has grown dramatically since its 1993
beginning, and its eight judge contingent is larger than any single county business
court nationally. In 2000, before the appointment of a seventh judge, five of the
six Commercial Calendar judges had individual dockets “ranging between 782
and 1,021 cases.”105 Each of these judges was to transfer one hundred of their
cases to the new seventh judge. The sixth judge had 662 cases and would not be
transferring cases.106 At the time, there were 4,364 suits pending on the com-
mercial calendar.107
Its recent history demonstrates both the volume and movement of cases in the
Commercial Calendar.108 In 1998, 3,697 cases were assigned to the Commercial
Calendar.109 In that year, 3,532 cases assigned to the Commercial Calendar
reached disposition.110 The average disposition age of those cases was thirteen
months, with disposition of cases with jury demands averaging 18.8 months.111
Cases going to verdict averaged thirty-four months.112 In 1999, 3,632 new cases
were assigned; 3,672 reached disposition in an average of 15.8 months, with jury
demand cases averaging nineteen months and cases reaching a verdict averaging
thirty months for disposition.113
From 2000 to 2002, the numbers of cases assigned to the Commercial Calendar
were 3,642, 3,769, and 4,245 cases, respectively.114 During those same years, 2000
to 2002, the number of dispositions was 3,433, 3,765, and 4,278 cases; with
disposition averages of 16.8, 16.0, and 15.3 months, respectively, in 2000, 2001,
and 2002.115 In those years, the average disposition times where cases included
jury demands were 20.5 months, 20.0 months, and 21.4 months, respectively,
with cases actually reaching a verdict averaging forty-nine, forty-six, and forty-
104. Id. This was to reflect “the ratios of all commercial litigation in the division. . . .” Id. at 16. See
also Chanen, supra note 83, at 19 (when Judge Ashman became the first Commercial Calendar Judge
in 1993, he was assigned four hundred pending commercial cases, and would “receive one-sixth of
all new commercial cases filed and one-sixth of all commercial cases reaching their second anniversary
in the system.”).
105. Rooney, supra note 96, at 1.
106. Id.
107. Id.
108. As will be set forth below, this had not yet included a court centered mediation program
which has proven so effective elsewhere in resolving cases. See infra notes 133–134.
109. The statistics set out in the next two paragraphs in the text were provided to the authors by
the Honorable William D. Maddux, Presiding Judge of the Law Division of the Cook County Circuit
Court, for cases through July 3, 2003 [hereinafter Maddux] (on file with authors).
110. Id.
111. Id.
112. Id. The overall Law Division average in Cook County in 1998 was 43.4 months for 528
verdicts. Elizabeth Neff, Lake County Court Web Site Up and Running, CHI. DAILY L. BULL., Aug. 19,
1999, at 3.
113. Maddux, supra note 109.
114. Id.
115. Id.
164 The Business Lawyer; Vol. 60, November 2004
three months to their conclusion from 2000 to 2002.116 In a little over half the
year in 2003, 2,364 cases were assigned to the Commercial Calendar and 2,409
reached disposition.117 The average time for disposition was 15.5 months, with
an average of 21.5 months in cases where a jury was requested—and an average
of fifty-four months for those cases that went to verdict.118
116. Id. In early 2002, there were approximately 26,000 pending Law Division cases, taking an
approximate average of 18 months from filing to disposition for all cases, and an average from filing
to a jury rendering a verdict of 39.3 months. Rooney, supra note 99, at 1. To the extent commercial
cases going to trial may have taken more time, this would have necessarily provided relief to the Law
Division as a whole to address other cases.
117. Maddux, supra note 109.
118. Id.
119. See Clerk of the Circuit Court of Cook County, Chancery Division, [Chancery Court] Description
and Cases Held, at http://www.cookcountyclerkofcourt.org/General_Info/Divisions/Chancery/chancery.
htm (last accessed Oct. 8, 2004). Unlike Delaware, there is no separate chancery jurisdiction in Illinois’
court system, the chancery division thus being, in effect, a type of defined case track or division within
a single court. See, e.g., Meyer v. Murray, 387 N.E.2d 878, 885 (Ill. App. 1979) (holding that “[t]he
divisions of the circuit court of Cook County, law division vis-a-vis chancery division, are for admin-
istrative purposes only and no longer constitute jurisdictional barriers.”).
120. See Geoff Gallas and Tim Dibble, Best Practices In U.S. Business Courts (Draft), Feb. 2004 at 3,
5–6 [hereinafter AEQUITAS, Inc., Georgia Feasibility Study] (on file with authors subject to permission
of the Administrative Office of the Georgia Courts).
121. Even with a downtrend, in 1991 and 1992, the Chancery Division heard over 12,000 cases
each year. David Bailey, Law Division Case Filings Down Nearly 23 Percent in Last Year, CHI. DAILY L.
BULL., Jan. 4, 1993, at 1. There are now approximately 22,500 Chancery cases filed annually, with
approximately 9,000 being equity business cases. AEQUITAS, Inc. Georgia Feasibility Study, supra
note 120, at 5–6.
122. Sixteen judges are General Chancery Judges and three judges are designated Chancery, Me-
chanics’ Lien. AEQUITAS, Inc., Georgia Feasibility Study, supra note 120, at 5–6.
123. See Appendix A, infra p. 239.
The Creation and Jurisdiction of Business Courts in the Last Decade 165
come onto the Commercial Calendar, one judge posted a chart124 which included
the following types of actions: (i) breach of contract, including sale of goods
(U.C.C.), purchase of services, warranties and service contracts, sale of business,
franchise, employment, indemnification, sale of real estate, commercial leases,
construction, professional services; (ii) business torts and other tortious type
claims, including professional negligence (except medical malpractice), fraud and
misrepresentation, Consumer Fraud Act, tortious interference, breach of fiduciary
duty/oppression, retaliatory discharge, miscellaneous statutory, securities, corpo-
rate and business law, not for profit; and (iii) collections, including notes, guar-
anties, and other collections.125 One former Commercial Calendar Judge states
that the existence of a “consensual relationship—some sort of contractual or other
business or commercial dealing—is the key to the Commercial Calendars.”126
tees.131 It appears that through the Commercial Litigation Committee, a new effort
has started among the Bench and Bar in Cook County to facilitate practice before
the Commercial Calendar.132
Although there had been no mediation program connected to the Commercial
Calendar in the past, a new court rule was implemented on April 5, 2004, estab-
lishing a mediation program in the Circuit Court of Cook County’s Law Divi-
sion.133 In looking at the prominent role played by mediators in other business
and commercial programs, it is highly likely that court-sponsored mediation in
Chicago will significantly increase the overall disposition rate of cases in Cook
County by leading to more expeditious settlements in cases that can be settled.
“The judges who preside over the individual calendars . . . are going to take a
proactive position to encourage the lawyers in major cases to obtain the help of
a third-party mediator to help resolve the dispute without the need for court
trials. . . .”134
governing North Carolina’s Superior and District Courts.140 The Supreme Court
intended that the business court be a court where cases involving complex busi-
ness litigation would be handled in their entirety by a single judge, to be known
as a Special Superior Court Judge for Complex Business Cases,141 and that the
new court generate a body of case law on corporate governance issues.142 To date,
this role has been filled by the Honorable Ben F. Tennille.143
152. Id.
153. Id. (“In order for our judicial system to build a consistent body of case law, these types of
cases must be assigned to the business court on a regular basis, and early identification and assignment
is preferable.”). At this point, however, the Business Court opinions do not have precedential value.
North Carolina Business Court, Report on Activities of the North Carolina Business Court 2002 to 2003,
at http://www.ncbusinesscourt.net/ref/2002%20General%20Assembly%20Report.htm.
154. North Carolina Case Definition, supra note 148.
155. North Carolina Guidelines, supra note 147.
156. Lake Memo, supra note 142, at 2–3.
157. O’Brien, supra note 136, at 385.
158. North Carolina Business Court, Court Opinions, at http://www.ncbusinesscourt.net/New/
opinions/ (last visited Oct. 8, 2004).
159. Sunbelt Rentals, Inc. v. Head & Engquist Equip., L.L.C., No. 00 CVS 10358, 2002 WL
31002955, at *1 (N.C. Super. July 10, 2002).
The Creation and Jurisdiction of Business Courts in the Last Decade 169
160. Pack Bros. Body Shop, Inc. v. Nationwide Mut. Ins. Co., No. 01 CVS 805, 2003 WL 21017395,
at *1 (N.C. Super. Jan. 10, 2003).
161. Novant Health, Inc., et al. v. Aetna U.S. Healthcare of the Carolinas, Inc., No. 98 CVS 12661,
2001 WL 34054420, at *1 (N.C. Super. Mar. 8, 2001).
162. Reeve & Assocs. Inc. v. United Carolina Bank, No. 96 CVS 4695, 1997 WL 33446634, at *1
(N.C. Super. Oct. 6, 1997).
163. Bradley v. U.S. Packaging, Inc., No. 95 CVS 8986, 1998 WL 34032495, at *1 (N.C. Super.
Apr. 9, 1998).
164. Caraustar Indus., Inc. v Georgia Pac., Corp., No. 00 CVS 12302, 2001 WL 34000141, at *1
(N.C. Super. Jan. 26, 2001).
165. Polo Ralph Lauren Corp. v. Gulf Ins. Co., No. 00 CVS 5440, 2001 WL 34000140, at *1 (N.C.
Super. Jan. 31, 2001).
166. Mike Dayton, Specialty Commercial Courts on the Rise in Region, ATLANTIC COAST IN-HOUSE,
Apr. 2004, at 28.
167. Id.
168. Julia D. Gray, Wachovia War Calls Big Firms to Attention, FULTON CTY. DAILY REP., May 25,
2001.
169. Julia D. Gray, Bondurant Moves From First Union to Wachovia, FULTON CTY. DAILY REP., June
5, 2001.
170. First Union Corp. v. Suntrust Banks, Inc., No. 01-CVS-8036, slip op. at 1 (N.C. Super. Aug.
10, 2001); see generally Lijun K. Yang, First Union v. SunTrust Banks: The Fight for Wachovia and Its
Impact on North Carolina Corporate Law, 6 N.C. BANKING INST. 335, 337–38 (2002).
171. The Wachovia takeover case was also important “because it proved to be a quick disposition
to a difficult case.” O’Brien, supra note 136, at 386.
172. On the day that Judge Tennille issued his opinion on Sun Trust’s challenge to Wachovia Bank’s
merger with First Union, there were more than 30,000 hits on the website. Id. at 382.
173. Report on Activities of the North Carolina Business Court 2002 to 2003, supra note 153. The
exemplary use of technology as an integrated part of this court, including electronic filing, courtroom
technology, videoconferencing, and Internet access to a well-designed website with abundant practical
information, undoubtedly increases the court’s ability to conduct itself in this broad arena.
174. Id. at 2, 5.
175. Id. at 5.
170 The Business Lawyer; Vol. 60, November 2004
sixty-three current cases of which fifty-three were active, five were on appeal,
three reached settlement, and two were stayed.176 Seventeen of the active cases
were class actions.177 The Business Court’s jurisdiction is limited by the nature
and magnitude of a single case and/or global importance of a case, which can
then be used as guidance in other cases. The court also has a single judge at this
time. Thus, although hearing only a limited number of cases, the program’s design
is more expansive in effect.
The court has enthusiastic support from the State Bar Association.178 It has
further proved a reference point in other jurisdictions seeking to create business
courts, such as Maryland179 and Georgia.180 Georgia’s Feasibility Study recognized
that lawyers are actively seeking assignment to the North Carolina Business Court,
including lawyers from adjacent states, motivated by the court’s understanding of
complex business matters, predictability, fairness, and impartiality.181 This sounds
like the oft-heard description of the qualities litigants find in Delaware’s Chancery
Court.
The Chief Justice of North Carolina’s Supreme Court has established a Com-
mission on the Future of the North Carolina Business Court.182 The thirty-seven
member commission, chaired by North Carolina Supreme Court Justice Mark
Martin, will consider recommendations concerning the court’s expansion.183 This
would involve both the Business Court’s size and scope.184
Bergen and Essex Counties.185 As will be discussed below, since 2000, all New
Jersey Counties now include a tracking designation for complex commercial cases
(Track IV), even where there is no specially designated judge to hear such cases.
185. Bergen and Essex are New Jersey’s two largest counties, and the pilot program addressing
complex commercial cases was formally known as the “Complex Commercial Subtrack Program.”
Heather MacGregor, Bringing the Business Back In: Special Forums for Complex Business Cases Seek to
Stanch Commercial Bar’s Loss of Confidence in the Courts, N.J. L.J., Feb. 9, 1998, at 1.
186. Alvin Weiss, Legislation Isn’t Necessary to Create a Business Court, N.J. L.J., Oct. 15, 2001. The
Honorable Burrell Ives Humphreys was Essex County’s Assignment Judge in 1993, and was replaced
by then Judge Weiss in 1994, Judge Weiss having been Presiding Judge in 1993. Henry Gottlieb, Weiss
Takes Hot Seat, N.J. L.J., July 25, 1994, at 1.
187. Weiss, supra note 186.
188. Musical Benches, N.J. L.J., Mar. 17, 1997, at 26.
189. Id.
190. Weiss, supra note 186.
191. Chief Justice Wilentz passed away in July of 1996. Ronald J. Fleury et al., How Wilentz Changed
the Courts, N.J. L. J., July 29, 1996, at 1. As discussed below, the committee was established by his
successor, Chief Justice Deborah Poritz.
192. Weiss, supra note 186.
193. MacGregor, supra note 185.
172 The Business Lawyer; Vol. 60, November 2004
support, such cases will languish and die a slow death on the already over-
burdened dockets of the Law Division.194
Originally, the pilot program in Essex County accepted complex commercial
cases and some non-complex commercial cases, and the Bergen County Court
only accepted complex commercial cases.195 After the 1997 report was issued by
the committee appointed by Chief Justice Deborah Poritz to study the handling
of commercial cases,196 both counties continued to hear complex commercial
cases, with Essex County continuing to handle some non-complex cases (though
not book account cases), and Bergen deciding to continue with only complex
cases.197
In Essex County, the judges relied upon attorney designations in the case in-
formation statements to determine what cases were heard in the pilot program,
including contract, other insurance, real property, and construction; however, at
that time there was still no designation for complex commercial cases. Initially in
Bergen County, Judge Jonathan Harris reviewed the cases to be included in the
pilot program. In Bergen County, cases considered to be complex could include
factors such as the number of parties, the presence of third party claims and
counterclaims, complexity of legal issues, and the nature of the dispute (such as
U.C.C. or class action).198
194. Id. (quoting United States District Court Judge Stephen Orlofsky who chaired that committee).
195. Telephone interview with Michelle Perone, Esquire, Chief of the Civil Court Program for the
State of New Jersey (Sept. 9, 2003) [hereinafter Perone Interview] (on file with authors). See also
MacGregor, supra note 185.
196. MacGregor, supra note 185.
197. Perone Interview, supra note 195. These pilot programs did not affect business cases otherwise
heard in the Chancery Division which were getting individualized attention by the Chancery judge.
198. Id. As discussed below, the case information statement forms, filed with the complaint when
a case is initiated, were later amended to reflect whether a case was a complex commercial case. Since
that time, in Bergen and Essex Counties, the courts have relied upon counsel’s designation rather than
the courts’ selecting cases.
199. Id. The two chief goals of Best Practices include greater procedural consistency among the
counties and greater trial date certainty. Chief Judge Deborah T. Poritz, Report of the State of the
Judiciary of the State of New Jersey, May 22, 2002, N.J. L.J., May 27, 2002.
200. See, e.g., N.J. CT. R. 1:1-2; N.J. CT. R. 4:5-1(b); N.J. CT. R. 4:5A-1-3.
201. N.J. CT. R. 4:5A.
202. The Case Information Statement to be filed in all civil actions, found at Appendix XII of New
Jersey’s Civil Rules, has four tracks, per Rule 4:5A-1. Track I includes, among other things, book
account, actions on a negotiable instrument, contract, and commercial transactions. This track pro-
vides 150 days for discovery. Track II includes, among other claims, construction, personal injury and
“other torts” and provides 300 days for discovery. Track III includes, e.g., civil rights, medical mal-
The Creation and Jurisdiction of Business Courts in the Last Decade 173
a single judge, for the most part, hears the entire case.203 Cases that involve simpler
business or commercial matters such as book accounts, collections, negotiable
instruments, and contracts do not have a single judge for all matters through trial,
and are treated as Track I cases.204
Thus, there is a complex commercial designation for every New Jersey County,
not only Bergen and Essex Counties, in which cases will be heard by a single
judge (for the most part) throughout the case.205 The difference is that in Bergen
and Essex Counties, the same judge will hear all complex commercial cases;
whereas, in other counties, these cases will be assigned to judges within the civil
law division on a rotating basis.206 Thus, arguably, the judges in Bergen and Essex
Counties will become more experienced in the substantive law and in handling
complex cases.207 In Bergen County, the Honorable Jonathan Harris has been
hearing Complex Commercial Track cases since July of 1997.208
Under Best Practices, it is the lawyers bringing or defending a case in any New
Jersey County who designate cases as complex commercial cases. The judges do
not designate the cases.209 The only dollar limit on jurisdiction is that the case be
in excess of $15,000 to come within the Civil Part’s jurisdiction.210 Thus, even a
large monetary damages claim would not classify a case as complex if it were a
relatively straight-forward collection matter.
In New Jersey, corporate or business disputes of the type historically heard in
the Delaware Court of Chancery are similarly heard by the New Jersey Superior
Court’s Chancery Division.211 These include business or commercial matters that
would be heard in programs like New York’s Commercial Division or Philadel-
phia’s Commerce Case Management Program; e.g., unfair competition, non-
practice, professional negligence, and product liability claims and provides 450 days for discovery.
Track IV includes complex commercial disputes among seven types of cases, and also provides 450
days for discovery, but mandates more case management than Tracks I–III. Track IV also includes
mass torts, which are heard by three judges in the State. Perone Interview, supra note 195.
203. Under all four tracks, a single judge is designated to preside over pre-trial motions and
conferences and discovery, with applications made after that point going to the Civil Presiding Judge.
In track IV cases, however, the designated managing judge is also, “insofar as is practicable and absent
exceptional circumstances” to preside at trial. N.J. CT. R. 4:5B-1. Track IV cases also require case
management conferences. Such conferences are left to the judge’s discretion within the other tracks.
N.J. CT. R. 4:5B-2.
204. See Perone Interview, supra note 195.
205. Id.
206. Id.
207. The Complex Commercial Track judges in Essex and Bergen counties do not only hear com-
mercial cases. Id.
208. MacGregor, supra note 185.
209. Perone Interview, supra note 195.
210. Id.
211. “New Jersey also has a long-standing Chancery Court that has developed special expertise
and abilities with regard to complex corporate law matters. It consists of one chancery judge in each
county.” ABA Ad Hoc Committee on Business Courts, Business Courts: Towards a More Efficient Judiciary,
52 BUS. LAW. 947, 956 (1997). “[S]tates, such as Delaware and New Jersey, have used courts of
chancery since colonial times to handle business cases for which there is no monetary remedy at law.”
Margaret M. Eckenbrecht, A Commercial Venture: Supporters Portray Business Courts as White Knights
Rescuing Overburdened Justice System, 82 A.B.A. J. 35 ( Jan. 1996). New Jersey’s Chancery Division
exists under N.J. CONST. art. VI § 3(3).
174 The Business Lawyer; Vol. 60, November 2004
212. The Honorable William A. Dreir & Paul A. Rowe, Esquire, GUIDEBOOK TO CHANCERY PRACTICE
IN N.J. 106–32 (4th ed. 1997).
213. See, e.g., Strasenburgh v. Straubmuller, 683 A.2d 818 (N.J. 1996).
214. See, e.g., In re PSE&G S’holder Litig., 726 A.2d 994 (N.J. Super. Ct. Ch. Div. 1998).
215. Thomas A. Muccifori, Don’t Drop the Ball a Third Time In, N.J. L.J., Nov. 4, 2002.
216. Weiss, supra note 186. See also Report of the Conference of Civil Presiding Judges on Stan-
dardization and Best Practices, at 10–11 (March 1999).
217. These courts are located in Mount Holly, Trenton, Jersey City, and Toms River, New Jersey,
respectively.
218. John Covaleski, Lawyers Rally Behind Plans for Expansion of Business Courts, N.J. L.J., May 31,
2004, at 1. Chief Justice Poritz stated in her May 20, 2004 Report on the State of the Judiciary to the
New Jersey State Bar Association,
attorneys handling commercial litigation have asked for a court specializing in complex com-
mercial cases. We were able to launch a pilot focusing on such cases in Bergen and Essex some
years ago that has been well-received. Although we have only about 300 of these types of cases
a year statewide, we continue to hear that attorneys would like to see an expansion of specialized
case handling in this area. We are responding to those requests. . . . By September, we anticipate
implementing in 4 vicinages a second pilot based on a model that is somewhat different from
the Bergen/Essex pilot.
See Chief Judge Deborah T. Poritz, Report of the State of the Judiciary of the State of New Jersey, May
20, 2004, available at www.njcourtsonline.com [hereinafter Poritz 2004 Report].
219. Covaleski, supra note 218.
220. Id.
The Creation and Jurisdiction of Business Courts in the Last Decade 175
judge; [2] submit a waiver of jury trial; [3] agree to use complementary
dispute resolution techniques; and [4] agree to expedited discovery, with the
goal of ultimate resolution of the case within one year.221
The general equity judges are “typically well-experienced in [complex com-
mercial cases] and the new programs will provide them additional commercial
law training.”222 In return for choosing the program, the parties will get the con-
sistency that comes from a team of court professionals managing the case from
start to finish. “Over a two- or three-year period, the Judiciary and the Bar should
be able to evaluate” whether that consistency leads to more efficient and more
effective case management.223
Complex commercial cases are reviewed for possible assignment to mediation
early in the case, and if referred to mediation, the judge will place time limits on
when the mediation must be completed.224 The mediators are trained and matched
by experience to case type. Since September 2002, the Bergen and Essex County
programs have sent their cases to presumptive mediation, using mediators with
commercial expertise. Approximately 32 percent of cases in which mediation is
completed settle at the mediation, and more settle within a short time after that
mediation process.225 The mediation program has received extremely high ap-
proval ratings, including the expressed willingness to use the process again.226
Mediators are able to have the parties informally exchange information even before
discovery is due, something akin to federal self-executing disclosure in effect.227
Mediators serving in the New Jersey Civil Mediation Program include lawyers as
well as non-lawyers with specialized expertise in the particular area in dispute.228
From July 1, 2001 through June 30, 2002 (the 2002 Court Year), there were
276 complex commercial cases filed statewide, with 164 cases being disposed of
state-wide.229 Forty-eight complex commercial track cases were filed in Bergen
County.230 Twenty-six reached disposition that year, only one having gone to
trial.231 The median time for disposition was 218 days for those cases, compared
232. Id.
233. Id.
234. Id.
235. Civil Law Complex Commercial case statistics for Court Year 2003 provided to the authors
by Michelle Perone, Esquire (on file with authors).
236. Id.
237. Id.
238. Id.
239. In re: Commerce Case Management Program, Administrative Docket 01-2000, First Jud. Distr.
Pa. C.P. Civ. Trial Div. (Feb. 22, 2000) [hereinafter Commerce Case Order] (applicable to all cases
filed as of January 1, 2000). Thus, unlike New York or Cook County, the Commerce Program was to
begin with the assignment of new cases only. This Order was originally issued on November 9, 1999
and was slightly amended on the later date.
240. Lori Lichtman, A Court of Their Own: Purely Business Disputes to be Handled by New Philadelphia
C.P. Commerce Case Program, LEGAL INTELLIGENCER, Oct. 14, 1999, at 1. Also in attendance was
Governor Tom Ridge’s outgoing general counsel who thanked Administrative Judge John W. Herron
for his efforts in creating the Program.
241. The Honorable Albert W. Sheppard Jr., The Philadelphia Commerce Court—Dedicated to Find
the Best Solutions for Business Disputes, METROPOLITAN CORP. COUNS. (Dec. 2002).
242. Clifford E. Haines, It’s Time to Create a Special Business Court, LEGAL INTELLIGENCER, May 5,
1997, at 4.
The Creation and Jurisdiction of Business Courts in the Last Decade 177
that such a specialized case management system could offer.243 The proponents
argued that proper address of business cases would increase the rest of the court
system’s time and resources to address other matters.244 The organized bar in
Philadelphia had long championed the establishment of a state-wide business
court in Pennsylvania; and when several state-wide legislative efforts failed,245 bar
leaders worked closely with Judge Herron in designing Philadelphia’s new Com-
merce Case Program, established by Administrative Order, in late 1999.246
Patterned after New York’s Commercial Division, and partially inspired by Dela-
ware’s Chancery Court,247 the Commerce Case Management Program provides
that one judge follows each commerce case from beginning to end.248 The Com-
merce Program seeks to provide efficient and expeditious resolution to business
disputes and incorporates an active ADR complement to the Program.249 Tens of
highly qualified and experienced practicing lawyers have volunteered their time
to this end, and an effort is made to assign cases for settlement conferences or
mediations to these “Judges Pro Tempore” based on the type of case and area of
specialization.250 Removing burdensome and frequently complex business cases
from the general docket and assigning them to judges accustomed to such cases
works to unclog the system, and to more efficiently address other cases as well.251
The Commerce Program started with two judges,252 and a third was later
added.253 The Commerce Program case volume has numbered over five hundred
a year. The goal is not high volume or turnover, but in the words of one of its
judges, “to provide a quality product.”254 The idea, that quality through expertise
and focus is the primary goal, with increased efficiency and expeditious treat-
ment of cases a natural by-product, is a common theme in the creation of Busi-
ness courts.255 Although the Commerce Program has been subject to some dis-
243. Id.
244. Id.
245. Legislative efforts to create business courts in Pennsylvania were longstanding, but ultimately
no such legislation has been passed. Marilyn Wimp, Business Court Is, Once More, High on Bar’s Agenda,
PHILA. BUS. J., July 27, 1998, at http://philadelphia.bizjournals.com/philadelphia/stories/1998/07/27/
focus3.html. Pennsylvania had been the first state nationally to propose such legislation.
246. See supra note 239.
247. Lichtman, supra note 240.
248. Sheppard, supra note 241.
249. Lichtman, supra note 240.
250. Sheppard, supra note 241. These lawyers act at settlement conferences or as mediators. Parties
can locate them on the Court’s website, at http://courts.phila.gov/pdf/cpcvcomprg/judgesprotemlist.
pdf.
251. Sheppard, supra note 241.
252. Commerce Case Order, supra note 239.
253. Lori Lichtman, Herron Picks Three Judges as Supervisors, LEGAL INTELLIGENCER, Jan. 22, 2001,
at 1.
254. Danielle N. Rodier, Attorneys Impressed with Commerce Court, LEGAL INTELLIGENCER, Aug. 6,
2003, at 1 (quoting the Honorable Gene D. Cohen).
255. See, e.g., Massachusetts Status Report, supra note 70, at 5 stating:
[B]y matching judges with appropriate expertise to litigation requiring that expertise, judicial
resources may be appropriately targeted through the removal of otherwise time-consuming cases
from the regular docket: as the ABA Ad Hoc Committee observed [about the New York Supreme
178 The Business Lawyer; Vol. 60, November 2004
sent,256 the court has retained its commitment to the Commerce Program.257 The
existence of “specialized courts” in Philadelphia, including a complex litigation
court,258 predates the Commerce Program, reflecting the fact that specialization in
Philadelphia’s Court of Common Pleas is beneficial and not a new phenomenon.
Court’s Commercial Division], ‘the work of four generalist judges can be accomplished by three
specialty business judges.’
Chanen, supra note 83, at 19 (first judge in Chicago’s specialized commercial litigation docket “con-
templated naming the call the ‘rocket docket’ but then thought better. ‘This is not about speed and
efficiency. . . . It’s about justice. The point of the calendar is to give substantial individual justice to
individual cases.’”).
256. See, e.g., Board Applauds Efforts of C.P.’s Commerce Program, LEGAL INTELLIGENCER, Apr. 19,
2002, at 2; Productivity Doesn’t Match Resources, LEGAL INTELLIGENCER, Apr. 19, 2002, at 2. Such debate
is not unique to Pennsylvania. See, e.g., Chris Mahoney, The Jury is Still Out on Creating a Business
Court, BOSTON BUS J., May 19, 2000, available at http://boston.bizjournals.com/boston/stories/2000/
05/22/story8.html (on debated issues prior to creation of Business Litigation Session in the Suffolk
Superior Court, Massachusetts). As discussed below, not only was a pilot business program eventually
established in Boston, that program has now been made permanent and expanded to other counties.
See infra notes 273–310 and accompanying text.
257. Laurie Stewart, Jones Appointed to Commerce Court, LEGAL INTELLIGENCER, Sept. 16, 2002, at
1 (As stated by Supervising Judge William Manfredi, upon the appointment of Judge Darnell Jones to
the Commerce Program, “I think we have three of our most competent and most experienced judges
in commerce court, which reflects the commitment that [Administrative] Judge Fitzgerald and I have
to the success of the court.”) The National Center for State Courts recently issued its final report of a
study on all civil programs in Philadelphia’s Court of Common Pleas. The study, generally finding
Philadelphia’s civil trial division “one of the finest and most successful urban trial courts in the country,”
includes a discussion of developments in the Commerce Program, along with topics for the Program’s
further study and refinement. The overall tenor of the report reflects a fundamentally successful
program “operating very effectively,” with the desire to enhance it even further. See David C. Steelman
& Richard Van Duizend, National Center for State Courts, Civil Programs in the Philadelphia Court
of Common Pleas, at ii, xi–xiii, 51–55 (Sept. 30, 2003), available at http://fjd.phila.gov/pdf/report/
NSCS-Civil-Final-Report.pdf.
258. In Philadelphia, there are numerous specialized trial level court programs including a separate
docket for complex mass tort actions (including, e.g., asbestos, DES, latex glove, lead paint, breast
implant, carpal tunnel, pseudo-psychiatric, bone screw litigation, among other mass torts), a docket
created well before the Commerce Case Management Program. See The Honorable John W. Herron &
The Honorable Allan L. Tereshko, Complex Litigation Center Programs, Philadelphia Court of Common
Pleas, at http://courts.phila.gov/pdf/civil2001/clc.pdf. This is in addition to more typical specialization
into Family Court, Orphan’s Court, and Civil and Criminal trial divisions.
The Creation and Jurisdiction of Business Courts in the Last Decade 179
trust matters.259 All such cases must involve disputes which exceed $50,000; cases
below that amount being subject to mandatory arbitration in the Court of Com-
mon Pleas (which arbitrations are subject to de novo appeal in the Court of
Common Pleas, but not to the Commerce Program).260
The Commerce Program also hears declaratory judgment actions brought by
insurers, and coverage disputes and bad faith claims brought by insureds where
the dispute arises from a business or commercial insurance policy. In addition,
the Commerce Program hears third-party indemnification claims against insur-
ance companies where the subject insurance policy is a business or commercial
policy and where the underlying dispute would otherwise be assigned to the
Commerce Program, not including claims where the underlying dispute is prin-
cipally a personal injury claim.261 All of the above types of actions may involve
individuals as well as businesses, if the criteria are met and the essential nature
of the claim is a business dispute.262
The Commerce Program has case tracking criteria, which includes expedited,
standard, and complex tracks.263 Expedited matters are cases with four or less
litigants and the disputes at issue involve, e.g., enforcement of contracts for goods,
insurance declaratory judgment actions, other contract actions, and landlord ten-
ant actions.264 Standard track cases include matters with more than four litigants
in the previously described cases, as well as cases with any number of litigants
259. See Appendix A, infra pp. 269–70. Until January 2004, almost all class actions were coming
into the Commerce Program. Sheppard, supra note 241. Non-commercial class actions will now be
assigned to a new class action program, with the Honorable Mark I. Bernstein heading the program.
Melissa Nann, Class Action in Philadelphia Court to be Reassigned, LEGAL INTELLIGENCER, Dec. 18, 2003,
at 3 (“All class actions currently are assigned to the Commerce Case Management Program, but starting
next month, they will be handled by Judge Mark I. Bernstein, who will head a new class action team
in the regular civil program.”). Class actions that would otherwise come within the subject matter of
the Commerce Program will remain in that program. Interview by Lee Applebaum, Esquire, with the
Honorable Mark I. Bernstein ( June 8, 2004) (on file with authors). See also The Honorable James J.
Fitzgerald III et al., First Judicial District. Pa. Court of Common Pleas Trial Division—Civil, Supple-
mental Notice to Bar Re: Class Actions (Dec. 18, 2003), at http://courts.phila.gov/pdf/notices/2003/
notice-09clsup-O3.pdf (all class action cases filed after January 1, 2004 to be assigned to Class Action
Program, but “[a]ny cases which meet the criteria for inclusion in the Commerce Program shall be
assigned thereto.”). At the same time, notice was given that after January 5, 2004, all major non-jury
cases other than cases involving “Torts, Rent, Lease & Ejectment and Mortgage Foreclosure matters”
would “be assigned to the Commerce Program for case management and disposition.” The Honorable
James J. Fitzgerald III & The Honorable William J. Manfredi, First Judicial District Pa. Court of
Common Pleas Trial Division—Civil, Supplemental Notice to Bar Re: Non-Jury Program (Dec. 18, 2003),
at http://courts.phila.gov/pdf/notices/2003/notice-09mnsup-03.pdf.
260. See Appendix A, infra p. 271.
261. Id. at 270.
262. Id.
263. See In re: Commerce Case Management Program, Administrative Docket 02 of 2003, C.P.,
First Judicial District Pa., Apr. 29, 2003, at Exhibit D, Commerce Program Tracking Formula [here-
inafter Tracking Formula], at http://courts.phila.gov/pdf/regs/2003/cptad02-03.pdf.
264. Id. at Exhibit F. The full list includes: contracts (goods) enforcement, insurance, declaratory
judgment, subrogation action, mechanics lien, negotiable instruments, other contracts, replevin, fore-
closure, garnishment (land), landlord/tenant actions, mechanics lien enforcement, real property
(other), title to real property, rent (lease or ejectment), equity (no real estate or real estate), franchise
disputes, confession of judgment, foreign judgment, petition to stay arbitration, and petition to vacate
or modify arbitration awards. Id.
180 The Business Lawyer; Vol. 60, November 2004
265. Id.
266. Id.
267. Id. at Exhibit D.
268. The Philadelphia Courts, First Judicial District Pa. Court of Common Pleas Trial Division—
Civil, Commerce Program, at http://courts.phila.gov/common-pleas/trial/civil/commerce-program.
html.
269. Id.
270. Id.
271. The Philadelphia Courts, Commerce Court Opinions, at http://courts.phila.gov/cgi-bin/
opinions/comcrtsearch.cgi?dropdown⳱cptcvcom.
272. On July 4, 2004 a search of the word “injunction” provided a response including seventeen
opinions with that word in their topic summary. See Commerce Court Opinions, at http://courts.
phila.gov/cgi-bin/opinions/topicsearch.cgi?topic⳱injunction.
273. The Honorable Allan Van Gestel, Why a Business Litigation Session at Suffolk Superior Court, 45
BOSTON BAR J. 14 (Nov.–Dec. 2001). This was the result of a five year process that began in the wake
of the New York Commercial Division’s creation. Massachusetts Status Report, supra note 70, at 4. At
the time the pilot program was put into effect, the Superior Court already had experience in estab-
lishing specialized sessions. Interview with Honorable Suzanne V. DelVecchio, Making A Business Court
A Reality, METROPOLITAN CORP. COUNS., N.E. ed., May 2003, at 47.
The Creation and Jurisdiction of Business Courts in the Last Decade 181
business cases” handles the case from beginning to end.274 The judge becomes
involved early in case management, which includes attempting to set a firm trial
date at the time of the Superior Court’s analogue to a federal Rule 16 conference.275
Jury trials are permitted, but are not normally selected by the parties.276
cases reached disposition during that time; approximately half by settlement and
the remainder by trial, dispositive motion or removal.287 “The case load that other
[Superior Court] sessions would have had has been significantly reduced because
the cases that go to the Business Litigation Session do not go to the other regular
sessions of the court.”288
According to information collected by the Business Litigation Session Resource
Committee, 853 cases were accepted into the BLS from its inception through
November 2003.289 A search of the Social Law Library database290 reveals that
Judges Allan van Gestel and Margot Botsford have issued over 300 written deci-
sions since the Session’s inception in 2000.291 Judge van Gestel has been assigned
to the BLS full time since it began while Judge Botsford has been assigned part-
time to the BLS since late 2002.292
Cases in the Business Litigation Session “generally appear to be consistently
more complex” than in other Superior Court sessions.293 Approximately 30 per-
cent of the cases primarily involve contract disputes, 13 percent non-compete
agreements, 13 percent shareholder disputes, 11 percent commercial disputes, 11
percent business disputes, 10 percent partnership disputes, 9 percent employ-
ment disputes, 9 percent real estate or landlord tenant disputes, and 7 percent
construction contract actions.294
287. Id.
288. Focus On New England—Business Litigation Session; A Specially Suited Forum For Business Cases,
METROPOLITAN CORP. COUNS., N.E. ed., May 2003, at 50 (quoting Gael Mahony, Esquire, Co-Chair
of the Business Litigation Resource Committee).
289. Email from Sarah Herlihy, Esquire, to Beth I. Z. Boland, co-chair of BLS Resource Committee
(May 10, 2004) [hereinafter Herlihy-Boland email] (on file with authors).
290. This is a subscription service via www.sociallaw.com.
291. Herlihy-Boland email, supra note 289.
292. Id.
293. Massachusetts Status Report, supra note 70, at 12.
294. Id. at 15. As set forth in Appendix D, “[c]ases may be counted in more than one category.”
295. Verdict: Business Court has Made Strong Case for Itself, BOSTON BUS. J., Aug. 2, 2002, at 1.
296. Id.
297. Massachusetts Status Report, supra note 70, at 13–14 and Appendix E.
298. The Status Report cited the experience and wisdom of Presiding Justice Allan van Gestel,
Judge Margot Botsford, Judge Nonnie Burnes and Judge Gordon Doefer as meriting much of the credit
for the Session’s apparent success. Id. at 3.
The Creation and Jurisdiction of Business Courts in the Last Decade 183
rience more favorable than with private ADR, with 60 percent stating they would
recommend the Business Litigation Session over ADR to their clients; and 97
percent stating that they would recommend the business session to other col-
leagues and clients.299 The results were consistent regardless of firm size and
whether the attorneys represented individuals or corporations.300
Significantly, 95 percent of those responding to the Business Litigation Survey
stated that the Business Litigation Session should become permanent; and 89
percent recommended expansion to other Massachusetts counties.301 Shortly after
the Status Report, Chief Justice DelVecchio issued an Administrative Directive
making the Suffolk Business Litigation Session permanent and expanding the
session on a pilot basis to three other counties.302 Case selection in the Business
Litigation Session will remain discretionary and the presumptive category of cases
will remain unchanged, with “complexity and the need for case management” the
principal measure for acceptance.303 One of Chief Justice DelVecchio’s accom-
plishments is that the Business Litigation Session has not created additional bud-
getary expenses.304
The Status Report adduces some of the historical causes for creating the Busi-
ness Litigation Session.305 Among these was the creation and success of business
courts elsewhere, including the New York County Commercial Division’s suc-
cess,306 and the competition such courts presented. In addition, Massachusetts’
courts had received harsh rankings in a U.S. Chamber of Commerce Survey.307
The concern tied into the general perception in the late 1990s that businesses
were fleeing Massachusetts’ state courts because of a belief that generalized courts
could not handle specialized matters, e.g., derivative suits or trade secrets cases,
and because “the time required from filing to disposition was taking longer than
the parties needed to resolve their disputes.”308 Justice Allan Van Gestel, the Busi-
ness Litigation Session’s first full time, as well as presiding, judge addressed some
of these issues in a 2001 piece on the need for a business court.309 His article is
of particular interest because it combines a sense of history and present necessity
in describing the need for a business court as a matter of practical dignity.310
ness Court and Business Laws.318 As stated in the title, Nevada’s Legislature and
Judiciary perceived a business court’s creation as part of an effort to promote
business in the state by improving the justice system.
Nevada had a natural resource on the subject of business courts, Professor
Jeffrey W. Stempel, who addressed the first meeting of the Sub-subcommittee on
January 7, 2000.319 Among other things, Professor Stempel is reported as stating
that specialized courts “have become the fabric in the way business and modern
judicial systems are handled[; and that] [t]his is a natural consequence of the
division of labor generally seen in the practice of law and even government.”320
He stated that limited experience with business courts has been very positive,
mentioning the Delaware Court of Chancery, North Carolina’s Business Court,
and New York’s Commercial Division (though he had no study to empirically
support that conclusion at the time).321 On the issue of the court’s jurisdiction,
he indicated that the court should go beyond a solely equitable jurisdiction and
could include contract disputes, securities fraud and corporate governance mat-
ters.322 He added that a wider jurisdiction should be more attractive to business.323
Nevada’s Chief Justice Robert E. Rose similarly thought that the New York
model would be better within Nevada’s court system.324 Chief Justice Rose chaired
the Supreme Court’s Business Court Task Force, which suggested rules creating
business courts within the Second and Eighth Judicial District Courts.325 The
proposed types of cases setting the court’s jurisdiction were adopted virtually as
written; however, potential additions proposed by some of the judiciary did not
become part of the final rules.326
318. Sub-Subcommittee for the Examination of the Business Court and Business Laws, Minutes of
the Meeting of the Legislative Commission Subcommittee to Study Methods to Encourage Corporations and
Other Business Entities to Organize and Conduct Business in This State ( Jan. 7, 2000) [hereinafter Nevada
January Minutes], at http://www.leg.state.nv.us/70th/Interim/Studies/Business/Minutes/IM-Business-
20000107-2204.html; see also John G. Edwards, Committee Aims to Lure Firms, LAS VEGAS REV. J.,
Nov. 28, 1999.
319. Professor Stempel teaches at the William S. Boyd School of Law at the University of Nevada
at Las Vegas and prior to January 2000 had written considerably on the topic and related areas. See
Jeffrey W. Stempel, Two Cheers for Specialization, 61 BROOK. L. REV. 67 (1995); Jeffrey W. Stempel, A
More Complete Look at Complexity, 40 ARIZ. L. REV. 781 (1998); Jeffrey W. Stempel, Contracting Access
to the Courts: Myth or Reality? Boon or Bane?, 40 ARIZ. L. REV. 965 (1998).
320. Nevada January Minutes, supra note 318.
321. Id.
322. Id.
323. Id.
324. Id.
325. Legislative Commission’s Subcommittee to Encourage Corporations and Other Business En-
tities to Organize and Conduct Business in this State, Overview of Business Court Proposal, Work Session
Document, June 30, 2000.
326. The language that did not make it into the final rule stated: “Complex civil cases that include
the following: complaints primarily alleging professional negligence, primarily alleging products lia-
bility, constructional defects, public service commission matters, and civil trials that will last five weeks
or more.” Id.
186 The Business Lawyer; Vol. 60, November 2004
that cases come within the business docket if the matters at issue concern cor-
porate governance and shareholder derivative suits; trade marks or names; stat-
utory claims for trade secrets; securities actions; deceptive trade practices or in-
vestment securities; or “any dispute among business entities if the presiding judge
of the business court docket determines that the case would benefit from en-
hanced case management.”327 Rules 1.61(a)(1)–(3) in the Las Vegas Court are
virtually the same, though Rule 1.61(a)(2) expressly includes U.C.C. claims,
whereas Rule 2.1(b) does not.328
Like Washoe County Rule 2.1(b), the Eighth Judicial District’s Rule 1.61(a)(3)
includes within the Las Vegas Business Court’s jurisdiction: “Disputes between
two business entities where the court determines that the case would benefit from
enhanced case management.”329 Rules 2.1.1(c) and 1.61(a)(3) thus broaden the
range of potential case types. The practical result of this type of rule is to sub-
stantially enlarge the nature of cases that are prosecuted in the Business Court.330
As of June 7, 2003, a detail summarizing pending cases in the Reno court shows
the following types of cases: anti-trust, complex class action, building and con-
struction, construction defect, commercial instrument, contracts, defamation, em-
ployment contract, fraud, guarantee, liens, landlord/tenant, sale contract, specific
performance, stockholder suits (the largest number of cases by type), U.C.C., and
unfair competition.331 Las Vegas’ Business Court has heard such matters as trade-
mark actions, shareholder disputes and business to business litigation.332
Initially, the Business courts were not expected to have full calendars so the
business judges could also hear non-business cases.333 In 2001, Las Vegas’ Busi-
ness Court had 177 filings and thirty-three dispositions.334 In 2002, there were
155 filings and eighty-six dispositions; and through September 19, 2003 there
were 144 filings and ninety-eight dispositions.335 Through the first two years and
327. NEV. W.D.C.R. 2.1. See Appendix A, infra pp. 246–47. The Civil Cover sheet for cases filed
in Reno includes a separate section for requesting a Business Court designation, which includes cate-
gories for certain statutory harms involving, e.g., commodities, securities, investments, deceptive trade
practices, and trademarks. It also includes a category of enhanced case management for business
disputes and a general category “Other Business Court Matters.” A party requesting the Business Court
must not only check one of these designations, but must also separately check off one of the case
types found earlier in the form.
328. NEV. E.J. D.C.R. 1.61; see also Appendix A, infra pp. 245–46.
329. Appendix A, infra p. 246.
330. Judge Adams Letter, supra note 311. Thus, it is certainly arguable that even if Rule 1.61(a)(2)
does not expressly include reference to the U.C.C., a U.C.C. case could be designated under Rule
1.61(a)(3); and in fact U.C.C. cases have been heard in Reno’s business court, as described immediately
below.
331. Detailed Pending Case Report for Reopened Cases as of June 7, 2003, provided by the Hon-
orable Brent Adams (on file with authors) [hereinafter Detailed Case Report].
332. Judge Porter Letter, supra note 314.
333. Sub-Subcommittee for the Examination of the Business Court and Business Laws, Presentation
Regarding the Supreme Court’s Task Force Examining the Business Court, Minutes of the Meeting of the
Legislative Commission’s Subcommittee to Encourage Corporations and Other Businesses to Organize
and Conduct Business in this State (May 30, 2000).
334. Eighth Judicial District Court, Business Court Summary, provided to the authors by the Hon-
orable Gene T. Porter (on file with authors).
335. Id.
The Creation and Jurisdiction of Business Courts in the Last Decade 187
almost nine months of the Las Vegas Business Court, there were 476 cases filed
and 217 cases reaching disposition; the rate of disposition increasing significantly
over time. As of June 7, 2003, there were fifty-seven open Business Court cases
in the Second Judicial District (Reno), with twelve of these being shareholder
derivative suits.336
The experience among attorneys appears positive. Reno’s Business Court Judge
is described as knowledgeable and prepared, and the general view is likely that
the results in Reno’s Business Court cases have been expeditious and handled
knowledgeably.337 Attorneys are using the program and not seeking to somehow
opt out.338 In his 2003 address to Nevada’s legislature, the Chief Justice observed
that the institution of the Business Court in Washoe County (Reno) has been one
factor in significant delay reduction.339
In Las Vegas, attorneys who often litigate business and commercial matters have
been very pleased with the new Business Court and find that the consistency
created in having a judge focused on business litigation provides them with a
comfortable alternative to federal court.340 This consistency arises from having a
judge who is continually developing in experience with commercial and business
cases, as well as developing in the practice of handling complex litigation.341 As
in Reno, the judge was described as thorough, prepared, bright, and respectful.342
Under Nevada’s Rules, counsel initially choose the business track,343 and that
choice typically stands.344 Either party can have the case assigned to the Business
Court.345 In determining whether to request that a case be heard by the Business
Court, attorneys look to what sorts of matters are excluded by Rule 1.61 from
the Business Court’s jurisdiction, as much as to what the Rule includes.346
A plaintiff ’s request for a hearing is automatically assigned to a Business Court
judge, and a defendant’s suggestion that the case should be in the Business Court
results in the random assignment to a Business Court judge to make that deter-
mination.347 The final decision, however, does ultimately rest with the court.348
By including only appropriate Business Court cases, the court maintains its juris-
dictional objective; additionally permitting the judges to focus upon business law,
to apply it in the cases before them and to develop a more consistent body of
case law through their opinions in that focused substantive region of the law.349
solvency matters, there were sixty-five filings between June 1, 2001 and December
31, 2001; there were eighty-six new filings in 2002 and thirty-three new filings
between January 1, 2003 through July 3, 2003 during 2003.363
From the Business Calendar’s inception through July 3, 2003, there had been
160 business insolvencies and receiverships on the Business Calendar, of which
seventy-two were pending at the time the Calendar began operation, and seventy-
six of which have reached disposition.364 There were 176 breach of contract cases
during that time, forty-nine of which were pending and sixty-two of which have
reached disposition. There were fifteen business organizations matters, three of
which were pending and seven of which have reached disposition; seven com-
mercial bank transactions, three of which were pending; five commercial class
actions, three of which were pending and three of which have reached disposition;
twenty commercial real property cases, twelve of which were pending and five
having reached disposition; forty-two other business actions, twenty of which
were pending and twenty of which have reached disposition; three in the category
of other civil actions; two shareholder derivative actions, one of which has reached
disposition; and ten U.C.C. cases, four of which were pending at the time of the
Business Calendar’s inception, five having reached disposition.365
The Task Force’s objective was to consider the feasibility of not simply creating
a specialized court, but of establishing “a specialized court function to effectively
and efficiently administer business and technology disputes.”369 Maryland ob-
served a move towards specialized business courts in other states that improved
efficiency and helped overcome perceptions that business cases were unsatisfac-
torily handled; the Task Force recognized that the additional concept of a tech-
nology court “to specialize in the administration of disputes involving complex
technology issues” would be something new.370
Though the Task Force was a legislative creation, implementing the proposals
for this new court function was up to Maryland’s highest court, the Court of
Appeals.371 Thus, the Business and Technology Program within the circuit courts
was ultimately implemented via the promulgation of court rules. The Task Force
specifically recommended the creation of a state-wide Business and Technology
Case Management Program in the existing circuit courts, rather than the creation
of a separate Business and Technology Division in the circuit court.372 An Imple-
mentation Committee was formed consisting of one judge from each of Maryland’s
judicial circuits, which in turn established working groups to study and develop
the different aspects of creating the Business and Technology Program.373
The Implementation Committee developed what is now Maryland Rule 16-
205, establishing the Business and Technology Case Management Program, with
language uniform to each Circuit Court.374 In addition, there were detailed rec-
ommendations on case management, judicial education, ADR (including stan-
dards, education, training, and compensation), and the extensive use of technol-
ogy in the program’s operation.375
Maryland Task Force that the court be “flexible” in assigning cases.378 The language
of Rule 16-205(c) includes a seven factor list designed to measure the entire nature
of a case in determining suitability for inclusion in the Business and Technology
Program.379 The judges look to substantive legal issues (“whether business or
technology issues predominate over other issues presented in the action”), and
case management and complexity issues (“the anticipated nature and extent of
pretrial discovery and motions, . . . the degree of novelty and complexity of the
factual and legal issues presented, . . . and . . . the willingness of the parties to
participate in ADR procedures.”)380 The nature of the relief requested is also
considered.381
The Maryland Task Force Report had recommended that certain types of cases
be presumptively included or excluded from the new court.382 Cases principally
focusing on the following areas, among others, would have been presumptively
included under the Task Force Report: technology development; computer soft-
ware agreement disputes; Internet disputes; technology and biotechnology licens-
ing; internal business affairs; breach of contract and fraud in relation to business
dealings; shareholder derivative suits and commercial class actions; commercial
bank transactions; declaratory judgment actions involving insurers; trade secret
and non-compete clauses; business torts; violations of Maryland’s Trade Secret or
Unfair and Deceptive Trade Practices Act; commercial real property disputes; pro-
fessional malpractice claims; state law anti-trust violations; and securities law
claims.383
378. Maryland Task Force Report, supra note 71, at 8.
379. MD. R. 16-205(c) provides in part that a case may be assigned to the Program after a judicial
determination “that the action presents commercial or technological issues of such a complex or novel
nature that specialized treatment is likely to improve the administration of justice.” That Rule includes:
[f ]actors that the judge may consider in making the determination[,which] include: (1) the nature
of the relief sought, (2) the number and diverse interests of the parties, (3) the anticipated nature
and extent of pretrial discovery and motions, (4) whether the parties agree to waive venue for
the hearing of motions and other pretrial matters, (5) the degree of novelty and complexity of
the factual and legal issues presented, (6) whether business or technology issues predominate
over other issues presented in the action, and (7) the willingness of the parties to participate in
ADR procedures.
Id.
380. Id.
381. The Maryland Task Force Report states that the “Program should be reserved for cases where
there is a substantial amount in controversy.” Maryland Task Force Report, supra note 71, at 8. The
draft version of that Report stated that in cases seeking monetary relief only, the amount sought should
exceed $75,000, but the final report set the figure at $50,000. In the Rule as finally promulgated,
there is no dollar minimum. This “nature of relief ” factor apparently includes whether the plaintiff
has asked for a jury. October Minutes, supra note 376, at 19.
382. Maryland Task Force Report, supra note 71, at 8. The Implementation Committee ultimately
did not find this format workable. Telephone interview with the Honorable Steven I. Platt, Maryland
Seventh Circuit Court (Sept. 8, 2003) (on file with authors) [hereinafter Judge Platt Interview]. Judge
Platt was the Task Force vice-chair, Implementation Committee chair and is currently head of the
Designated Judges Committee which includes Program judges from across the state.
383. In total, the Task Force list included fifteen categories. During the early stages of the study
process, “[t]he list of what is and is not included was debated heavily and is fairly broad. . . . [T]he
Implementation committee felt that the more specific criteria in the plan should be uniform throughout
the State. Standards include what cases are and are not admitted, but administrative judges should
not be locked in.” October Minutes, supra note 376, at 22.
The Creation and Jurisdiction of Business Courts in the Last Decade 193
These presumptive and exclusive lists, however, were not included in the final
rule; and they are not officially part of the measure for accepting or rejecting cases
into the Business and Technology Program.384 As set forth above, Maryland’s new
rule requires continuing judicial education.385 The judicial education require-
ments provide a detailed list of specific areas for judicial study. While this list is
not set out as a jurisdictional statement, it does indicate at least some types of
cases that will likely be heard, since they are part of the subject matter of the
judicial education program.
The judicial education subject areas in the Implementation Report include,
among others: the forms of business organization; piercing the corporate veil;
funding and capitalization; shareholder distribution; director and officer liability;
derivative suits; shareholder and director inspection rights; special issues in
closely held corporations; mergers, buyouts, takeover, spin-outs; non-compete
agreements; non-solicitation and confidentiality agreements; business valuations;
rights of majority and minority business owners; taxation; antitrust; duties of
officers, directors, or managers; software design and manufacture; Internet; eco-
nomics of software networks and markets; biotechnology; telecommunications;
electric power; intellectual property law; the Maryland Computer Information
Transactions Act; the Maryland Electronic Transactions Act; and the Maryland
Commercial Code.386
The Business and Technology Program is a part of Maryland’s circuit courts
throughout the state, and the judges in that track meet quarterly.387 Among other
things, they discuss the criteria for accepting or rejecting cases from the Program
and seek consistency in application.388 Judge Steven I. Platt, Chair of Maryland’s
Designated Judges Committee, and Supervisory Judge for the Program in Prince
George’s County, had yet to hear any protest on a case being accepted or rejected
in the Program through the Program’s first nine months.389
Fulfilling one Task Force goal, the Business and Technology Case Management
Program has a website.390 The publication of informed and consistent opinions,
384. Judge Platt Interview, supra note 382. Speaking as a panelist during the November 7, 2003
Symposium, “Taking Care of Business: Business & Technology Courts in the Twenty-First Century,”
held at the University of Maryland School of Law, Judge Platt stated that judges would likely consider
these case types to have some relevance in determining whether a case should be heard in the new
Program. The authors were co-panel members.
385. The Implementation Report addressing the Maryland Task Force recommendations stated that
it was addressing “specialized judicial education in both substantive business law and technology
issues, as well as techniques for efficiently managing specialized business technology cases and dockets
[as] critical to an effective Business and Technology Case Management Program.” Maryland Imple-
mentation Report, supra note 366, at 14.
386. Id. at 14–17.
387. Judge Platt Interview, supra note 382. This comports with the Implementation Report that
encouraged judges to meet regularly to share experiences in the same way that physicians meet in
regular “morbidity and mortality” meetings to discuss their significant cases. Maryland Implementation
Report, supra note 366, at 17. This is in line with the Delaware Chancery Court practice. Maryland
Task Force, supra note 71, Appendix B, at 23.
388. Judge Platt Interview, supra note 382.
389. Id.
390. Maryland Business and Technology Case Management Program, at http://www.courts.state.
md.us/businesstech/index.html. Judge Platt Remarks, supra note 370, at 11.
194 The Business Lawyer; Vol. 60, November 2004
which can establish a basis for planning action, was an important issue raised in
the Business and Technology Program’s creation.391 Program opinions can be
found on the website,392 and in Westlaw’s database.393 In addition, the publication
of opinions provides a form of communication between the various Program
judges.394 As stated on the website:
(i) “specialization within the legal profession has resulted in the more
efficient delivery of high quality legal services in complex matters;”398
(ii) within that Florida Circuit Court, there has been a “long recognized
. . . need for specialized courts to deal effectively with diverse matters
including criminal law, juvenile justice, domestic relations, probate and
drugs;”399
(iii) the “litigation and resolution of complex business, corporate and com-
mercial disputes has become an area of specialization within the legal
profession;”400
(iv) “a court that consistently hears business, corporate and other com-
mercial disputes can be expected to develop expertise, experience and
knowledge enabling it to perform its functions more proficiently, rap-
idly and confidently;”401
(v) “a business Court will provide consistency and predictability to liti-
gants and counsel;”402
(vi) “the more efficient handling of these cases will free judicial resources
to handle other important matters;”
(vii) “the decisions in these cases oftentimes impact not only the litigants
but numerous persons throughout our community including employ-
ees, shareholders, partners, creditors and suppliers;”403 and
(viii) “the establishment of a Business Court may become one more factor
in helping our community to attract new businesses that are looking
to re-locate.”404
The new Business Court Subdivision’s jurisdiction is most similar to that found
in New York and Philadelphia, and includes a broad range of disputes.405 While
there were earlier discussions of including complexity as an express part of the
new court’s jurisdiction,406 the Order does not include a separate finding of com-
plexity as a jurisdictional requirement.407
410. Id.
411. Oklahoma House of Representatives Media Division, House Approves Legislation to Create Busi-
ness Courts, Mar. 11, 2004, at http://www.lsb.state.ok.us/house/news6684.html.
412. Ryan McNeil, House Approves Lawsuit Reform, OKLAHOMAN, May 28, 2004.
413. The new law was adopted by the Oklahoma House on May 27, 2004, the Senate on May 28,
2004, and signed by the Governor on May 28, 2004. See 2003 OK H.B. 2661, First Session of the
49th Legislative Session, House Bill 2661, available at 2003 Bill Tracking OK H.B. 2661, http://
www.lexis.com.
414. The new law provides that:
A. The Oklahoma Legislature finds that, due to the complex nature of litigation involving
highly technical commercial issues, there is a need for a court in Oklahoma’s most populated
counties with specific jurisdiction over actions involving such commercial issues.
B. The Supreme Court is authorized to create a business court division within the district court
of any judicial district containing a municipality with a population in excess of three hundred
thousand (300,000), according to the latest Federal Decennial Census.
C. The Supreme Court shall promulgate rules for the establishment and jurisdiction of the
business court divisions.
2003 OK H.B. 2661, Oklahoma Second Session of the 49th Legislative Session, Sections 16 and 17,
enacted May 28, 2004, available at http://www.lexis.com.
415. This section on Michigan’s Cyber Court and efforts at creating a business court was chiefly
prepared by Diane L. Akers of Bodman, Longley & Dahling LLP in Detroit. Ms. Akers is the Chair of
the Business Court Ad Hoc and Business Court Executive Committees of the State Bar of Michigan’s
Business Law Section.
416. MICH. COMP. LAWS ANN. §§ 600.8011–.8029 (West 2004).
417. In late 2001, the Michigan House of Representatives and Senate passed a bill creating a Cyber
Court, which was to take effect as on January 9, 2002. Id. While there was initially funding for the
Cyber Court, that funding was placed on hold later in 2002 (an election year). Thereafter, the Michigan
Legislature passed an amended bill, modifying somewhat the provisions of the original Cyber Court
statute. For further history, see, e.g., Amy Lane Lansing, Lack of Funding Keeps Cyber-Court Offline,
CRAIN’S DETROIT BUS., July 15, 2002, at 12; What Other States Are Doing, DEL. L. WKLY., Feb. 5, 2003,
at 5; Kimberly Koscielniak and Brian Wassom, Practice Tips: Cyber Court, 82 MICH. BAR. J. 48 (2003).
The Creation and Jurisdiction of Business Courts in the Last Decade 197
The Business Law Section of the State Bar of Michigan has created a Business
Court Ad Hoc Committee, which has proposed that a pilot Business Court be
established in one or two circuit courts in Michigan. Three circuit courts have
expressed interest in exploring the issue. While there are differences between the
Cyber Court, as enacted, and a Business Court, as proposed, supporters of both
initiatives believe that the two are complementary and are working together to
achieve shared objectives.
judge’s determination is final and may not be reviewed by the circuit court.425
The requirement of judicial review continues throughout the case.426
When it passed the amended Cyber Court statute, the Michigan Legislature
revised the definition of “business or commercial dispute.” Under the current
version of the statute, “business or commercial dispute means any of the following
actions”: (i) actions in which all parties are business enterprises; (ii) actions be-
tween a business enterprise and its owners, managers, employees, etc.; (iii) ac-
tions in which a party is a non-profit entity and the dispute arises from the
organization’s structure, governance, finances, etc.; and (iv) actions arising from
the sale, merger, organizational structure, governance, finances, etc. of a business
enterprise.427
The Cyber Court statute provides that the following kinds of disputes are in-
cluded within the definition of a “business or commercial dispute”: (a) disputes
involving technology, websites, etc.; (b) disputes over the internal organization or
governance of business entities; (c) contract disputes; (d) disputes over commer-
cial transactions, including bank transactions; (e) disputes over business or com-
mercial insurance; and (f ) disputes over commercial real property.428
The Cyber Court statute also excludes certain kinds of actions, including:
(a) personal injury or wrongful death actions; (b) product liability matters with
individual claimant(s); (c) family division cases; (d) probate proceedings; (e) pro-
ceedings involving estates or protected persons; (f ) criminal matters; (g) con-
demnation matters; (h) appeals from lower courts or administrative tribunals;
(i) enforcement of judgments; and ( j) landlord-tenant matters involving residen-
tial property.429
the Cyber Court initiative to determine what synergies might be achieved and to
ensure that efforts were not being duplicated.431
The Committee views the purposes for a Business Court in Michigan to be:
(i) to enhance the consistency, predictability, and accuracy of decisions in business
cases, and (ii) to enhance the efficiency with which business cases are resolved
through pro-active case management, technology, and early ADR.432 The Com-
mittee also concluded that neither a new statute nor amendment to the existing
Cyber Court statute was necessary to achieve its goals for commercial litigation.433
Rather, the Committee has focused on the concept of assigning a sitting circuit
court judge to serve as a Business Court judge through the assignment power of
the chief judge of each circuit.434
The Committee also considered what kinds of cases should be heard in a Busi-
ness Court and concluded that, at least initially, the definition of commercial or
business dispute contained in the Cyber Court statute should be used. A Business
Court would require that damages exceed $25,000, the general requirement for
all civil cases filed in circuit courts in Michigan. In May 2003, the Business Law
Section Council agreed to fund some further exploration of a pilot Business Court
and, in particular, a review of the quantity of business litigation filed in each
county.435 The Committee then prepared a proposal for a pilot business court,
which has been presented to representatives of one of the metropolitan Detroit
counties.436 The matter is still under discussion. The Committee intends to con-
tinue to pursue its efforts to establish a Business Court in Michigan, regardless of
whether the Cyber Court is funded.
431. During 2002 and 2003, the Committee conducted a number of meetings and study sessions
designed to gather information and explore how litigation of business cases could be improved. The
Committee also sought the views of various legal and business organizations to determine what would
best meet the needs of commercial litigators and their clients.
432. Report of Business Court Executive Committee, supra note 430, at 1.
433. Id.
434. The Committee believes that, while technological advances should be utilized where appro-
priate, electronic filing and appearances should be available but not, at this stage, mandatory. The
Committee has also considered the advantages of a system that would be entirely voluntary, but is
concerned that few cases would remain in the Business Court if the litigants can “veto” use of the
Business Court.
435. See supra note 415.
436. Id.
437. A private consultant was used to study London’s existing commercial courts to determine
methods of improvement. See infra Section XV.
200 The Business Lawyer; Vol. 60, November 2004
438. Governor’s Task Force on Civil Justice Reform, Executive Summary, Final Report of Governor’s
Task Force on Civil Justice Reform, at 2 (Sept. 6, 2000), at http://www.state.co.us/cjrtf/report/download/
executiv.doc.
439. Id.
440. Id. “More generally, and as detailed in the Report, Colorado should strengthen the ability of
all Colorado courts to resolve complex business disputes with less cost and reduced delay.” Id. Minutes
of the Business Court Committee’s meeting can be found at http://www.state.co.us/cjrtf/min/minutes.
htm.
441. Colorado Report, supra note 72.
442. Id.
443. Id.
444. Id.
445. Michael Becker, Businesses Praise Colorado Courts; Legal System Earns Recognition for Overall
Efficiency, J. ADVOC., Mar. 1, 2002; see also C.J. Mary J. Mullarkey, State of the Judiciary, Jan. 12, 2001,
Recent Selected “State of the Judiciary” Addresses Delivered by State Chief Justices, at http://www.abanet.org/
justice/pdf/speech01-02b.pdf.
The Creation and Jurisdiction of Business Courts in the Last Decade 201
Study lists and analyzes twelve different “functional categories” in which recom-
mendations are made, including, e.g., objectives to be achieved, case types, and
judicial management.453 It provides a somewhat distinct perspective in that it was
created by professional court consultants.
The first category analyzed, “Core Business Court Objective,” is critical in de-
termining the shape of the remaining recommendations. The summary descrip-
tion set forth in the report, encapsulating the proposed objectives into a maxim
is, “[a]ssigns business cases to specialized judges in order to manage them more
effectively and expeditiously and to more efficiently use judicial resources both
within the business court and in the court system as a whole.”454 As to the case
types assigned, a complex North Carolina Business Court type jurisdiction is
recommended to achieve this goal for Georgia: “Only complex business cases and
business cases with novel legal precedents are assigned to a business court.”455
In his January 16, 2004 State of the Judiciary Address, Georgia Chief Justice
Fletcher stated that “[t]he proposed pilot project for a business court will soon
be on the table for consideration.”456
453. Id. at 8.
454. Id. Each summary point is developed at length later in the Study.
455. Id. at 12. By contrast, Colorado’s Business Committee found that: “Defining what constitutes
a ‘commercial case’ is fundamental to the operation of a business court. While the court will be
particularly suitable for complex cases, commercial cases of all levels of complexity will benefit from
adjudication by experienced business jurists.” Colorado Report supra note 72, at 12.
456. Chief Justice Norman S. Fletcher, State of the Judiciary Address, Jan. 16, 2004, available at
http://www2.state.ga.us/Courts/Supreme/2004_judiciary_speach.htm; State of the Judiciary Address:
Georgia Courts at Work, GA. CTS. J., Feb. 2004, at 3, available at http://www.georgiacourts.org/aoc/
publications/CJ-Feb-2004.pdf. The business court proposal was to be presented to the State Bar’s
Board of Governors for consideration in early November 2004. Steven H. Pollak, Fulton Moves Forward
with Plans for New Business Court, FULTON COUNTY DAILY REPORT, Oct. 8, 2004, at 1.
457. We are not including a lengthy history of other nations’ commercial court programs. The
following discussion sets forth some details of business courts in England, Ireland and Toronto, Can-
ada. There are parallels with the creation of American business courts which adduce the presence of
similar causes and objectives. This reflects the global nature of conditions that have impelled the
creation of commercial courts.
458. See Modernisation of the Commercial Court—Consultation Paper, at 1.4 and Annex B (Dec. 10,
2001), available at http://www.courtservice.gov.uk/cms/media/consult_paper_commscrt(1).pdf [here-
inafter Consultation Paper].
The Creation and Jurisdiction of Business Courts in the Last Decade 203
459. The Commercial Court/The Admiralty Court 2001–02, Report on the Year Ending 30th Septem-
ber 2002 ¶ 53(a), available at http://www.courtservice.gov.uk/using_courts/guides_notices/notices/comm/
commreport_02.htm.
460. Id. ¶ 53(b).
461. THE ADMIRALTY & COMMERCIAL COURTS GUIDE, at B1.1 (6th ed. 2002), available at http://
www.courtservice.gov.uk/using_courts/guides_notices/notices/comm/guide/com_crt_guide.htm#cases.
462. See Minister for Justice Michael McDowell T.D., Equality & Law Reform Address; The Com-
mercial Court and Mediation Conference (Mar. 24, 2004), available at http://www.justice.ie/80256
E01003A02CF/vWeb/pcJUSQ5XLD4H-en.
463. Committee on Court Practice and Procedure, 27th Interim Report, A Commercial Court in
Ireland, Establishing Connections to Domestic and International Arbitration Centers, The Courts of e Gov-
ernment—Meeting the e Commerce Challenge (Feb. 27, 2002), available at http://www.courts.ie/press.
nsf / a3b752e69d6a613e802568350067c46e / 7755e7355444367480256b6d0055e1e0?OpenDocument
(“[t]he Committee recommends that a pilot project Commercial Court be developed in Dublin as a
matter of urgency.”). Id.
464. William Fry, Solicitors, A Commercial Court in Ireland, at http://www.williamfry.ie/files/
indexfile.asp?id⳱97.
204 The Business Lawyer; Vol. 60, November 2004
Under the prior system, “any judge, regardless of his or her background and
experience, c[ould] be assigned a complex case involving corporate litigation. A
judge d[id] not know, until the last moment, what case he or she w[ould] be
assigned, which rule[d] out the possibility of pre-preparation.”465
In 1991, the Superior Court of Justice in Toronto, Ontario established a “Com-
mercial List” as an informal court division.466 Given the province’s business and
financial focus, the court wanted “to be able to deal in an effective manner with
complicated corporate, commercial and bankruptcy/insolvency related cases.”467
The Commercial List may include bankruptcy matters, various statutes, and “such
other commercial matters as a judge presiding over the Commercial List may
direct to be listed on the Commercial List. . . .”468 This last “basket clause” permits
such other commercial matters as the presiding judge may direct.469 In 2001,
there were five or six assigned judges, with a “solid cadre of them . . . experienced
as commercial judges.”470 The Commercial List is voluntary, except for bankruptcy
matters; and “[t]he special procedures adopted for the hearing of matters on the
Commercial List expedite the hearing and determination of these matters and
they have met with considerable approval.”471 It is considered a very successful
program.472
465. Plans for a Specialist Commercial Division with the Circuit Court, IRISH EXAMINER (Aug. 4, 2003),
at http://archives.tcm.ie/irishexaminer/2003/08/04/story408999439.asp (“The proposal for the Com-
mercial Court arose out of a report . . . by the Committee on Court Practice and Procedure. . . .
According to the committee, ‘there is merit in establishing a more specialized approach to commercial
cases.’”).
466. The Honorable Robert A. Blair, The Commercial List—Handling Business Cases Effectively, THE
METRO. CORP. COUNS., NE ED., May 2001, at 36 [hereinafter Blair Interview].
467. Id.
468. Practicing Direction Concerning the Commercial List, Superior Court of Justice, Toronto Region
at http://www.ontariocourts.on.ca/superior_court_justice/notices/commercial.htm [hereinafterPractic-
ing Direction]. (These may include: “applications, motions and actions which in essence involve the
following: a) Bankruptcy and Insolvency Act; b) Bank Act, relating to realizations and priority disputes;
c) Business Corporations Act (Ontario) and Canada Business Corporations Act; d) Companies’ Cred-
itors Arrangement Act; e) Limited Partnerships Act; f ) Pension Benefits Act; g) Personal Property
Security Act; h) receivership applications and all interlocutory motions to appoint, or give directions
to, receivers and receiver/managers; i) Securities Act; j) Winding-Up and Restructuring Act; k) Credit
Unions and Caisses Populaires Act, relating to credit unions and caisses populaires under administra-
tion or that are being wound up or liquidated.”).
469. Blair Interview, supra note 466.
470. Id.
471. Practicing Direction, supra note 468. In describing its general procedures, Practicing Direction
5 states “Co-operation, communication and common sense shall continue to be the principles of
operation on the Commercial List.” Id.
472. Blair Interview, supra note 466.
473. Although the focus of this Article is on business and commercial courts, we have added this
general section on complex courts. We have not focused on a number of issues that an article on
complex litigation would normally provide; rather, we include the instant discussion in the context
of complex commercial and business cases. It is our view that the objectives in establishing a successful
The Creation and Jurisdiction of Business Courts in the Last Decade 205
public has often been framed as a choice between having a complex litigation
program or a commercial/business litigation program.
The authors, who practice primarily in the Philadelphia region, observe that
the Philadelphia Court of Common Pleas has separate and distinct programs for
complex tort cases,474 class actions,475 as well as commercial cases.476 Similarly, in
Chicago, the general calendar program began with the individual assignment of
tort cases, not commercial cases.477 In Las Vegas, which has a business court, there
is also a complex litigation program which now includes a special court to hear
construction defect cases.478
Thus, we raise the question as to whether the apparent “either/or” conflict
between complex litigation programs and commercial programs is a true conflict.
While there may arguably be competitive budgetary concerns in some instances,
this putative conflict may actually reflect a belief that is neither empirically sup-
ported nor necessary.479 We suggest that a single court system can address both
business court are not coextensive with the objectives of a court focused on handling all types of
complex cases; though there may be some overlap in the areas of competent and effective case man-
agement and limited specialization. As to the meaning of complexity, an issue not addressed herein,
see, e.g., R. George Wright, The Illusion of Simplicity: An Explanation of Why the Law Just Can’t Be Less
Complex, 27 FLA. ST. U. L. REV. 715 (2000); Jeffrey W. Stempel, A More Complete Look at Complexity,
40 ARIZ. L. REV. 781 (1998); Neil Vidmar, The Performance of the American Civil Jury: An Empirical
Perspective, 40 ARIZ. L. REV. 849, 855–61 (1992); Jay Tidmarsh, Unattainable Justice: The Form of
Complex Litigation and Limits of Judicial Power, 60 GEO. WASH. L. REV. 1683 (1992); Peter H. Schuck,
Legal Complexity: Some Causes, Consequences, and Cures, 42 DUKE L.J. 1 (1992); Stephen B. Burbank,
The Costs of Complexity, 85 MICH. L. REV. 1463 (1987).
474. See supra note 246.
475. See supra note 247.
476. See supra pages 176–78.
477. See supra note 85.
478. The Clark County District Court has a Complex Litigation Center. This facility was “converted
for use in extremely complicated multiple party cases, primarily the construction defect cases . . . [to]
accommodate up to 50 counsels, along with their clients, and has a public seating gallery of 100.”
Chief Justice Agosti Addresses Nevada Legislature, 11 NEV. LAW. 16 (Apr. 2003); Joe Wheeler, Packed
House Hears Judge Explain Construction Litigation Process, THE CONSTR. ZONE (Feb. 2004), available at
http://www.nvczone.com/NSA_Judges_On_CDLitigation_Feb_2004.htm (“The Complex Litigation
Program in Clark County created a special court to hear construction defect cases.”); Hubble Smith,
CONSTRUCTION DEFECT LAWSUITS: Falling Between the Cracks, LAS VEGAS REV. J., Feb. 2, 2003, at
http://www.reviewjournal.com/lvrj_home/2003/Feb-02-Sun-2003/news/20226050.html.
479. One challenge raised is that the best judges will go into business court programs. This prop-
osition is not axiomatic. Judges may go where their interest, experience or ability suits them. Thus,
there may be judges who excel in handling the dynamics of courtroom interactions, who want to be
trying cases as often as possible and who detest the long paperwork of motion intensive cases. Such
judges may be of the highest caliber, and yet would never want to participate in a commercial, or
complex, litigation program. Moreover, under the theory that the best judges will necessarily go into
the specialized court, those judges would similarly go into complex court program. This would like-
wise take the best judges from the average person’s case, e.g., in favor of the class action bar or the
construction defect bar; and would make it more likely that large businesses, whose cases would more
often be complex, would get more attention than cases involving small businesses.
Another doubt is raised via the argument that a business court will have an inherent pro-business
bias. On this issue, most commercial program cases involve businesses litigating against each other;
and, thus, the issue of consumer vs. business will not typically arise. Even where it has, however, the
cases have not been pre-determined for corporate victory. For example, in Zwiercan v. General Motors
Corp., No. 3235 (Phila. Ct. Com. Pl. Mar. 18, 2003), available at http://courts.phila.gov/cgi-bin/opin-
ions/comcrtsearch.cgi?dropdown⳱cptcvcom (Mar. 18, 2003), the court ruled that the consumers’
claims for reliance were sufficient under Pennsylvania’s Unfair Trade Practices and Consumer Protec-
206 The Business Lawyer; Vol. 60, November 2004
needs as distinct, rather than as two objects seeking to occupy the same space.480
Apart from budgetary limitations, a court faced with significant commercial liti-
gation and other types of complex cases might very well want to consider spe-
cialized programs to address both sets of needs and requirements.
tion Law, even though new appellate case law was argued to support a dismissal. In Tomlin v. Dylan
Mortgage, Inc., No. 99 CVS 3551 (N.C. Super. Ct. Feb. 1, 2002), available at http://www.ncbusiness
court.net/opinions/Tomlin%20v.%20Dylan%20Mortgage%20Inc.,%202002%20NCBC%201.htm,
Judge Tennille certified a class in a case involving allegedly improper real estate loans and refinancing
to high risk applicants. Again, if the business courts were inherently anti-consumer, one would not
expect such a result; but rather an effort to protect the business by any means. These cases are adduced
not to substitute for a body of exhaustive research, but to point out that allegation of bias must be
put to the test.
480. In addition to a specialized Commercial Court, England has a specialized Technology and
Construction Court. See supra Section XV. This Court’s jurisdiction includes, e.g.,
Building and other construction disputes, . . . ; Engineering disputes; Claims by and against
engineers, architects, surveyors, accountants and other specialised advisers relating to the services
they provide; . . . Claims relating to the design, supply and installation of computers, computer
software and related network systems; Claims relating to the quality of goods sold or hired, and
work done, materials supplied or services rendered; . . . Claims relating to the environment (for
example, pollution cases); . . . [and] Claims involving the taking of accounts where these are
complicated . . . .
The Technology and Construction Court Guide, ¶ 1.7, at 11–12, at http://www.courtservice.gov.uk/cms/
media/tcc_guide.doc. “In reality, the TCC is the specialist court of the High Court which deals with
all those complicated and technical civil disputes which are not the province of some other specialist
tribunal.” Id. at 7–8.
481. California Judicial Council Business Court Study Task Force, Final Report of the California
Judicial Council Business Court Study Task Force (May 16, 1997), at 2 [hereinafter 1997 Final Report]
(on file with The Business Lawyer, University of Maryland School of Law).
482. The Judicial Council “is the policymaking body of the California courts . . . .” Judicial Council
of California, News Release, State Courts Resolve Complex Cases More Efficiently National Report Finds
(Aug. 29, 2003) [hereinafter August 2003 News Release].
483. 1997 Final Report, supra note 481.
484. Id. at 7.
485. Id. at 3.
The Creation and Jurisdiction of Business Courts in the Last Decade 207
the creation of a business and commercial law division within the Superior Court
as a pilot project.486 Eight months later, “the State Bar Board of Governors passed
a resolution forbidding the Business Court Committee from pursuing or sup-
porting legislation to establish a specialized court for business cases.”487 The pri-
mary opposition was on the basis that a business court would be “elitist,” taking
the best judges and other resources, and would potentially favor business inter-
ests.488 The Task Force believed that its complex court recommendations could
assuage concerns about perceived inequality, lack of predictability, and the quality
of decision making in business and commercial litigation.489
After the Business Court Task Force Report, in 1997, California’s Chief Justice
Ronald M. George appointed the Complex Civil Litigation Task Force to “identify[]
ways for trial courts to manage complex cases more efficiently and effectively.”490
Complex litigation included cases requiring “exceptional management to avoid
placing unnecessary burdens on the court or the litigants and involve such areas
as antitrust, securities claims, mass torts, and class actions.”491 The Complex Lit-
igation Task Force included subcommittees focusing on pretrial practice; trial;
specialized areas (e.g., antitrust, construction, environmental, insurance, intellec-
tual property, mass torts, securities, and class actions); ADR; technology; and
judicial education.492 The Complex Litigation Task Force developed a judicial
deskbook for managing complex litigation.493
In January 2000, the Judicial Council established the complex case manage-
ment programs in six California Superior Courts.494 Known as the Complex Civil
Litigation Pilot Program, it was “designed to improve judicial management of
complex cases and to expedite case resolution, keeps costs reasonable, and pro-
mote effective decision making by the courts, parties, and counsel.”495 Los Angeles
began with six judges, Orange County had five judges and the Northern California
courts had one judge each.496
In June 2003, the National Center for State Courts (“NCSC”), which had con-
tracted with the California Administrative Office of the Courts to study the Com-
plex Civil Litigation Pilot Program, issued a lengthy study evaluating the pro-
486. Business Court Committee of the Business Law Section of the State Bar of California, Status
Report of the Business Court Committee of the Business Law Section of the State Bar of California, at 2
( June 30, 1993) (Draft) (on file with authors).
487. 1997 Final Report, supra note 481, at 2.
488. Id. at 5–6. But see supra note 479.
489. Final Report 1997, supra note 481, at 7.
490. Judicial Council of California, Complex Civil Litigation, Fact Sheet, at 2 (Sept. 2004) [hereinafter
September 2004 Fact Sheet], at http://www.courtinfo.ca.gov/reference/documents/comlit.pdf.
491. Id. at 2.
492. Id. at 1–3.
493. Id. at 2.
494. August 2003 News Release, supra note 482. These included the Alameda, Contra Costa,
Orange, Los Angeles, San Francisco, and Santa Clara Superior Courts. Id. The pilot program was
created and funded by the 1999 Budget Act. June 2004 Fact Sheet, supra note 490, at 3. The total
annual allocation for the pilot program is $2,885,000. Id. at 4.
495. August 2003 News Release, supra note 482.
496. September 2004 Fact Sheet, supra note 490, at 3.
208 The Business Lawyer; Vol. 60, November 2004
gram.497 Before the pilot program, the chief complaints (as in other courts)
included the problems associated with case assignment to a master calendar, ac-
companied by a complaint of “over-reliance on referees.”498 The pilot program
uses individual calendar assignments, with a single responsible judge, from in-
ception to resolution of the case.499
The NCSC Evaluation identifies three basic types of complexity, any one or
more of which might exist in the same case. These include legal complexity,
involving difficult legal issues that will create numerous motions; evidentiary com-
plexity, both in terms of the specialized expertise required to understand the
evidence and the volume of evidence; and logistical complexity, involving large
numbers of parties and counsel, and large volumes of evidence.500
The NCSC Evaluation states that the pilot program includes purely commercial
cases501 that are deemed complex, but these constitute only about one-fourth of
the total caseload.502 Approximately one-third of the pilot cases are complex
torts503 and the remainder “could be classified in either category.”504 Half of the
pilot cases fall into the categories pre-designated by Court Rule as “provisionally
complex.”505 The single largest category of cases involves construction defects
(26.3 percent), followed by class actions (16.4 percent), and breach of contract/
warranty (10.8 percent). On the other end of the spectrum are antitrust/trade
cases (0.5 percent); asbestos mass torts (0.7 percent); medical malpractice (1.0
percent); mandamus (1.0 percent); professional negligence (1.1 percent); securi-
ties (1.2 percent); other personal injury/wrongful death (1.3 percent); other real
property (1.6 percent); fraud (1.7 percent); product liability (1.8 percent); insur-
ance claims from complex cases (2.2 percent); toxic tort/environmental (3.5 per-
cent); eminent domain (4.0 percent); insurance coverage (4.3 percent) and busi-
ness torts (5.7 percent).506
California Court Rule 1800 provides a general definition for complexity, and
then gives a list of factors to weigh in determining if a case is complex. Thus,
Rule 1800(a) states: “[a] ‘complex case’ is an action that requires exceptional
judicial management to avoid placing unnecessary burdens on the court or the
497. Paula L. Hannaford-Agor, Nicole L. Mott, & Timothy F. Fautsko, Evaluation of the Centers for
Complex Civil Litigation Pilot Program, National Center for State Courts and California Administrative
Office of the Courts, at v ( June 30, 2003) [hereinafter NCSC Evaluation], at http://www.ncsconline.
org/WC/Publications/Res_ComLit_ComplexCivilLitigationPub.pdf.
498. Id. In the master calendar system, multiple judges hear and address different stages of the
same case “resulting in the lack of a single point of judicial accountability for case supervision, insuf-
ficient judicial involvement in pretrial management of complex cases, and lack of judicial knowledge
about and experience in specific areas of substantive law.” Id. at vi.
499. Id.
500. Id. at 5–6.
501. The NCSC includes securities, antitrust, breach of contract/warranty, and business torts in
this category. Id. at 46.
502. Id. at vii.
503. Id. These are defined as construction defect, toxic torts, mass torts, products liability, fraud,
medical malpractice, professional negligence, and other personal injury type suits. Id. at 46 n.53.
504. Id. at vii.
505. Id. See CAL. CT. R. 1800(c)–(d) (West Supp. 2004).
506. NCSC Evaluation, supra note 497, at 46.
The Creation and Jurisdiction of Business Courts in the Last Decade 209
litigants and to expedite the case, keep costs reasonable, and promote effective
decision making by the court, the parties, and counsel.”507 Under Rule 1800(b),
the factors “the court shall consider, among other things” in making the com-
plexity determination, include:
(1) [the likelihood of ] Numerous pretrial motions raising difficult or novel
legal issues that will be time-consuming to resolve; (2) Management of a
large number of witnesses or a substantial amount of documentary evidence;
(3) Management of a large number of separately represented parties; (4) Co-
ordination with related actions pending in one or more courts in other coun-
ties, states, or countries, or in a federal court; or (5) Substantial postjudgment
judicial supervision.508
The Court Rules do recognize certain case types as “provisionally complex,”
meaning that the case will be found complex unless a judge determines otherwise,
after a review of the initial pleadings.509 Thus, by Rule, a case is provisionally
complex if it involves:
(1) Antitrust or trade regulation claims; (2) Construction defect claims in-
volving many parties or structures; (3) Securities claims or investment losses
involving many parties; (4) Environmental or toxic tort claims involving
many parties; (5) Claims involving mass torts; (6) Claims involving class
actions; or (7) Insurance coverage claims arising out of any of the [afore-
mentioned] claims . . .510
This rule, however, is subject to the caveat that no case is provisionally complex
“if the court has significant experience in resolving like claims involving similar
facts and the management of those claims has become routine.”511 Moreover, “[a]
court may declare by local rule that certain types of cases are or are not provi-
sionally complex pursuant to this subdivision.”512
In Contra Costa County, the clerk will automatically refer a case for review to
the presiding judge if there are more than seven parties and the cover sheet
designates the case as complex.513 In Santa Clara County, if one of the parties
designates a case as complex, the pilot judge determines if it is actually complex.514
San Francisco uses a similar method.515 In Oakland, Alameda County, after a party
designates a case as complex, there is a hearing to determine whether it will be
included in the program.516 In Orange County, if a case is designated as complex
by a party, it is randomly assigned to one of the program judges, but will be
reassigned upon a successful challenge.517 Cases not originally treated as complex
can later be reassigned to the program.518
Los Angeles County, with a population of over 9.8 million and a decentralized
Superior Court, has a dramatically different approach than the other counties.519
All class actions are filed in a single division and then immediately assigned to
the pilot program, with other cases designated as complex being assigned to a
civil court judge who reviews the case and has the discretion to keep it or send
it to the pilot program for case management.520 One third of the cases referred
have been sent back to the regular docket as they were determined not to be
complex.521 The supervising judges in Los Angeles and Orange County, and the
single judges in the other four pilot programs, review cases before accepting them
into the program, using objective procedures and criteria.522
The judges view themselves as pro-active case managers. They use a variety of
skills and techniques to move the parties toward identifying key areas of dispute
and investigation, so that they can make informed judgments to facilitate settle-
ment, and to make dispositive rulings, as necessary, to resolve cases.523 Only a
small number of cases went to trial.524
The large portion of construction defect cases raises a number of issues, such
as to what extent these cases might be treated as commercial cases in some in-
stances in other jurisdictions.525 A broader, and yet more pointed issue, is raised
by the potential for treating this huge swath of construction defect cases in a
specialized forum. These cases not only appear to take up a disproportionate
amount of the complex pilot case load,526 but construction defect cases have
unique characteristics which may permit such specialized treatment.527
Although some might argue that a construction defect litigation program would
cater to one segment of litigants and to the bar, and divert resources, etc., as was
argued against a business court in California, such an option certainly seems
rational. It is akin to court programs dedicated to asbestos litigation, and it is a
route taken in Clark County, Nevada.528 This reflects the fact that the needs and
objectives of substantively specialized courts can be different from, yet not in
conflict with, the objectives of a specialized complex litigation program.
Real Estate Ltd. P’ship, No. 04 CIV.708-10(GEL), 2004 WL 1048239, at *4 (S.D.N.Y. May 7, 2004)
(in a construction defect case pending in bankruptcy court, the federal court observed that the cases
started in the commercial division and could be efficiently resolved there, rather than being transferred
to another bankruptcy court).
526. As things now stand, the resources of the complex litigation program provide an exceptional
and unique forum to this single segment of litigants and their lawyers, at least in some counties. NCSC
Evaluation, supra note 497, at 14 n.22, 17–18, 22 n.28 (Contra Costa and Orange Counties).
527. The NCSC Evaluation repeatedly observes that these cases reflect a unique use of referees,
the prevalence of the construction defect bar involved in the complex case program (37 percent of
surveyed lawyers with complex practices), and the need for less management because of counsel’s
familiarity with each other. NCSC Evaluation, supra note 497, at viii, 12, 14, 18, 25, 28.
528. See supra note 478.
529. Lynne J. Tomeny, The Corporate Bar Issues a Policy Statement Supporting Creation of A Connecticut
Business Court, METROPOLITAN CORP. COUNS., Apr. 1997, at 53. Lynne Tomeny was the Corporate
Bar’s President at the time and issued a letter setting forth reasons for creating business court.
530. Create a Complex Business Docket—Not a Business Court, CONN. L. TRIB., May 25, 1998 [here-
inafter Law Tribune Editorial].
531. Susan D. Etkind, Attorneys Debate Simplifying Complex Litigation, CONN. L. TRIB., Feb. 9, 1998;
see also Law Tribune Editorial, supra note 530 (advocating that a complex litigation program would
provide a flexibility that more accurately met the needs of Connecticut’s court system and huge jury
backlog). The complex docket was also advocated by the Citizens’ Conference on the Connecticut
Courts in November 1997. Peter L. Costas, Complex Litigation Docket A First Step Toward Better Civil
Litigation Management, CONN. LAW. Dec. 1999–Jan. 2000, at 14. The debate in Connecticut clearly
reflected (i) a belief that there had to be a choice between these two types of courts; and (ii) strong
passions on which choice should be made.
532. Etkind, supra note 531.
212 The Business Lawyer; Vol. 60, November 2004
its complex litigation program on June 1, 1998.533 This program is known as the
Complex Litigation Docket or CLD.
The complex litigation program’s hallmark is to assign one judge to each case.534
The judge becomes involved upon assignment, and develops a case plan at an
early case management conference.535 Either the parties or the court can request
a complex litigation designation.536 The bench urges the bar to use the Complex
Litigation Docket “in any type of case that has intricate issues or unique concerns
which would benefit from the specialized attention available in this program.”537
The Chief Administrative Judge of the Civil Division is the ultimate gatekeeper
on whether or not a case is accepted in the CLD.538
Currently there are eight complex litigation judges,539 with each judge respon-
sible for an average of 143 cases.540 ADR is an important component of the pro-
gram, with the judges acting as mediators in each other’s cases, giving at least a
full day to the mediation process.541 In an important case for the CLD, Connecti-
cut’s Supreme Court reversed a lower appellate court decision, and found that
“as a matter of law, no case is too complex for summary judgment.”542
The original categories of case types were broad, including class actions, se-
curities fraud, mass torts, medical malpractice, products liability, construction
contracts, intellectual property, and a catch-all category provision,543 and matters
“where the multiplicity of parties or issues suggests special procedures.”544 Case
types had been expanded to fifteen categories, from a more narrow original pro-
posal of class actions, product liability, construction contracts, and claims under
Connecticut’s Unfair Trade Practices Act.545 Cases can be designated complex
533. Scott Brede, Streamlining the Backlog of Knotty Cases, CONN. L. TRIB., Apr. 19, 1999. Those
advocating the complex court program believed that some goals sought in a business court could be
achieved, such as developing case law, but business court advocates expressed concern that the com-
plex court would not meet such objectives, as achieved in New York’s Commercial Division, and
asserted that concerns over a business court being “elitist” or taking assets away from the handling of
other litigation were not accurate. Etkind, supra note 531.
534. Law Tribune Editorial, supra note 530. This is not the typical judicial assignment pattern in
Connecticut. Brede, supra note 533.
535. Peter L. Costas, The Complex Litigation Docket, Try It, You’ll Like It, CONN. LAW., Feb. 2000,
at 18.
536. Sheila Anne Denton, Resolving Complex Cases: The One-Judge Solution, CONN. LAW., Mar. 2004,
at 16 (“Currently, approximately forty CLD applications are received each month . . . 43 percent are
from the presiding judge, 32 percent are from the defendant, and 25 percent are from the plaintiff.”).
537. Id.
538. Notice to Attorneys re: Complex Litigation Docket, Superior Court, Civil Division ( June 3,
2002), available at http://www.jud.state.ct.us/external/super/ComplexLitigationNotice.pdf.
539. Denton, supra note 536, at 17. State budget concerns have limited reaching the goal of twelve
judges.
540. Id. These are not permanent assignments, as judges can be transferred to the normal docket.
Id. The CLD is available in five court locations. Notice to Attorneys re: Complex Litigation Docket,
Superior Court, Civil Division ( June 3, 2002), available at http://www.jud.state.ct.us/external/super/
ComplexLitigationNotice.pdf.
541. Denton, supra note 536, at 17.
542. Gould v. Mellick & Sexton, 819 A.2d 216, 220 (Conn. 2003).
543. Denton, supra note 536, at 16.
544. Brede, supra note 531.
545. Id.
The Creation and Jurisdiction of Business Courts in the Last Decade 213
based on various factors, including the number of parties, the size of the claim
and the length of the trial.546
During its first year of operation, the assigned cases were “evenly divided be-
tween business and tort cases.”547 Between June 1998 and November 2003, 2,585
cases had been designated to the complex litigation docket.548 As of March 2004,
46 percent of the cases involved non-vehicular torts such as medical malpractice,
wrongful termination, and product liability.549 Twenty-one percent are contract
cases, while vehicle cases are 7 percent and property damage cases 6 percent of
the caseload.550 There are small percentages of housing matters, administrative
appeals, and probate appeals, with the remaining 13 percent including other
miscellaneous matters.551 The program is considered by most to be a success.552
546. Id.
547. Costas, supra note 531, at 14 (as reported by Chief Administrative Judge Joseph H. Pelligrino).
548. Denton, supra note 536, at 16.
549. Id.
550. Id.
551. Id.
552. Id. at 17.
553. In the Matter of Authorizing a Complex Litigation Program Applicable in Maricopa County,
Administrative Order No. 2002-107 (Ariz. Nov. 22, 2002) [hereinafter Arizona Order]. Phoenix is
located in Maricopa County.
554. Id.
555. Id. As discussed herein, this date was extended.
556. Id. The Court Evaluation Committee has its own website, at http://www.supreme.state.az.us/
courtserv/ComplexLit/default.htm.
557. ARIZ. R. CIV. P. 8(i)(1) (2004) (rule made applicable under the Arizona Order), supra note
553, at Appendix A. The text of ARIZ. R. CIV. P. 8(i)(1) currently provides: “[A] ‘complex case’ is a
civil action that requires continuous judicial management to avoid placing unnecessary burdens on
the court or the litigants and to expedite the case, keep costs reasonable, and promote an effective
decision making process by the court, the parties, and counsel.”
214 The Business Lawyer; Vol. 60, November 2004
and the need for expeditious resolution of a complex matter and designation when
the interests of justice would be served.558
The Committee to Study Complex Litigation reviewed materials on complex
and commercial case programs nationally, and concluded that Arizona should
follow California’s model, rather than a commercial case program.559 The Com-
mittee recognized the California pilot program as targeting substantively and pro-
cedurally complex cases, and that the Arizona program would include not only
traditional commercial cases, but cases such as mass and toxic torts.560 Unlike
California, Arizona courts would not get new funding but would rely on a real-
location of existing court resources, or fees generated by that court.561 Continuing
judicial education is an important part of the program.562
One judge handles the entire case, and is to take a hands-on approach, with
case management “aimed at encouraging early resolution of cases or parts of
cases.”563 There are to be court-annexed mediators and arbitrators, and program
judges will be able to handle discovery disputes on short notice.564 The parties
may move and seek to certify cases for complex designation, but it is the presiding
judge of the court, or that judge’s designee, who makes the decision.565 The ap-
plication process is serious as it requires certification under the strictures of Ari-
zona Rule 11;566 and the gatekeeper function is not to merely be a rubber stamp
to anyone asking for inclusion in the program.567
558. ARIZ. R. CIV. P. 8(i)(2), supra note 553, at Appendix A. Factors considered in determining
complexity are whether:
(A) Numerous pretrial motions raising difficult or novel legal issues that will be time-consuming
to resolve; (B) Management of a large number of witnesses or a substantial amount of documen-
tary evidence; (C) Management of a large number of separately represented parties; (D) Coor-
dination with related actions pending in one or more courts in other counties, states or countries,
or in a federal court; (E) Substantial post judgment judicial supervision; (F) The case would
benefit from permanent assignment to a judge who would have acquired a substantial body of
knowledge in a specific area of the law; (G) Inherently complex legal issues; (H) Factors justifying
the expeditious resolution of an otherwise complex dispute; (I) Any other factor which in the
interests of justice warrants a complex designation or as otherwise required to serve the interests
of justice.
Id.
559. Committee to Study Complex Litigation, Final Report of the Committee to Study Complex Liti-
gation (Sep. 2002), available at www.supreme.state.az.us/courtserv/complexlit/final.pdf at 3–4 [here-
inafter Arizona Final Report]. The Court Evaluation Committee’s minutes for March 18, 2004 indicate
that the issue of a New York style business court was raised, but the consensus was not to include
non-complex business cases, though the Committee would investigate if there were complex business
cases that were not being placed into the program. Complex Civil Litigation Court Evaluation Com-
mittee Minutes, Mar. 18, 2004 (Draft) [hereinafter March 2004 Minutes], available at http://www.
supreme.state.az.us/courtserv/ComplexLit/Min-04-03.pdf.
560. Arizona Final Report, supra note 559, at 4.
561. Id.
562. March 2004 Minutes, supra note 559, at 2.
563. Arizona Final Report, supra note 559, at 4.
564. Id.
565. Arizona Order, supra note 553 (appending new Rule 8(i)(3, 6)). See ARIZ. R. CIV. P. 8(i)(3)–
(7).
566. Id. at 8(i)(3).
567. The Evaluation Committee’s August 2003 minutes indicate that while fourteen cases had been
assigned to the program, twelve applications were denied, with some concern expressed over forum
The Creation and Jurisdiction of Business Courts in the Last Decade 215
As of March 18, 2004, there were twenty-six cases in the program, with three
designations pending.568 The complex litigation pilot program judges have had to
maintain a full civil caseload, and there have been budget constraints affecting
the pilot program.569 In light of the slow start up of the program, the Evaluation
Committee anticipated asking for an extension of the pilot program beyond De-
cember 2004 so that the program’s impact can be better measured.570 Similar to
concerns expressed by those favoring complex courts over business courts, one
judge expressed a concern that the complex litigation program might be viewed
as “elitist.”571 The purpose of the program is to relieve congested calendars for the
judges hearing more routine cases, thus removing the time consuming complex
cases from their dockets and re-assigning the complex cases “to a dedicated panel
of judges specially trained in complex case management;” ideally cutting down
on litigation time and saving costs and resources of both the court and the
litigants.572
shopping. Complex Civil Litigation Court Evaluation Committee Minutes, Aug. 26, 2003 (Draft),
available at http://www.supreme.state.az.us/courtserv/ComplexLit/Min-03-08.pdf.
568. March 2004 Minutes, supra note 559, at 1. More recent figures are set out in Complex Civil
Litigation Court Evaluation Committee Minutes, Aug. 23, 2004 (Draft) [hereinafter August 2004
Minutes], available at http://www.supreme.state.az.us/courtserv/ComplexLit/Min-04-08.pdf.
569. Complex Civil Litigation Court Evaluation Committee Minutes, Dec. 17, 2003 (Draft), at 1–
2, available at http://www.supreme.state.az.us/courtserv/ComplexLit/Min-03-12.pdf.
570. Id. at 2. Arizona’s Chief Justice has since “approved a two-year extension of the pilot program
and the [Evaluation] Committee’s term.” August 2004 Minutes, supra note 568, at 1.
571. March 2004 Minutes, supra note 559, at 3.
572. News Release, Arizona Supreme Court Administrative Office of the Courts, New Complex
Litigation Program Promises to Reduce Time and Cost of Going to Court ( Jan. 7, 2003) (on file with The
Business Lawyer, University of Maryland School of Law).
573. ALLEGHENY CO. PA. CIV. AND FAM. R. 249 IV (1999).
574. Id. at IV(A).
575. Id. at IV(B).
576. Allegheny County Civil Practice Manual § 9-1.0, at 91.
577. A Conversation With Judge Stanton Wettick, Allegheny County Common Pleas Court, PENN. LAW
WKLY., Apr. 17, 1995, at 7 [hereinafter Wettick 1995 Interview]; Conversation With Judge John L.
Musmanno, Allegheny County Common Pleas Court, PENN. L. WKLY., July 25, 1994, at 7.
578. Wettick 1995 Interview, supra note 577.
216 The Business Lawyer; Vol. 60, November 2004
579. The Hon. R. Stanton Wettick: Effectively Handling Business And Other Complex Disputes, MET-
ROPOLITAN. CORP. COUNS., N.E. ed., May 2001, at 48 [hereinafter Wettick 2001 Interview].
580. Id.
581. The Hon. Robert Cindrich, A Quality Court Attracts Business To Pittsburgh, METROPOLITAN CORP.
COUNS., N.E. ed., July 2001, at 50. He is “involved in cases involving complex issues that businesses
care about in which only one party may be a business.” Wettick 2001 Interview, supra note 579.
582. Id.
583. Delaware’s Supreme Court is not addressed herein as a “business court,” but the frequency
with which it renders important rulings on the matters of corporate law that were first before the
Chancery Court mark its place as a pre-eminent “business court” in its own right. See, e.g., Smith v.
Van Gorkom, 488 A.2d 858 (Del. 1985). While only five percent of the Supreme Court’s cases are
business cases on appeal from Chancery, the precedential importance of many of those cases may
result in commanding twenty percent of the Supreme Court’s time. E. Norman Veasey, The Drama of
Judicial Branch Change in this Century, 17 DEL. LAW. 4, 5 (Winter 1999–2000), available at 17-WTR
DELAW 4, http://www.westlaw.com.
584. DEL. CODE ANN. tit. 10, § 341 (2002). Under section 342, “The Court of Chancery shall not
have jurisdiction to determine any matter wherein sufficient remedy may be had by common law, or
statute, before any other court or jurisdiction of this State.” Id. § 342. As discussed infra, the inclusion
of a new technology jurisdiction permits the Chancery Court to decide or mediate purely monetary
matters in some cases.
585. The Chancery Court’s five judges (one Chancellor and four Vice-Chancellors) handle approx-
imately 500 business cases a year, including “typical corporate cases—derivative, class actions, in-
junctions, internal corporate affairs, and the like.” The Drama of Judicial Branch Change in this Century,
supra note 583, at 5. These often complex and important cases constitute approximately 75 percent
of the Chancery Court’s case load. Id.
586. For example, in Anolick v. Holy Trinity Greek Orthodox Church, Inc., 787 A.2d 732 (Del. Ch.
2001), the court was faced with the issue of whether the plaintiff had an easement in an alley way.
While this case does not implicate, in the slightest, the issues popularly associated with the Delaware
Court of Chancery, the thoroughness and detail with which the case was considered, and the opinion
rendered, demonstrate a quality in decision making that is esteemed when considering the Chancery
Court as the premier business court.
587. O. Francis Biondi et al., The Commission on Delaware Courts 2000: A Work in Progress, 13 DEL.
LAW. 28 (Winter 1995), available at 13-WTR DELAW 28, http://www.westlaw.com.
The Creation and Jurisdiction of Business Courts in the Last Decade 217
developing business courts in other states.588 The Superior Court handles a sig-
nificant volume of commercial cases, is a national forum for commercial insurance
coverage disputes, spends significant time on complex civil litigation, and finds
major corporations as parties on its docket.589
The prestige of Delaware’s Chancery Court, i.e., the esteem in which it is widely
held, is an integral part of that court. The Chief Justice of the U.S. Supreme Court
celebrated the Chancery Court as “an important contributor to our national sys-
tem of justice.”590 He identified some of the sources for the Chancery Court’s
preeminence as the opportunity to obtain quick and effective action,591 expertise,
economies of scale that have lent themselves for efficiency, and “[p]erhaps most
importantly,” a refined body of law allowing businesses the prescience to avoid
suits.592
Lawyers have “praised the depth and precision of the written opinions gener-
ated by the Delaware Court of Chancery as that court’s greatest strength.”593 In
testifying before the Maryland Task Force studying implementation of a business
and technology court, Chancellor William Chandler left the Task Force with the
understanding that the Chancery Court’s “effectiveness” and “national reputation”
is “brought on by a thorough understanding of corporate issues.”594 This thor-
oughness includes mutual respect, collaborative effort and cooperation, Chancel-
lor Chandler also having testified that: “Members of the Court of Chancery also
discuss complex issues among themselves, and review opinions prior to release
to the parties and the public to insure consistency.”595
The Chancery Court is also a model because it represents high institutional
aspirations. The attention to detail, cooperation, and care in seeking a proper and
thoroughgoing result reflect a judicial body that commands respect because the
court and its judges demand that they give respect to the cases before them.
Although the rich history of an over 200 year old court cannot be duplicated, its
588. See, e.g., Edge of the Woods, L.P. v. Wilmington Sav. Fund Soc’y, 2001 Del. Super. LEXIS 304,
at *1 (Del. Super. Ct. Aug. 16, 2001) (“This case involves alleged breaches of loan agreements arising
out of years of commercial loan transactions and dealings between the Plaintiffs and the Defendant.”);
see also Outdoor Techs. v. Allfirst Fin., Inc., 2000 Del. Super. LEXIS 16 (Del. Super. Ct. Jan. 24, 2000);
Pfizer Inc. v. Advanced Monobloc Corp., 1999 Del. Super. LEXIS 330 (Del. Super. Sept. 2, 1999);
S&R Assocs., L.P., v. Shell Oil Co., 725 A.2d 431 (Del. Super. Ct. 1998).
589. Henry duPont Ridgely: The Superior Court, Offering an Ideal Forum for Resolution of Business
Disputes, METROPOLITAN CORP. COUNS., N.E. ed., Mar. 2001, at 45.
590. William H. Rehnquist, The Prominence of the Delaware Court of Chancery in the State-Federal
Joint Venture of Providing Justice, 48 BUS. LAW. 351, 354 (1992) [hereinafter Rehnquist].
591. Id. Chief Justice Veasey describes Chancery’s adjudicating a large stakes dispute, involving an
issue of New York contract law, in a matter of weeks; culminating in a fifty-five page opinion by
Chancellor Chandler issued five days after the 4 day plenary trial ended. The Hon. E. Norman Veasey—
An Efficient Court System: A Factor to Consider in Selecting a Business Location, METROPOLITAN CORP.
COUNS., N.E. ed., Mar. 2001, at 1. The losing trial counsel commended the expeditious and close
attention received in the Chancery Court. Id.
592. Rehnquist, supra note 590, at 354.
593. Focus on Business and Complex Courts, supra note 11.
594. Maryland Task Force, supra note 71, Appendix B, at 24.
595. Id.
218 The Business Lawyer; Vol. 60, November 2004
ethic and sense of responsibility can be emulated.596 One of the court’s greatest
Chancellors, Collin J. Seitz, Jr., made this essential point when asked about the
nationwide prominence of some of his Chancery decisions: “I don’t want to be
modest, but all cases are transitory. I would rather be remembered for fair treat-
ment in handling the cases rather than any particular case.”597
596. One reads of the extraordinary groupings of judges like Cardozo’s New York Court of Appeals
or Hands’ and Thomas Swan’s Second Circuit, as kinds of golden ages; but it is not necessary for a
court to be extraordinary to be hardworking, fair, capable and effective.
It is further interesting to observe that these judges served on pre-eminent commercial courts. Judge
Posner observes that in the late 19th and for decades into the 20th Centuries, “[t]he New York Court
of Appeals was the nation’s premier commercial court.” RICHARD A. POSNER, CARDOZO: A STUDY IN
REPUTATION 129 (1993). The Second Circuit has been described as “the country’s leading commercial
court during the 1940s and 1950s . . . .” Margaret V. Sachs, Judge Friendly and the Law of Securities
Regulation: The Creation of a Judicial Reputation, 50 SMU L. REV. 777, 791 (1997). Judge Posner’s own
court has been studied as a commercial or corporate law court. Richard A. Booth, The Seventh Circuit
as a Commercial Court, 65 CHI.-KENT L. REV. 667, 672 (1989) (“There can be little doubt that the
Seventh Circuit has been a leader in the development of corporation and securities law. Some of the
very biggest names in the pantheon of Supreme Court cases have been reversals of Seventh Circuit
decisions. While some might regard that as embarrassing, it also indicates that the court has been
innovative. And this tendency predates the advent of Judges Posner and Easterbrook on the court by
several years.”).
597. Edmund N. Carpenter II, A Conversation with Judge Collins J. Seitz, Jr., 16 DEL. LAW. 24, 28
(Fall 1998) available at 16-FALL DELAW 24, http://www.westlaw.com (wherein one of Delaware’s
great lawyers interviewed one of its great judges). Justice Rehnquist’s piece on the Chancery Court
includes what “in the eyes of many . . . is the Court of Chancery’s ‘proudest accomplishment.’” Rehn-
quist, supra note 590, at 353. That accomplishment was “Chancellor Collins Seitz’ 1952 decision in
Belton v. Gebhart . . . . [where] Chancellor Seitz courageously held that black schoolchildren suffered
from state-imposed segregation.” Id. (footnote omitted). In the group of cases decided by the United
States Supreme Court three years later in Brown v. Board of Education, 349 U.S. 294 (1955), only Belton
was an affirmed decision. Id. at 301. The Delaware Supreme Court affirmed Chancellor Seitz’ decision,
though carrying out its own exhaustive analysis about whether the racially segregated schools were
equal or not. Belton v. Gebhart, 91 A.2d 137 (Del. 1952), aff ’d sub. nom., Brown v. Board of Educ.,
349 U.S. 294 (1955).
598. Supreme Court of Delaware, Administrative Directive No. 96, Feb. 28, 1994 (on file with The
Business Lawyer, University of Maryland School of Law).
599. Id.
600. Id.
601. Id.
The Creation and Jurisdiction of Business Courts in the Last Decade 219
602. Id.
603. Less widely known than Chancery, the Delaware Superior Court is the State’s trial court of
general, non-equity, jurisdiction. There has been increased national attention on the Superior Court
as Delaware’s “commercial litigation center for claims involving money damages.” Chief Justice E.
Norman Veasey, Problem Solving in Judicial Management, The State of the Delaware Judiciary, First
Session of the 141st General Assembly, May 1, 2001, at 6 [hereinafter 2001 State of the Judiciary] (on
file with The Business Lawyer, University of Maryland School of Law). Civil filings in Superior Court
went from 5,644 in 1990 to 9,523 in 2000. Id.
604. Id.
605. Administrative Directive No. 96, supra note 598.
606. See DEL. CT. R. 124–31 (2004).
607. Supreme Court of Delaware, Administrative Directive 117, April 1, 1998. Delaware Superior
Court Rule 16.1 addresses mediation and other ADR. DEL. CT. R. 16.1.
608. Summary Proceedings for Commercial Disputes, at http://courts.state.de.us/Courts/Superior
%20Court/ADR/ADR/summary_proc.htm (“The Superior Court has adopted rules and procedures
specifically designed to allow major commercial litigation to be resolved expeditiously and cost-
effectively.”).
609. Id.
610. Telephone interview with Ellen Davis, Civil Deputy in the Prothonotary’s Office of the Superior
Court of Delaware (Sept. 11, 2003). Summary Proceedings were initiated in July 1997, October 2000,
January 2001, and June 2001. These matters were resolved without trial. The limited number of
summary proceeding cases is reminiscent of the Milwaukee County Circuit Court’s efforts at estab-
lishing a voluntary summary proceeding process for business disputes, which did not attract sufficient
cases. See Appendix B, infra p. 275. The authors have not studied either phenomenon in detail;
however, one possibility is that if parties are seeking resolution in a business court, rather than, for
example, through private commercial arbitration or mediation, they may expect, or want, the full
panoply of court powers and jurisdiction to be available.
611. 2001 State of the Judiciary, supra note 603, at 6.
220 The Business Lawyer; Vol. 60, November 2004
612. Id. at 11. There is considerable debate as to whether business courts are being developed to
attract incorporations as such, rather than to simply keep or attract business operations. See, e.g.,
Marcel Kahan & Ehud Kamar, The Myth of State Competition in Corporate Law, 55 STAN. L. REV. 679
(2002).
613. Under DEL. CODE ANN. tit. 10, § 346(c)(1) (Supp. 2004), technology dispute includes,
the purchase or lease of computer hardware; the development, use, licensing or transfer of com-
puter software; information, biological, pharmaceutical, agricultural or other technology of a
complex or scientific nature that has commercial value, or the intellectual property rights per-
taining thereto; the creation or operation of Internet web sites; rights or electronic access to
electronic, digital or similar information; or support or maintenance of the above.
Under section 346(c)(3), the nature of a “technology dispute” is to be interpreted liberally. See Ap-
pendix. A, infra pp. 229–30 for full statutory text.
614. DEL. CODE ANN. tit. 10, § 346(a)(5). See Appendix A, infra p. 230.
615. Darrel W. Cole, Technology Court Could Place Delaware Courts at Top, DEL. L. WKLY., Feb. 5,
2003, at D1.
616. New Law Expands Del. Chancery Court Jurisdiction to Technology Cases, DEL. CORP. LITIG. REP.,
June 9, 2003, at 11.
617. Id.
618. Sean O’Sullivan, Chancery Court Expands: New Rules Designed to Attract More Business to State,
NEWS J., May 30, 2003, available at http://www.delawareonline.com/newsjournal/local/2003/05/30
chancerycourtex.html.
619. DEL. CODE ANN. tit. 10, § 346(a). Neither punitive damages nor a jury trial are available for
parties choosing to litigate a technology dispute in the Court of Chancery. Id. See Appendix A, infra
pp. 229–30.
The Creation and Jurisdiction of Business Courts in the Last Decade 221
631. Id.
632. “In sum, the Act provides additional benefits for businesses choosing to domicile in Delaware.
It seeks to keep Delaware ahead-of-the curve in meeting the evolving needs of businesses, thus
strengthening the ability of the State to convince such businesses to incorporate and locate operations
here.” Id.; see also July 2003 Archives, Legislation Aims to Bring More Tech Cases to State, BUS. LEDGER
( July 2003), available at http://www.ncbl.com/archive/07-03law.html (“The legislation, part of Min-
ner’s legislative agenda for 2003, strengthens the Delaware Court of Chancery’s place as a venue for
corporate litigation and will likely have an economic impact on Delaware due to additional corporate
litigation taking place in Wilmington.”).
633. See Clark v. Teeven Holding Co., 625 A.2d 869 (Del. Ch. 1992), observing that the Court of
Chancery has the same jurisdiction that the English High Court of Chancery had in 1776, but that
such jurisdiction could be expanded by recognition of new rights, recognition of injunctive powers,
and by the passage of statutes, e.g., DEL. CODE ANN. tit. 8, § 225 (Repl. Vol. 1999) “granting authority
to Court of Chancery to adjudicate results of corporate elections.” Clark, 625 A.2d at 875–76. Other
examples of the Legislature expanding jurisdiction through statute are section 111, providing that
“[a]ny action to interpret, apply or enforce the provisions of the certificate of incorporation or the
bylaws of a corporation may be brought in the Court of Chancery,” and section 220 regarding stock-
holders rights to compel inspection of corporate books and records. DEL. CODE ANN. tit. 8, §§ 111,
220. Under section 145, the Court of Chancery has exclusive jurisdiction to make a fairness deter-
mination as to whether a corporation can indemnify officers and directors who are found liable to
that corporation. Id. § 145.
634. Email from Professor Lawrence Hamermesh to Lee Applebaum, Esquire (Oct. 2, 2003) (on
file with authors).
635. The Court of Chancery can exercise jurisdiction over claims for money damages or declaratory
relief, where there are also claims for equitable relief over which it has jurisdiction, for example, an
injunction. See, e.g., Kerns v. Dukes, 707 A.2d 363, 368 (Del. 1998).
636. During the first six months after the statute’s enactment, the technology based jurisdiction
had not been used to bring new litigation, but at least one matter had gone to mediation. Josy W.
Ingersoll & Matthew P. Denn, Delaware Debuts Technology Court, Mediation State Remains on Cutting
Edge in Handling Business Disputes, DEL. L. WKLY., Feb. 25, 2004, at D5. As of June 18, 2004, three
cases had gone to mediation under section 347. Email from Chancellor William B. Chandler III of the
Delaware Court of Chancery to Lee Applebaum, Esquire ( June 18, 2004) (on file with authors). In
light of the jurisdictional amount at issue, and the specific nature of the type of claims permitted
under section 346, it will likely take some time to take measure of that statute’s use.
The Creation and Jurisdiction of Business Courts in the Last Decade 223
637. The Delaware Court of Chancery certainly provides another model, but it does not appear
that other jurisdictions are looking to establish an equity court model for their business courts; at
least where a Chancery Division does not already exist. (As set forth supra, New Jersey is experimenting
in four Counties by assigning all complex business cases to Chancery judges.) On a more fundamental
level, however, the Delaware Court of Chancery sets forth the basic concept that a business court
should address a large number of business disputes via a highly capable set of judges hearing individual
cases from beginning to end.
638. The AEQUITAS, Inc., Georgia Feasibility Study refers to this as the “Gatekeeper” function and
recommends it for Georgia. AEQUITAS, Inc., Georgia Feasibility Study, supra note 120, at 15. Courts
with lists of specific case types can include judicial review of whether cases do or do not come within
the specified criteria, and this can include judicial intervention to determine what falls within the
specified criteria. This appears to be a much more black-and-white process, however, than determining
whether a case, even a dispute between two businesses, is sufficiently complex or important. Further,
there are some complex type courts where the lawyer first designates the case, subject to judicial
review.
639. Jurisdictional amounts perform a filtering function, reflecting a pre-made generalized judg-
ment about case volume management, rather than the case by case measure of complexity factors. In
Philadelphia’s Court of Common Pleas all matters below $50,000 must go to arbitration. In Cook
County, there is only a $30,000 limit, but the fact that business disputes sounding in equity go to the
Chancery Division limits the Commercial Calendar’s sizable case volume. Erie County, New York
provides a $25,000 minimum with the express qualification that the amount may be changed de-
pending on the case load. New York County itself encourages electronic filing by reducing the juris-
dictional amount to $25,000, and expanding cases types. See supra notes 60–61.
640. E.g., in commercial real property transactions and environmental insurance coverage litigation.
641. See Appendix A, infra p. 248 (“Due to caseload considerations, the Justices of the Division
are empowered to transfer out of the Division cases which, in their judgment, do not fall within this
category notwithstanding that a party has described the case as ‘commercial’ on the Request for Judicial
Intervention.”).
642. Cook County’s Chancery Division, like New Jersey’s Chancery Division or Delaware’s Chan-
cery Court, must hear cases that fall within its jurisdiction; putting aside the issue of mixed questions
of law and equity for present purposes. The new Delaware Court of Chancery jurisdiction in tech-
nology cases is discussed above.
224 The Business Lawyer; Vol. 60, November 2004
including all cases within defined categories, without a complexity or other se-
lection component beyond type.643
As reflected in the descriptions above, and in more detail in Appendix A, courts
listing jurisdiction by case type vary in the length of the list, and in specificity.
Although Florida’s Ninth Judicial Circuit’s recent order establishing a business
court subdivision expressly includes U.C.C. transactions between businesses within
the new court’s jurisdiction,644 Colorado’s proposed list states more broadly, “Com-
mercial transactions not involving a consumer party.”645 Colorado’s broad language
encompasses a U.C.C. dispute between businesses, but also encompasses a broader
array of specific disputes, that would also be in the Florida court’s list. Thus, it
is not fully possible to do a one-to-one mapping of what types of claims are or
are not in comparable business court programs because there is no uniform no-
menclature; however, a close look at each shows a virtual identity in the significant
majority of case types.
In courts without a complexity requirement (including those courts such as
Massachusetts Superior Court that include some case types without an additional
express complexity requirement), the following subject areas are common or
almost always common among the business courts:646 intracorporate type gover-
nance disputes (whether for corporations, non-profits, partnerships, joint ventures,
etc.); corporate sales/purchases; securities transactions; shareholder derivative ac-
tions; corporate officer and director liability; U.C.C.; non-compete/restrictive cov-
enant agreements; unfair competition and antitrust; trade secrets; interference
with contractual or business relationships; fraud/misrepresentation in business
contract context; sales of goods or services between businesses; non-consumer
bank transactions; and insurance or indemnification disputes where the under-
lying action involves a business dispute and the insurance policy at issue is com-
mercial. Most, if not all, of these courts will also expressly hear intellectual prop-
erty matters, business matters involving sales of good or services, and commercial
class actions.
Some of these courts will also hear malpractice actions brought by businesses,
but the professionals included within the scope of those claims differ. For ex-
ample, New York County and Nassau County expressly include malpractice ac-
tions against accountants and actuaries and exclude lawyer malpractice; Monroe
County will not hear medical, legal, or accounting malpractice; Erie County will
hear professional malpractice claims other than legal or medical; and Albany
County is silent as to both including or excluding malpractice claims.647 Florida
includes “[m]alpractice claims involving business enterprises and attorneys, ac-
countants, actuaries, architects, or other professionals in connection with the ren-
Feasibility Study recommends a model assigning only complex business cases and
selected cases dealing with novel legal theories to the business court as well.652
D. JURISDICTIONAL OBJECTIVES
A court’s jurisdictional parameters depend upon the objectives to be achieved
in creating a business court, and available resources. As stated above, Colorado’s
Business Court Committee recommended the broader type of jurisdiction on the
basis that: “Defining what constitutes a ‘commercial case’ is fundamental to the
operation of a business court. While the court will be particularly suitable for
652. AEQUITAS, Inc. Georgia Feasibility Study, supra note 120, at 12–13. (“Best practice for a new
business court is tight focus on only complex business cases and selected business cases with novel
legal issues.”).
653. MICH. COMP. LAWS ANN. § 600.8005 (West Supp. 2004).
654. The California Standards of Judicial Administration for Complex Litigation define complex
litigation as “those cases that require specialized management to avoid placing unnecessary
burdens on the court or the litigants.” The scope of this definition is immediately qualified,
in that the Standards go on to state that complex litigation “is not capable of precise definition”
and that it “may involve multiple . . . related cases, extensive pretrial activity, extended trial
times, [and] difficult or novel issues.” The Standards state further that “no particular criterion
is controlling and each situation must be examined separately.”
Scott A. Steiner, The Case Management Order: Use and Efficacy in Complex Litigation and the Toxic Tort,
6 HASTINGS W.-N.W. J. ENVT’L L. & POL’Y 71, 74 (1999) (footnotes omitted). A complex litigation
format is also followed in Pittsburgh and a majority of New Jersey’s counties.
655. Focus on Business and Complex Courts, supra note 11.
The Creation and Jurisdiction of Business Courts in the Last Decade 227
complex cases, commercial cases of all levels of complexity will benefit from
adjudication by experienced business jurists.”656
This analysis reflects an objective that all business/commercial disputes be
heard, at every step of the process, by judges who specialize in hearing business
and commercial cases. Judges hearing these cases will continuously develop ex-
perience and knowledge in the substantive law; and in the process of writing
opinions, they may develop a body of law for broad guidance in the community.
They will also develop a variety of case management skills to address the cases
before them. For example, business courts include a significant number of plain-
tiffs seeking temporary restraining orders and preliminary injunctions that call for
the rapid address of often difficult matters, as well as cases posing long-term
complex legal and procedural matters. In between these temporal extremes, these
judges will presumably develop a greater facility in managing and resolving stan-
dard commercial disputes, as well.
The complex business court provides litigants with both judges that have ex-
pertise in business and commercial law, and judges and courts that are constantly
developing their skill and resources in complex case management. It provides
added focus to give full address to the most complex cases, while removing those
cases as impediments to the expeditious resolution of other cases on a court’s
overall docket. The complex business court can also establish a body of law by
rendering opinions that give guidance beyond its courtroom. Thus, with this
guidance, future business cases may be resolved more simply and expeditiously
without the need for specialized complex address. In such circumstances, the
complex court has already wrestled with and determined the issue, and reduced
it from a complex to a manageable form.
A common factor in both business court models is the principle that judges be
knowledgeable in resolving business and commercial disputes (with the addition
of technology disputes arising more recently). This distinguishes both models
from the pure complex litigation court model, where the focus is more upon the
judge’s and court’s ability to capably manage a complex case in terms of efficiency
and procedure, with less emphasis on the subject matter. Although it is likely that
certain types of cases will repeat in the more generalized complex litigation courts,
the functional ability to manage cases properly will not necessarily increase the
ability to address substantive issues more fully. As stated in Georgia’s Feasibility
Study on establishing a business court, the idea of a mixed complex litigation
court dilutes the primary purpose of addressing business law issues.657 Under this
theory, even if the disposition time of cases or case management efficiencies were
similar between a complex court and a business court, a jurisdiction with an
objective of maximizing the development of judicial business expertise would not
achieve that goal by adopting a mixed complex litigation model.658
XIX. CONCLUSION
Ultimately, a successful business court depends in each instance on the actual
judge hearing business court cases. Judges presented daily with a field of law in
which to cultivate their understanding, knowledge, and ability are more likely to
come to deeper understandings about the inner workings of the legal principles
they face; the patterns that may reveal themselves in the conduct of business
cases; and the patterns of thinking and behavior that may appear in parties and
counsel. The judge without that experience, faced with business disputes, typi-
cally may have to rely upon a less developed understanding of these factors in
rendering decisions.659
of language, not limited to California, is a source of debate which has not ultimately prevented some
jurisdictions from finding that developing judicial specialization in business/commercial courts has a
benefit that serves a broad community of interests worth addressing.
658. As set forth above, New Jersey has a complex commercial track in every one of its counties,
but in only two counties, Essex and Bergen, is there a single judge hearing all complex commercial
cases. See supra notes 205–206 and accompanying text. Court statistics show that, in the Court Year
for 2002, Middlesex County had thirty-nine complex commercial track cases filed, twenty-three re-
solved with a median disposition time of 187 days. During the 2003 court year, forty-nine complex
commercial track cases were filed—more than in any other New Jersey County—twenty-two were
resolved, with a median disposition time of 308 days. See supra notes 229, 235. These numbers are
comparable in many ways to the same categories and figures for Essex and Bergen Counties. Having
practiced in New Jersey’s Superior Court, the authors are also aware of the fine quality of judges on
that court. Still, for the jurisdiction seeking to create a business court, the presence of quality judges
who can manage difficult cases capably does not necessarily provide the continually growing and
evolving level of experience and knowledge concerning substantive business and commercial matters
which is a key component in creating such programs.
659. The fact that same judge or set of judges is deciding cases within a specialized jurisdiction
does not, in our view, inexorably lead to a false stability and predictability in the form of biased
opinion followed by cookie cutter application of precedent. The specialized court is an opportunity
for the opposite phenomenon; an enriched understanding and a cultivated application of precedent
and growth of the law.
The Creation and Jurisdiction of Business Courts in the Last Decade 229
APPENDIX A
WRITTEN PARAMETERS OF
BUSINESS COURT JURISDICTION
DELAWARE
Delaware Code title 10, section 346.
Technology Disputes.
(a) Notwithstanding any other provision in this Code, and without limiting the
jurisdiction vested in any court in this State, the Court of Chancery shall have
power to mediate and jurisdiction to hear and determine technology disputes
as defined herein when:
230 The Business Lawyer; Vol. 60, November 2004
(a) Without limiting the jurisdiction of any court of this State, the Court of Chan-
cery shall have the power to mediate business disputes when:
(1) The parties have consented to the mediation by the Court of Chancery
by agreement or by stipulation;
(2) At least one party is a business entity as defined in § 346 of this title;
(3) At least one party is a business entity formed or organized under the laws
of this State or having its principal place of business in this State;
(4) No party is a consumer, as that term is defined in § 2731 of Title 6, with
respect to the business dispute; and
(5) In the case of disputes involving solely a claim for monetary damages,
the amount in controversy is no less than one million dollars or such
greater amount as the Court of Chancery determines by rule.
A mediation pursuant to this section shall involve a request by parties to have
a member of the Court of Chancery, or such other person as may be author-
ized under rules of the Court, act as a mediator to assist the parties in reaching
a mutually satisfactory resolution of their dispute. Mediation proceedings
shall be considered confidential and not of public record.
(b) By rule, the Court of Chancery may define those types of cases that are eligible
for submission as a business dispute mediation. This section is intended to
encourage the Court of Chancery to include complex corporate and com-
mercial disputes, including technology disputes, within the ambit of the busi-
ness dispute mediation rules. The Court of Chancery should interpret its rule-
making authority broadly to effectuate that intention.
FLORIDA
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
ADMINISTRATIVE ORDER
NO.: 2003-17-1
CMC may be scheduled through the Business Court Judge. Prior to the
CMC, it shall be the obligation of the parties to confer concerning all of
the following matters, for the purposes of reaching agreements. The
following subjects, along with other appropriate topics including those
set forth in Fla R. Civ. P. 1.200 (a), will be discussed at the CMC:
1. Pleadings issues, including service of process, venue, joinder of ad-
ditional parties, theories of liability, damages claimed and applicable
defenses;
2. Timing and potential forms of Alternative Dispute Resolution (ADR);
3. Scheduling dispositive motions and scheduling limited-issue discov-
ery in aid of early dispositive motions;
4. The possibility of settlement;
5. Preparation and issuance of a Case Management Order (“CMO”),
which will set forth a target trial date, deemed the earliest trial date;
6. A discovery plan and schedule based on the CMO date for the com-
pletion of discovery; and
7. Anticipated areas of expert testimony, timing for identification of ex-
perts, responses to expert discovery, exchange of expert reports (ref-
erence to the CMO).
The Business Court Judge, in his/her discretion, may, upon appli-
cation of any party or upon his/her own initiative, modify these pro-
cedures. The Business Court Judge may establish any informal pro-
cedures to achieve expeditious resolution of discovery disputes and
other non-dispositive issues.
B. Case Management Order. After the CMC, the Business Court Judge shall
issue a Case Management Order (“CMO”) setting forth dates for medi-
ation and for a pretrial conference (with pretrial statements typically to
be filed in advance), and for trial. The CMO will also address the other
matters discussed or developed at the CMC, including cut-off dates for
completion of discovery, for the service of expert reports and for the
filing of motions.
Based upon the nature and complexity of the case, the Business Court
Judge, with input from the parties at the CMC, shall assign the case to
a track. The Business Court shall typically employ the following man-
agement tracks: Business Expedited (Target Trial Date within 13 months
of Complaint) and Business Standard (Target Trial Date within 18
months of Complaint). Only exceptionally complicated cases should be
designated Business Complex (Target Trial Date within Two Years of
Complaint). In the latter instance, the Business Court Judge may sched-
ule status conferences at six month intervals or at any other times upon
application of the parties, if appropriate.
The Business Expedited Track shall consist of matters in which min-
imal discovery is needed and legal issues are anticipated to be routine.
Examples of such actions, in the absence of complicating factors, are
actions relating to commercial loans, and contract, UCC and foreclosure
The Creation and Jurisdiction of Business Courts in the Last Decade 237
VIII. Administrative Order No. 2003-17 dated June 26, 2003 and Administrative
Order No. 2003-25 dated September 25, 2003 are vacated and set aside.
DONE AND ORDERED at Orlando, Orange County, Florida this 26th day of
November, 2003. Nunc pro tunc to August 1, 2003.
ILLINOIS
Circuit Court of Cook County, Law Division, Commercial Calendar
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
Effective September 14, 1992, and Individual Calendar Call pilot program shall
be instituted in the Law Division and designated cases now pending and hereafter
filed therein shall be randomly assigned by electronic process to the Individual
Calendars.
A. STRUCTURE
1. The number of Individual Calendars and the judges assigned thereto shall
be as the Presiding Judge of the Law Division shall from time to time
designate.
2. There shall be two sections of Individual Calendars, namely: General Cal-
endar Section and Commercial Calendar Section.
a) General Calendars shall have assigned to them cases of every variety
pending and filed within the Law Division in numbers as shall be from
time to time designated by the Presiding Judge of the Law Division.
b) Commercial Calendars shall have assigned to them cases, whether based
upon theories of tort, contract or otherwise, that involve a commercial
relationship between the parties. The number of cases assigned to each
Commercial Calendar shall be as the Presiding Judge of the Law Division
may from time to time designate.
The Creation and Jurisdiction of Business Courts in the Last Decade 239
B. PROCEDURE
1. Once a case has been assigned to an individual Calendar, all proceedings
subsequently initiated and the ultimate trial of the case shall be heard by
the judge presiding over the Individual Calendar to which the case has
been assigned.
..........
IT IS HEREBY ORDERED that this Order is effective September 14, 1992 and
will be spread upon the records of this court.
Dated at Chicago, Illinois this 9th day of September, 1992
ENTER:
Donald P. O’Connell
Presiding Judge
Law Division
The Civil Action Cover Sheet for Law Division Cases in the Circuit Court of Cook
County provides the following choices for the filing party to mark off under the
heading “COMMERCIAL LITIGATION”:
002 Breach of Contract
070 Professional Malpractice (other than legal or medical)
071 Fraud
072 Consumer Fraud
073 Breach of Warranty
074 Statutory Action
075 Other Commercial Litigation
076 Retaliatory Discharge
During the research for this paper, a website posted at www.commercialcourts.net
by one of the Commercial Calendar Judges, included a webpage, no longer active,
stating as follows, concerning matters heard on the Commercial Calendar:
Cases assigned to the Commercial Section Judges include commercial claims in
excess of $30,000.00, including, but not limited to, the following:
Breach of Contract Business Torts & Other Collections
Sale of Goods (Uniform Professional Negligence Notes
Commercial Code) (Except Medical
Malpractice)
Purchase of Services Fraud & Misrepresentation Guaranties
Warranties & Service Contracts Consumer Fraud Act Other Collection
Sale of Business Tortious Interference
Franchise Breach of Fiduciary Duty/
Oppression
Employment Retaliatory Discharge
Indemnification Miscellaneous Statutory
240 The Business Lawyer; Vol. 60, November 2004
MARYLAND
Maryland Rule 16-205 provides:
Rule 16-205. Business and technology case management program.
(a) Definitions. The following definitions apply in this Rule:
(1) ADR. “ADR” means “alternative dispute resolution” as defined in Rule 17-
102.
(2) Program. “Program” means the business and technology case manage-
ment program established pursuant to this Rule.
(3) Program judge. “Program judge” means a judge of a circuit court who is
assigned to the program.
(b) Program established. Subject to the availability of fiscal and human resources,
a program approved by the Chief Judge of the Court of Appeals shall be
established to enable each circuit court to handle business and technology
matters in a coordinated, efficient, and responsive manner and to afford con-
venient access to lawyers and litigants in business and technology matters.
The program shall include:
(1) a program track within the differentiated case management system estab-
lished under Rule 16-202;
(2) the procedure by which an action is assigned to the program;
(3) program judges who are specially trained in business and technology;
and
(4) ADR proceedings conducted by persons qualified under Title 17 of these
Rules and specially trained in business and technology.
Cross References.—See Rules 16-101 a and 16-103 a concerning the assignment
of a judge of the circuit court for a county to sit as a program judge in the circuit
court for another county.
(c) Assignment of actions to the program. On written request of a party or on
the court’s own initiative, the Circuit Administrative Judge of the circuit in
which an action is filed or the Administrative Judge’s designee may assign the
action to the program if the judge determines that the action presents com-
mercial or technological issues of such a complex or novel nature that spe-
cialized treatment is likely to improve the administration of justice. Factors
that the judge may consider in making the determination include: (1) the
nature of the relief sought, (2) the number and diverse interests of the parties,
(3) the anticipated nature and extent of pretrial discovery and motions,
(4) whether the parties agree to waive venue for the hearing of motions and
other pretrial matters, (5) the degree of novelty and complexity of the factual
The Creation and Jurisdiction of Business Courts in the Last Decade 241
and legal issues presented, (6) whether business or technology issues pre-
dominate over other issues presented in the action, and (7) the willingness
of the parties to participate in ADR procedures.
(d) Assignment to program judge. Each action assigned to the program shall be
assigned to a specific program judge. The program judge to whom the action
is assigned shall hear all proceedings until the matter is concluded, except
that, if necessary to prevent undue delay, prejudice, or injustice, the Circuit
Administrative Judge or the Circuit Administrative Judge’s designee may des-
ignate another judge to hear a particular pretrial matter. That judge shall be
a program judge, if practicable.
(e) Scheduling conference; Order. Promptly after an action is assigned, the pro-
gram judge shall (1) hold a scheduling conference under Rule 2-504.1 at
which the program judge and the parties discuss the scheduling of discovery,
ADR, and a trial date and (2) enter a scheduling order under Rule 2-504 that
includes case management decisions made by the court at or as a result of
the scheduling conference. (Added Oct. 31, 2002, effective Jan. 1, 2003.)
MASSACHUSETTS
Cases would presumptively qualify as complex commercial cases for the BLS,
whether the litigants are individuals or entities, when issues come within, or meet
the qualifications for inclusion in, one or more of the following categories:
a. claims relating to the governance and conduct of internal affairs of all business
enterprises and not-for-profit institutions, however organized, including,
without limitation, employment agreement disputes, liability of officers, di-
rectors, partners, managers and trustees under statutes and common laws
arising out of the governance and conduct of affairs of the enterprise or
institution;
b. shareholder derivative claims and claims relating or arising out of securities
transactions;
c. claims involving mergers, consolidations, sales of assets, issuance of debt,
equity and other like interests of business enterprise and not-for-profit
institutions;
d. claims to determine the use or status of or claims involving, intellectual prop-
erty, confidential, proprietary or trade secret information; claims involving
restrictive covenants;
e. claims involving alleged breaches of contract or fiduciary duties, fraud, mis-
representation, business torts or other violations involving business relation-
ships (e.g. unfair competition), if they have complex factual or legal issues or
are likely to require complex case management;
f. claims under the uniform Commercial Code, if the claims involve complex
factual or legal issues or are likely to require complex case management;
g. claims arising from transactions with banks, investment bankers, financial
advisers, brokerage firms, mutual and money funds of all kinds, if the claims
242 The Business Lawyer; Vol. 60, November 2004
involve complex factual or legal issues or are likely to require complex case
management;
h. claims for alleged violations of antitrust and other restraint of trade laws;
claims of unfair trade practices if the claims involve complex factual or legal
issue or are likely to require complex case management;
i. malpractice claims brought by business enterprises and not-for-profit insti-
tutions against professionals relating to rendering of professional service;
j. claims to which a governmental entity or authority is a party if the claims are
described by any of the above categories and are no excluded from the Busi-
ness Litigation Session as set out in the next section; and
k. Other commercial claims, including those involving insurance, construction,
real estate and consumer matters, which have complex factual or legal issues
or are likely to require complex case management.
Cases involving the following would not be eligible for assignment to the BLS
unless (except for cases within clause (a) below) there were issues in a case where
one or more of the other issues qualifies for the BLS:
(a) matters subject to compulsory arbitration or to the exclusive jurisdiction of
the Probation Land and Housing Courts, the District Courts or the Boston
Municipal Court;
(b) personal injury survival or wrongful death matters;
(c) individual (non-class) consumer claims against businesses or insurers, in-
cluding product liability and personal injury cases;
(d) environmental claims not involved in the sale or disposition of a business;
(e) eminent domain matters;
(f ) malpractice claims other than those designated above for the BLS;
(g) employment disputes not involving written contracts and employment dis-
crimination cases;
(h) administrative agency review under G.L. c. 30A, ∼14.zoning and other ap-
peals from administrative agency order;
(i) residential real estate and non-commercial landlord-tenant disputes; and
( j) occupational health or safety matters.
1) As to cases filed on and after October 2, 2000:
A plaintiff who claims that the case fits one or more of the criteria listed
above should use a special cover sheet which is available at the office of
the Clerk of Civil Business and indicate thereon which criteria apply. The
case shall be thereupon initially assigned to the BLS for review by the
presiding justice.
At any time thereafter any party who claims that the case fits one or
more criteria should serve and file a motion under rule 9A in the BLS
requesting assignment to the BLS and state with particularity why the case
meets one or more of the criteria.
The presiding Justice of the BLS will review all cases initially assigned
thereto and all motions requesting such assignment thereafter and deter-
mine in his or her discretion which cases shall continue in the BLS. Any
The Creation and Jurisdiction of Business Courts in the Last Decade 243
case assigned or referred to the BLS may, in the discretion of the presiding
justice of the BLS be referred out of the BLS at any time if, in his or her
judgment, it is not suitable of the BLS. Those cases will be then assigned
by the clerk’s office to one of the regular time standards sessions.
....
3) As to all cases:
No party shall have a right of referral of a pending case to the BLS. A
case will not be assigned to or retained in the BLS unless it meets one or
more of the criteria listed above. Case on the excluded list will not be
assigned to or retained in the BLS. All decisions to refer or retain a case
in the BLS shall be at the discretion of the presiding justice of the BLS.
As a case progresses, the presiding justice of the BLS may determine
that the case does not involve complex factual or legal issues, or does not
require complex case management, even though the subject matter of the
controversy otherwise qualifies as a business litigation case. In such case
the presiding justice of the BLS may return the case to the clerk’s office
for assignment to a regular time standards session.
September, 2000
Signed: Chief Justice Suzanne V. DelVecchio
Superior Court Establishes Business Court Procedure, Notice to Bar, Business
Litigation Session, Suffolk Superior Court, Massachusetts Lawyers Weekly, Oc-
tober 2, 2000
MICHIGAN
Michigan Compiled Laws Annotated § 600.8001 (West Supp. 2004).
600.8001. Creation; court of record; purpose; location; electronic communica-
tions; session; staff and support services; funding
Sec. 8001. (1) The cyber court is created and is a court of record.
(2) The purpose of the cyber court is to do all of the following:
(a) Establish judicial structures that will help to strengthen and revitalize the
economy of this state.
(b) Allow business or commercial disputes to be resolved with the expertise,
technology, and efficiency required by the information age economy.
(c) Assist the judiciary in responding to the rapid expansion of information
technology in this state.
(d) Establish a technology-rich system to serve the needs of a judicial system
operating in a global economy.
(e) Maintain the integrity of the judicial system while applying new tech-
nologies to judicial proceedings.
(f ) Supplement other state programs designed to make the state attractive to
technology-driven companies.
244 The Business Lawyer; Vol. 60, November 2004
NEVADA
RULES OF PRACTICE FOR THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA
PART I. ORGANIZATION OF THE COURT AND ADMINISTRATION
Rule 1.61. Assignment of business matters.
Unless otherwise provided in these rules, business matters must be divided evenly
among those full-time civil judges deemed necessary to handle all business matters.
(a) “Business Matters” shall be deemed as follows:
246 The Business Lawyer; Vol. 60, November 2004
Rules of Practice for the Eighth Judicial District Court of the State of Nevada, Rule
1.61, available at http://www.co.clark.nv.us/district_court/EDCR.pdf (last visited
Oct. 7, 2004).
1. A civil action shall be assigned to the business court docket if, regardless of
the nature of relief sought, the primary subject matter of the action is:
(a) A dispute concerning the validity, control, operation or governance of
entities created under NRS Chapters 78-88, including shareholder deriv-
ative actions;
The Creation and Jurisdiction of Business Courts in the Last Decade 247
NEW YORK
The Commercial Division handles complicated commercial cases. In the various
counties the Division has issued guidelines or rules defining the cases that are
accepted for filing in the Division. These guidelines and rules can be found at
http://www.courts.state.ny.us/comdiv/general_information.htm under the listing
for each county.
ALBANY COUNTY
As determined by the Commercial Division of Supreme Court, Commercial
Cases are defined as:
All business and commercial disputes in which the amount at issue generally
involves damage claims in a minimum amount of $25,000.
- or -
Claims for unspecified amounts where the value of the commercial asset(s)
in dispute exceeds $25,000.
....
One or more of the following criteria must be satisfied for the assignment of a
case to the Commercial Court:
1) CONTRACT:
Breach of contract, fraud or misrepresentation actions involving:
(a) Purchase or sale of securities
(b) Uniform Commercial Code transactions
(c) Purchase or sale of the assets of a business or merger, consolidation or
recapitalization of a business
(d) Providing of goods or services by or to a business entity
(e) Purchase or sale or lease of, or security interest in, commercial real prop-
erty or personal property
(f ) Partnership, shareholder o/r [sic] joint venture agreements
(g) Franchise, distribution or licensing agreements
2) BUSINESS CORPORATION LAW:
(a) Shareholder derivative actions
(b) Actions involving Judicial Dissolution
(c) Actions involving liability and indemnity of corporate directors and
officers
(d) Actions involving the internal affairs of corporations, such as voting and
inspection rights of shareholders or directors, authorization of corporate
acts or interpretations of articles or bylaws
(e) Actions involving foreign corporations authorized to do business in
the State of New York
(f ) Actions involving appointment of a Receiver of property of domestic or
qualified Foreign corporations.
3) PARTNERSHIP LAW:
(a) Actions involving property rights of general and limited partners and
partnerships.
(b) Actions involving partnership, general business operation, dissolution and
creditor’s rights.
The Creation and Jurisdiction of Business Courts in the Last Decade 251
ERIE COUNTY
II. CRITERIA FOR COMMERCIAL COURT
The definition of a “commercial case,” as determined by the Commercial Division
of Supreme Court, is as follows:
252 The Business Lawyer; Vol. 60, November 2004
All business and commercial disputes in which the amount at issue exceeds
$25,000,1 exclusive of punitive damages, costs, and attorney fees; and exclusive
of any non-commercial claims, non-commercial cross-claims, or non-commercial
counterclaims.
If a commercial case does not meet the monetary threshold but may be espe-
cially suited to resolution in the Commercial Division, a motion may be made to
the presiding Judge of the Division, on notice to opposing counsel, to waive said
monetary threshold.
Such business and commercial disputes shall include the following types of
cases:
CONTRACT
1. Breach of contract, fraud or misrepresentation actions involving:
(a) Purchase or sale of securities.
(b) Uniform Commercial Code transactions.
(c) Purchase or sale of the assets of a business, or merger, consolidation or
recapitalization of a business.
(d) Providing of goods or services by or to a business entity.
(e) Purchase or sale or lease of, or security interest in, commercial real prop-
erty or personal property.
(f ) Partnership, shareholder or joint venture agreements.
(g) Franchise, distribution or licensing agreements.
BUSINESS CORPORATION LAW
2. Shareholder derivative actions.
3. Dissolution or liquidation of corporations.
4. Actions involving liability and indemnity of corporate directors and officers.
5. Actions involving the internal affairs of corporations, such as voting and
inspection rights of shareholders or directors, authorization of corporate acts
or interpretations of articles or by-laws.
PARTNERSHIP LAW
6. Actions involving general and limited partners and partnerships.
UNIFORM COMMERCIAL CODE
7. Commercial loans (including failures to make commercial loans), negotiable
instruments, letters of credit and bank transactions.
8. Actions involving allegations of business torts, including unfair competition
and interference with business advantage or contractual relations.
OTHER COMMERCIAL MATTERS
9. Actions involving employment agreements or employee incentive or retire-
ment plans (not including qualified retirement plans) in which the business
or commercial issues predominate.
1. It should be noted that the dollar amount at issue to qualify a case as Commercial may be
changed from time to time in order to adjust the workload of the Court.
The Creation and Jurisdiction of Business Courts in the Last Decade 253
10. Declaratory judgment actions and third party indemnification claims against
insurance companies where the underlying cause of action is contract in
nature or would otherwise fall within the guidelines set forth herein. (Spe-
cifically not included are Declaratory Judgment Actions and third party claims
relating to fire loss, motor vehicle actions and tort claims.)
11. Commercial class actions.
12. Opening of default judgments where the underlying cause of action is com-
mercial in nature and would otherwise fall within the monetary and juris-
dictional guidelines set forth herein.
13. Professional malpractice other than legal or medical.
14. Upon application and with prior approval of the Court, commercial foreclo-
sure actions involving commercial buildings where the amount in controversy
exceeds Five Hundred Thousand Dollars ($500,000.00).
15. Actions under New York Debtor and Creditor Law for fraudulent conveyance.
16. Actions may involve individuals, corporations, partnerships, trusts, joint ven-
tures or other forms of legal entities as long as all other criteria are met.
KINGS COUNTY
These guidelines apply to RJIs filed on commercial cases on or after December
2, 2002.
In general, the Commercial Division of the Kings County Supreme Court will
entertain commercial and business disputes in which a party seeks compensatory
damages totaling $50,000 or more (exclusive of punitive damages, interests, costs
and attorney fees).
A Request for Judicial Intervention which is marked “Commercial” and is ac-
companied by a “Commercial Division Certification” identifying the nature of the
lawsuit and the reason for the assignment to the Commercial Division will initially
be assigned to a Commercial Division Part. The Certification requires verification
by counsel that the case meets the eligibility requirements set forth in these Rules.
A complete set of pleadings must accompany such certification and be annexed
to the RJI.
Justices of the Commercial Division are empowered to transfer cases out of the
Commercial Division which in their judgment do not fall within the eligibility
requirements set forth in these Rules. A Commercial Division Judge may order a
transfer notwithstanding that a party has described the case as commercial. An
Order will be issued stating the reason for such transfer. A party claiming to be
aggrieved by such transfer may seek review by letter application to the Admin-
istrative Judge (two pages maximum including a copy of the Commercial Division
Justice’s Order with a copy to all parties). If such application to the Administrative
Judge is not made within ten days of notification of the transfer order or the denial
of transfer, the decision of the Commercial Division Judge becomes final. The
order of the Administrative Judge is final and subject to no further review or
appeal.
A case already pending in a non-commercial IAS part may be transferred into
the Commercial Division upon application to the assigned IAS Judge and with
the consent of a Commercial Division Judge within three months of the initial
RJI. Any objections to such transfer must be raised before the IAS Judge who will
rule thereon in consultation with a Commercial Division Justice or the Admin-
istrative Judge. Review of the IAS Judge’s decision may be obtained by application
to the Administrative Judge in writing on notice to all parties within ten days of
entry. Thereafter, the decision of the IAS Judge becomes final.
Business and Commercial actions in which the principal claims involve the
following matters will be presumptively retained in the Commercial Division pro-
vided that the monetary threshold has been met:
The Creation and Jurisdiction of Business Courts in the Last Decade 255
MONROE COUNTY
GUIDELINES FOR ASSIGNMENT OF CASES TO THE COMMERCIAL DIVISION
In general, the Commercial Division, Monroe County, entertains complex com-
mercial and business disputes in which a party seeks compensatory damages
totaling $25,000 or more, exclusive of punitive damages, costs, and attorney fees;
and exclusive of any non-commercial claims, non-commercial cross-claims, or
non-commercial counterclaims.
A) Such business and commercial disputes shall include the following types of
cases:
CONTRACT
1. Breach of contract, fraud or misrepresentation actions involving:
(a) Purchase or sale of securities.
(b) Uniform Commercial Code transactions.
(c) Purchase or sale of the assets of a business, or merger, consolidation
or recapitalization of a business.
(d) Providing of goods or services by or to a business entity.
(e) Purchase or sale or lease of, or security interest in, commercial real
property or personal property.
(f ) Partnership, shareholder or joint venture agreements.
(g) Franchise, distribution or licensing agreements.
BUSINESS CORPORATION LAW
2. Shareholder derivative actions
3. Dissolution or liquidation of corporations.
The Creation and Jurisdiction of Business Courts in the Last Decade 257
in nature, including, but not limited to, underlying claims for fire loss,
motor vehicle actions and tort claims.
• Opening/vacating or modifying default judgments on actions which are
NOT commercial in nature, including all matters which do not fall within
the monetary and jurisdictional guidelines set forth under Criteria.
• Actions by or against Medicare, Medicaid, or the Department of Social
Services or enforcement of legal rights under law.
• Discrimination cases (age, sex etc.) except when part of or under the terms
of a contract.
• Collection matters involving the collection for legal, medical, accounting,
or architectural fees.
• Legal, medical, or accounting malpractice actions even where a contract
cause of action is also stated.
(C) The determination as to whether a case should be assigned to the Commercial
Division is made by the Clerk of the Supreme Court, based upon the criteria
for commercial cases established by the Court. For this purpose, counsel
must annex a copy of the summons and complaint to any submission of an
RJI seeking assignment to the Commercial Division.
(D) Any special proceedings under the CPLR which are clearly commercial in
nature (including dissolution proceedings and applications relating to CPLR
Article 75 in a commercial setting) should be marked as a special proceeding
but should also indicate (on the form or by separate cover) that the matter
is commercial in nature.
(E) The Commercial Division Justice or an assigned IAS Justice may request that
an assignment of a matter be reconsidered by the Clerk. Since the assignment
of any case in the Supreme Court is based on various criteria, including the
balancing of case loads among the civil Supreme Court Justices, there is no
appeal by litigants or attorneys of the case assignment. The decision of the
Supreme Court Clerk/Administrative Judge regarding assignment of a case is
final and is not subject to review or appeal.
Guidelines for Assignment of Cases to the Commercial Division, available at
http: // www.courts.state.ny.us / comdiv / guidelines _ for _ assignment _ of _ casesMC.
htm (last visited Oct. 7, 2004).
NASSAU COUNTY
GUIDELINES FOR ASSIGNMENT OF CASES TO THE COMMERCIAL PARTS
In general, the Commercial Parts of the Supreme Court, Nassau County, entertain
complex commercial and business disputes in which a party seeks compensatory
damages totaling $75,000 or more. Due to caseload considerations, the Justices
are empowered to transfer out of the Division cases which, in their judgment, do
not fall within this category notwithstanding that a party has described the case
as “commercial” on the RJI. The principles set out below will guide the exercise
of this authority. Parties should adhere to these principles when designating a
The Creation and Jurisdiction of Business Courts in the Last Decade 259
case type on the RJI. (See Paragraph (c) for documentation which should accom-
pany the RJI).
(a) The following will presumptively be transferred out of the Division even if
the monetary threshold is met:
(1) Suits to collect professional fees;
(2) Cases seeking a declaratory judgment as to insurance coverage for a per-
sonal injury or non-commercial property damage action;
(3) Residential real estate disputes, including landlord-tenant matters;
(4) Proceedings to enforce a judgment regardless of the nature of the under-
lying case;
(5) First-party insurance claims and actions by insurers to collect premiums
or rescind policies; and
(6) Attorney malpractice actions.
(b) Actions in which the principal claims involve the following will presumptively
be retained in the Division provided that the money threshold is met:
(1) Breach of contract or fiduciary duty, fraud, misrepresentation, business
tort (e.g., unfair competition), or statutory violation arising out of busi-
ness dealings (e.g., sales of assets or securities, corporate structurings,
partnership, shareholder, joint venture, and other business agreements,
trade secrets and restrictive covenants);
(2) Transactions governed by the Uniform Commercial Code (exclusive of
those concerning individual coop units);
(3) Transactions involving commercial real property;
(4) Shareholder derivative actions and commercial class actions;
(5) Commercial bank transactions;
(6) Internal affairs of business organizations or liability to third parties of
officials thereof;
(7) Malpractice by accountants or actuaries;
(8) Environmental insurance coverage litigation; and
(9) Corporation or Partnership dissolutions.
(c) The determination as to whether a case should be retained in a Commercial
Part will be made as soon as a matter is assigned to a Justice. For this purpose,
counsel must annex a brief sworn statement justifying the Commercial des-
ignation, and a copy of the summons and complaint or summons with notice,
if any, to any submission accompanying an RJI. Retained cases will remain in
the Commercial Part.
(d) Special proceedings (including applications pursuant to CPLR 3102(c) and
(e) relating to CPLR Article 75) and foreclosures are randomly assigned among
all Justices in the Supreme Court, Nassau County. Even when parties believe
that a special proceeding or foreclosure has a “commercial” character, the
“special proceedings” or “foreclosure” portion of the RJI should be completed
by the filing party, not the “commercial” section. However, prior to the actual
assignment of the matter to a Justice, a party to a commercial special pro-
ceeding may apply to the Administrative Judge to override the computer and
260 The Business Lawyer; Vol. 60, November 2004
SUFFOLK COUNTY
GUIDELINES FOR ASSIGNMENT OF CASES TO THE COMMERCIAL PART
In general, the Commercial Part of the Supreme Court, Suffolk County, entertains
complex commercial and business disputes in which a party seeks compensatory
damages totaling $25,000 or more. The Justice assigned is authorized to transfer
out of the Division cases which, in his or her judgment, do not fall within this
category notwithstanding that a party has described the case as “commercial” on
the RJI. The principles set out below will guide the exercise of this authority.
Parties should adhere to these principles when designating a case type on the RJI
(See Paragraph (C) for documentation which should accompany the RJI).
(A) The following will presumptively be transferred out of the Division even if
the monetary threshold is met:
(1) Suits to collect professional fees;
(2) Cases seeking a declaratory judgment as to insurance coverage for per-
sonal injury or property damage action;
(3) Landlord-tenant matters, Yellowstone applications and other real estate
disputes;
(4) Proceedings to enforce a judgment regardless of the nature of the un-
derlying case;
(5) First-party insurance claims and actions by insurers to collect premiums
or rescind policies; and
(6) Attorney malpractice actions.
(B) Actions in which the principal claims involve the following will presump-
tively be retained in the Division, provided that the money threshold is met:
(1) Breach of contract or fiduciary duty, fraud, misrepresentation, business
tort (e.g., unfair competition), or statutory violation arising out of busi-
ness dealings (e.g., sales of assets or securities, corporate structurings,
partnership, shareholder, joint venture, and other business agreements,
trade secrets and restrictive covenants);
(2) Transactions governed by the Uniform Commercial Code (exclusive of
those concerning individual coop units);
The Creation and Jurisdiction of Business Courts in the Last Decade 261
WESTCHESTER COUNTY
COMMERCIAL DIVISION PART RULES
January, 2002
[COMMERCIAL COURT ASSIGNMENT PROCEDURES MODIFIED, AND RULE
21 AND APPENDIX A ADDED, EFFECTIVE MAY 1, 2004.]
The following are the procedures and rules governing practice in the Com-
mercial Division-Westchester County.
262 The Business Lawyer; Vol. 60, November 2004
All business and commercial disputes in which the amount at issue generally
involves damage claims in a minimum amount of $100,000.00, or claims
for unspecified amounts where the value of the commercial asset in dispute
exceeds $100,000.00.
Such business and commercial disputes shall include, without limitation, the fol-
lowing types of cases:
CONTRACT
1. Breach of contract, fraud or misrepresentation actions involving:
(a) Purchase or sale of securities.
(b) Purchase or sale of the assets of a business, or merger, consolidation or
recapitalization of a business.
(c) Purchase or sale or lease of, or security interest in, commercial real prop-
erty or personal property.
(d) Partnership, shareholder or joint venture agreements.
(e) Franchise, distribution or licensing agreements.
APPENDIX A
FORM OF COMMERCIAL DIVISION ATTORNEY’S CERTIFICATION
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
264 The Business Lawyer; Vol. 60, November 2004
--------------------------------------------------------------X
Plaintiff(s)
COMMERCIAL DIVISION ATTORNEY’S
CERTIFICATION
- against -
Index No.
Defendant(s).
--------------------------------------------------------------X
Dated:
NORTH CAROLINA
All cases are assigned to the Business Court by the Chief Justice of the North
Carolina Supreme Court. . . . [T]he Memorandum to Senior Resident Superior
Court Judges from Chief Justice Lake . . . containing his “Guidelines for Assign-
ment of Cases to the North Carolina Business Court” [is included below]. It is a
useful document which explains the policies the Chief Justice follows. You are
not required to waive a jury trial in order to have a case assigned and the case
will be tried in the county in which it is filed.
Under Rule 2.1, the Chief Justice may designate any case [or group of cases]
as complex business. The Rule provides that a senior resident superior court
judge, chief district court judge, or presiding superior court judge may ex mero
motu, or on motion of a party, recommend to the Chief Justice that a case or cases
be designated as complex business. Thus, the procedure for initial designation as
complex business does not differ from the procedure for having cases designated
as exceptional. Cases may be assigned over the objection of one or all of the
parties. However, once a case is designated as complex business, it is automatically
assigned to a Special Superior Court Judge for Complex Business Cases. In this
The Creation and Jurisdiction of Business Courts in the Last Decade 265
respect the procedure differs from previous practice for exceptional cases in that
heretofore the parties had generally agreed upon a superior court judge to hear
the case as exceptional and secured his or her prior agreement to handle the case.
That flexibility is not available with the complex business designation. Also, the
Special Superior Court Judge for Complex Business Cases must write an opinion
on final disposition of the case. Once a case is designated as complex business,
it stays with the business court for all purposes, including trial.
The process for appeals from a decision of the Special Superior Court Judge
for Complex Business Cases does not differ from appeals from other superior
court orders and judgments.
The Supreme Court purposefully chose not to define the term “complex busi-
ness case” in Rule 2.1. It believed the absence of a definition would allow litigants
to seek designation with respect to any business issue that they believed required
special judicial expertise in business matters. It also provided the court with the
flexibility to respond to requests that might not have been anticipated when the
rule was amended.
Both the Commission and the Supreme Court contemplated that cases involv-
ing significant issues under certain chapters of the North Carolina General Statutes
would be designated as complex business. Those chapters include:
One of the key factors in assessing whether or not a case should be designated
as complex business is whether the outcome will have implications for business
and industry beyond the conflicts of the parties to the litigation. If a written
decision on disposition of the case would provide predictability for others in the
same business or industry in making their business decisions, the case will more
likely be considered for designation.
There are also other procedural indicators of complex business cases. Such
cases may be time sensitive, paper intensive or laden with discovery disputes.
They may have complex legal and evidentiary issues, multiple parties and juris-
dictions, and have a significant impact on the parties’ business, whether it be from
a monetary or a corporate governance standpoint.
MEMORANDUM
TO: All Superior Court Judges
FROM: I. Beverly Lake, Jr.
Chief Justice
Supreme Court of North Carolina
David F. Hoke
Assistant Director
Administrative Office of the Courts
DATE: March 7, 2001
RE: Guidelines for Assignment of Cases to the North Carolina Business
Court
When the North Carolina Business Court was established by amending Rule 2
of the General Rules of Practice for the Superior and District Courts, the Supreme
Court had two goals in mind. The first was the establishment of a court where
complex business litigation could be handled by one judge from beginning to
end, thus reducing the problems of discontinuity created by the normal rotation
system. Secondly, the business court was established to generate a body of case
law in our State on corporate governance issues. The Supreme Court envisioned
that cases arising under Chapter 55 (North Carolina Business Corporation Act),
Chapter 55B (Professional Corporation Act), Chapter 57C (North Carolina Lim-
ited Liability Company Act.), Chapter 59 (Uniform Limited Partnership Act),
Chapter 78A (North Carolina Securities Act), Chapter 78B (Tender Offer Disclo-
sure Act), and Chapter 78C (Investment Advisers) would be assigned to the busi-
ness court so that opinions could be written which would provide uniform guid-
ance on corporate governance issues for North Carolina companies. Antitrust was
another area in which the Supreme Court believed a business court would prove
beneficial.
This memorandum will explain the policies that the Chief Justice will follow
in assigning cases to the business court under Rule 2. In addition, the questions
of how cases are assigned to the business court and what criteria should be used
in deciding which cases to recommend for assignment to the business court as a
complex business case or as a regular Rule 2.1 case will be addressed.
At the outset, some common misconceptions about the business court may
need to be dispelled. First, cases assigned to the business court are tried in the
county in which they are filed. They are not moved unless the parties request it.
Second, there is no dollar threshold that must be alleged in order to support
assignment. Third, right to a jury trial is not eliminated by assignment to the
business court. And fourth, although the business court has advanced technology
and e-filing capability, attorneys are not required to use the technology.
Rule 2 affords you discretion in recommending cases be assigned as either
complex business cases or exceptional cases under Rule 2.1. You may recommend
assignment on your own motion or motion of a party; consent is not required.
Your recommendation may be made over the objection of one or more parties.
The Creation and Jurisdiction of Business Courts in the Last Decade 267
Judge Ben Tennille is currently the only Special Superior Court Judge desig-
nated for assignment to complex business cases. With respect to regular Rule 2.1
exceptional case designations, the policy remains the same: In order to obtain
exceptional case designation, the parties should secure the prior agreement of a
Superior Court Judge to handle the case as exceptional before requesting such
designation. Judge Tennille is assigned regular Rule 2.1 exceptional cases in ad-
dition to complex business cases.
Based upon current records of complex business case assignments, the Chief
Justice holds the opinion that the business court can be more accurately utilized
for complex business cases. If there is any uncertainty about the proper classifi-
cation of a case, the case assignment recommendation may be either complex
business or exceptional, and the Chief Justice will determine which classification
is appropriate. Normally, cases arising under the chapters of the General Statutes
referenced above will be assigned as complex business cases. Additionally, please
recommend assignment of any cases involving removal of a director, dissent and
appraisal, involuntary dissolution of a corporation, or other corporate governance
disputes. Also, Meiselman cases involving disputes in family held businesses are
ideal candidates for assignment as complex business cases. Partnership disputes,
as well as shareholder derivative actions, are also usually assigned as complex
business cases. In order for our judicial system to build a consistent body of case
law, these types of cases must be assigned to the business court on a regular basis,
and early identification and assignment is preferable.
Other examples of cases that are good candidates for assignment to the business
court include: contractual disputes that are motion and paper intensive, involve
protracted trials, and require significant judicial management; antitrust and theft
of trade secret cases; and cases involving determination of legal issues that will
have an impact on industry or business practices beyond the confines of the case
itself. Some, but not all, class actions may be good candidates for assignment,
and the decision on assignment should be made before the issue of class certifi-
cation is decided.
Requests for assignment of cases to the business court should be addressed to
the Chief Justice, but sent to the attention of David F. Hoke, Assistant Director,
Administrative Office of the Courts, at Post Office Box 2448, Raleigh, NC 27602.
The request should include a statement of the nature of the case, the reasons why
it should be assigned, whether the parties have consented to assignment, and the
names and addresses of counsel for the parties. In lieu of a detailed statement of
the reasons for assignment, any pleadings or motions setting forth those reasons
may be attached to the request. Any objections to assignment should also be
included. To help expedite the process, please send a copy of the recommendation
of assignment simultaneously to Judge Tennille at Suite 200, 200 S. Elm Street,
Greensboro, NC 27401.
If you have any questions, please do not hesitate to contact Judge Tennille at
(336) 334-5252 or Mr. Hoke at (919) 733-7107.
268 The Business Lawyer; Vol. 60, November 2004
Memorandum from the Chief Justice of the Supreme Court of North Carolina, to
North Carolina Superior Court Judges (March 7, 2001), available at http://www.
ncbusinesscourt.net/New/aboutcourt/ (last visited Oct. 7, 2004).
OKLAHOMA
SECTION 16. AMENDATORY 20 O.S. 2001, Section 91.2, is amended to read
as follows:
Section 91.2 A. To facilitate the trial and disposition of cases, actions filed in
the district court shall be assigned to various dockets by the clerk of the court
pursuant to the direction and supervision of the presiding judge of the district.
Until changed by order of the Supreme Court, only the following dockets are
established: . . . and a business docket for business court divisions of the court
created pursuant to Section 17 of this act.
....
SECTION 17. NEW LAW A new section of law to be codified in the Oklahoma
Statutes as Section 91.7 of Title 20, unless there is created a duplication in num-
bering, reads as follows:
The Creation and Jurisdiction of Business Courts in the Last Decade 269
A. The Oklahoma Legislature finds that, due to the complex nature of litigation
involving highly technical commercial issues, there is a need for a court in
Oklahoma’s most populated counties with specific jurisdiction over actions
involving such commercial issues.
B. The Supreme Court is authorized to create a business court division within
the district court of any judicial district containing a municipality with a popu-
lation in excess of three hundred thousand (300,000), according to the latest
Federal Decennial Census.
C. The Supreme Court shall promulgate rules for the establishment and jurisdic-
tion of the business court divisions.
2003 Okla. H.B. 2661, Oklahoma Second Session of the 49th Legislative Session,
Sections 16 and 17, enacted May 28, 2004, available at http://www2.lsb.state.
ok.us/2003-04hb/hb2661_enr.rtf (last visited Oct. 7, 2004).
PENNSYLVANIA
PHILADELPHIA COUNTY
ASSIGNMENT OF CASES SUBJECT TO COMMERCE PROGRAM
1. Cases Subject to Commerce Program. Notwithstanding anything to the contrary
in General Court Regulation 95-2 (Day Forward Program) or any other General
Court Regulation, Jury, Non-Jury & Equity, and Class Action cases filed on or
after January 1, 2000, but not Arbitration cases, shall be assigned to the Commerce
Program if they are among the following types of actions:
1. Actions relating to the internal affairs or governance, dissolution or liquida-
tion, rights or obligations between or among owners (shareholders, partners,
members), or liability or indemnity of managers (officers, directors, managers,
trustees, or members or partners functioning as managers) of business cor-
porations, partnerships, limited partnerships, limited liability companies or
partnerships, professional associations, business trusts, joint ventures or other
business enterprises, including but not limited to any actions involving in-
terpretation of the rights or obligations under the organic law (e.g., Pa. Busi-
ness Corporation Law), articles of incorporation, by-laws or agreements gov-
erning such enterprises;
2. Disputes between or among two or more business enterprises relating to
transactions, business relationships or contracts between or among the busi-
ness enterprises. Examples of such transactions, relationships and contracts
include:
a. Uniform Commercial Code transactions;
b. Purchases or sales of businesses or the assets of businesses;
c. Sales of goods or services by or to business enterprises;
d. Non-consumer bank or brokerage accounts, including loan, deposit cash
managements and investment accounts;
e. Surety bonds;
270 The Business Lawyer; Vol. 60, November 2004
10. Petition Actions in the nature of Change of Name, Mental Health Act Peti-
tions, Petitions to appoint an Arbitrator, Government Election Matters, Leave
to Issue Subpoena, Compel Medical Examination.
11. Individual residential real estate and non-commercial landlord-tenant disputes.
12. Domestic relations matters, and actions relating to distribution of marital
property, custody or support.
13. Any matter required by statute, including 20 Pa.C.S. Chapter 7, §§ 711 &
713, to be heard in the Orphans’ Court or Family Court Division of the
Philadelphia Court of Common Pleas, or other matter which has heretofore
been within the jurisdiction of the Orphans’ Court of Family Court Division
of this Court.
14. Any criminal matter other than criminal contempt in connection with a Com-
merce Program action.
15. Such other matters as the Court shall determine.
Administrative Docket No. 01-2000, 30 Pa.B. 1362, available at http://www.
aopc.org/judicial-council/local-rules/philadelphia/philadel_chg_010100a.pdf
(last visited Oct. 7, 2004).
RHODE ISLAND
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC.
SUPERIOR COURT
ADMINISTRATIVE ORDER NO. 2001-9
RE: BUSINESS CALENDAR
There is hereby established for the Counties of Providence and Bristol, a “Business
Calendar.”
I. Civil actions in which the principal claim or claims involve the following
are appropriate matters to be assigned to the Business Calendar for all pur-
poses, including motion practice, discovery disputes, injunctive relief and
hearing on the merits (with or without a jury);
(a) Breach of contract or fiduciary duties, fraud, misrepresentation, busi-
ness tort or statutory violations arising out of business dealings and/or
transactions;
(b) Transactions governed by the provisions of the Uniform Commercial
Code;
(c) Complicated transactions involving commercial real property;
(d) Shareholder derivative actions;
(e) Commercial class actions;
(f ) Commercial Bank transactions;
(g) Matters affecting the internal affairs or governance of business organi-
zations or entities;
(h) Business insolvencies and receiverships.
272 The Business Lawyer; Vol. 60, November 2004
BY ORDER OF:
APPENDIX B
HAWAII
Hawaii’s Chapter of the American Judicature Society, has assembled a fifteen
member “Special Committee on Business Courts” to make an inquiry into “whether
Hawaii should or should not have a business court.” Erika Engle, New Hawaii
Business Court Gets Gaveled Into Possibility, HONOLULU STARBULLETIN, Apr. 11,
2003, available at http://starbulletin.com/2003/04/11/business/engle.html (last vis-
ited Oct. 7, 2004).
MAINE
After her appointment, Maine’s current Chief Justice, the Honorable Leigh Sau-
fley, made the following comments in response to an interviewer’s question con-
cerning the idea of a separate business court or docket:
Another thing Chief Justice Wathen talked about was the creation of a busi-
ness court. Is that a proposal likely to survive during your leadership?
We’ve already undertaken a number of things that will help us to address
issues of businesses in the courts. I think what [former Chief Justice Wathen]
was talking about is a docketing system as opposed to a separate court.
Several states have done pilot projects with special docketing for certain
kinds of complex business cases. In Maine, we’ve undertaken the single
justice project in those areas most likely to get complex business litigation.
And then we have focused on complex litigation; in fact, we have one judge
who’s headed off for more training at one of the national conferences on
complex litigation. All those things will come together in a more cohesive
docketing system which essentially responds to what [former Chief Justice
Wathen] was concerned about: that business cases may tend to get lost in
the rush of everything else the courts are trying to do.
Meet Maine’s New Chief Justice, 17 ME. B. J. 14, 16 (2002). More recently, the
Chief Justice indicated that a business court in Maine is probably three to five
years away. Email from George F. Burns, Esquire, Bernstein, Shur, Sawyer & Nel-
son, P.A., to Lee Applebaum, Esquire, Fineman, Krekstein & Harris, P.C. (Oct. 2,
2003, 08:39 EST) (on file with authors) (Mr. Burns is an attorney with Bernstein,
Shur, Sawyer & Nelson, P.A. in Portland, Maine and has been involved in working
towards the creation of a business court in Maine).
MINNESOTA
Efforts at creating a business court have not proved successful. Docketing
changes have been made in court procedures in some of the larger Minnesota
274 The Business Lawyer; Vol. 60, November 2004
counties with a view to handling complex litigation matters of various sorts. Letter
from Thomas D. Feinberg, Esquire, to Lee Applebaum, Esquire, Fineman, Krek-
stein & Harris, P.C. (Sept. 15, 2003) (on file with authors).
MISSISSIPPI
“The Mississippi Secretary of State’s Business Law Advisory Group has discussed
the issue of business courts on several occasions and continues to explore the
feasibility of a business court. At the most recent meeting of the Business Law
Advisory Group the procedures in other states were discussed, as well as issues
unique to Mississippi.” Email from Henry Chatham, Esquire, Wise Carter Law
Firm, to Lee Applebaum, Esquire, Fineman, Krekstein & Harris, P.C. (Sept. 11,
2003, 11:16 EST) (on file with authors) (Mr. Chatham is with the Wise Carter
Law Firm in Jackson, Mississippi and is Mississippi’s State Bar Liaison to ABA
Committee on Corporate Laws).
OHIO
The Ohio State Bar Association approved proposed legislation to establish a
business court in Ohio in 1998; however, the legislation was not introduced
in the legislature. In January 2003, the Corporation Law Committee of the
OSBA established a subcommittee to review again the issue of establishing
a business court in Ohio. The Business Court subcommittee, chaired by
Harry Mercer, has been meeting and made an interim report to the Corpo-
ration Law Committee in September detailing the status of business courts
in a number of states. The subcommittee is expected to make recommen-
dations in a more detailed report to the Corporation Law Committee in
January 2004.
Email from Harry D. Mercer, Esquire, to Lee Applebaum, Esquire, Fineman, Krek-
stein & Harris, P.C. (Sept. 11, 2003, 09:48 EST) (on file with authors); see also
Dan Crawford, Ohio Bar Considers Push for Separate Business Court, BUS. FIRST OF
COLUMBUS, January 6, 1997, available at http://columbus.bizjounals.com/columbus/
stories/1997/01/06/story2.html (last visited Oct. 7, 2004) (reflecting efforts to-
ward establishing a business court as early as 1996); Cliff Peale, Business Courts
Proposed, CINCINNATI POST, Apr. 10, 1998, available at http://www.cincypost.com/
news/1998/court041098.html (last visited Oct. 7, 2004) (indicating Ohio Bar As-
sociation committee recommended a form of state-wide business court for the
purpose of seeking more expeditious case resolution, efficiency, consistency in
decisions, and decreasing backlog in the trial courts of general jurisdiction).
VIRGINIA
Although there were some efforts within the Virginia Bar Association suggesting
that inquiry be made into the creation of a business court in Virginia, it was
decided in October 2003 not to pursue such an effort. Email from David G.
The Creation and Jurisdiction of Business Courts in the Last Decade 275
Shuford, Esquire, to Lee Applebaum, Esquire, Fineman, Krekstein & Harris, P.C.
( June 3, 2004, 16:10 EST) (on file with authors).
WISCONSIN
In April of 1996, on recommendations made by a Special Task Force appointed
by then Governor Thompson, Chief Judge Patrick Sheedy of the Milwaukee
County Circuit Court implemented a business court pilot project and designated
two judges to the Special Business Court in Milwaukee. The court implemented
a set of summary proceeding rules limiting pleadings and calling for expedited
discovery. A party had to petition to be placed within the business court and a
decision was issued by a judge, whose decision could not be appealed. Milwaukee
County had revised its rules in 1998, eliminating monetary limitations and adding
the right to join third parties, pursue summary judgments and request a jury. The
process was voluntary, and still aimed at a highly expeditious resolution, though
not as streamlined as the original rules for summary proceedings. Due to the lack
of use, however, the Milwaukee Circuit Court business track is no longer active.
See generally Jane C. Schlict, Milwaukee’s New Business Court Rules, MBA MESSEN-
GER, Vol. 6, No. 5, May 1998; Pete Millard, Reworking the Business Courts, THE
BUS. J. OF MILWAUKEE, March 31, 1997; Maryland Business and Technology Court
Task Force Report, at appendix B, available at http://www.courts.state.md.us/
finalb&treport.pdf (last visited Oct. 7, 2004).
The Milwaukee Circuit Court’s Rules for Summary Proceedings for Business
Disputes, Milwaukee County Circuit Court Rules 330-338, however, can still be
located on the court’s web site: http://www.wisbar.org/rules/mil/mil3.html. Under
Milwaukee County Circuit Court Rule 330.D., business disputes are generally
defined as “any claim arising out of a commercial relationship, excluding claims
for personal, physical or mental injuries.” MILWAUKEE COUNTY CIR. CT. R. 330D,
available at http://www.wisbar.org/rules/mil/mil3.html (last visited Oct. 7, 2004).
Examples include securities disputes, asset sales, commercial leases, partnership
agreements, construction contracts, shareholder disputes, letters of credit, unfair
competition, and interference with business relations. See The Business Court Rules,
New and Speedy Options for Business Litigation, April 14, 1998, (provided for a
seminar presented by the Milwaukee Bar Association’s Civil Litigation Section on
Revised Business Court Rules on April 14, 1998 in Milwaukee).
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
ADMINISTRATIVE ORDER
NO.: 2003-17-03
WHEREAS, consideration has been given to a more proper and fitting designation of
WHEREAS, the number of complex commercial cases currently pending before the
Judge presiding over such cases is such that the Judge cannot devote the proper amount of time
and attention to the cases to effectuate appropriate case management and analysis of complex
issues, and
WHEREAS, the Business Section of the Orange County Bar Association has, after
careful study and consideration, proposed certain amendments to the criteria governing the cases
Chief Judge of the Ninth Judicial Circuit of Florida under Florida Rule of Judicial
Business Litigation Court.” Criteria governing the assignment of cases to the Complex Business
1
II. Cases Subject to the Complex Business Litigation Court.
The principles set out below shall guide the parties and the Court in the assignment of cases to the
Complex Business Litigation Court. Notwithstanding anything to the contrary in any prior general
Administrative Order or Court procedure, all jury, non-jury, injunction and class action cases shall be
assigned to the Complex Business Litigation Court, if they are among the following types of actions:
$75,000.00:
2. Claims arising from the purchases and sales of businesses or the assets of a
business, including contract disputes, commercial landlord-tenant claims, and business torts;
enterprises;
9. Insurance coverage disputes, bad faith suits, and third party indemnity
actions against insurers arising under policies issued to businesses, such as claims arising under a
2
10. Other complex disputes of a commercial nature, excluding those listed
in Section III, below. Cases eligible under this category will normally have four or more parties,
multiple claims and defenses, third party, cross or counterclaims, complex factual or legal issues, or
other unusual features warranting assignment to the Complex Business Litigation Court.
liquidation rights obligations between or among owners (shareholders, partners, members), or liability or
5. Shareholder derivative actions and class actions involving claims that are
subject to the Complex Business Litigation Court, pursuant to this Order; and
The following types of matters are not ordinarily to be assigned to the Complex Business Litigation
Court:
3
D. Matters involving occupational health or safety;
attorneys, accountants, architects or other professionals in connection with the rendering of professional
H. Employment law cases, other than those addressed in Section II, paragraph B. 2.,
above;
J. Petition actions in the nature of change of name, mental health act, guardianship, or
underlying case;
custody, or support;
Q. Any matter required by statute or other law to be heard in some other court or court
4
division;
S. Such other cases which are appropriately transferred out of the Complex Business Litigation
A. Effective immediately, the Civil Cover Sheet shall include an additional line and
box where the party or attorney signing the Civil Cover Sheet must certify whether the action is appropriate
for assignment to the Complex Business Litigation Court. A "Complex Business Litigation Court
Addendum to Civil Cover Sheet" (“Addendum”), a sample of which is attached hereto as Exhibit “A,” is
hereby required to be filed with all initial filings that meet the Complex Business Litigation Court criteria
and which are filed on or after the date of this Order. The filing party or attorney shall indicate on the
Addendum the applicable type or types of action that qualify the case for assignment to the Complex
Business Litigation Court. A party’s or an attorney's signature on the Civil Cover Sheet shall constitute
certification that the matter is appropriate for the Complex Business Litigation Court. A copy of the Civil
B. Cases meeting the criteria to qualify for Complex Business Litigation Court,
pursuant to this Administrative Order, shall be assigned to Subdivision 32 in the Circuit Civil Division,
litigants may submit a request to the Administrative Judge of the Circuit Civil Division to assign/transfer a
pending case that meets the criteria of the Complex Business Litigation Court to Subdivision 32.
5
D. Controversies which may arise concerning the assignment/transfer of any case in
the Circuit Civil Division, including Complex Business Litigation Court cases, shall be resolved by the
If any party disagrees with the assignment or lack of assignment of a case to the Complex Business
Litigation Court, that party may file a “Motion to Transfer Divisions” with the Judge in the assigned
subdivision, and the motion will be resolved by the Administrative Judge of the Circuit Civil Division in
accordance with the Ninth Judicial Circuit Administrative Procedures for case re-assignment.
DONE AND ORDERED at Orlando, Orange County, Florida this 3rd day of November,
2005.
6
EXHIBIT “A”
[CIVIL COVER SHEET COMPLEX BUSINESS LITIGATION COURT ADDENDUM]
7
CIVIL COVER SHEET COMPLEX BUSINESS LITIGATION COURT ADDENDUM
PARTY OR ATTORNEY FILING ACTION MUST SELECT WHICH APPLIES
Cases Subject to Complex Business Litigation Court. The principles set out below shall guide the parties and the Court
in the assignment of cases to the Complex Business Litigation Court. All jury, non-jury, injunction and class action cases
shall be assigned to the Complex Business Litigation Court if they are among the following types of actions:
2. Claims arising from the purchases and sales of business or the assets of a business
including contract disputes, commercial landlord-tenant claims and business torts;
5. Claims arising from the purchase, sale, lease of real or personal property or
security interests therein;
9. Insurance coverage disputes, bad faith suits, and third party indemnity actions
against insurers arising under policies issued to businesses, such as those claims arising under a commercial
general liability policy or commercial property policy; and
8
4. Actions relating to securities or relating to or arising under the state securities
laws or antitrust statutes;
5. Shareholder derivative suits and class actions involving claims that are subject
to Complex Business Litigation Court , pursuant to Administrative Order Number 2003-17-2 ; and
NOTE: A copy of the Civil Cover Sheet and this Addendum must be served with the Complaint for all Complex Business
Litigation Court cases. See Administrative Order Number 2003-17-2 for further Complex Business Litigation Court
requirements.
9
BUSINESS COURT PROCEDURES FOR THE NINTH JUDICIAL CIRCUIT COURT,
IN AND FOR ORANGE COUNTY, FLORIDA
1.1 - Citation to Procedures. These Procedures shall be known and cited as the Business
Court Procedures. They may also be referred to in abbreviated form as “BCP” or “Business Court
Procedures,” e.g., this section may be cited as “BCP 1.1.”
1.2 - Purpose and Scope. The Business Court Procedures are designed to facilitate the
proceedings of cases by the Ninth Judicial Circuit Business Court. The Business Court Procedures
shall apply to all actions in the Business Court Subdivision of the Civil Division of the Ninth Judicial
Circuit Court of Florida.
1.3 - Goals. The Business Court Procedures are intended to provide better access to Court
information for litigants, counsel and the public; increase the efficiency and understanding of Court
personnel, counsel and witnesses; decrease costs for litigants and others involved in the court system;
and facilitate the efficient and effective presentation of evidence in the courtroom. These Procedures
shall be construed and enforced to avoid technical delay, encourage civility, permit just and prompt
determination of all proceedings and promote the efficient administration of justice.
1.4 - Integration with Other Rules. These Procedures are intended to supplement, not
supplant, the rules adopted by the Supreme Court of Florida. Should any conflict be deemed to exist
between the Business Court Procedures and the rules, then the rules shall control.
2.1 - Cases Subject to Business Court. The principles set out in Amended Administrative
Order 2003-17-1, which is located on the Business Court Web Site at
http://www.ninja9.org/court/business/index-BC.htm, shall govern the assignment of cases to Business
Court.
2.2 - Case Identification Numbers. On assignment of any matter to the Business Court, the
matter shall retain the civil action number assigned to it by the Clerk of Courts.
SECTION 3 – VIDEOCONFERENCING
3.1 - By Agreement. By mutual agreement, counsel may arrange for any proceeding or
conference to be held by videoconference by coordinating a schedule for such meeting that is
convenient with the Business Court. All counsel and other participants shall be subject to the same
rules of procedure and decorum as if all participants were present in the courtroom.
3.2 - Responsibility for Videoconferencing Facilities. The parties are responsible for
obtaining all communications facilities and arranging all details as may be required to connect and
interface with the videoconferencing equipment available to the Business Court. The Business
Court will endeavor to make reasonable technical assistance available to the parties, but all
responsibility for planning and executing all technical considerations required to successfully hold
a videoconference shall remain solely with the parties.
3.3 - Allocation of Videoconferencing Costs. In the absence of a contrary agreement
among the parties, the parties participating by videoconference shall bear their own costs of
participating via this method.
3.4 - Court Reporter. Where any proceeding is held by videoconference, the court
reporter transcribing such proceeding will be present in the same room as the judge presiding over
the proceeding.
3.5 - Exchange of Exhibits and Evidence to be Used in Videoconference Hearing.
Any exhibits or evidence to be used in a videoconference hearing must be provided to opposing
counsel and to the Court five business days prior to the hearing. All exhibits or evidence so
provided shall bear exhibit tags marked with the case name, case number, identity of the
propounding party and an identification number. Any objections to any exhibit or evidence must
be provided to the Court in writing at least five days in advance of the hearing and reference the
appropriate exhibit tags.
4.1 - Preparation of Calendar. The calendar for the Business Court shall be prepared under
the supervision of the Business Court Judge and published on the Business Court web site.
4.2 - Appearances. An attorney who is notified to appear for any proceeding before the
Business Court, must, consistent with ethical requirements, appear or have a partner, associate or
another attorney familiar with the case present.
4.3 - Notification of Settlement. When any cause pending in the Business Court is settled,
all attorneys or unrepresented parties of record must notify the Business Court Judge or the Judge’s
designee within twenty-four (24) hours of the settlement and must advise the Court of the party who
will prepare and present the judgment, dismissal or stipulation of dismissal and when such filings will
be presented.
5.1 - Form. All motions, unless made orally during a hearing or a trial, shall be accompanied
by a memorandum of law, except as provided in BCP 5.10. Any memorandum of law shall be filed in
support of one motion only and shall not exceed twenty-five (25) pages in length. Separate motions
shall be filed separately and a memorandum of law filed in support of each. Motions that are
inextricably intertwined and either substantively related or in the alternative may be filed together.
5.2 - Content of motions. All motions shall state with particularity the grounds therefor,
shall cite any statute or rule of procedure relied upon and shall set forth the relief sought. Factual
statements in a motion for summary judgment shall be supported by specific citations to the
supporting documents. The parties shall not raise issues at the hearing on the motion that were not
addressed in the motion and memoranda in support of and in opposition to the motion. The practice
of offering previously undisclosed cases to the Court at the hearing is specifically discouraged.
5.3 - Certificate of Good Faith Conference. Before filing any motion in a civil case, the
moving party shall confer with counsel for the opposing party in a good faith effort to resolve the
issues raised by the motion and shall file with the motion a statement certifying that the moving party
has conferred with opposing counsel and that counsel have been unable to agree on the resolution of
the motion (the “Certificate”).
a. The term “confer,” as used herein, requires a substantive conversation in person or
by telephone in a good faith effort to resolve the motion without court action and
does not envision an exchange of ultimatums by fax or letter. Counsel who merely
attempt to confer have not conferred. Counsel must respond promptly to inquiries
and communications from opposing counsel. The Court will sua sponte deny
motions that fail to include an appropriate and complete Certificate under this
section.
b. The Certificate shall set forth the date of the conference, the names of the
participating attorneys, and the specific results achieved. It shall be the
responsibility of counsel for the movant to arrange for the conference.
c. No conference, and therefore no Certificate, is required in motions for injunctive
relief without notice, for judgment on the pleadings, summary judgment, or to
permit maintenance of a class action.
d. A party alleging that a pleading fails to state a cause of action will confer with
counsel for the opposing party before moving to dismiss, and, upon request of the
other party, will stipulate to an order permitting the filing of a curative amended
pleading in lieu of filing a motion to dismiss.
5.4 - Motions Decided on Papers and Memoranda. Motions shall be considered and
decided by the Court on the pleadings, admissible evidence, the court file, and memoranda, without
hearing or oral argument, unless otherwise ordered by the Court. Any party seeking oral argument
shall file a separate motion setting forth the reasons oral argument should be granted. If the Court
grants oral argument on any motion, it shall give the parties at least five (5) business days’ notice of
the date and place of oral argument. The Court, for good cause shown, may shorten the five (5) day
notice period. All papers relating to the issues to be argued at the hearing shall be delivered to
opposing counsel and the Court at least five (5) business days before the hearing. Service and receipt
of the papers less than five days before the hearing is presumptively unreasonable.
5.5 - Response to Motion and Memoranda. The respondent, if opposing a motion, shall file
a memorandum in opposition within twenty (20) days after service of the motion or within thirty (30)
days of service if the motion is for summary judgment. Memoranda in opposition shall not exceed
twenty-five (25) pages in length. If supporting documents are not then available, the respondent may
move for an extension of time. For good cause appearing therefore, a respondent may be required by
the Court to file any response and supporting documents, including a memorandum, within such
shorter period of time as the Court may specify.
5.6 - Extension of Time for Filing Supporting Documents and Memoranda. Upon proper
motion accompanied by a proposed order, the Court may enter an ex parte order, specifying the time
within which supporting documents and memoranda may be filed, if it is shown that such documents
are not available or cannot be filed contemporaneously with the motion or response. The time
allowed to an opposing party for filing a response shall not run during any such extension.
5.7- Reply Memorandum. The movant may file a reply memorandum within ten (10) days
of service of the memorandum in opposition to the motion. A reply memorandum is limited to
discussion of matters raised in the memorandum in opposition and shall not exceed ten (10) pages in
length.
5.8- Font and Spacing Requirements. All motions and memoranda shall be double-spaced
and in Times New Roman 14-point font or Courier New 12-point font.
5.9 - Suggestion of Subsequently Decided Authority. A suggestion of controlling or
persuasive authority that was decided after the filing of the last memorandum may be filed at any time
prior to the Court’s ruling and shall contain only the citation to the authority relied upon, if published,
or a copy of the authority if it is unpublished, and shall not contain argument.
5.10 - Motions Not Requiring Memoranda. Memoranda are not required by either the
movant or the opposing party, unless otherwise directed by the Court, with respect to the following
motions:
a. discovery motions;
b. extensions of time for the performance of an act required or allowed to be done, provided
that the request is made before the expiration of the period originally prescribed or
extended by previous orders;
c. to continue a pre-trial conference, hearing, or the trial of an action;
d. to add or substitute parties;
e. to amend the pleadings;
f. to file supplemental pleadings;
g. to appoint a next friend or guardian ad litem;
h. to stay proceedings to enforce judgment;
i. for pro hac vice admission of counsel who are not members of The Florida Bar;
j. relief from the page limitations imposed by these Procedures; and
k. request for oral argument.
The above motions must state good cause therefor and cite any applicable rule, statute or
other authority justifying the relief sought. These motions must be accompanied by proposed orders.
5.11 - Failure to File and Serve Motion Materials. The failure to file a memorandum
within the time specified in this section shall constitute a waiver of the right thereafter to file such
memorandum, except upon a showing of excusable neglect. A motion unaccompanied by a required
memorandum may, in the discretion of the Court, be summarily denied. Failure to timely file a
memorandum in opposition to a motion will result in the pending motion being considered and
decided as an uncontested motion.
5.12 - Preparation of Orders. In matters in which the Court does not prepare its own
orders, the Court will direct the prevailing party to prepare an order in accordance with its ruling. In
cases in which a party submits an order to the Court, multiple copies and addressed stamped
envelopes sufficient for all parties shall be submitted therewith. No order will be entered unless the
party proffering such an order represents that he or she has provided copies to the opposing parties in
advance, and they have no objection to the form of the order. In proposing an order entering a final
judgment of default, the party must contemporaneously provide the Court with sufficient information
establishing that the motion for entry of a final judgment by default should be granted. If an
agreement among the parties cannot be reached on a proposed order, the parties must convene an ex
parte hearing to address any objections to the proposed order.
5.13 - Ex Parte. The Court will convene ex parte on a schedule to be published on the
Business Court web site at http://www.ninja9.org/court/business/index-BC.htm. Ex Parte is reserved
for uncontested matters with the exception of disputes over the form of proposed orders as discussed
in BCP 5.12 above. The use of court reporters is not permitted at ex parte.
5.14 - Determination of Motions Through Oral Argument Without Briefs. The parties
may present motions and the Court may resolve disputes regarding the matters described in BCP 5.10
through the use of an expedited oral argument procedure. Applicable motions are those that are
limited to matters which can be argued and determined in twenty minutes or less, and may be heard
on the Court’s Short Matters docket, which requires coordination with counsel, but not the
reservation of a specific time through the judicial assistant. The dates and times of Short Matters
hearings will be posted on the Business Court web site at http://www.ninja9.org/court/business/index-
BC.htm.
5.15 - Motions to Compel and for Protective Order. Any party seeking to compel
discovery or to obtain a protective order with respect to discovery must identify the specific portion
of the material that is directly relevant and ensure that it is filed as an attachment to the application for
relief.
5.16 - Motions to File Under Seal. Whether documents filed in a case may be filed under
seal is a separate issue from whether the parties may agree that produced documents are confidential.
Motions to file under seal are disfavored. The court will permit the parties to file documents under
seal only upon a finding of extraordinary circumstances and particularized need. A party seeking to
file a document under seal must file a motion to file under seal requesting such Court action. The
motion, whether granted or denied, will remain in the public record.
5.17 - Emergency Motions. The Court may consider and determine emergency motions at
any time. Counsel should be aware that the designation “emergency” may cause a judge to abandon
other pending matters in order to immediately address the emergency. The Court will sanction any
counsel or party who designates a motion as an emergency under circumstances that are not true
emergencies. It is not an emergency when counsel has delayed discovery until the end of the
discovery period.
6.1 - Notice of Hearing and Order on Case Management Conference. Within 30 days of
filing or transfer of a case to Business Court, the Court will issue and serve on Plaintiff’s counsel a
Notice of Hearing and Order on Case Management Conference (the “Notice”). Plaintiff’s counsel
shall immediately thereafter serve a copy of the Notice on all Defendants. Defendants shall
immediately serve a copy of the Notice on all Third Party Defendants.
6.2 - Case Management Meeting. Regardless of the pendency of any undecided motions,
Lead Trial Counsel shall meet no less than 30 days in advance of the Case Management Conference
(“CMC”) and address the following subjects, along with other appropriate topics, including those set
forth in Florida Rule of Civil Procedure 1.200(a), some of which subjects and topics will be
incorporated into a Case Management Order prepared by the Court:
a. Pleadings issues, service of process, venue, joinder of additional parties, theories
of liability, damages claimed and applicable defenses;
b. The identity and number of any motions to dismiss or other preliminary or pre-
discovery motions that have been filed and the time period in which they shall be
filed, briefed and argued;
c. A discovery plan and schedule including the length of the discovery period, the
number of fact and expert depositions to be permitted and, as appropriate, the
length and sequence of such depositions;
d. Anticipated areas of expert testimony, timing for identification of experts,
responses to expert discovery and exchange of expert reports;
e. An estimate of the volume of documents and computerized information likely to be
the subject of discovery from parties and nonparties and whether there are
technological means that may render document discovery more manageable at an
acceptable cost;
f. The advisability of using special master(s) for fact finding, mediation, discovery
disputes or such other matters as the parties may agree upon;
g. The time period after the close of discovery within which post-discovery
dispositive motions shall be filed, briefed and argued and a tentative schedule for
such activities;
h. The possibility of settlement and the timing of Alternative Dispute Resolution,
including the selection of a mediator or arbitrator(s);
i. Whether or not a party desires to use technologically advanced methods of
presentation or court-reporting and, to the extent this is the case, a determination
of the following:
i. Fairness issues, including but not necessarily limited to use of such
capabilities by some but not all parties and by parties whose
resources permit or require variations in the use of such capabilities;
ii. Issues related to compatibility of Court and party facilities and
equipment;
iii. Issues related to the use of demonstrative exhibits and any
balancing of relevance and potential prejudice that may need to
occur in connection with such exhibits;
iv. The feasibility of sharing the technology resources or platforms
amongst all parties so as to minimize disruption at trial; and
v. Such other issues related to the use of the Court’s and parties’
special technological facilities as may be raised by any party, the
Court or the Court’s technological advisor, given the nature of the
case and the resources of the parties.
j. A good faith estimate by each party based upon consultation among the parties of
the costs each party is likely to incur in pursuing the litigation through trial court
adjudication;
k. A preliminary listing of the principal disputed legal and factual issues;
l. A preliminary listing of any legal principle and facts that are not in dispute;
m. A good faith estimate by each party of the length of time to try the case;
n. Whether a demand for jury trial has been made;
o. The track to which the case will be assigned. The Business Court typically
employs the following management tracks: Business Expedited (Target Trial Date
within 13 months of filing of complaint); Business Standard (Target Trial Date
within 18 months of filing of complaint); and Business Complex (Target Trial Date
within two years of filing of complaint).
p. Such other matters as the Court may assign to the parties for their consideration.
6.3 - Joint Case Management Report. No less than ten (10) days in advance of the CMC,
the Parties shall file the Joint Case Management Report addressing the matters described above and
shall provide the Court, but not file with the clerk, a diskette, CD or e-mail attachment containing the
Joint Case Management Report. All counsel and parties are responsible for filing a Joint Case
Management Report in full compliance with these Procedures. Plaintiff’s counsel shall have the
primary responsibility to coordinate the meeting between the parties and the filing of the Joint Case
Management Report. If a non-lawyer plaintiff is proceeding pro se, defense counsel shall coordinate
compliance. If counsel is unable to coordinate such compliance, counsel shall timely notify the Court
by written motion or request for a status conference.
6.4 - Case Management Conference. The attendance by Lead Trial Counsel for all parties is
mandatory. The court will hear the views of counsel on such issues listed in BCP 6.2 above as are
pertinent to the case or on which there are material differences of opinion.
6.5 - Case Management Order. Following the CMC, the Court will issue a Case
Management Order. The provisions of the Case Management Order may not be deviated from
without notice, an opportunity to be heard, a showing of good cause and entry of an order by the
Court.
The Case Management Order may also specify a schedule of status conferences, when
necessary, to assess the functioning of the Case Management Order, assess the progress of the case,
and enter such further revisions to the Case Management Order as the Court may deem necessary or
appropriate.
SECTION 7 – DISCOVERY
9.1 - Meeting and Preparation of Joint Final Pretrial Statement. On or before the date
established in the Case Management Order, Lead Trial Counsel for all parties and any unrepresented
parties shall meet together in person for the purpose of preparing a Joint Final Pretrial Statement that
strictly conforms to the requirements of this section. The case must be fully ready for trial when the
Joint Final Pretrial Statement is filed. Lead Trial Counsel for all parties, or the parties themselves if
unrepresented, shall sign the Joint Final Pretrial Statement. The Court will strike pretrial statements
that are unilateral, incompletely executed, or otherwise incomplete. Inadequate stipulations of fact
and law will be stricken. Sanctions may be imposed for failure to comply with this section, including
the striking of pleadings. At the conclusion of the final pretrial conference, all pleadings are deemed
to merge into the Joint Final Pretrial Statement, which will control the course of the trial.
9.2 - Contents of Joint Final Pretrial Statement.
a. Stipulated Facts. The Parties shall stipulate to as many facts and issues as
possible. To assist the Court, the parties shall make an active and substantial effort to
stipulate at length and in detail as to agreed facts and law, and to limit, narrow and simplify
the issues of fact and law that remain contested.
b. Exhibit List. An exhibit list containing a description of all exhibits to be introduced
at trial and in compliance with the approved form located on the Business Court web site at
http://www.ninja9.org/court/business/index-BC.htm, must be filed with the Joint Final Pretrial
Statement. Each party shall maintain a list of exhibits on disk or CD to allow a final list of
exhibits to be provided to the Clerk of Court at the close of the evidence. Unlisted exhibits
will not be received into evidence at trial, except by order of the Court in the furtherance of
justice. The Joint Final Pretrial Statement must attach each party’s exhibit list on the
approved form listing each specific objection (“all objections reserved” does not suffice) to
each numbered exhibit that remains after full discussion and stipulation. Objections not made
– or not made with specificity – are waived.
c. Witness List. The parties and counsel shall prepare a witness list designating in
good faith which witnesses will likely be called and which witnesses may be called if
necessary. Absent good cause, the Court will not permit testimony from unlisted witnesses at
trial over objection. This restriction does not apply to rebuttal witnesses. Records custodians
may be listed, but will not likely be called at trial, except in the event that authenticity or
foundation is contested. Notwithstanding the Business Court Procedures regarding
videoconferencing, for good cause shown in compelling circumstances the Court may permit
presentation of testimony in open court by contemporaneous transmission from a different
location.
d. Depositions. The Court encourages stipulations of fact to avoid calling
unnecessary witnesses. Where a stipulation will not suffice, the Court permits the use of
videotaped depositions at trial. At the required meeting, counsel and unrepresented parties
shall agree upon and specify in writing in the Joint Final Pretrial Statement the pages and lines
of each deposition (except where used solely for impeachment) to be published to the trier of
fact. The parties shall include in the Joint Final Pretrial Statement a page-and-line description
of any testimony that remains in dispute after an active and substantial effort at resolution,
together with argument and authority for each party’s position. The parties shall prepare for
submission and consideration at the final pretrial conference or trial edited and marked copies
of any depositions or deposition excerpts which are to be offered into evidence, including
edited videotaped depositions. Designation of an entire deposition will not be permitted
except on a showing of necessity.
e. Joint Jury Instructions, Verdict Form. In cases to be tried before a jury, counsel
shall attach to the Joint Final Pretrial Statement a copy and an original set of jointly-proposed
jury instructions, together with a single jointly-proposed jury verdict form. The parties
should be considerate of their juries, and therefore should submit short, concise verdict forms.
The court prefers pattern jury instructions approved by the Supreme Court of Florida. A
party may include at the appropriate place in the single set of jointly-proposed jury
instructions a contested charge, so designated with the name of the requesting party and
bearing at the bottom a citation of authority for its inclusion, together with a summary of the
opposing party’s objection. The parties shall submit a computer diskette or CD containing
the single set of jury instructions and verdict form with the Joint Final Pretrial Statement.
9.3 Coordination of Joint Final Pretrial Statement. All counsel and parties are
responsible for filing a Joint Final Pretrial Statement in full compliance with these Procedures.
Plaintiff’s counsel shall have the primary responsibility to coordinate the meeting of Lead Trial
Counsel and unrepresented parties and the filing of a Joint Final Pretrial Statement and related
material. If a non-lawyer plaintiff is proceeding pro se, then defense counsel shall coordinate
compliance. If counsel is unable to coordinate such compliance, counsel shall timely notify the Court
by written motion or request for a status conference.
10.1 - Trial Memoranda. In the case of a non-jury trial, no later than ten days before the
first day of the trial period for which the trial is scheduled, the parties shall file and serve Trial
Memoranda with proposed findings of fact and conclusions of law, together with a computer diskette
or CD. In the case of a jury trial, no later than ten days before the first day of the trial period for
which the trial is scheduled, the parties may file and serve Trial Memoranda, together with a computer
diskette or CD.
11.1 - Mandatory Attendance. Lead Trial Counsel and local counsel for each party,
together with any unrepresented party, must attend the final pretrial conference in person unless
previously excused by the Court.
11.2 - Substance of Final Pretrial Conference. At the final pretrial conference, all counsel
and parties must be prepared and authorized to address the following matters: the formulation and
simplification of the issues; the elimination of frivolous claims or defenses; admitting facts and
documents to avoid unnecessary proof; stipulating to the authenticity of documents; obtaining
advance rulings from the Court on the admissibility of evidence; settlement and the use of special
procedures to assist in resolving the dispute; disposing of pending motions; establishing a reasonable
limit on the time allowed for presenting evidence and argument; and such other matters as may
facilitate the just, speedy, and inexpensive disposition of the actions.
SECTION 12 - SANCTIONS
12.1 - Grounds. The Court will impose sanctions on any party or attorney: 1) who fails to
attend and to actively participate in the meeting to prepare the Joint Final Pretrial Statement or
refuses to sign or file the Joint Final Pretrial Statement; 2) who fails to attend the final pretrial
conference, or who is substantially unprepared to participate; 3) who fails to attend the mediation and
actively participate in good faith, or who attends the mediation without full authority to negotiate a
settlement, or who is substantially unprepared to participate in the mediation; or 4) who otherwise
fails to comply with the Business Court Procedures. Sanctions may include, without limitation, any,
some or all of the following: an award of reasonable attorneys’ fees and costs, the striking of
pleadings, the entry of default, the dismissal of the case, or a finding of contempt of court.
SECTION 13 – TRIAL
13.1 - Examination of Witnesses. When several attorneys are employed by the same party,
the examination or cross-examination of each witness for such party shall be conducted by one
attorney, but the examining attorney may change with each successive witness or, with leave of the
Court, during a prolonged examination of a single witness. The examination of witnesses is limited to
direct, cross and re-direct. Parties seeking further examination shall request a bench conference to
discuss the reasons therefor, and, upon the articulation of good cause, may be allowed further
examination.
13.2 - Objections. Speaking objections are not permitted. A party interposing an objection
shall state the legal basis for the objection only. No response from the interrogating party will be
permitted unless requested by the Court.
14.1 - Communications and Position. Counsel are at all times to conduct themselves with
dignity and propriety. All statements and communications to the Court shall be clearly and audibly
made from a standing position behind the counsel table or the podium. Counsel shall not approach
the bench except upon the permission or request of the Court.
Abusive language, offensive personal references, colloquies between opposing counsel and
disrespectful references to opposing counsel are all strictly prohibited. Witnesses and parties must be
treated with fairness and due consideration.
The examination of witnesses and jurors shall be conducted from behind the podium, except
as otherwise permitted by the Court. Counsel may only approach a witness with the Court’s
permission and for the purpose of presenting, inquiring about, or examining that witness with respect
to an exhibit, document, or diagram.
Except in extraordinary circumstances, and then only with leave of Court and permission of
the witness, all witnesses shall be addressed by honorific and surname (e.g., Mrs. Smith, Reverend
Jones, Dr. Adams), rather than by first names.
14.2 - Professional Demeanor. The conduct of the lawyers before the Court and with other
lawyers should be characterized by consideration, candor and fairness. Counsel shall not knowingly
misrepresent the contents of documents or other exhibits, the testimony of a witness, the language or
argument of opposing counsel or the language of a decision or other authority; nor shall counsel offer
evidence known to be inadmissible. In an argument addressed to the Court, remarks or statements
may not be interjected to improperly influence or mislead the jury.
SECTION 15 – JURIES
15.1 - Jury Instruction Conference. At the close of the evidence (or at such earlier time as
the judge may direct) in every jury trial, the judge shall conduct a conference on instructions with the
parties. Such conference shall be out of the presence of the jury and shall be held for the purpose of
discussing the proposed instructions.
15.2 - Objections to Instructions. The parties shall have an opportunity to request any
additional instructions or to object to any of those instructions proposed by the judge. Any such
requests, objections and rulings of the Court thereon shall be placed on the record.
At the conclusion of the charge and before the jury begins its deliberations (and out of the
hearing, or upon request, out of the presence of the jury), the parties shall be given an opportunity to
object on the record to any portion of the charge as given, or omission therefrom, stating with
particularity the objection and grounds therefor.
16.1 - Trial Date. Trial shall commence on the date established by the Court, normally
through the Case Management Order or amendments thereto, or in such other manner as the Court
shall deem appropriate. The Court will consider a request to continue a trial date only if the request is
signed by both the party and counsel for the party.
17.1 - Web Site. The Business Court shall maintain a site on the World Wide Web for ready
access to members of the bar and public. The web site shall be located at the uniform resource
locator http://www.ninja9.org/court/business/index-BC.htm. The web site will store for ready
retrieval basic information about the Business Court, including but not limited to these Procedures
and the procedure for Complex Business Case designation. In addition, the web site will store, in the
sole discretion of the Business Court Judge:
a. the Court’s docket;
b. papers filed with the Court;
c. motions filed with the Court;
d. briefs filed with the Court; and
e. the opinions of the Court.
ADMINISTRATIVE ORDER
NO. 06-40
WHEREAS, the Circuit and County Courts in Miami-Dade County are organized
into divisions for more efficient case and records management; and
WHEREAS, the Court has carefully studied and considered the creation of a
complex business litigation section, including analyzing the business litigation section
operating in the Ninth Judicial Circuit and similar courts in other jurisdictions throughout
the country and the reports and evaluations of those divisions by legal commentators
and experts and has received input from a cross section of the legal community; and
WHEREAS, the nature and volume of business litigation cases filed in the
General Jurisdiction Division of this Court warrant the creation of another section
designated to handle complex business litigation cases;
Section 1. The Clerk of the Court shall assign to Section 40 all newly filed
cases that appear to meet the criteria established in this Administrative Order as
designated on the Civil Cover Sheet by the filing attorney or party; and all cases
−1−
reassigned to the Complex Business Litigation Section by the Administrative Judge (or
designee).
The principles set forth below shall guide the parties and the Court in the
assignment and reassignment of cases to the Complex Business Litigation Section.
Notwithstanding anything to the contrary in any prior general Administrative Order of
Court procedure, all jury, non-jury, injunction and class action cases shall be assigned
to the Complex Business Litigation Section, if they are among the following types of
actions:
a) Any of the following where the matter in controversy exceeds the amount
of Seventy-five Thousand Dollars ($75,000.00), exclusive of interest, costs
and attorney’s fees:
−2−
ix. An action under the Uniform Fraudulent Transfer Act (except
proceedings supplementary in a case assigned to another
Division).
The following types of matters shall not be assigned to the Complex Business
Litigation Section absent special circumstances:
−3−
f) A matter required by statute or other law to be heard in some other Court
or Court Division;
a) Cases filed on or after January 1, 2007 that otherwise meet the criteria for
transfer to the Complex Business Litigation Section shall not be
transferred if a trial date has been set within three months from the date of
this Order.
c). If any party disagrees with the assignment or lack of assignment of a case
to the Complex Business Litigation Section, then that party may submit a
request to the Administrative Judge (or designee) of the General
Jurisdiction Division for re-evaluation and/or case re-assignment.
−4−
SUPREME COURT OF GEORGIA
It is ordered that the attached revisions to Atlanta Judicial Circuit Rule 1004
governing the Fulton County Superior Court Business Case Division, are hereby
approved:
RULE 1004-AMENDED
1.
The Judges of the Fulton Superior Court hereby create a “Business Case Division” (hereinafter referred
to as the “Division”).
2.
The purpose of the Division is to provide judicial attention and expertise to certain complex Business
Cases.
3.
(a) For purpose of this rule, Business Cases include actions in which the amount in controversy (or, in a
case of injunction relief the value of the relief sought or the cost of not getting the relief) exceeds $1,000,000
(vi) Georgia Revised Uniform Limited Partnership Act, O.C.G.A. § 14-9-100, et seq.;
(vii) Georgia Limited Liability Company Act, O.C.G.A. § 14-11-100, et seq.; and
(viii) any other action that the parties to the action and the Court believes warrants the attention
of the Division, including large contractual and business tort cases as well as other complex
commercial litigation.
(b) Notwithstanding anything contained herein to the contrary, cases that include the following claims
shall not be classified as a Business Case without the consent of all parties:
(iv) Consumer claims in which each individual plaintiff’s claims are in the aggregate less than
$1,000,000.
4.
The Division is to be comprised of up to three Senior Judges who manage, administer, and try the cases
assigned to this Division, or such other number of Senior Judges as the Chief Judge shall designate.
5.
A Business Case filed in the Fulton County Superior Court shall be eligible for assignment to the
Division based upon: (1) the parties' joint request; (2) the motion of a party; or (3) a request submitted by the
Superior Court Judge currently assigned that case, with notice to the parties. The motion or request shall be
directed to the Chief Judge of the Fulton County Superior Court and the Business Case Division Committee to
determine, after allowing the parties twenty (20) days for briefing of the issue, whether the case is a Business
Case Division case and whether it should be accepted for assignment into the Business Case Division. If so
accepted, the Court Administrator shall reassign the case to a Senior Judge within the Business Case Division.
6.
Upon a motion or request, if the Chief Judge, a member of the Business Court Committee and a Senior
Judge to whom the case may be assigned deem the case appropriate for assignment to the Division, the Court
Administrator shall assign the case to the Division. Within the Division, the Court Administrator shall assign
the Division’s cases in rotation, taking into account, reasonably estimated discovery, dispositive motions,
availability of the Senior Judge, the Senior Judge’s current case load, and trial time, as far as practicable. The
Court Administrator shall make every effort to fairly assign the case load within the Division.
7.
When an active Judge’s case has been reassigned to a Division Judge as a Business Case, the Court
Administrator shall make such additional assignments to the active Judge as are necessary to comply with these
rules.
8.
The Chief Judge/District Administrative Judge shall select or re-select all Division Judges from those
Senior Judges, considering their experience, training, and other relevant factors, who volunteer for such
assignment for a period of two years. At the end of each two year term, the Chief Judge/District Administrative
Judge shall decide the continuation of such assignment if the Division Judge volunteers for continued service.
The Chief Judge/District Administrative Judge may reassign such Division Judge at any time in the best
9.
The Business Cases assigned to the Division shall be governed by applicable law, including the Georgia
Civil Practice Act, O.C.G.A. § 9-11-1, et seq., and the Uniform Superior Court Rules.
10.
The Division Judges, in consultation with all parties and pursuant to applicable law, shall have the
ability to modify the schedule for the administration of Business Cases, including the schedule for conducting
discovery, filing dispositive motions, conducting pre-trial procedures, and conducting jury and non-jury trials.
11.
In particular, the Division Judges, pursuant to O.C.G.A § 9-11-5(e) may modify the procedure for filing
papers with the Court, including allowing such filings to be made by facsimile or by e-mail with the Court.
Upon the written consent of all parties and upon any necessary waivers as may be required by law, the Division
Judges may allow for service of papers filed with the Court by electronic means, including by facsimile or by e-
mail. In the event that any procedures are modified pursuant to this paragraph, an electronic signature shall be
12.
The Division Judges, in consultation with all parties, shall have the ability to order nonbinding
mediation, arbitration, or other means of alternative dispute resolution as dictated by the needs of a particular
Business Case. The Division Judges themselves, with the consent of all parties, may conduct such non-binding
13.
The calendar for the Division shall be prepared under the supervision of the Division Judges and shall be
made available to all parties with Business Cases pending in the Division. Pursuant to agreement of the parties
and the Court, the Court may notify parties of such calendar by electronic means, including by facsimile or by e-
mail.
14.
Subject to the rules of evidence, the Division encourages the parties to use electronic presentations and
technologically generated demonstrative evidence to enhance the trier-of-fact’s understanding of the issues
before it and to further the convenience and efficiency of the litigation process.
15.
Within thirty (30) days of a Business Case being assigned to the Division, or such shorter or longer time
as the Division Judges shall order, the parties shall meet with the Division Judge to whom the Business Case is
assigned to discuss the entrance of a case management order, including the following issues: (i) the length of the
discovery period, the number of fact and expert depositions, and the length of such depositions; (ii) a
preliminary deposition schedule; (iii) the identity and number of any motions to dismiss or other preliminary or
pre-discovery motions which shall be filed and the time period in which they shall be filed, briefed, and, if
appropriate, argued; (iv) the time period after the close of discovery within which post-discovery dispositive
motions shall be filed, briefed, and, if appropriate, argued; (v) the need for any alternative form of dispute
resolution; (vi) an estimate of the volume of documents and electronic information likely to be the subject of
discovery from the parties and non-parties, and whether there are means by which to render document discovery
more manageable and less expensive; (vii) and modifications to the rules under the Civil Practice Act or the
Uniform Superior Court Rules as may be applicable to a particular case; (viii) such other matters as the Division
Judge may assign to the parties for their consideration. Within ten (10) days of such a meeting, the parties shall
submit a proposed case management order to the Division Judge for consideration.
16.
In an effort to reduce the length of discovery and quickly resolve any discovery disputes, the Division
Judges shall be available to the parties to resolve disputes that arise during the course of discovery.
17.
In addition to telephone conferencing pursuant to Rule 9 of the Uniform Superior Court Rules, by
mutual agreement between the parties and the Division Judges, counsel may arrange for any hearing or other
conference to be conducted by video conference, subject to the same rules of procedure and decorum as if the
hearing or conference were held in open court. In addition to charging the parties for other costs associated with
Business Cases pending in the Division, the Clerk may charge the parties a fee for such video conferencing or
may include the costs of such video conferencing in any standard fee charged to parties participating in Business
I serve as the presiding justice in the Superior Court Business Litigation Session.
Recently, the venue for cases in the session was expanded so that now parties may, under
certain circumstances, bring cases from Essex, Middlesex or Norfolk counties into the
session in Suffolk County.
Given the number of calls from inquiring attorneys, particularly in the three counties that
are new to the session, there appears to be some degree of confusion about how to get
cases into the session in Boston. For that reason, Judge Margot Botsford and I put
together a memorandum entitled "Procedures for Processing Cases from Esses,
Middlesex and Norfolk to the Business Litigation Session (BLS) in Suffolk County."
(See below.)
The memorandum has been sent to the Clerks' Offices in Essex, Middlesex and Norfolk.
There has not, however, been any kind of explanatory notice to the trial bar. Thus, the
purpose for this letter.
Where do the cases from Essex, Middlesex and Norfolk get filed?
Cases can be filed in the county having venue over the case (e.g., Essex, Middlesex or
Norfolk) or in the BLS session in Boston. A plaintiff waives "venue" by filing the case in
Suffolk instead of in the county with the proper venue. If the plaintiff elects to file the
case in Suffolk County, the caption must read "Suffolk" and not one of the other counties.
If filed in Essex/Middlesex/Norfolk, how is the case referred to the BLS session?
A case must be accepted to the BLS by the presiding judge of the BLS who reviews the
case and makes his decision based on criteria originally established for the BLS. At
present, the presiding judge is Judge Allen van Gestel.
Therefore, if a party wants a case from Essex, Middlesex or Norfolk "transferred" to the
BLS session, the party must file a motion with the Court in the county where the case is
pending (e.g., Essex, Middlesex or Norfolk). A judge sitting in that county must consider
the motion and can either "Allow" or "Deny" transfer of the case to the BLS. These
motions should not be forwarded to the BLS in Suffolk.
If the judge in Essex, Middlesex or Norfolk "denies" the motion to transfer the case, then
that is the end of the request for "transfer" to the BLS; the judge's decision cannot be
appealed to the BLS.
If the judge in Essex, Middlesex or Norfolk "allows" the motion, the case will be
reviewed or screened by the presiding judge of the BLS, it does not mean that the case
has been accepted to the BLS.
Since Judge van Gestel currently is the presiding judge of the BLS, the clerk's office
should mail a copy of the complaint and motion to Judge van Gestel in Boston. He will
review the complaint and motion for appropriateness to the BLS and will notify the
clerks' offices and parties of his decision. The copy of the complaint and motion should
be mailed to the Hono rable Allan van Gestel at J.W. McCormack Post Office and
Courthouse, 90 Devonshire St., Room 1509, Boston, MA 02109.
Please note that since the case must first be "accepted" into the BLS, the case is not
considered "transferred" until it is accepted by the presiding judge of the BLS. If the case
is accepted into the BLS, a Suffolk clerk will send an order to the origination court and to
all the parties that the case has been accepted into the BLS. The originating court can
then make the proper entry in the docket that the case has been "transferred" to the
Suffolk BLS. The case will be assigned a new docket number in Suffolk County and it
will become a Suffolk case.
If the case is not accepted into the BLS, a notice to that effect will be sent to the
originating county with an order indicating that acceptance to the BLS was "denied." A
Suffolk clerk will also notify the parties of this decision.
What if the case is filed in Suffolk County and it is not accepted into the BLS?
If the plaintiff chooses to file the case in Suffolk County, it must still be "accepted" into
the BLS. If the case is not accepted, the parties will receive an order from the presiding
judge in the BLS that the case was not accepted and will be dismissed as a Suffolk case
unless within 30 days, a party files a motion to transfer the case to the county having the
proper venue. If the case is transferred, it will be assigned a new docket number in the
county accepting the transfer and it will be assigned to a regular civil time-standards
Session.
What if a defendant objects to the case being filed in Suffolk and chooses not to waive
venue?
If a defendant objects and does not waive venue, the case will be transferred to the county
having proper venue over the case. The case will be assigned a new number and will be
assigned to a regular civil time-standards Session.
What cover sheet should parties use when filing a case in Essex, Middlesex or Norfolk
counties? Parties should use the standard Civil Action Cover Sheet available and used in
all counties when filing a case in Essex, Middlesex or Norfolk counties.
When filing the case in Suffolk County, however, parties must utilize the special BLS
Civil Action Cover Sheet describing why counsel believes the case belongs in the BLS.
Published July 21, 2003
Notice to the Bar
The Business Litigation Session of the Suffolk Superior Court (BLS) will
commence operations on Monday, October 2, 2000. Judge Allan van Gestel will
preside and Judge Gordon L. Doerfer will act as a back-up judge. The session
will be held in Court Room 6 on the 15th floor of the John W. McCormack Post
Office and Court House in Boston.
Cases would presumptively qualify as complex commercial cases for the BLS
whether the litigants are individuals or entities, when issues come within, or meet
the qualifications for inclusion in, one or more of the following categories:
Cases involving the following would not be eligible for assignment to the BLS
unless (except for cases within clause (a) below) there were issues in a case
where one or more of the other issues qualifies for the BLS:
TABLE OF CONTENTS
Page
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MARYLAND BUSINESS AND TECHNOLOGY COURT
TASK FORCE REPORT
Steven E. Tiller
Reporter
Eric G. Orlinsky
Consultant
1
BUSINESS AND TECHNOLOGY PROGRAM
TASK FORCE REPORT
I. EXECUTIVE SUMMARY
This is a report of the Maryland Business and Technology Court Task Force created by
the General Assembly to consider the feasibility of establishing a specialized court
function within Maryland’s Circuit Courts to adjudicate business and technology
disputes. This blue-ribbon task force included appointees from the Maryland Judiciary,
Maryland’s House and Senate, the Maryland State Bar Association and members of the
Maryland business and academic communities.
After hearing from the business community, judges, legislators, lawyers and
representatives of other “business courts,” the Task Force recommends establishing a
statewide program with specially trained judges and mediators to resolve substantial
disputes affecting business entities, including the unique and specialized issues involving
technology. The Task Force considered a separate court division within only certain
counties, but concluded that creating local specialized courts was not needed or desired
by many judges and lawyers, and would unfairly discriminate against business entities
located in other areas of the State.
The Task Force reviewed different models of “business courts” implemented in other
jurisdictions. Recognizing the effectiveness of Maryland’s Differentiated Case
Management (“DCM”) system, the Task Force concluded that a “program” based, in part,
on different models of business courts in other states would best take advantage of the
current DCM system, while providing a unique and specialized forum for handling
business and technology disputes.
Establishing a business and technology dispute management program like the one
detailed in this report provides Maryland with a unique opportunity to substantially
improve its perception among the business and technology communities as a preferred
place to do business. In the competitive national market for business, establishment of
such a program will serve to increase Maryland’s reputation as a place where disputes
involving substantial business interests are effectively and efficiently resolved, thus
increasing Maryland’s reputation as a favorable forum. 1
II. BACKGROUND
Over the past decade, the Internet has grown at a tremendous rate. At the start of the
Clinton administration, there were less than a dozen sites on the worldwide web. This
number currently totals in the hundreds of millions. In light of the significant advances
brought about by not only the Internet, but also the bioscience, aerospace, and
information technology industries, to name only a few, the business environment is
1
Although providing great insight and perspective to the Task Force during its deliberations,
Judge John Eldridge, Senior Judge of Maryland’s Court of Appeals, respectfully abstained from
participating in the recommendations and findings included in this report. Judge Eldridge believes that
given his position as a Judge on the Court of Appeals, and the likely event that the Court of Appeals will be
required to examine the adoption of rules to effect the recommendations contained herein, it is proper for
him to abstain from inclusion in the report.
1
changing at light speed. Business models that couldn’t have even been imagined a few
years ago are now commonplace. These technological advancements have, however,
created interesting dilemmas for all three branches of federal and state government.
In the legislative arena, elected officials must have a keen awareness of the significance
of technological trends, as well as a healthy regard for the limits of their ability to control
them. The executive branch is confronted with a similar dilemma. Regulations may
prove necessary to protect the public and prevent the improper use of technology, while
at the same time, efforts must be made to limit the breadth of such regulations so as not to
chill creative thought.
The role of the judiciary is even more problematic since its role is by design more re-
active than pro-active. Judges will be confronted with new and unique issues never
before seen as a result of emerging technology and new business models. Judicial
decisions will have to look forward to the potential impact of technology, as well as back
to established legal precedent. The Judiciary can nevertheless take a leadership role in the
development of new rules and enhancements in its functions to adapt to these new
challenges. Just as our judicial system created the state wide District Court system and
the nationally regarded DCM system, the pressure to change offers the Judiciary an
opportunity to forge its own adaptive institutions.
Despite these impressive statistics, Maryland is still generally perceived by the business
community as anti-business. Whether accurate or not, such perception is often viewed as
reality. In an effort to change this perception, Maryland’s General Assembly, as part of
an overall plan to encourage technology companies to locate in the State (which includes,
among other things, adoption of the Uniform Computer Information Transactions Act and
the Uniform Electronic Transaction Act), passed House Bill 15 establishing this Task
Force to consider the feasibility of the establishment of a specialized court function to
effectively and efficiently administer business and technology disputes.
The General Assembly expressly stated its intent in passing House Bill 15 as follows:
2
It is the intent of the General Assembly that:
(1) business and technology matters be treated efficiently and effectively in the
judicial system; and
(2) the Chief Judge of the Court of Appeals consider the feasibility of the
establishment of a business and technology court division in Maryland, based on
a study to be completed by the Business and Technology Division Task Force, in
order to enable the circuit courts to handle business and technology matters in the
most coordinated, efficient, and responsive manner, and to afford convenient
access to lawyers and litigants involved in business and technology matters.
In establishing the Task Force, the General Assembly mandated that it solicit input from
both the Maryland business and legal communities, commence a review of the experience
of other states in creating so called business courts, and prepare a report on its findings
and recommendations to the Court of Appeals, the Governor, The Lieutenant Governor,
the President of the Senate, the Speaker of the House of Delegates, the House Judiciary
Committee, the Senate Judicial Proceedings Committee, and the General Assembly. The
General Assembly required this report to include a consideration of all operational
aspects of establishing a business and technology division, including:
(1) the benefits, costs, and potential negative impacts to the State and, in particular,
the Judiciary that are associated with the establishment of a business and
technology division in Maryland;
(2) the costs associated with and essential to the efficient operation of a business and
technology division;
(3) the criteria for determining the type and monetary threshold of matters to be
assigned and procedures for assignment of matters to a business and technology
division;
(4) a case management plan for the prompt and efficient scheduling and disposition
of matters assigned to a business and technology division, which shall identify
those matters that are appropriate for assignment to a specific judge who shall be
responsible for the entire case;
(6) the feasibility of establishing an electronic filing system for pleadings and
papers;
(7) the feasibility of establishing an expedited appeals process for matters assigned
to a business and technology division; and
3
IV. INPUT FROM THE BUSINESS AND LEGAL COMMUNITIES
The Task Force heard testimony from a number of business people, judges, lawyers,
legislators and representatives of business courts established in other states including:
Individual members of the Task Force also polled committees of the Maryland State Bar
Association on which they are members, clients, constituents, and business people on
their thoughts concerning the Task Force’s charge. Also, as the Task Force was
comprised of a diverse cross section of judges, le gislators, lawyers, educators, and
business people, each brought with them unique knowledge and experience to the Task
Force’s deliberations.
Although differences in opinion existed regarding the necessity of a separate business and
technology division,2 as well as the precise model and methodology for its
2
The Task Force heard testimony concerning the need of a specialized business and technology
division, and indeed, engaged in its own spirited debate on the issue. Due to the unavailability of funds to
engage in a thorough study of cases currently pending in the courts, the Task Force was reduced to relying
on the experience of its members in determining the necessity of a specialized court function to hear such
disputes.
It has been the experience of other states that despite initial concerns regarding the necessity of
specialized procedures for the administration of business disputes, once such procedures were
implemented, those concerns proved unfounded. Moreover, with the increasing use of technology in our
society, and Maryland’s efforts to encourage technology businesses to locate in the State, the Task Force
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implementation, the Task Force determined that there exists a general consensus that if
rules making Maryland’s courts more efficient and effective can be drafted, such rules
should be adopted. This report offers recommendations on the establishment of such
rules concerning the handling of substantive business and technology disputes.3
Ten Nine states currently have some form of an operational court function for the
specialized handling of business disputes. With one exception (Wisconsin), jurisdictions
instituting these functions have found that reaction has been enthusiastic. Businesses, as
well as the lawyers handling business litigation, believe that disputes are handled in a
more efficient, effective, and predictable manner. Moreover, the implementation of such
procedures has generally resulted in the increased efficiency of the courts as a whole as
complex business disputes requiring extensive court time are removed from the general
docket allowing judges to concentrate their efforts on other matters.4
It is important to note, however, that none of the states that have created or are
considering business courts have addressed specialization in technology. Just as
Maryland was the first state to put the Uniform Computer Information Transactions Act
into law, it is also the first state to consider a court with a special focus on technology
matters that will use technological tools to administer these disputes more effic iently and
effectively.
VI. FINDINGS
From formal testimony heard by the Task Force, informal polling by its members with
their constituencies in the Bar, the Senate, The House, the State and Federal Judiciary,
and the Maryland business community, and review of the experience of other states, the
Task Force finds as follows:
(1) Both the Maryland business and legal communities desire an efficient,
economical, and hospitable forum for the administration of business and
technology disputes in the circuit courts of our State. The key to this forum is to
assign judges who can handle cases involving complex business and technology
issues competently and in a timely manner regardless of the geographic sites of
the court, the dispute, or even the parties.
(2) The experience of other states that have created business courts initially began
with a perception that such cases were not being handled satisfactorily by the
general jurisdiction courts in those states. These deficiencies gave impetus to the
creation of specialized business courts in those states which have taken various
forms. These specialized courts have significantly improved the efficiency with
assumed that the number of disputes falling within the jurisdiction of the Business and Technology Case
Management Program detailed in this report will only increase.
3
A more detailed description of the testimony heard by the Task Force may be found in Appendix
A.
4
A more detailed description of the experience of other states in adopting special procedures for
the handling of business disputes may be found in Appendix B.
5
which business cases have been disposed of in those states. None of these states,
however, have created technology courts to specialize in the administration of
disputes involving complex technology issues.
(3) None of the states which have created specialized business courts had
implemented a differentiated case management or other system similar to that
already adopted in Maryland. Even the witnesses who testified before the Task
Force from other states acknowledged the significance of Maryland’s DCM
system in which complex cases, including business and technology cases, may be
given increased attention.
(4) Although there is no crisis in the handling of business and technology cases in
the Circuit Courts of this State, there are significant opportunities for
improvement. The substance of that improvement is more important than the
form it might take. Therefore, the benefits that have been documented from the
experience of those states and localities which have instituted “Business Courts,”
“Business Divisions,” or “Business Case Management Programs” were
inventoried by the Task Force without reference to whether a div ision, as such,
was required.
(5) Potential benefits of special procedures for the handling of substantive business
and technology disputes include:
(a) Specialized training and education for those judges with experience in
business and technology issues, as well as the application of specialized
case management techniques and technology for the handling of these
cases.
(b) Greater efficiency resulting from the specialized training and education
of judges, clerks, and staff, as well as the application of the most modern
technology to the filing and processing of these cases.
(c) More timely, rational, legally correct, and perhaps most importantly,
predictable rulings from judges who are better trained and educated in
the relevant subject matter, and comfortable in handling these cases.
(e) Greater efficiencies in the disposition of other types of cases within the
jurisdiction of the Circuit Courts because of the increased time available
for them as a result of the removal of time consuming business and
technology cases from the general court docket.
The Task Force further finds that the Judiciary of Maryland should forthrightly confront
the fact that the trend toward voluntary professional specialization in western societies is
likely to continue into the twenty-first century. This trend has already irreversibly
manifested itself in the legal profession with the specialization of attorneys and expert
6
witnesses. The Judiciary, however, has, although not entirely,5 declined to join this trend.
The Task Force believes that the inefficiencies and the reductions in the timeliness and
quality of judicial decision-making that will inevitably result from advocates with
specialized knowledge presenting cases to generalist trial judges with neither the
knowledge nor the time to devote to these cases will grow to a level which is intolerable.
The Task Force finds that, for the same reason it was not practical to establish Family
Divisions in all of the circuit courts of this State (i.e., those circuit courts having less than
seven (7) judges), it would not be practical to establish “Business and Technology
Divisions” in those same courts. The Task Force, therefore, concludes that it would not
be possible or practical to establish a “Business and Technology Division” in every
circuit court in this State.
The Task Force believes, however, it would neither be wise nor fair to provide
specialized management of business and technology cases in some jurisdictions, but not
others. This is particularly true since it is the public policy of the Executive and
Legislative branches to encourage high-tech businesses to locate in all parts of the State.
The Task Force, therefore, determines that it is neither necessary nor even the most
efficient organization of judicial resources to establish formal business and technology
circuit court divisions in certain limited jurisdictions in order to, in the words of the
statute, “enable the circuit courts to handle business and technology matters in the most
coordinated, efficient, and responsive manner and to afford convenient access to lawyers
and litigants involved in business and technology matters.”
Instead, the Task Force concludes that all of the benefits of the specialization of judges to
hear business and technology cases previously set forth, as well as a fair and equitable
allocation of judicial resources between different circuits, can be accomplished by the
establishment of a statewide “Business and Technology Case Manage ment Program” in
circuit courts of this State by Maryland Rules of Procedure as follows:
A. Organization
5
The judiciary has by Rule established “Family Divisions” in certain circuit courts in Maryland,
and by direction of the Chief Judge, ordered that no judge may hear a capital case without first completing
a specialized Judicial Institute education course.
7
B. Assignment of Cases to the Business and Technology Case Management
Program
The Task Force believes that any system for determining whether a case
should be assigned to the Program must be flexible. It is recommended
that the selection system be based upon a format that establishes that
some cases be presumptively included, while others are presumptively
excluded. As the legal and business worlds develop in the face of ever
emerging technology, however, it is contempla ted, and indeed expected,
that such presumptions will be modified by judicial decision and/or rule.
If both parties agree to opt out of the Program, this should be permitted.
In resolving presumptions, consideration should be given to the desire of
both parties.
8
network and Internet web site development and
maintenance agreements.
(ii) Disputes arising out of the hosting of Internet web sites for
business entities.
9
(xv) Claims arising out of violations of Maryland’s Securities
Act.
d. Commencement of an Action
6
The Task Force does not believe that technology and computer related criminal matters require
assignment to the Program. Although involving new means of committing crime, such matters still involve
fundamental principles of substantive and procedural criminal law that can be adequately resolved by
members of the Judiciary experienced in the handling of such matters.
10
e. Case Management Procedures
The Program Judge to whom the action is assigned shall hear all
proceedings until the matter is concluded, except under
exceptional circumstances where the Judge may make
arrangements for certain discovery and other pretrial motions to
be heard by one of the other Program Judges.
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Program Judges should discuss these opinions with each other in
an attempt to insure consistent decisions.
f. Additional Recommendations
House Bill 15 further requires the Task Force to examine, and report on, a number of
other issues relating to the establishment of a Business and Technology Program,
including the establishment of rules regarding expedited appeals, the use of alternative
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dispute resolution techniques, and the electronic filing of pleadings and other uses of
information technology. As for the establishment of rules regarding expedited appeals,
the Task Force believes that existing rules, statutes and case law provide all of the
authority necessary for expediting appeals to Maryland’s Appellate Courts in important
cases presenting a real need for expedition. Thus, special rules to expedite such appeals
for cases falling within the jurisdiction of the Program are unnecessary.
The principal rule providing for an expedited appeal is Rule 8-207(a). Although Rule 8-
207(a) is limited to the Court of Special Appeals and to situations where all parties agree
upon expedition, there are other rules which authorize both appellate courts to expedite
cases even without the consent of the parties.
For example, Rule 8-206(b), dealing with prehearing conferences in the Court of Special
Appeals, provides the parties and the court a mechanism for agreeing upon “the time or
times for filing the record and briefs, and other pertinent matters.” Rule 8-412, setting
forth the times for transmitting the record, which is applicable to both appellate courts,
provides in subsection (d) that, “[o]n motion or on its own initiative, the appellate court
having jurisdiction of the appeal may shorten . . . the time for transmittal of the record.”
Expedition can also be effected under Rule 8-113(b), which states that the parties may
agree on a "Statement of the Case in Lieu of Entire Record.” If the parties so agree, there
is no need to have the trial court record prepared and transmitted to the appellate court, as
the agreed statement becomes the record on appeal.
Furthermore, Rule 8-521(b) authorizes either appellate court, either on motion or on its
own initiative, to advance a case. There have been numerous instances, involving
important cases which had to be decided promptly where the Court of Appeals has
dispensed with the requirements for record extracts and briefs, has heard the case soon
after the trial court’s decision on the papers filed in the trial court, and has decided the
case shortly after oral argument. In addition to the recent Public Service Commission
electric deregulation case, some examples include Save Our Streets v. Mitchell, 357 Md.
237, 743 A.2d 748 (2000); Stevenson v. Steele , 352 Md. 60, 720 A.2d 1176 (1998);
Blount v. Boston, 351 Md. 360, 718 A.2d 1111 (1998); Hertelendy v. Board of Educ., 344
Md. 676, 690 A.2d 503 (1997); State Election Bd. V. Election Bd. Of Balt., 342 Md. 586,
679 A.2d 96 (1996); Roberts v. Lakin, 340 Md. 147, 665 A.2d 1024 (1995); Maryland
Aggregates v. State , 337 Md. 658, 655 A.2d 886, cert. denied, 514 U.S. 1111, 115 S.Ct.
1965, 131 L.Ed.2d 856 (1995).
In addition to the provisions of the Maryland Rules discussed above, some statutory
provisions can be invoked to assist in expediting appeals. For example, Maryland Code
§ 12-201 of the Courts and Judicial Proceedings Article authorizes the Court of Appeals
to issue a writ of certiorari prior to the decision by the Court of Special Appeals. The
Court of Appeals may do this on petition of any party or on its own initiative. When a
case involves an important issue which is likely to be resolved by the Court of Appeals
eventually, the matter can be expedited by the issuance of a writ of certiorari soon after a
notice of appeal is filed, thereby by-passing the Court of Special Appeals. The above-
cited cases are also examples of this.
For all of these reasons, the Task Force does not believe it is necessary to establish new
rules to expedite appeals of cases handled by a Business and Technology Case
Management Program.
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VIII. ADR (Alternative Dispute Resolution)
It has been proven in other states that the types of cases that the Task Force believes
should be referred to the Business and Technology Case Management Program are
particularly appropriate for resolution through the use of ADR techniques. In many cases
the parties have worked together and may want to continue their association. Efforts
should be made to build on these relationships rather than dissolving them as so often
happens in the adversarial nature of litigation. Even if placed on an expedited track,
litigation is going to be costly both in dollars and in executive and employee time – time
that could more productively be directed toward running and growing the respective
businesses. Additionally, there is the cost of having this unresolved issue weighing on
the businesses and impairing their ability to move forward.
The currently existing DCM system generally encourages the use of ADR. While
mediation is the process most frequently used, other processes such as non-binding
arbitration and neutral case evaluation (NCE) should be considered in appropriate cases.7
Many of the circuit courts already have in place DCM and ADR coordinators with a
system in place to refer cases to ADR before a list of approved mediators (e.g. Anne
Arundel County, Baltimore County, Baltimore City, Montgomery County, and Prince
George’s County), and a Business and Technology Case Management Program can
simply build on the experience of these jurisdictions in implementing specialized ADR
procedures.
It is recommended that all cases assigned to the Program be referred to ADR. Although
Title XVII (§ 17-103) provides that either party can opt out of an ordered fee for service
ADR process, experience has proven that this is rarely done, especially where business
entities are involved. The earlier in the process ADR is used the greater the chance of
cost savings. However, not all cases are ripe for ADR without some discovery. The
practice of most Maryland Circuit Courts using ADR is to refer the cases to mediation as
soon as the case is at issue with a deadline for when the ADR must be completed. The
parties, their lawyers, and the mediator, arbitrator, or neutral case evaluator then
determine the most appropriate time to use ADR.
Since many of the cases being considered for referral to the Program are currently being
handled by persons already trained as mediators, it will not be necessary to require
additional training with regard to mediation techniques. The Task Force believes,
however, that specialized training for the mediators designated as qualified to handle
cases in the Program must be provided. This would include specialized training in both
business and technology issues.
The ADR referral orders in most circuit courts currently provide that mediators will be
paid $150.00 per hour for civil cases to be divided equally between plaintiffs and
defendants. Some courts have specially assigned individual cases to specific persons and
provided for higher reimbursement by the parties, with their consent. The fee structure
may need to be reviewed as special expertise is being required. The fees should fairly
compensate the ADR provider yet not be too expensive as to deter parties from engaging
in the process.
7
Title XVII of the Maryland Rules, effective January 1, 1999, discusses the processes (§ 17-102)
and the training required for a person to be eligible to be on a court approved referral list (§§ 17-104, 105).
Amendments to these rules are currently before the Court of Appeals.
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The expanded use of ADR in the Circuit Courts of Maryland has been a great benefit to
reducing costs as well as case backlogs. The Task Force strongly recommends that ADR
be an integral part of any Business and Technology Case Management Program.
The Task Force was also charged with evaluating the feasibility of establishing a system
for the electronic filing, or “e-filing,” of pleadings within a Business and Technology
Case Management Program. In its basic form, e-filing simply allows law firms and
courts to exchange documents electronically. In its more integrated form, it allows law
firms to submit documents, view docket entries and submit filing fees directly into the
court’s workflow processes and systems. In turn, the court can conduct internal business
with electronic routing of documents and activities. Courts can also submit electronic
orders, opinions and administrative messages and actions to law fir ms in electronic
formats.
Generally, law firms that represent businesses have automated practice management
systems and create one hundred percent of their internally-generated documents using
word processing and document management systems. It is now commonplace for
business-oriented law firms to use e-mail extensively to exchange electronic documents
with clients. Indeed, clients are demanding such exchange.
The courts in Maryland have a distinct advantage as they are, for the most part, already
fully automated. The Judicial Information Systems (JIS) and case management systems
in the Circuit Courts of Montgomery and Prince George’s County provide one hundred
percent coverage of all pending cases. The administrative office of the courts, JIS and
county governments also provide microcomputers and word processing capabilities to
every Circuit Court Judge’s chambers throughout the state. A significant number of
Circuit Court Judges have internal e-mail capabilities through courthouse networks, and a
growing number have modem and even network based high-speed Internet connections.
Except in extremely limited circumstances, neither the courts nor the law firms in
Maryland have used electronic mail for filing or service. This reluctance is well
grounded. In spite of emerging standards for e-mail, there can be significant
incompatibility between mail systems and substantial problems in exchanging documents
created in incompatible word processing formats. Word and WordPerfect documents can
have significant incompatibilities, particularly with paragraph numbering, tables of
citations, and precise recreation of formats, such as headers, footers and footnotes.
Indeed, this Task Force has experienced some problems in the exchange of meeting
agendas and minutes between members.
Once filed it is frequently impossible to maintain public record level control over e-mail
storage and computer directories. Finally, even if a document is “electronically
delivered” by e-mail, the clerk’s office has to post the receipt, create a docket entry and
oftentimes print the document to get it to chambers, file it in permanent storage at the
courthouse and even microfilm or image scan the document for back-up storage systems.
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B. E-Filing’s Secure and Compatible Formats
E-filing allows law firms to transmit electronic documents to courts and to each other in
compatible formats, complete with an automatically generated docket entry and a
permanent filing retrieval system and audit trail.
Instead of using e-mail, e-filing uses the Internet FTP or File Transfer Protocol to
transmit the document and associated filing data to a neutral but highly secure web site.
The court connects with this web site through a single, secure channel rather than allow
thousands of lawyers to have direct access to the court’s systems. The web site and
underlying databases maintain a highly traceable audit and retrieval trail while the
document is delivered to the court and to counsel designated for service in a format that
eliminates incompatibility between word processing formats
For the last three to four years the Circuit Court for Baltimore City has laid the
foundation for an e-filing system for over 10,000 asbestos cases. Baltimore began its
initial efforts to contract for a first generation e-file system called CLAD (Complex
Litigation Automated Docket) offered by Lexis-Nexis. CLAD has been continuously in
use in the Superior Court of Delaware and other jurisdictions since 1991 for asbestos,
environmental, insurance, and tobacco cases.
D. E-File Costs
One of the prevailing e-filing systems, JusticeLink, involves no direct financial
expenditure for software by the court. The business model for installation, data
conversion, user training, maintenance and user support is built on transmission fees by
the sender and access fees by those other than the receivers of the documents or the court.
JusticeLink charges $0.10 per page with a $2.00 minimum for filing and a $2.00
minimum for service. There is no charge for indefinite storage in a highly secure and
redundant processing facility. Another prevailing system, WestFile, presently
contemplates either a $10 - $15 delivery fee or a prepaid subscription plan, again, with no
charge to the court. These delivery prices are either competitive with current manual
costs for delivery or well below them. Although the law firms and parties financially
support the system, they end up paying less than the same task in a manual system.
Courts and law firms will need to devote time and resources to the installation of certain
software and training. Vendors will need access and some labor effort to examine
equipment, set up the system, address any data conversion issues and coordinate training
efforts. These costs are best absorbed by the larger law firms that traditionally represent
businesses in their legal disputes. This proved true in New York where an e-filing system
was initiated in its business court. Firms appearing before the business court were, in
effect, made to be guinea pigs for establishment of an e-filing system that will soon be
rolled out to the general docket.
There can be indirect costs for a court to upgrade its computers, printers and Internet
connections. If a judge hears a case within the Program in a jurisdiction with insufficient
16
computing equipment or telecommunications facilities, there could be delays and costs
needed to implement the needed upgrades or use a temporary facility with proper
equipment.
It is both feasible and cost effective for the Business and Technology Case Management
Program to use e-filing. Lawyers and the court can exchange documents and conduct
their work more productively, efficiently and effectively. There is considerable value in
allowing a court devoted to the resolution of disputes between business and technology
companies to use the dominant media by which the litigants and their lawyers create
documents, exchange them and communicate with each other.
Based on experiences in other jurisdictions and the groundwork already in place from the
efforts with the Baltimore asbestos cases, the Task Force has been told that e-filing can
be made operational in less than two months. With relatively minimal costs, the Business
and Technology Case Management Program can start its existence with its own statewide
“virtual” docket and document exchange repository. 8
X. CONCLUSION
The Business and Technology Division Task Force was composed of a diverse cross
section of judges, legislators, educators, lawyers, and business people. We have joined
together in making these recommendations to graft a statewide business and technology
8
In addition to establishing electronic dockets, calendars and e-filing, the Business and
Technology Case Management Program should consider using other technologies to conduct its business.
By taking advantage of different technologies for publishing case data, exchanging information and
electronic conferencing, the Program can improve its own productivity. These tools, which should be
affordable and comply with open standards, include:
17
court function onto the already successful DCM system in an effort to improve the
efficiency of an outstanding Judicia ry. We do not view these recommendations, as some
have suggested, as a “slippery slope,” leading to the unwarranted proliferation of
specialty courts. Other jurisdictions have found that the establishment of so-called
business courts, divisions or programs have succeeded in administering business disputes
more effectively without leading to such a problem. Indeed, the realities that have guided
our deliberations and driven our recommendations, i.e., the increasing specialization of
the world around us generally, and the legal profession, in particular, have compelled our
conclusion and recommendation that an even better and more specially trained judiciary
is required in order to efficiently serve the citizens of our State in the twenty-first century.
This proposal for a Business and Technology Case Management Program, we believe, is
unique and innovative, and provides Maryland with the opportunity to shed its perception
as having an anti-business atmosphere while not damaging the integrity of the Judiciary.
Indeed, this report has already attracted extensive local and national attention. Having a
court that has special business and technology competence and uses technology to
administer its docket puts Maryland in the forefront of adaptation to the new realities of
the Information Age.
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APPENDIX A
INPUT FROM THE MARYLAND BUSINESS AND LEGAL COMMUNITIES
Testimony heard by the Task Force from Maryland citizens can be broken into the
following categories: (1) commentary from Maryland businessmen and women; (2)
commentary from various committees and members of the Maryland Bar Association;
and (3) commentary from Maryland’s judiciary.
The business people who testified before the Task Force all believe that the establishment
of a specialized court function to handle business and technology disputes will provide a
number of benefits to not only the business community, but to the judicial system as a
whole. For instance, businesses will be able to receive quick and efficient decisions from
the court in cases where every day that the case remains undecided costs the parties
significant sums of money. Decisions of such a specialized court, in the eyes of the
business community, will also be more predictable in that decisions will be made by
judges that are educated in business and technology issues. Parties will also be able to
rely on written decisions from the trial court which will not only prove helpful in
litigating disputes, but will also guide corporate officers and directors in making
everyday decisions. Such guidance may actually reduce the number of disputes filed.
The business community believes that the issues raised in cases of these types typically
involve complex issues at every stage, including discovery, and need the focus and
attention of experienced judges. The establishment of a specialized court function would
improve the quality of judicial and business administration and generally improve the
overall business climate.
Finally, the business people who testified before the Task Force focused on their
experiences in other states where specialized divisions for the administration of business
disputes have already been established. Other states, particularly New York, have found
that all parties are benefited by the establishment of a separate division for complex
business cases because of the removal of such cases from the general civil docket
rotation. By removing these cases from the general rotation (which although typically
19
involve a small percentage of the total cases in the system, occupy a disproportionately
large amount of judges’ time), the overall efficiency of the system is greatly increased.
For all of these reasons, the business community seems uniformly in favor of the
establishment of a Business and Technology Case Management Program.
B. Maryland’s Judiciary
For example, in the Circuit Court for Baltimore City, cases receive a computerized
scheduling order when the case becomes at issue, which sets forth a trial date, a
mandatory settlement conference, and deadlines for completion of pre-trial discovery and
the filing of dispositive motions. Moreover, the Court provides for a customized
scheduling order upon written request by any party. Finally, complicated cases, upon
request of the parties, may be specially assigned to a particular judge so as to reduce the
amount of time necessary to educate the judge hearing the various issues, and hopefully
insuring consistent rulings.
Lastly, the opinion of the committees and members of the Maryland State Bar
Association, not surprisingly, runs according to the type of law engaged in by the
practitioner. The Business Law and Law Practice Management Sections of the Maryland
State Bar Association are supportive of the establishment of a Business and Technology
Division or Case Ma nagement Program. The Litigation Section, on the other hand, has
expressed opposition to a separate division, instead preferring to address business and
technology litigation with modifications to the existing DCM system.
20
The Business Law Section believes that the establishment of a separate business division
could substantially improve the quality of decisions in business cases, as well as the
efficiency with which Maryland courts decide these cases. By specially assigning
business cases to a particular judge who has interest, experience and specialized
education in business matters, the quality of decisions in such cases will be significantly
improved. Moreover, having one judge assigned to a case to hear and decide all issues
arising in that case could improve judicial efficiency by eliminating the need to
repeatedly educate different judges on the often extensive and complex facts of a
business case.
The Business Law Section also points to the experience of other states wherein the
burdens on the court system have been reduced by removing complex business and
technology cases from the general docket. Experience shows that business litigation is
typically far more complex than other forms of litigation and as a result, business cases
often require the courts to spend a disproportionately large amount of time on a relatively
small number of cases. As a business court could be designed to accommodate these
cases and facilitate their resolution, the overall efficiency of the court system could be
improved. Where complex business cases are given special attention, the experience in
other states has proven that such cases typically resolve more quickly thereby improving
the overall efficiency of the entire court system. Thus, the Business Law Section
contends, a specialized Business and Technology Division would help to process all
Maryland cases, civil and criminal, faster and more efficiently, thus providing
Maryland’s over-crowded dockets some relief.
The Business Law Section further contends that the establishment of a Business and
Technology Division within the State Circuit Court System could increase the number of
business entities incorporated and headquartered in Maryland which improves the State’s
overall economy. The Section believes that the quality of the State’s court system can
have a significant impact on the selection of the state of incorporation of a business
because of the increased likelihood that legal action involving that company will be
brought in that selected state. Having a business and technology court in Maryland may
make incorporation and headquartering of businesses in Maryland more attractive.
The Litigation Section believes that the current DCM program, with some modification,
should be able to handle the concerns relating to complex business and technology cases.
The Litigation Section further believes that the creation of a separate division solely for
business and technology cases may, in a myopic effort to attract more businesses to
Maryland, lead to the view that the State’s judiciary is “pro-business.” Although
certainly attractive to business owners, such a perception (whether real or illusory) could
prove harmful to the public perception of the court system for the administration of
justice, no matter who the parties may be.
The Litigation Section recognizes, however, that technology cases are relatively new to
the judicial system and may require specialized procedures. This Section believes that
the DCM system provides a ready solution of the “problems” brought on by these cases
and could serve to make Maryland more “business friendly” without a misconceived
perception of bias on the part of the judiciary. Towards that end, the Litigation Section
proposes that a track be established within the DCM system that would facilitate the fair,
prompt and efficient disposition of technology and business cases. Further, the Litigation
Section proposes specialized training and education for judges handling these matters and
21
the establishment of a panel of trained mediators who could help resolve technology
cases. The Litigation Section further recommends:
2. Encouraging the General Assembly to approve increased spending for the courts
to upgrade electronic information and filing systems.
The Litigation Section believes that all of these recommendations will effectively address
the issues that arise with complex business and technology cases.
22
APPENDIX B
EXPERIENCE OF OTHER STATES
A state by state survey was conducted by the Task Force to determine the status of
business courts in other states throughout the country. The following is a summary of
this survey:
2. Two states have established complex litigation courts which hear, among other
types of cases, complex business litigation – California and Connecticut.
3. Fourteen states have had some form of discussion about establishing a business
court, with some states creating task forces to study the feasibility – Arizona,
Colorado, Florida, Georgia, Kentucky, Maryland, Michigan, Minnesota,
Mississippi, Missouri, New Hampshire, Ohio, Oklahoma and Texas.10
Of the states that have some sort of specialized court to hear complex business litigation,
Delaware is the best-known, most highly respected, and long-standing. Delaware’s Court
of Chancery has existed for over two hundred years and has traditional equitable
jurisdiction. Its business specialization is not the result of a formal decision to specialize,
but rather the incorporation of a large number of companies in Delaware due to its
favorable corporate statutes, and the equitable nature of so many of the disputes in which
those companies are involved.
The Court of Chancery has five members who each handle approximately two hundred to
two hundred twenty-five cases per year. Each member of the Court is responsible for
overseeing each case assigned to him until resolution. Members typically draft
approximately sixty opinions each year, half of which are published.
The Court’s Chancellor, William Chandler, testified before the Task Force that business
litigation makes up approximately ninety-five percent of the Court’s docket and that the
effectiveness of the Court, as well as its national reputation, is brought on by a thorough
understanding of corporate issues. Members of the Court of Chancery often discuss
complex issues among themselves, and review opinions prior to release to the parties and
the public to insure consistency.
Upon request, cases may be expedited with discovery and trial completed in as little as
three months. Parties may also seek expedited appeals to the Delaware Supreme Court.
9
Wisconsin’s business program, although rarely used, is still operational.
10
As previously set forth, the states that have adopted business courts or are considering adoption
of such a court, only Maryland has proposed a division of its general jurisdiction court that focuses on both
business and technology issues.
23
In New York, the movement toward establishment of a business court began in January
1993, when New York County established four specialized "Commercial Parts" to hear
complex commercial and business cases. Four experienced judges were assigned to staff
this court which led to a thirty-five percent increase in the disposition of business cases in
1993 as compared to 1992.
In January 1995, the Commercial and Federal Litigation Section of the New York State
Bar Association issued a comprehensive report recommending establishment of a formal
commercial court. The Commercial Division began hearing cases on November 6, 1995,
and five New York State Supreme Court judges were assigned to hear exclusively
commercial cases in New York County, with an additional commercial division judge
designated in Monroe County (Rochester).
By the end of 1996, The Chief Administrative Judge in New York County reported that
the business court resulted in a 29% reduction in the average time to dispose of cases
assigned to it. Further, there had been an 85% increase in the number of cases settled
before trial, and a 26% decrease in the volume of pending cases. By 1998, the court
reported a 36% reduction in the average time to dispose of cases, reducing the average
time a case spends on the docket from 648 days to 412. These decreases in the number of
cases on the docket allowed New York County to reassign one of the business court
judges to the general docket as the amount of business cases formerly handled by four
judges could now be handled by three. As a result, one full judge's time became
available to address and dispose of other cases on New York's civil and criminal docket
creating judicial efficiency for all cases, not simply those pending before the business
court.
New York’s Commercial Division has been widely acclaimed by business people
throughout the country as a success. Robert Haig, Co-chair of the Commercial Courts
Task Force in New York and advisor to nine states and five countries on the
establishment of specialized courts to administer business litigation, testified before the
Task Force that establishment of the Commercial Division has had a positive impact on
New York’s economy and that the business community is extremely enthusiastic about its
continued operations.
Additionally, the New York County branch of the Commercial Division includes a court-
annexed alternative dispute resolution program, in which parties can obtain the services
of a mediator from a roster of specially trained professionals experienced in commercial
matters. By November 1999, the program had handled close to one thousand cases and
achieved settlements in approximately fifty-eight percent of these cases. The success of
24
the New York County ADR program led to the expansion of the program, with West
Chester County11 becoming the second county to create an ADR program. There are
further plans to expand the program to other counties. Also, the New York County
program itself was expanded to accept smaller commercial cases heard outside the
Commercial Division, usually involving smaller businesses, which are especially
appropriate for cost-effective ADR.
Finally, Philadelphia recently established a business division of its own. This division
went into effect on January 2, 2000 and unlike the New York Commercial Division, only
accepts new filings (no cases pending in the court prior to establishment of the business
division were transferred to the business division).
William Clark, Chairman of the Business Law Section of the Pennsylvania Bar
Association and the American Bar Association Committee on the establishment of
Business Courts, testified before the Task Force that a major concern in establishing
Philadelphia’s business division was that a perception would develop that the judiciary
was pro-business. Mr. Clark testified that although it is too early to conclusively
determine, it does not appear that this concern has proven true.
11
Buoyed by the overwhelmingly positive response in New York County, the Commercial
Division has been expanded and now operates in New York, Monroe, Nassau, West Chester, and
Erie Counties.
25
APPENDIX C
Wilbur D. Preston, Jr. is Chairman of the Business and Technology Division Task Force,
appointed as the designee of the President of the Maryland State Bar Association, Inc. (MSBA).
Mr. Preston is Chairman of the law firm of Whiteford, Taylor & Preston L.L.P. with practice
areas in banking, government, municipal law and housing law. He was admitted to the Maryland
Bar in 1948 and is a graduate of Western Maryland College (A.B.) and the University of
Maryland (L.L.B.)
Wesley D. Blakeslee is a member of the Business and Technology Division Task Force,
appointed on the recommendation of the MSBA Special Committee on Technology. Mr.
Blakeslee is Associate General Counsel with Johns Hopkins University. He was admitted to the
Maryland Bar in 1976, and is a graduate of Pennsylvania State University (B.S.) and the
University of Maryland Law School (J.D.)
The Honorable Charles B. Day is a member of the Business and Technology Division Task
Force, appointed on the recommendation of the President of the MSBA to bring a federal
perspective to the panel’s proceedings. Mr. Day is U.S. Magistrate. He was admitted to the
Maryland Bar in 1985, and is a graduate of the University of Maryland (B.A., J.D.)
Alan R. Duncan is a public member of the Business and Technology Division Task Force. Mr.
Duncan is the President and CEO of Dynamic Access Systems, LLC, which was formed from the
merger of Duncan Technologies, LLC, providing technology services to businesses and
government in the planning and management of computer technology and computer security
programs. He is a graduate of Fairmont State College (B.S.) and The Wharton School, University
of Pennsylvania (Information Systems Program).
Nariman Farvardin is a public member of the Business and Technology Division Task Force.
Dr. Farvardin is the Dean of the A. James Clark School of Engineering at the University of
Maryland, College Park (effective August 2000). He is a graduate of Rensselaer Polytechnic
Institute (B.S., magna cum laude, M.D., Ph.D.)
Michael Hickman is a public member of the Business and Technology Division Task Force. Mr.
Hickman is the co-founder of Blue Lobster Software which was acquired by SEGA Software. He
is presently Global Product Manager for General Electric responsible for global exchange
services.
Robert D. Kalinoski is a member of the Business and Technology Division Task Force,
appointed on the recommendation of the MSBA Section of Business Law. Mr. Kalinoski is a
partner at the law firm of Kalinoski & Riordan, P.A. with practice areas in business law,
corporate law, probate and estate planning, contract law, taxation, real estate, intellectual
property, and employment law. He was admitted to the Maryland Bar in 1990, and is a graduate
of Harvard University (A.B., cum laude) and the Boston University School of Law (J.D.)
James I. Keane is a public member of the Business and Technology Division Task Force. Mr.
Keane is the Chief Legal Officer of Data West Corporation (CourtLink/JusticeLink, an Internet
company that permits secure electronic filing of court pleadings in many state courts, and
26
computer access to court dockets at the federal, state and local levels. He was admitted to the
Maryland in 1971, and is a graduate of Marquette University (B.A., magna cum laude), and the
Georgetown University Law Center (J.D.)
Ava E. Lias -Booker is a member of the Business and Technology Division Task Force,
appointed on the recommendation of the MSBA Section of Judicial Administration. Mr. Lias-
Booker is a partner at the law firm of Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC
with practice areas in commercial institutions, financial institutions, litigation and banking law.
She was admitted to the Maryland Bar in 1986, and is a graduate of Duke University (B.A.) and
the University of Maryland (J.D.)
Christopher R. McCleary is a public member of the Business and Technology Division Task
Force. Mr. McCleary is the Chairman and CEO of Usinternetworking, Inc., an Application
Service Provider (ASP) outsourcing business applications over the Internet. He is a graduate of
the University of Kentucky (B.S.)
Susan M. Souder is a member of the Business and Technology Division Task Force, appointed
on the recommendation of the MSBA Section of Litigation. Ms. Souder is a sole practitioner
with an emphasis on commercial litigation. She was admitted to the Maryland Bar in 1982, and
is a graduate of the University of Maryland (B.A., cum laude) and Georgetown University (J.D.,
cum laude).
John C. Weiss, III is a public member of the Business and Technology Division Task Force.
Mr. Weiss is the Executive in Residence for Innovation and Entrepreneurship at the University of
Baltimore, Merrick School of Business, and Special Consultant to the Board of Trustees of the
Maryland Venture Capital Trust. He is a graduate of Towson University (B.S.) and Loyola
College (M.B.A.), with graduate certificates from Harvard University and the American Institute
of Banking.
The Honorable John C. Eldridge is a judicial appointee to the Business and Technology
Division Task Force. Judge Eldridge has been a member of the Maryland Court of Appeals from
the 5th Appellate Circuit (Anne Arundel, Calvert, Charles & St. Mary’s counties) since 1974. He
was admitted to the Maryland Bar in 1960, and is a graduate of Harvard College (B.A.) and the
University of Maryland School of Law (L.L.B.)
The Honorable Steve I. Platt is a judicial appointee to the Business and Technology Division
Task Force. Judge Platt has been a member of the Prince George’s County Circuit Court since
1990. He was admitted to the Maryland Bar in 1975, and is a graduate of the University of
Virginia (B.A.) and the American University Law School (J.D.)
The Honorable Marielsa A. Bernard is a judicial appointee to the Business and Technology
Division Task Force. Judge Bernard has been a member of the District Court of Maryland,
District 6, Montgomery County since 1998. She was admitted to the Maryland Bar in 1981, and
is a graduate of Loyola College (B.A.) and the Catholic University of America (J.D.)
27
MEMBERS APPOINTED BY THE PRESIDENT OF THE STATE SENATE
The Honorable Leo E. Green is a State Senate appointee to the Business and Technology
Division Task Force. Senator Green was first elected to the State Senate in 1982 and presently is
serving as Vice-Chair of the Senate Judicial Proceedings Committee. He was admitted to the
Maryland Bar in 1963, and is a graduate of Mount St. Mary’s College (B.S.) and the Georgetown
University School of Law (L.L.B., J.D.)
The Honorable Leonard H. Teitelbaum is a State Senate appointee to the Business and
Technology Division Task Force. Senator Teitelbaum was first elected to the State Senate in
1994 and presently is serving on the Senate Finance Committee. He is a graduate of Rensselaer
Polytechnic Institute (B.Mgt.Eng.)
The Honorable Anthony G. Brown is a House of Delegates appointee to the Business and
Technology Division Task Force. Delegate Brown was elected to the House of Delegates in 1998
and serves on the Economic Matters Committee. He was admitted to the Maryland Bar in 1994,
and is a graduate of Harvard University (A.B.) and the Harvard University Law School (J.D.)
The Honorable John Adams Hurson is a House of Delegates appointee to the Business and
Technology Division Task Force. Delegate Hurson was first elected to the House of Delegates in
1990 and presently is House Majority Leader and serves on the Environmental Matters
Committee. He was admitted to the Maryland Bar in 1979, and is a graduate of Georgetown
University (B.A.) and the Georgetown University Law Center (J.D.)
* * * *
Steven E. Tiller is the Reporter for the Business and Technology Division Task Force. Mr.
Tiller is with the law firm of Whiteford, Taylor & Preston L.L.P. with practice areas in
intellectual property, commercial law, computers and software litigation. He was admitted to the
Maryland Bar in 1992, the United States Patent Office in 1995, and is a graduate of James
Madison University (B.S.) and the University of Kentucky School of Law (J.D.)
* * * *
Eric G. Orlinsky is a consultant to the Business and Technology Division Task Force. Mr.
Orlinsky is with the law firm of Saul Ewing LLP with practice areas in business planning,
mergers, acquisitions and reorganizations. He was admitted to practice law in Maryland in 1992
and is a graduate of Johns Hopkins University (B.A.) and the University of Maryland School of
Law (J.D.)
1305736
28
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
)
IN RE Local Rules of Practice )
and Procedure for the North ) ORDER
Carolina Business Court )
)
)
This Court hereby adopts the attached Amended General Rules of Practice and Procedure
for the North Carolina Business Court (“Amended Local Rules”). The Amended Local Rules
will apply to all cases currently pending before or later assigned to the North Carolina Business
Court, including cases assigned to judges of the North Carolina Business Court under both
N.C.G.S. § 7A-45.1 and Rule 2.1 of the General Rules of Practice for the Superior and District
Courts.
{00057666;v1}
The following Local Rules for the North Carolina Business Court were prepared by a committee
of the North Carolina Bar Association. The committee has attempted to anticipate questions and
issues that will inevitably arise with the expanded use of technology in complex cases. The
Rules have been adopted by the Court and are currently in effect.
RULE 2 – DEFINITIONS
2.1 – Electronic Identity
2.2 – Electronic
2.3 – Electronic Agent
2.4 – Electronic Record
2.5 – Electronic Security Procedure
2.6 – Record
2.7 – Document
2.8 – Information
2.9 – Information Processing System
2.10 – Paper
{00057666;v1}- 2-
RULE 6 – ELECTRONIC FILING AND SERVICE
6.1 – Business Court Preference for Electronic Filing
6.2 – Attributes of Acceptable Electronic Filing
6.3 – Certification of Electronically Filed Document
6.4 – Notice of Electronic Filing
6.5 – Substituted Electronic Service
6.6 – Date and Time of Filing
6.7 – Submission of Filing
6.8 – Information not Filed with the Court
6.9 – Informal Communications
6.10 – Additional Time Upon Electronic Service
6.11 – Notice and Entry of Orders, Judgments, and Other Matters
6.12 – Good Faith Efforts with respect to Electronic Communications
6.13 – Determination of Failure and Effect on Due Date
6.14 – Procedure Where Notice of Electronic Filing Not Received
6.15 – Retransmission of Electronic Filing
RULE 9 – TIME
9.1 – Clarification Concerning Time Calculations
9.2 – Enlargements of Time – Motions
9.3 – Enlargements of Time – No Motion Required
RULE 11 – SECURITY
11.1 – Confidentiality of Electronic Identity
11.2 – Use of Electronic Identity by Additional Person
11.3 – Compromise of Security
RULE 12 – VIDEOCONFERENCING
12.1 – By Agreement
12.2 – Responsibility for Videoconferencing Facilities
12.3 – Allocation of Videoconferencing Costs
12.4 – Court Reporter
{00057666;v1}- 3-
RULE 13 – UNDERTAKINGS OF PARTIES AND LIMITATION OF COURT
LIABILITY
13.1 – Undertakings
13.2 – No Business Court Liability
13.3 – Viruses
RULE 18 – DISCOVERY
18.1 – North Carolina Rules of Civil Procedure Applicable
18.2 – Presumptive Limits on Discovery Procedures
18.3 – Depositions
18.4 – No Filing of Discovery Materials
18.5 – Discovery with Respect to Expert Witnesses
18.6 – Conference of Attorneys with Respect to Motions and Objections Relating
{00057666;v1}- 4-
to Discovery
18.7 – Expedited Resolution of Some Discovery Disputes
18.8 – Completion of Discovery
18.9 – Extension of the Discovery Period or Request for More Discovery
18.10 – Trial Preparation After the Close of Discovery
RULE 19 – MEDIATION
19.1 – Mediation Mandatory in All Cases
19.2 – Approved List of Business Court Mediators
RULE 23 – JURIES
23.1 – Jury Instruction Conference
23.2 – Objections to Instructions
23.3 – Treatment of Instructions during Jury Deliberations
23.4 – Contacts with Jurors Prohibited
23.5 – Presence of Counsel during Jury Deliberation
{00057666;v1}- 5-
RULE 1 – PHILOSOPHY AND GOALS
1.1 – Citation to Rules. These rules shall be known and cited as the General Rules of
Practice and Procedure for the North Carolina Business Court. They may also be referred to in
abbreviated form as “BCR” or “Business Court Rules” (e.g., this section may be cited as “BCR
1.1”).
1.2 – Purpose. The Business Court Rules are designed to facilitate the pretrial and trial
of cases by the North Carolina Business Court and any other court(s) with comparable and
compatible technical capabilities and otherwise subject to the North Carolina Rules of Civil
Procedure and the General Rules of Practice for Superior and District Courts. They are intended
of such information by advanced communications equipment: (1) where feasible, (2) where
elected by one or more parties and (3) where approved by the Court. They are not, however,
intended to operate to the exclusion of paper-driven methods of handling litigation, absent prior
agreement.
1.3 – Environment. These rules are designed to accommodate litigation and trial of
cases utilizing electronic methods which include but are not limited to electronic filing, scanning,
storage and reproduction of written material in machine-readable form suitable for transmission
through a variety of communications media, as well as litigation and trial of cases in non-
1.4 – Goals. These rules and the equipment and methods they enable are intended to
provide better access to Court information for litigants, counsel, and the public; increase the
efficiency and understanding of Court personnel, counsel, and witnesses; decrease costs for
litigants and others involved in the court system; and facilitate the efficient and effective
{00057666;v1}- 6-
presentation of evidence in the courtroom. Whether applied in an electronic or non-electronic
environment, these rules shall be construed and enforced to avoid technical delay, encourage
civility, permit just and prompt determination of all proceedings and promote the efficient
administration of justice.
1.5 – Integration with Other Rules. These rules are intended to supplement, not
supplant, the North Carolina Rules of Civil Procedure and the General Rules of Practice for
Superior and District Courts. Should any conflict be deemed to exist between the Business Court
Rules and the North Carolina Rules of Civil Procedure or the General Rules of Practice for
RULE 2 – DEFINITIONS
2.1 – “Electronic Identity” means the combination of Username and Password issued to
a person by the Court and utilized by that person for the purpose of filing an electronic record.
received, or stored by electronic means. All electronic records shall be capable of being printed
appearance.
2.5 – “Electronic Security Procedure” means a procedure employed for the purpose of
verifying that an electronic signature, record, or performance is that of a specific person or for
{00057666;v1}- 7-
detecting changes or errors in the information in an electronic record.
contained on a record.
2.8 – “Information” means data, text, images, sounds, or codes, manipulated manually
medium.
2.10 – “Paper” means any item subject to filing, service, or another use contemplated by
these Rules.
business case under N.C. Gen. Stat. § 7A-45.4 by using Form 1 appearing at the end of these
Rules. The time period for filing the Notice of Designation is explicitly set forth in
N.C. Gen. Stat. § 7A-45.4. If the time period for filing a Notice of Designation expires with
respect to a party, such party may not proceed under N.C. Gen. Stat. § 7A-45.4, but may seek
assignment of the action to the Business Court under General Rule of Practice 2.1.
(b) In the event that a party amends a pleading under N.C. R. Civ. P. 15 (either by
right or with leave of Court), if the amendment raises a new material issue listed in subsections
(a)(1) through (a)(6) of N.C. Gen. Stat. § 7A-45.4, then a Notice of Designation (with respect to
{00057666;v1}- 8-
the entire action) may be filed with respect to such new material issue within the time periods set
forth in subsection (d) of N.C. Gen. Stat. § 7A-45.4. Such time periods will be calculated and
determined by reference to the amended pleading and all permitted responses thereto. A party
shall refrain from filing a Notice of Designation based on an amended pleading unless the new
material issue presented by the amended pleading substantially alters the nature of the action and
other considerations support assignment of the case to the Business Court. The Notice of
Designation procedure shall not be utilized in connection with an amended pleading for the
of the action to Business Court would be inconsistent with the interests of justice given the status
(c) Service of a party’s Notice of Designation upon the Special Superior Court Judge
for Complex Business Cases who is then the Chief Business Court Judge as required by
N.C. Gen. Stat. 7A-45.4(b) shall be effected in the same manner (i.e., by e-mail or facsimile
transmission) in which the party sends the Notice of Designation to the Chief Justice of the
Supreme Court.
3.2 – Contents of Notice of Designation. N.C. Gen. Stat. 7A-45.4 provides an expedited
method for certain types of actions to be assigned to the Business Court. In setting forth the
categories of cases within the “mandatory” jurisdiction of the Business Court, the General
Assembly afforded the Court flexibility to determine (on its own motion or the motion of a party)
that the action should not be retained as a Business Court case. In order to allow the Court to
make such a determination on its own motion, Form 1 requires that the party filing the Notice of
Designation explain why and how the action falls within one of the specific categories set forth
in N.C. Gen. Stat. § 7A-45.4(a) and invites that party to supply any additional information that
{00057666;v1}- 9-
may be helpful in determining whether the Court should retain the action. When completing
Form 1, the party should briefly and succinctly explain the nature of the dispute and the material
issues likely to be presented in the action (including any material issues not listed in
N.C. Gen. Stat. § 7A-45.4(a)). In addition, the party should identify for the Court any other
factors that may assist the Court in deciding whether to retain the case, including but not limited
to (i) the amount in issue, (ii) the novelty of the issues, (iii) the degree to which the interests of
justice will be advanced by adjudication of the action under the Business Court’s rules and
procedures, and (iv) any other potential impacts on the parties or the Court that would be
3.3 – Opposition to Notice of Designation. N.C. Gen. Stat. 7A-45.4(e) provides that a
party may file an opposition to the Notice of Designation. In the event that a party files such an
opposition, all other parties to the action shall be entitled to file responses supporting or opposing
retention of the action in the Business Court. Such responses shall be filed within fifteen days of
service of the opposition or in such shorter time as the Court may direct.
3.4 – Payment of Fee for Cases Assigned to the Business Court. The fee for cases
assigned to the Business Court shall be paid to the Clerk of Superior Court in the judicial district
in which the matter is pending and is due immediately upon receipt of an Order assigning the
case to the Business Court. This fee is non-refundable in the event an Order is subsequently
entered remanding the case to the Superior Court in the County in which the case was originally
filed.
{00057666;v1}- 10 -
RULE 4 – CASE IDENTIFICATION AND ELECTRONIC IDENTITIES
4.1 – Case Identification Numbers. On designation or assignment of any case to the
Business Court, the matter shall retain the civil action number assigned to it by the clerk in the
4.2 – Electronic Identities. Upon application of any person having a matter before the
Business Court, the Court shall issue an Electronic Identity to such person which shall be used in
connection with, and shall authorize, the electronic filing of information by such person in the
Business Court. Electronic Identities are not case specific. The issuance of an Electronic
Identity without utilization shall not constitute an appearance in any matter. The utilization of an
Electronic Identity in connection with any electronic filing in the Business Court shall constitute
(a) the agreement of the person to whom the Electronic Identity has been issued that such person
shall use the Electronic Identity in compliance with the rules and procedures of the Business
Court for electronic filing and all other rules applicable to the Business Court and (b) an
appearance in the matter in which the filing is made of the person to whom the Electronic
Identity is issued.
Identity is issued (the “Recipient”) shall be responsible for the security and use of such
Electronic Identity. Any electronic filing made utilizing an Electronic Identity shall be deemed
to be made with the authorization of the Recipient, unless and until the contrary is demonstrated
by the Recipient to the satisfaction of the Court by clear and convincing evidence.
{00057666;v1}- 11 -
RULE 5 – SIGNATURES AND AUTHENTICITY
5.1 – Signatures. Information filed with the Court electronically shall be deemed to be
the paper, provided that such paper is filed by the Signatory using an Electronic Identity, and that
the paper contains the name, postal address, e-mail address and State Bar number (if applicable)
of the Signatory and the typed signature of the person preceded by the symbol “/s/” in the
location at which a handwritten signature would normally appear if filed in paper form. Unless
required by the circumstances, information filed electronically need not and should not be filed
parties, the person who files such information shall confirm that all persons due to sign the
information are agreeable to the content of the document, shall represent to the Court in the body
of the information or in an accompanying filing that such agreement has been obtained, and shall
insert the typed signature of persons other than the person filing preceded by the symbol “/s/”
and followed by the words “by permission” in the location where such handwritten signature
would otherwise appear. Thus, the correct format for the typed signature of a person other than
Rules as it resides in the Court’s computer system, and true and accurate printouts of such
information, shall be considered authentic. To the extent that the original of a document is not
required by these Rules to be filed in the office of the Clerk of Superior Court in the judicial
district in which the matter is pending, the Court may require the party to produce that original
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document, document attachment, or exhibit, even though a copy of it has already been filed
electronic original for purposes of the Best Evidence Rule, if the display or printout is at a degree
of optical resolution equal to the resolution at which the document is stored in the records of the
Court.
Business Court, the parties are strongly encouraged to use the Business Court’s Electronic filing
and service system to effect transmittal and filing of those papers and to serve them on all
parties. However, except as provided in a Case Management Order, nothing in these Rules shall
require the filing of any information in the Business Court by electronic means.
only through authorized use of a valid Electronic Identity in accordance with these Rules. All
electronic filings shall be made using only those file formats approved by the Court, and the
format for each electronic filing shall be designated by using a generally recognized file
extension that identifies a particular format. The manipulation of any file or the use of any
technique or format for the purpose of impairing access or display of any file is strictly
prohibited.
the North Carolina Rules of Civil Procedure and these Business Court Rules, any electronically
filed information shall be deemed signed by one or more counsel of record or unrepresented
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6.4 – Notice of Electronic Filing. Electronic transmission of a paper to the Business
Court file server in accordance with these Rules, together with the receipt of a Notice of
Electronic Filing automatically generated by the Electronic filing and service system as
authorized by the Court, shall constitute filing of the paper with the Business Court for purposes
of timing under the North Carolina General Statutes, the North Carolina Rules of Civil
Procedure, and the Business Court Rules, and shall constitute entry of that paper on the Business
Court Docket. An electronic filing with the Business Court is deemed complete only upon
receipt of such Notice of Electronic Filing by the person filing the paper.
with the Court shall be governed by Rules 6, 7, and the Case Management Order. Until an order
regarding service of written papers is entered by the Court, and in the absence of a written
stipulation, the parties shall serve documents upon each other in compliance with N.C. R. Civ. P.
5. Where a Business Court order calls for use of Electronic Filing in a matter, receipt by e-mail
of a Notice of Electronic Filing at the e-mail address specified in the Case Management Order
shall constitute an adequate and timely substitute for service pursuant to the North Carolina
Rules of Civil Procedure. Each person who may be served by e-mail shall be responsible for the
timely monitoring of receipt of e-mail messages, the proper operation of the person’s e-mail
service and the prompt notification of the Court and all other persons involved in a matter of any
6.6 – Date and Time of Filing. When information has been filed electronically, the
official information of record is the electronic recording of the information as stored on the
Court’s file server, and the filing date and time is deemed to be the date and time recorded on the
Court’s file server for transmission of the Notice of Electronic Filing, which date and time is
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stated in the body of such Notice. In the event that information is timely filed, the date and time
of the electronic filing shall govern the creation or performance of any further right, duty, act, or
event required or permitted under North Carolina law or applicable rule, unless the Court rules
that the enforcement of such priority on a particular occasion would result in manifest injustice.
6.7 – Submission of Filing. An electronic filing may be submitted to the Court at any
time of the day or night. For purposes of determining the timeliness of a filing, if the submission
of the filing began during normal business hours of the Business Court (8:00 a.m. – 5:00 p.m.,
Monday through Friday, excluding holidays), the filing is deemed to have occurred on that date.
If the submission of the filing began after normal business hours of the Business Court, the filing
is deemed to have occurred on the next day the Business Court is open for business.
6.8 Information not Filed with the Court. The parties may choose to electronically
serve information that is not filed with the court (e.g., discovery).
(a) Service. All information that is served electronically, but not filed electronically
in the Business Court, shall be served on all persons or entities required to be served in the
manner designated in the Case Management Order. Service by e-mail shall be deemed satisfied
by transmitting the information by e-mail in a format approved by the Court or agreed upon by
the parties.
deemed to occur one hour after it is sent, provided that (i) documents sent after 5 p.m. shall be
deemed sent at 8 a.m. the following day; and (ii) documents sent by electronic means that are not
in a format in which the content is readily accessible to the recipient shall not be deemed served
until actually received in a form in which the content is readily accessible to the receiving party.
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6.9 – Informal Communications. All communications with the Court that are not filed
in the Business Court Electronic filing and service system (e.g., letters to the Court) shall be
simultaneously sent to all other parties in the case via e-mail (and if a party cannot receive e-
mail, by the most reasonably expedient method available to the sending party (facsimile
transmission, hand delivery, or mail)). The transmitting party shall promptly notify the Court if
6.10 – Additional Time Upon Electronic Service. Electronic service shall be treated
the same as service by mail for the purpose of adding three (3) days to the prescribed period to
6.11 – Notice and Entry of Orders, Judgments, and Other Matters. The Court shall
file electronically all orders, decrees, judgments, and proceedings of the Court, and all other
docket matters, which shall constitute entry of the order, decree, judgment, or proceeding on the
Court’s Docket, pursuant to applicable law and procedure. Each order shall bear a date and a
typed signature of the Business Court Judge issuing the order. Immediately upon the entry of
such matter on the Docket, the Court shall transmit to each e-mail address of record a notice of
the entry. Transmission of such Notice of Entry shall constitute service pursuant to
N.C. R. Civ. P. 58. The Business Court shall be responsible for filing copies of its orders with
the Clerk of Superior Court in the judicial district in which the matter is pending.
6.12 – Good Faith Efforts with respect to Electronic Communications. The parties
shall make all reasonable endeavors in good faith to resolve technical incompatibilities or other
shall, for example, attempt to identify and correct problems which render content of
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communications inaccessible and shall save or transmit documents in electronic formats that are
mutually available to all parties receiving them. It shall not be consistent with the rules for a
party to object to use of electronic communications and fail to cooperate in resolving a problem
upon which the objection is based. In the event that a party asserts that it did not receive an e-
mail communication or could not fully access its contents, the sending party shall promptly
forward the communication to the party by other means, notify the Court that the information has
been sent by other means and make reasonable efforts to assure that the receiving party obtains
and is able to access the communication at issue and subsequent communications. No party shall
encrypt the contents of a message or change the electronic format in a manner which prevents a
party from having access to all information made available to the Court.
6.13 – Determination of Failure and Effect on Due Date. The Court shall deem the
Electronic filing and service system to be subject to a technical failure on a given day if the
Court server is unable to receive and accept filings in accordance with these Rules, either
continuously or intermittently over the course of any period of time that, after 12:00 noon on
such day, amounts in the aggregate to more than one hour. In the event of a technical failure,
filings due that day which were not filed due solely to such technical failures shall become due
the next business day. Such delayed filings shall be rejected unless accompanied by a
declaration or affidavit attesting to the filing person’s failed attempts to file electronically at least
two times after 12:00 noon separated by at least one hour on each day of delay due to such
technical failure.
Electronic Filing is not received from the Court in response to a transmission of information for
filing, the information will not be deemed filed. The person making the filing shall attempt to re-
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file the information electronically until such a Notice is received, consistent with the provisions
of subparagraph 6.13 permitting delayed filings. Each person using the Electronic filing and
service system is solely responsible for the proper operation of all equipment and facilities used
any party discovers that the version of the information available for viewing through the
Electronic filing and service system is incomplete, garbled, or otherwise does not conform to the
information as transmitted when filed, such party shall notify the Court immediately and
When a party is unable to use the Business Court’s electronic filing and service system,
any information required or permitted to be filed with the Business Court may be filed by
facsimile transmission, by hand delivery, or by delivery through the United States Mail.
7.1 – Facsimile Transmission. The Business Court may maintain one or more facsimile
machines for the purpose of receiving filings and communications from parties. Numbers for
such facsimile machines shall be posted on the Business Court web site. Except as provided in a
Case Management Order, any information required or permitted to be filed by facsimile shall be
transmitted to the facsimile machine for the Business Court Judge to whom a case has been
assigned located at the Business Court of the assigned Judge. In the absence of an assigned
Business Court Judge, facsimile transmissions shall be directed to the facsimile machine of the
Chief Business Court Judge. The date and time recorded for completion of such facsimile
transmission by the Business Court facsimile system shall establish the time of delivery to the
Business Court. Any person or entity submitting a filing by such facsimile method shall assume
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all risk of error, malfunction, misdirection, or other error that causes a failure in transmission or
otherwise prevents receipt by the Court of a complete and accurate filing. In the event of a filing
by facsimile, the filing party shall use its best efforts to serve the document on all parties by the
means most reasonably calculated to insure receipt of the document by all parties the same day.
If unable to serve by facsimile after diligent efforts, the filing party may serve by hand delivery
or overnight courier for receipt the next business day if within the state, and by the day following
the next business day if outside the state. The Court may receive a facsimile transmission into a
computer file, rather than receiving such a transfer onto paper, and shall image such facsimile
7.2 – Hand Delivery. Except as provided in a Case Management Order, documents may
be filed with the Business Court by hand delivery to the Business Court at the chambers of the
Business Court Judge assigned to a case or, in the absence of an assignment, to the chambers of
the Chief Business Court Judge. Filing by hand delivery shall be deemed complete only upon
7.3 – Mail. Except as provided in a Case Management Order, documents may be filed
with the Business Court by U.S. Mail but such a filing shall be deemed complete only when
actually received by the Business Court. The Court will maintain mailing addresses on its web
site. In cases assigned to a particular Business Court Judge, mail shall be directed to the Judge’s
chambers. In the absence of an assignment, mail shall be directed to the chambers of the Chief
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RULE 8 – FILINGS WITH THE CLERK OF SUPERIOR COURT
8.1 – Required Filings with the Clerk of Superior Court. In accordance with the
provisions of N.C. R. Civ. P. 5(d), all documents and materials submitted to the Business Court
shall also be filed within five (5) business days with the Clerk of Superior Court in the judicial
district in which the matter is pending. Where such documents and materials have been
electronically filed with the Business Court, the certificate of service for filings with the Clerk of
Superior Court shall additionally be signed in handwriting above or in lieu of the electronic
signature line.
RULE 9 – TIME
9.1 – Clarification Concerning Time Calculations. In the event that the time
prescribed for taking any action by any statute, rule of procedure, or any order of the Court is
less than seven days, then even if the additional day allowed as a result of service by
telefacsimile after 5:00 pm (or the equivalent service by electronic filing or email under these
Rules) or the additional three days for electronic service or service by mail extends the time
prescribed to seven days or more, intermediate Saturdays, Sundays, and holidays shall
nevertheless be excluded in calculation of time (in the manner specified in N.C. R. Civ. P. 6(a)).
In such event, if time is enlarged further pursuant to Rules 9.2 or 9.3, then intermediate
Saturdays, Sundays, and holidays shall be included in calculating time only with respect to the
9.2 – Enlargements of Time – Motions. Once a case has been assigned or designated to
the Business Court, all motions to extend any of the times prescribed or allowed by these Rules,
the North Carolina Rules of Civil Procedure, or by court order, shall be directed to the Business
Court Judge assigned to the case. If the case has not yet been assigned to a particular judge, the
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motion to extend time shall be directed to the Chief Business Court Judge. The motion for
extension of time shall not be considered to have been made until it is received by the Business
Court. After assignment or designation to the Business Court, a party shall not seek an order to
extend time from the Clerk of Superior Court in the judicial district in which the matter is
pending, notwithstanding the party’s obligation to file a hard copy of such material with said
The movant shall have a good faith basis for requesting any such extension of time and,
except in extraordinary cases, the movant shall first consult with any opposing party and reflect
that party’s position in the motion and indicate whether the opposing party wishes to be heard on
the motion. Provided that there is such a good faith basis, the filing of the motion for extension
of time shall automatically extend the time for filing or the performance of the act for which the
extension is sought until the earlier of the expiration of the extension requested, ten calendar
days, or a ruling by the court. In the event that the motion for extension of time is denied, the
filing shall be made or the act done no later than the second business day following filing of the
9.3 – Enlargements of Time – No Motion Required. With the exception of papers for
which time cannot be enlarged (as explicitly provided in N.C. R. Civ. P. 6(b) or in other court
rules or statutes), if a statute, any rule of procedure, or any order of the Court requires that a
paper be filed or served less than twenty days after the Chief Justice designates an action as a
complex business case under General Rule of Practice 2.1 and/or N.C. Gen. Stat. § 7A-45.4, then
the time for filing or service of such paper (and for filing of service of papers responsive thereto
or dependent thereon) is hereby automatically enlarged so that filing or service will be due on the
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twentieth (20th) day following such assignment. No motion or order shall be submitted to the
electronic filing of any information in the Business Court, any person may apply by motion for
an order prohibiting the electronic filing in the matter of certain specifically identified
information on the grounds that such information is subject to a proprietary right or a right of
confidentiality and that electronic filing is likely to result in substantial prejudice to those rights.
A motion for such an order shall be filed not less than three business days before the information
to which the motion pertains is due to be filed with the Court. Nothing in this paragraph shall be
construed to change any requirement or standard that otherwise would be applicable for issuance
RULE 11 – SECURITY
11.1 – Confidentiality of Electronic Identity. Each person shall maintain as
confidential, except as expressly provided in these rules, the Electronic Identity issued to that
person by the Court. Upon learning about information constituting reasonable evidence of the
Electronic Identity has been issued may authorize another person to file a paper using his number
and signature; however, the authorizing person shall retain full responsibility for any paper so
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11.3 – Compromise of Security. Any attempt or effort to avoid, compromise or alter
any security element of the Electronic filing and service system is strictly prohibited. Any
attempt or effort shall immediately notify and cooperate with the Court concerning such
information.
RULE 12 – VIDEOCONFERENCING
Rule 12.1 – By Agreement. By mutual agreement, counsel may arrange for any
meeting that is convenient with the Business Court. All Counsel and other participants shall be
subject to the same rules of procedure and decorum as if the meeting were held in the courtroom
responsible for obtaining all communications facilities and arranging all details as may be
required to connect and interface with the videoconferencing equipment available to the Business
Court. The Business Court will endeavor to make reasonable technical assistance available to
the parties concerning the specifications and requirements of the Court’s equipment, but all
responsibility for planning and executing all technical considerations required to hold a
agreement among the parties, each party participating by videoconference shall bear its own
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Rule 12.4 – Court Reporter. Where any proceeding or conference is held by
videoconference, the court reporter transcribing such proceeding or conference will be present in
Business Court agree by accessing such facilities to abide by all aspects of these rules, including
conditions of access and use and security procedures set out herein and as they may subsequently
13.2 – No Business Court Liability. Attorneys, litigants, and all other persons granted
access to the computer-assisted facilities of the Business Court agree that the Business Court
shall not be liable to them for damages of any kind resulting from the negligent misuse of Court
facilities. Such misuse may result in Court sanctions or, in the instance of an aggrieved party, in
a right to pursue compensatory damages from a party who intentionally or negligently misuses
Court facilities. Such misuse shall be deemed to include the introduction of computer viruses
into information handling systems of the Court or other parties, where virus control software
13.3 – Viruses. Any party filing electronically shall check each file to be transmitted for
viruses before transmitting. Any electronic filing submitted to the Court containing viruses will
shall be prepared by that Business Court Judge and published on the Business Court Web Site.
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Where e-mail addresses have been provided to the Business Court, Notices of Hearing shall be
distributed by e-mail to each attorney of record (or party where there is no attorney of record) no
later than five (5) business days prior to the day of the hearing unless otherwise specified by the
Case Management Order. An attorney or party who has not provided an e-mail address to the
Court will receive Notices of Hearing via facsimile, or where no facsimile number is available,
for the setting of a calendar, pretrial conference, hearing of a motion, or for trial, shall, consistent
with ethical requirements, appear or have a partner, associate, or another attorney familiar with
the case present. Unless an attorney has been excused in advance by the Business Court Judge
and has given prior notice to opponent(s), a case will not be continued for failure of appearance.
14.3 – Notification of Settlement. When a case is settled, counsel for the plaintiff and
each unrepresented plaintiff of record shall notify the Business Court Judge or the Judge’s
designee within twenty-four (24) hours of the settlement and shall advise the Court of the
identity of the party or parties who will prepare and present the judgment, dismissal, or
stipulation of dismissal, which shall be presented within thirty (30) days of the notification of
settlement.
15.1 – All Motions to Be Filed in Business Court. After a case has been assigned or
designated to the Business Court, and for as long as the case is pending in this Court, parties
shall seek rulings on all motions in the case from this Court, and not from Superior Court Judges
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15.2 – Form. All motions, unless made orally during a hearing or a trial, shall be in
paper writing or electronic form and shall be accompanied by a brief, except as provided in
Rules 15.10 and 15.12. Each motion shall be set out in a separate paper. Where the terms
“Motion,” “Brief,” “Affidavit,” “Document,” “Deposition” and like designations are used herein,
they shall refer to such items in paper writing or electronic form as determined appropriate under
these rules.
15.3 – Content. All motions shall state with particularity the grounds therefor, shall cite
any statute or rule of procedure relied upon and shall set forth the relief or order sought.
(a) Motions shall be considered and decided by the Court on the pleadings,
admissible evidence, the official court file, and briefs, without hearing or oral argument, unless
otherwise ordered by the Court. Special considerations thought by counsel sufficient to warrant
a hearing or oral argument may be brought to the Court’s attention in the motion or response.
(b) If the Court grants oral argument on any motion, it shall give the parties at least
five (5) business days’ notice of the date and place of oral argument. The Court, however, for
good cause shown, may shorten the five (5)-day notice period. The Court may in its discretion
appearing of record are relied upon to support a motion, affidavits, parts of depositions, and other
pertinent documents then available shall accompany the motion. If supporting documents are not
then available, the moving party may move for an extension of time in accordance with Rule 9.2.
15.6 – Response to Motion and Brief. The respondent, if opposing a motion, shall file a
response, including brief, within twenty (20) days after service of the brief supporting the motion
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(or thirty (30) days if the motion is for summary judgment). If supporting documents are not
then available, the respondent may move for an extension of time in accordance with Rule 9.2.
For good cause appearing therefor, a respondent may be required by the Court to file any
response and supporting documents, including brief, within such shorter period of time as the
15.7 – Reply Brief. A reply brief may be filed within ten (10) days after service of the
response. A reply brief is limited to discussion of matters newly raised in the response.
15.8 – Limitations on Length of Briefs. The Court favors concise briefs. Unless the
following limits are modified by the Court for good cause shown, briefs in support of motions
and responsive briefs shall be double-spaced and limited in length to a maximum of seven
thousand, five hundred (7,500) words. Reply briefs shall also be double-spaced and may not
exceed three thousand, seven hundred and fifty (3,750) words. Headings, footnotes, quotations,
and citations count toward these word-count limitations. The case caption on the first page of a
brief, any table of contents, any table of authorities, and any required certificates of counsel or of
Requests for expansion of word limitations shall be made five (5) business days prior to
filing the brief for which expansion of word limitations is sought. Requests for expansion of
word limitations that are filed simultaneously with the brief shall be denied.
Each brief shall include a certificate by the attorney or party that the brief complies with
this Rule 15.8. The attorney or party may rely upon the word count of the word-processing
Unless a Case Management Order or another order of the Court expressly provides
otherwise, all parties who are jointly represented by any law firm shall join together in a single
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brief. Unless otherwise ordered by the Court, that single brief may not exceed the length limit
stated above.
response brief, or reply brief, a suggestion of subsequently decided controlling authority, without
argument, may be filed at any time prior to the Court’s ruling and shall contain only the citation
to the case relied upon, if published, or a copy of the opinion if the case is unpublished.
respondent, unless otherwise directed by the Court, with respect to the following motions:
(a) discovery motions in which the parties have agreed to the expedited procedures
(b) for extension of time for the performance of an act required or allowed to be done,
provided request therefor is made before the expiration of the period originally prescribed or
(j) for pro hac vice admission of counsel who are not members of the North Carolina
State Bar.
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The above motions, which are not required to be accompanied by a brief, shall state good
cause therefor and cite any applicable rule, statute, or other authority justifying the relief sought.
15.11 – Failure to File and Serve Motion Materials. The failure to file a brief or
response within the time specified in this rule shall constitute a waiver of the right thereafter to
file such brief or response, except upon a showing of excusable neglect. A motion
unaccompanied by a required brief may, in the discretion of the Court, be summarily denied. If a
respondent fails to file a response within the time required by this rule, the motion will be
considered and decided as an uncontested motion, and ordinarily will be granted without further
notice.
Briefs. With the consent of both parties and as allowed by the Court, the parties may present
motions and the Court may resolve disputes regarding discovery matters through the use of an
expedited oral argument procedure. Such motions will routinely be limited to matters which can
evidence should be used to enhance the trier-of-fact’s understanding of facts in the action or to
further the convenience or efficiency of the litigation process. Presentations which contain
technological aspects that primarily add dramatization or “special effects” may be excluded
pursuant to North Carolina Rule of Evidence 403. In making such determination, the Court will
consider, in addition to any other matters it deems pertinent, the extent to which the presentation
serves proper purposes, the extent to which the manner of the presentation may enhance a party’s
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factual contentions without adequate foundation, and the opposing party’s technological
(a) all representations made or conveyed in the presentation that may be probative to
issues in the case or prejudicial to another party are supported by other competent evidence
(b) the opposing party has been given an adequate notice and opportunity, determined
under the circumstances of the case, to review the presentation and obtain any relevant
16.3 – Virus Prevention. Any media brought into the Business Court for presentation
purposes shall be checked for viruses using appropriate virus scanning software before such
16.4 – Presentation Formats. All presentation software not in conformance with the file
formats accepted by the Court may not be utilized in the courtroom without the prior express
designation of a case to the Business Court, or such shorter or longer time as the Court shall
order, the parties shall meet to discuss case management issues, as well as the potential content
of a Case Management Order. Unless the parties agree otherwise, counsel for the first plaintiff
listed in the complaint is responsible for initiating the scheduling of the Case Management
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Meeting. In initiating the scheduling of the Case Management Meeting, plaintiff’s counsel
should contact each law firm that he or she knows will appear in the case, even if that law firm
The parties’ Case Management Meeting should cover at least the following subjects:
(a) The length of the discovery period, the number of fact and expert depositions to
(b) A preliminary schedule for depositions of such persons and entities as the parties
(c) The date by which parties shall complete disclosure of expert information
(d) The identity and number of any Motions to Dismiss or other preliminary or pre-
discovery motions which shall be filed and the time period in which they shall be filed, briefed,
and argued.
(e) Which parties should be required to file joint briefs for purposes of the length
(f) The time period after the close of discovery within which post-discovery
dispositive motions shall be filed, briefed, and argued and a tentative schedule for such activities.
(g) A tentative date by which the parties will be prepared for trial.
(h) The timing of any mediated settlement conference (see Rule 19) and the selection
the subject of discovery in the case from parties and nonparties and whether there are
technological means, including but not limited to production of electronic images rather than
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paper documents and any associated protocol, that may render document discovery more
(k) The advisability of using special master(s) for fact finding, mediation of discovery
jurisdiction, or venue, or a stipulation that no such controversies exist at the time of the Case
Management Meeting.
(n) Whether or not a party or parties desire to use the electronic filing, case tracking,
scanning, videographic, and real-time court reporting capabilities of the Court, and, to the extent
(1) Fairness issues, including but not necessarily limited to use of such
capabilities by some but not all parties and/or by parties whose resources permit or
(2) Issues related to compatibility of Court and party facilities and equipment;
(3) Issues related to the use of demonstrative exhibits and any balancing of
relevance and potential prejudice which may need to occur in connection with such
exhibits;
(4) Such other issues related to the use of the Court’s and Parties’ special
technological facilities as may be raised by any party or the Court or its technological
advisor, given the nature of the case and the resources of the parties.
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(o) A good faith estimate by counsel for each party based upon consultation with
each such party of the costs each party is likely to incur in pursuing the litigation through trial
court adjudication, provided, however, that any party may, instead of disclosing this information
in a Case Management Meeting or Case Management Report, file this information with the Court
under seal and without service of the information on any other party, or discuss this information
(p) A preliminary listing of the principal legal and factual issues which counsel
(q) A preliminary listing of any issues in the case that any party believes are governed
(r) The need for retention of potentially relevant documents, including but not limited
to documents stored electronically and the need to suspend all automatic deletions of electronic
documents or overwriting of backup tapes which may contain potentially relevant information.
The parties shall also discuss the need for a document preservation order.
(s) The need for cost-shifting of expenses related to discovery of information stored
electronically, including the restoration of back-up tapes and forensic examination of computers,
and the possibility of obtaining the desired information from alternate sources at reduced
expense.
(t) The format in which the electronic records are to be produced, and procedures to
avoid unnecessary burden and expense associated with such production. If metadata is to be
produced, the parties shall discuss a protocol for producing such information, including the
format for production (e.g., native, copy, original), and the ability to search such information.
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(u) The need for security measures to be adopted to protect any information that is
produced in electronic format or that will be converted into electronic format and stored on
counsel’s computer systems. Such discussion should encompass whether and under what
circumstances clients will be afforded access to the information produced by another party and
(v) Such other matters as the Court may assign to the parties for their consideration.
17.2 – Case Management Report. The views of each party on the matters set forth in
Section 17.1 above, as expressed through counsel or any pro se litigant(s), shall be reduced to
writing, circulated for amendment or modification by each party, and filed with the Court in the
form of a Case Management Report. Unless the parties agree otherwise, counsel for the first
plaintiff listed in the complaint is responsible to prepare and circulate the initial draft of the Case
Management Report to all counsel, who shall have five days within which to propose revisions to
the report or raise issues about which the parties disagree. If the parties disagree on any issues in
the Case Management Report, they shall nonetheless file a single Case Management Report that,
in any areas of disagreement, states the views of each party. The final Case Management Report
shall be signed by counsel for each party and shall be filed with the Court within fifteen (15)
17.3 – Case Management Conference. Within twenty (20) days of the case
management meeting of the parties or such longer period as the Court may prescribe, the Court
will convene a Case Management Conference with attendance by counsel for all parties and their
clients (or in the case of a business entity, such representative as has authority to make all
binding litigation-related decisions) unless the Court shall, in its discretion, excuse the
attendance of clients. Such conference will be conducted with as much informality as possible
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and with the active participation of clients encouraged. The Court will hear the views of counsel
and/or clients on such issues listed in Rule 17.1 above as are pertinent to the case and/or on
17.4 – Case Management Order. Following the Case Management Conference, the
Court shall issue a Case Management Order in the form appended to these Rules as Form 2. The
Case Management Order will deal with such issues developed in the Case Management Meeting
and/or the Case Management Conference as may be determined at the time, given the nature and
status of the case. The provisions of the Case Management Order may not be deviated from
without notice, grant of a hearing which is discretionary with the Court, good cause shown and
entry of an order by the Court. The Case Management Order shall also specify a schedule of
status conferences to assess the functioning of the Case Management Order, assess the progress
of the case, and enter such further orders or revisions in the Case Management Order, including a
17.5 – Effect on Other Rules. This Rule 17 is intended to supplement, not substitute for,
the provisions of Rule 7 of the General Rules of Practice for Superior and District Courts and its
RULE 18 – DISCOVERY
18.1 – North Carolina Rules of Civil Procedure Applicable. Except as expressly
supplemented by these rules, the North Carolina Rules of Civil Procedure governing the conduct
of depositions and discovery in State Courts shall control in the Business Court.
discovery procedures for good cause shown, the Court expects discovery in cases assigned to the
Business Court to be completed within nine (9) months from issuance of the Case Management
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Order. Parties are free, however, to begin discovery prior to issuance of the Case Management
Order. Presumptively, subject to stipulation of the parties and order of the Court for good cause
shown, interrogatories (including sub-parts) and requests for admission are limited to fifty (50) in
number by each party. Depositions are presumptively limited to twelve (12) depositions each
(not including depositions of testifying experts) by the plaintiffs, by the defendants, and by any
18.3 – Depositions. The Court expects counsel to conduct discovery in good faith and to
cooperate and be courteous with each other in all phases of the discovery process. Depositions
(a) Counsel shall not direct or request that a witness not answer a question, unless
that counsel has objected to the question on the ground that the answer is protected by a privilege
(b) Counsel shall not make objections or statements which might suggest an answer
to a witness. Counsel’s statements when making objections should be succinct, stating briefly
(c) Counsel and any witness/client shall not engage in private, off the record
conferences while the deposition is proceeding in session, except for the purpose of deciding
(d) Deposing counsel shall provide to counsel for the witness and counsel for all
parties present a copy of all documents shown to the witness during the deposition. The copy
may be provided either before the deposition begins or contemporaneously with the showing of
each document to the witness. The witness and counsel for the witness may not discuss
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18.4 – No Filing of Discovery Materials. Depositions and deposition notices,
interrogatories, requests for documents, requests for admission, and answers and responses
thereto shall not be filed electronically on the Court’s Electronic filing and service system unless
the Court so orders or unless the Court will need such documents in a pretrial proceeding. All
discovery materials shall be served on other counsel or parties, and may be served electronically
pursuant to Rule 6.8 above. The party taking a deposition or obtaining any material through
discovery (including through third party discovery) is responsible for the preservation and
delivery of such material to the Court when needed or ordered in the form specified by the Court.
Any party seeking to compel discovery or other pre-trial relief based upon discovery material
which has not been filed shall identify the specific portion of the material which is directly
relevant and ensure that it is filed as an attachment to the application for relief.
18.5 – Discovery with Respect to Expert Witnesses. Discovery with respect to experts,
including expert depositions and disclosure of expert information, shall be conducted within the
Discovery.
(a) The Court will not consider motions and objections relating to discovery unless
moving counsel files a certificate that, after personal consultation and diligent attempts to resolve
differences, the parties are unable to reach an accord. The certificate shall set forth the date of
the conference, the names of the participating attorneys, and the specific results achieved. It
shall be the responsibility of counsel for the movant to arrange for the conference and, in the
absence of an agreement to the contrary, the conference shall be held in the office of the attorney
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nearest to the Court where the case was originally filed. Alternatively, at any party’s request, the
(b) Prior to filing motions and objections relating to discovery of information stored
electronically, the parties shall discuss the possibility of shifting costs for electronic discovery,
the use of Rule 30(b)(6) depositions of information technology personnel, and informal means of
resolving disputes regarding technology and electronically stored information. The certificate
required by Rule 18.6(a) shall address efforts to resolve the dispute through these and any other
required by Rule 18.6, the parties agree that a discovery dispute can be ruled upon in a telephone
or videoconference of no more than thirty (30) minutes, the Court will schedule such a
conference and rule on the dispute without briefing by the parties. Alternatively, if the parties
agree that the dispute can be ruled upon in an in-court hearing of no more than one hour, without
briefing, subject to Rule 15.12 the Court will schedule a hearing of such matter at the earliest
date reasonably available to the Court and the parties. The fact that these proceedings are
expedited and are conducted without briefing does not alter the application of
N.C. R. Civ. P. 37(a)(4) relating to the imposition of sanctions and the award of expenses.
specified time means that adequate provisions must be made for interrogatories and requests for
admission to be answered, for documents to be produced, and for depositions to be held within
the discovery period. Normally the Court will not entertain motions relating to discovery
conducted after the close of the discovery period as set forth in the Court’s Case Management
Order.
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18.9 – Extension of the Discovery Period or Request for More Discovery. Motions
seeking an extension of the discovery period or permission to take more discovery than is
permitted under the Case Management Order shall be made or presented prior to the expiration
of the time within which discovery is required to be completed. Such motions must set forth
good cause justifying the additional time or additional discovery and will be granted or approved
only upon such a showing of good cause and a showing that the parties have diligently pursued
discovery. The Court will permit additional depositions usually only upon a showing of
18.10 – Trial Preparation After the Close of Discovery. For good cause appearing
therefor, the physical or mental examination of a party may be ordered at any time prior to or
during trial. Ordinarily, the deposition of a material witness not subject to subpoena should be
taken during discovery. However, the deposition of a material witness who agrees to appear for
trial, but later becomes unavailable or refuses to attend, may be ordered at any time prior to or
during trial.
RULE 19 – MEDIATION
19.1 – Mediation Mandatory in All Cases. Mediation is a valued tool in the resolution
of litigated matters. As such, all cases pending in the Business Court shall be subject to the
Rules Implementing Statewide Mediated Settlement Conferences in Superior Court Civil Actions
and such other Rules or orders consistent therewith as may be established or entered by the
Business Court.
19.2 – Approved List of Business Court Mediators. The Business Court maintains on
its website a list of mediators who have had experience with cases within the jurisdiction of the
Business Court. Parties are not, however, required to select a mediator from this list. In the
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event the parties to a Business Court case are unable to agree on a mediator, upon notice from a
party, the Business Court will appoint a mediator from the Business Court’s approved list to act
for each party may make an opening statement setting forth the grounds of claim or defense. The
parties may elect to waive opening statements. Opening statements may be limited in time and
20.2 – Closing Argument. If no evidence is produced by the defendant, the right to open
and close the argument to the jury shall belong to the defendant. If a question arises as to
whether the plaintiff or the defendant has the final argument to the jury, the Court shall decide
who is so entitled.
In a case where there are multiple defendants, if any defendant introduces evidence, the
closing argument shall belong to the plaintiff, unless the Business Court Judge in his discretion
orders otherwise.
examination of each witness for such party shall be conducted by one counsel, but examining
counsel may change with each successive witness or, with leave of the Court, during a prolonged
with dignity and propriety. All statements and communications to the Court shall be clearly and
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audibly made from a standing position behind the counsel table or the computer-assisted podium.
Counsel shall not approach the bench except upon the permission or request of the Court.
avoided. Adverse witnesses and parties shall be treated with fairness and due consideration.
The examination of witnesses and jurors shall be conducted from a sitting position behind
the counsel table or from the computer-assisted podium, except as otherwise permitted by the
Court. Counsel may only approach a witness for the purpose of presenting, inquiring about, or
22.2 – Professional Demeanor. The conduct of the lawyers before the Court and with
other lawyers should be characterized by candor and fairness. Counsel shall not knowingly
misrepresent the contents of documents or other exhibits, the testimony of a witness, the
language or argument of opposing counsel or the language of a decision or other authority; nor
shall counsel offer evidence known to be inadmissible or cross-examine without a good faith
basis for doing so. In an argument addressed to the Court, remarks or statements may not be
Counsel shall yield gracefully to rulings of the Court and avoid disrespectful remarks
both in Court and out. Counsel shall at all times conduct themselves in a manner which
RULE 23 – JURIES
23.1 – Jury Instruction Conference. At the close of the evidence (or at such earlier
time as the judge may reasonably direct) in every jury trial, the judge shall conduct a conference
on instructions with the attorneys of record (or party, if not represented by counsel). Such
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conference shall be out of the presence of the jury, and shall be held for the purpose of
discussing the proposed instructions to be given to the jury. If special instructions are desired,
they must be submitted in writing to the trial judge at or before the jury instruction conference.
party, if not represented by counsel) to request any additional instructions or to object to any of
those instructions proposed by the judge. Any such requests, objections, and the rulings of the
At the conclusion of the charge and before the jury begins its deliberations (and out of the
hearing, or upon request, out of the presence of the jury), counsel (or party, if not represented by
counsel) shall be given an opportunity to object on the record to any portion of the charge as
given, or omission therefrom, stating with particularity the objection and grounds therefor.
23.3 – Treatment of Instructions during Jury Deliberations. The Court may recall the
jury after they have retired and give them additional instructions in order: (i) to correct or
withdraw an erroneous instruction; (ii) to inform the jury on a point of law which should have
been covered in the original instructions; or (iii) to respond to questions posed by the jury. The
provisions of Rule 23.2 above are also applicable to any such additional instructions or other
information provided at this stage of the proceeding. The Court, in its discretion, may give a
23.4 – Contacts with Jurors Prohibited. All parties, witnesses, and attorneys shall
avoid any extra-judicial contact or communications with a member of a jury venire or panel who
has been or may be selected in a case in which that person is involved. No person may have any
venire or panel which may reasonably have the effect of influencing, or which is intended to
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influence, the potential juror or sitting juror. Attorneys for parties shall inform their clients and
No person shall approach a juror, either directly or through any member of his immediate
this rule is intended to prohibit communication with a juror after the juror has been dismissed
from further service, so long as the communication does not tend to harass, humiliate, or
23.5 – Presence of Counsel during Jury Deliberation. The right to be present during
the trial of civil cases shall be deemed to be waived by a party or counsel by voluntary absence
from the courtroom at a time when it is known that proceedings are being conducted or are about
to be conducted. In such event the proceedings, including the giving of additional instructions to
the jury after they have once retired, or receipt of the verdict, may go forward without waiting
through revisions to the Case Management Order, or in such other manner as the Court shall
deem appropriate. The Court will consider a request to continue a trial date only if the request is
24.2 – Final Pretrial Preparation. Except in cases deemed by the Court to require
different arrangements, no later than twenty (20) days before trial, the parties shall file trial
briefs, along with proposed instructions on the issues in jury cases or findings of fact and
conclusions of law in non-jury cases. The parties will also file at this time any motions in limine
or other motions they wish to have considered prior to trial. The Court may in its discretion
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schedule a final pretrial conference to deal with such motions or other pretrial matters as deemed
appropriate. Any party, or the Court on its own motion, may request a pretrial hearing or a
settlement of a case. This rule is not intended to prevent submission of proposed jury
court reporters will be used to report all hearings in the Business Court; however, if both parties
agree to hire a freelance reporter, that reporter would then become the official reporter for the
particular hearing or trial that he or she was hired to report. Where feasible, the same court
reporter will be used to report all hearings in a case. The scheduling of court reporters will be
handled through a joint effort of the local scheduling coordinator and the Judicial Scheduling
the proceedings before the Court shall be made, to the extent possible, during the Case
Management Conference. The parties will use the appropriate AOC Form to make such a
request and shall submit the same to the Judicial Scheduling Coordinator for the Administrative
Office of the Courts. Prior to the proceeding for which transcription is needed, the parties shall
confer with the reporter assigned to the case regarding specific needs (e.g., real-time feed, rough
ASCII, daily copy) and shall arrange for compensation directly with the reporter. The parties,
prior to trial, will provide the reporter with information particular to the case to aid in clarity of
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25.3 – Realtime Feeds or Rough-Draft Transcripts. A “realtime feed” or “rough-draft
transcript” – that which is displayed simultaneously with proceedings occurring before the Court
or that which is provided by e-mail or ASCII disk prior to certification – may be referred to or
quoted from during a proceeding, provided, however, that any dispute concerning the accuracy
of the transcription of a realtime feed or rough draft transcript will be resolved by the Court in its
shall be published on the Court’s Web Site in the sole discretion of the Business Court Judge.
See Rule 27. Access to such transcripts via the Web Site, however, shall only be made available
to those counsel, pro se litigants or members of the public with authorization codes issued by the
Court after payment of the reporter’s transcription fee or under such other conditions as are set
by the Court.
25.5 – Storage and Retention of Court Reporters’ Notes. Per N.C. Gen. Stat. § 7A-95,
Court, the original tapes, notes, discs, or other records are the property of the state of North
Carolina, and the Clerk of Superior Court is the ultimate custodian of the notes; therefore, when
a hearing or trial is completed, the court reporter shall leave his or her notes with the clerk. The
court reporter shall not take those notes with him or her for any reason other than to prepare the
transcript in the case. If a transcript has been ordered and the reporter signs out the tapes, notes,
etc. from the clerk, that court reporter shall return those tapes, notes, etc. to the clerk’s office
upon completion of the transcript. This rule applies to both official and freelance court reporters.
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26.1 – Filing of Transcripts. Certified original transcripts and other record items shall
be filed in accordance with Rule 7 of the North Carolina Rules of Appellate Procedure and shall
be subject to any further requirement that the appellate court deems appropriate. Parties are
encouraged to assist the Court in transmitting original transcripts and other records electronically
in addition to the format required by Rule 7 of the North Carolina Rules of Appellate Procedure
to the end that the entire appellate record may be transmitted to the appeals court as efficiently
ready access to members of the bar and to the public generally. The Web Site shall be located at
the uniform resource locator www.ncbusinesscourt.net. The Web Site will store for ready
retrieval basic information about the Business Court, including but not limited to these Rules and
the procedure for Complex Business Case designation. In addition, the Web Site will store, in
(a) the Court’s address, facsimile machine numbers, and the mailing and physical
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(g) rough-draft and/or official transcripts of proceedings before the Court.
27.2 – Citation to Business Court Opinions. Citation to the opinions of the Business
Court shall be to the year of the opinion, followed by “NCBC,” followed by the opinion number,
e.g., “1999 NCBC 1.” Pinpoint notations to Business Court opinions shall be made to the
numbered paragraph in which the cited material appears, e.g., “1999 NCBC 1 ¶1.”
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FORM 1
John Doe,
Plaintiff,
NOTICE OF DESIGNATION OF ACTION
v. AS MANDATORY COMPLEX BUSINESS
CASE UNDER N.C. GEN. STAT. § 7A-45.4
ABC Corporation,
Defendant.
_____ (1) The law governing corporations, partnerships, limited liability companies, and
limited liability partnerships.
_____ (2) Securities law.
_____ (3) Antitrust law, except claims based solely on unfair competition under
N.C. Gen. Stat. § 75-1.1.
_____ (4) State trademark or unfair competition law, except claims based solely on
unfair competition under N.C. Gen. Stat. § 75-1.1.
_____ (5) Intellectual property law.
_____ (6) The Internet, electronic commerce, and biotechnology.
Briefly explain (attach additional sheets if necessary) why the action falls within the
specific categories of N.C. Gen. Stat. 7A-45.4(a) checked above, as well as any additional
information you believe may be helpful to the Court in determining whether the Business Court
should retain jurisdiction of this matter:
A copy of all pleadings listed in N.C. R. Civ. P. 7(a) that have been filed to date in this
action are attached hereto as Appendix A for the convenience of the Court.
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This ____ day of _______, 20_____.
___________________________________
Attorney for _______________
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FORM 2
John Doe,
Plaintiff,
ABC Corporation,
Defendant.
THIS MATTER is before the Court pursuant to Rule 17 of the Business Court Rules.
This case has been designated as an exceptional case pursuant to Rule 2.1 of the General Rules
of Practice. The parties have conferred in advance and have agreed that the Court should enter
an order covering scheduling and case management issues in order to facilitate the fair and
I. SCOPE OF ORDER
This order establishes certain procedures to be used and sets deadlines for various matters
likely to arise through trial. It shall remain in effect until rescinded by the Court or superseded by
subsequent orders. The North Carolina Rules of Civil Procedure, the General Rules of Practice
for the Superior and District Courts, and the Local Rules for the North Carolina Business Court
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B. Application of Order
This Order, as well as any subsequent case management orders entered by the Court,
shall bind all parties to this action and all parties added hereafter unless the Court orders to the
contrary.
The Court may amend or supplement this Order as deemed appropriate by the Court upon
Counsel”):
B. The Court will communicate with counsel and counsel shall have the
responsibility for notifying all parties that it represents of all communications from the Court.
C. All communications with the Court, including a copy of any paper, pleading,
order or proposed order, and all exhibits, attachments or enclosures thereto filed in this action
The following parties have agreed to use the Business Court’s electronic filing and
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equipped to receive electronic mail.
D. A copy of any paper, pleading, order or proposed order (including all attachments
or enclosures, or any other written or electronic communication with the Court, whether filed or
not filed) generated by counsel for any party shall be delivered, e-mailed or telecopied to counsel
for the other party or parties at least five (5) business days before any scheduled hearing on a
A. This Court has subject matter jurisdiction over the disputes raised in this action.
B. The parties q do q do not (check one) stipulate that all of the defendants have
been properly served with the summons and complaint, and the Court has personal jurisdiction
C. The parties q do q do not (check one) stipulate that venue is proper in this
action.
D. All pretrial and trial proceedings in this matter shall occur in the following
location:______________________________________________________________________.
A. ISSUES
The principal legal and factual issues which counsel presently believe will need to be
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The issues in this case which counsel presently believe are governed by the law of any
state other than North Carolina law or federal law are as follows:
B. DISCOVERY
counsel regarding discovery in this case. Having considered the record and arguments of
counsel, the Court hereby incorporates into this Case Management Order the following
The parties are instructed to conduct fact discovery first, then move on to expert witness
discovery. The parties shall have until ____________________ to conduct fact discovery on the
merits issues. The parties shall be permitted no more than ______ fact depositions each. The
parties shall be allowed ______ interrogatories each. The parties shall submit to the Court any
day period for discovery of expert witnesses, if necessary, though and including
____________________. This additional sixty (60) day period is reserved solely for discovery
of expert witnesses, and shall not apply if expert discovery is unnecessary. The parties shall be
A preliminary schedule for depositions of such persons and entities as the parties
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The parties shall produce electronic records shall in the following
format:_______________________________________________________________________.
The parties shall adopt the following procedures to avoid unnecessary burden and
The parties shall adopt the following procedures for retention of potentially relevant
documents, including but not limited to documents stored electronically and the need to suspend
all automatic deletions of electronic documents or overwriting of backup tapes which may
The parties shall adopt the following security measures to protect any information that is
produced in electronic format or that will be converted into electronic format and stored on
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The following further limitations and guidelines are hereby placed on discovery:
guidelines:
(b) Counsel shall not direct or request that a witness not answer a
question, unless counsel has objected to the question on the ground that the
should be succinct, stating the basis of the objection and nothing more.
(d) Counsel and their witness-clients shall not engage in private, off-
all documents shown to the witness during the deposition. The copies shall be
showing of each document to the witness. The witness and the witness’s counsel
do not have the right to discuss documents privately before the witness answers
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2. The parties may conduct only that discovery specifically provided for in
this Order.
C. MOTIONS
The parties intend to file the following Motions to Dismiss or other preliminary or pre-
discovery motions, and have designated the following time periods in which such motions shall
completion of discovery shall not limit any party from filing summary judgment motions as to
merits issues during such period, but any such motions should be very narrowly drawn so as to
address only issues on which fact discovery has been completed. If there are still motions
pending after the discovery period, the Court will set a briefing schedule at that time.
After the close of discovery, the parties shall have until ____________________ to file
For the purposes of the length limitations on briefs under Rule 15.8, the following parties
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D. TRIAL
The tentative date by which the parties will be prepared for trial is: _________________.
The following parties have indicated a desire to use case tracking, scanning,
___________________________
The Honorable ______________
Business Court Judge Presiding
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IN THE COURT COMMON PLEAS
AND NOW, this 29th day of April, 2003, it is hereby ORDERED and DECREED that the following
protocols shall apply to all civil cases within the Commerce Case Management Program on or after January 1, 2000:
A Commerce Case Management Program ("Commerce Program") has previously been established within the
Trial Division of the Court of Common Pleas (Administrative Docket 01 of 1999 and 01 of 2000).
A. Organization
1. Judges. Three judges shall be assigned by the Administrative Judge to the Commerce Program. The
number of Commerce Program Judges may thereafter be adjusted by the Administrative Judge consistent with the
caseload of the Program.
2. Filings & Listings. Upon consultation with the Administrative Judge, the Civil Supervising Judge and
the Commerce Program Judges, with the goal of ease of access by the Commerce Program Judges and their staff, the
parties and the public, the Prothonotary shall establish procedures for maintenance of filings and listings in actions
assigned to the Commerce Program.
1. Cases Subject to Commerce Program. Notwithstanding anything to the contrary in General Court
Regulation 95-2 (Day Forward Program) or any other General Court Regulation, Jury, Non-Jury & Equity, and Class
Action cases filed on or after January 1, 2000, but not Arbitration cases, shall be assigned to the Commerce Program if
they are among the following types of actions:
1. Actions relating to the internal affairs or governance, dissolution or liquidation, rights or obligations
between or among owners (shareholders, partners, members), or liability or indemnity of managers
(officers, directors, managers, trustees, or members or partners functioning as managers) of business
corporations, partnerships, limited partnerships, limited liability companies or partnerships,
professional associations, business trusts, joint ventures or other business enterprises, including but
not limited to any actions involving interpretation of the rights or obligations under the organic law
(e.g., Pa. Business Corporation Law), articles of incorporation, by-laws or agreements governing such
enterprises;
2. Disputes between or among two or more business enterprises relating to transactions, business
relationships or contracts between or among the business enterprises. Examples of such transactions,
relationships and contracts include:
4. "Business torts," such as claims of unfair competition, or interference with contractual relations or
prospective contractual relations;
6. Actions relating to securities, or relating to or arising under the Pennsylvania Securities Act;
7. Derivative actions and class actions based on claims otherwise falling within these ten types, and
consumer class actions other than personal injury and products liability claims;
9. Declaratory judgment actions brought by insurers, and coverage dispute and bad faith claims brought
by insureds, where the dispute arises from a business or commercial insurance policy, such as a
Comprehensive General Liability policy, and;
10. Third-party indemnification claims against insurance companies where the subject insurance policy
is a business or commercial policy and where the underlying dispute would otherwise be assigned to
the Commerce Program, not including claims where the underlying dispute is principally a personal
injury claim.
All of the above types of actions may involve individuals named as parties, in addition to business enterprises,
so long as all other criteria are met and the essential nature of the litigation is a business dispute. For example, a dispute
over a commercial loan may include individual guarantors as either plaintiffs or defendants, as the case may be, but such
a lawsuit would still be a commercial dispute.
2. Cases Not Subject to the Commerce Program. The following types of matters are not to be included in the
Commerce Program:
1. Matters subject to Compulsory Arbitration in this Court or to the jurisdiction of the Municipal Court,
including any appeals.
3. Individual (non-class) consumer claims against businesses or insurers, including products liability and
personal injury cases.
7. Malpractice claims, other than those brought by business enterprises against attorneys, or accountants,
architects or other professionals in connection with the rendering of professional services to the
business enterprise.
8. Employment law cases, other than those referenced in Commerce Program type 3, above.
10. Petition Actions in the nature of Change of Name, Mental Health Act Petitions, Petitions to Appoint
an Arbitrator, Government Election Matters, Leave to Issue Subpoena, or to Compel Medical
Examination.
12. Domestic relations matters, and actions relating to distribution of marital property, custody or support.
13. Any matter required by statute, including 20 Pa. C.S. Chapter 7, §§ 711 & 713, to be heard in the
Orphans' Court or Family Court Division of the Philadelphia Court of Common Pleas, or other matter
which has heretofore been within the jurisdiction of the Orphans' Court or Family Court Division of
this Court.
14. Any criminal matter other than criminal contempt in connection with a Commerce Program action.
3. Assignments Based on the Civil Cover Sheet. The Civil Cover Sheet, effective January 1, 2000, shall
include a box in which the attorney signing the sheet must certify that the action is, or is not, subject to the Commerce
Program. A "Commerce Program Addendum to Civil Cover Sheet," a sample of which is attached as Exhibit "A," is
hereby required to be filed with all initial filings (i.e., all filings requiring a Civil Cover Sheet) subject to the Commerce
Program, filed on or after January 1, 2000. The attorney shall indicate on the Commerce Program Addendum filed with
any filing denoted as a Commerce Program matter, the applicable type or types of action which result in the matter being
assigned to the Commerce Program. An attorney's signature on the Civil Cover Sheet shall constitute certification that
the matter is or is not subject to the Commerce Program, as indicated on the Civil Cover Sheet and Addendum. A copy
of the Civil Cover Sheet, including any Commerce Program Addendum, shall be served with the original process served
on all parties.
All actions designated into the Commerce Program pursuant to the Commerce Program Addendum are hereby
assigned to the Commerce Program and to the individual calendar of one of the Commerce Program Judges, according
to a random procedure established by the Administrative Judge or the designee of the Administrative Judge. This
assignment shall be noted on the Docket. All further filings in the matter shall state prominently in the caption and on
any cover sheets that the matter is "ASSIGNED TO COMMERCE PROGRAM."
4. Disputes Arising From the Civil Cover Sheet Designation. If any party disagrees with the designation or
lack of designation of a case into the Commerce Program, that party shall file with Civil Motions Clerk in the
Prothonotary’s Office, 278 City Hall, to be referred to the Administrative Judge, or the designee of the Administrative
Judge, for decision (which shall not be subject to appeal), and serve on all parties a Notice of Management Program
Dispute, in the form attached as Exhibit "B" and not exceeding three pages, as soon as practical, and no later than the
In the event of the service of a Notice of Management Program Dispute, a copy of that Notice shall be attached
to and referenced in all motions and responses to motions filed by any party pending the resolution of the management
program dispute.
C. Commencement of Action
All subject actions shall be commenced as provided in Pa. R.C.P. 1007. Philadelphia Civil Rule *205.2 shall
be followed. As noted above, in all cases, not just those designated into the Commerce Program, a copy of the Civil
Cover Sheet, including any Commerce Program Addendum, shall be served with original process served on all parties.
All jury demands shall be perfected in accordance with Pa. R.C.P. 1007.1 and Phila. Civ. R. *1007.1.
A party seeking emergency relief immediately upon commencing an action subject to the Commerce Program
shall follow the procedure set forth in part D.6. below (Rules to Show Cause and Emergency Motions and Petitions).
1. Authority Over Commerce Program Status: When there is a dispute as to whether the case is properly
assigned to the Commerce Program, the decision will be made by the Administrative Judge or the designee of the
Administrative Judge. If the Civil Case Manager conducting a case management conference or any party objects as to
the Commerce Program assignment, the Case Manager will forward the dispute to the Administrative Judge or the
designee of the Administrative Judge.
2. Alternative Procedures Available: The Commerce Program Judge, in his/her discretion, may, upon
application of any party or upon his/her own initiative, modify these procedures. Requests for changes in these
procedures will be made by filing a Petition for Extraordinary Relief (which Petition calls for a ten-day response time).
3. The Case Management Conference: Typically, notice of a Case Management Conference ("CMC")
will be sent to counsel and unrepresented parties (sixty days after filing) scheduling the CMC for approximately ninety
days after filing. In certain circumstances, the CMC may be scheduled through the Commerce Program Judge.
a. Presiding Officer: Unless otherwise ordered, the CMC shall be conducted by a Civil Case Manager
designated by the Court, acting on behalf of the assigned Commerce Program Judge.
b. Issues to be Addressed: The following subjects, along with other appropriate topics, such as service of
process, venue, pleadings, discovery, possible joinder of additional parties, theories of liability, damages claimed and
applicable defenses (see also Pa.R.C.P. 213.3), will be discussed.
b. A discovery plan and schedule based on the CMO date for the completion
of discovery.
b. For mediation.
d. The choice of a particular Judge Pro Tempore for these purposes must be
approved by the Court.
The Commerce Program Judge may establish any informal procedures to achieve expeditious resolution of
discovery disputes and other non-dispositive issues. Prior to the CMC, it shall be the obligation of the parties to confer
concerning all of the above matters, for the purposes of reaching agreements.
At the CMC, the Case Manager shall issue a Case Management Order ("CMO") setting forth dates for a
Settlement Conference and for a Pretrial Conference (with Pretrial Statements typically to be filed in advance), and for
Trial. The CMO will also address cut-off dates for completion of discovery, for the service of expert reports and for the
filing of Motions.
Based upon the nature and complexity of the case, the Case Manager with input from the parties at the CMC
shall assign the case to a track. The Commerce Program shall typically employ the following management tracks:
Commerce Expedited (Target Trial Date within 13 months of Complaint) and Commerce Standard (Target Trial Date
within 18 months of Complaint). Only exceptionally complicated cases should be designated Commerce Complex
(Target Trial Date within two years of Complaint). In the latter instance, the Commerce Program Judge may schedule
status conferences at six month intervals or at other times upon application of the parties, if appropriate.
A suggested form Case Management Order is attached as Exhibit "C." A grid of time standards that will be
employed depending upon the applicable track Case Management Order is attached as Exhibit "D." Sample Commerce
Program Class Action Case Management Order Forms are attached hereto as Exhibit “E”.
The Commerce Program Judge to whom the action is assigned will hear all pretrial motions, including discovery
motions, except that, to the extent that scheduling or other concerns so require, a Commerce Program Judge may make
arrangements for certain discovery and other pretrial motions to be heard by another Commerce Program Judge. All
motions (except discovery motions) shall be filed in Motion Court with a designation on the Motion Court Cover Sheet
of the assigned Commerce Program Judge. Procedures of the Discovery Court should generally be followed, and filings
processed through Room 287. In some instances, the Commerce Program Judge may direct further briefing of complex
discovery motions. Any Notice of Management Program Dispute that is pending or is being filed contemporaneously
with the Motion filing, should be noted in the Motion Court Cover Sheet. Oral argument is at the discretion of the
Commerce Program Judge.
A Commerce Program Discovery List for each Commerce Program Judge shall be established so that discovery
matters ordinarily will be heard by that Judge on a particular day of the week. Each Judge may also scheduling hearings
on non-discovery motions on the discovery day, or at such other times as the Court deems appropriate.
A Petition for Extraordinary Relief must be filed whenever a party seeks an extension of a deadline imposed
by a case management order. Any party may seek relief from the time requirements by filing the Petition for
Extraordinary Relief. This Petition must be filed prior to the deadline that the party is seeking to change. Petitions for
Extraordinary Relief are filed with the Motions Court Clerk in the Prothonotary’s Office, Second Filing, Room 278, City
Hall. Any adverse party has ten (10) days after the filing of the motion to file a response. The Motion Court will forward
the pleading to the assigned team leader.
The Petition for Extraordinary Relief is ruled on by the individual team leaders. Counsel must include the name
of the team leader for that given case (Sheppard, Cohen, Jones) on the Motion Court Cover Sheet. The party filing the
petition must include a proposed order that sets forth the extension requested in months, as well as a copy of the current
Case Management Order.
Counsels’ agreement to extend deadlines within a Case Management Order is not a recognized basis for an
extension. A movant must demonstrate extraordinary and nonforeseeable circumstances justifying the deadline extension
request. Requests for extensions of Court ordered deadlines should be utilized only as a last resort and with compelling
reasons offered in support thereof.
6. Rules to Show Cause and Emergency Motions and Petitions. Rules to show cause in cases assigned
to the Commerce Program will be presented in the Motions Court, where they will be reviewed as to form, and forwarded
to the assigned Commerce Program Judge for consideration.
Unless there is a dispute as to Commerce Program applicability, emergency motions or petitions in a newly filed
action presented in a matter appropriate for assignment to the Commerce Program shall be referred to a Commerce
Except as otherwise provided in Local Civil Rule *212.3 (Settlement Conferences -- Non Jury Cases),
Commerce Program Judges may assist the parties in reaching a fair and reasonable settlement or other resolution of the
matter. To that end, the assigned Commerce Program Judge, in his or her discretion, may schedule one or more formal
settlement conferences. The Commerce Program Judge may also encourage the parties to engage in settlement
discussions and in any form of Alternative Dispute Resolution (ADR), including the assistance of a Commerce Program
Judge Pro Tempore, that may result in settlement, avoidance of trial or expeditious resolution of the dispute. Except
upon order of the Court, the pendency of any form of ADR shall not alter the date for commencement of trial.
8. Pretrial Conference. A Pretrial Conference shall be held in all Commerce Program actions. At the
conclusion of the Pretrial Conference, a Pretrial Order controlling the conduct of trial may be entered. The Court shall
exercise its best efforts to try the matter as soon after the target trial date as practicable.
Typically, the CMO will require the filing of Pretrial Statements (Pa. R.C.P. 212.2) in advance of the Pretrial
Conference. Prior to the Pretrial Conference, principal trial counsel shall confer on the matters set forth in Pa. R.C.P.
212.3, and attempt to reach agreement on any such matters.
Following the Pretrial Conference, the Commerce Program Judge shall enter a Trial Scheduling Order,
identifying the date by which the matter should be prepared for trial, and, if applicable, the date to be placed into a trial
pool or the date of any special listings. The Trial Scheduling Order may further provide specific dates, to the extent not
already addressed in the Case Management Order, for such matters as:
b. Exchange of proposed stipulations and filing of stipulations in writing to facts about which
there can be no reasonable dispute;
d. Service and filing of written objections to any documents or other exhibits as to which a party
intends to object at trial, together with the legal basis for such objections;
e. Identification in writing of all deposition testimony, by page and line number, intended to be
read into the record at trial, followed by counterdesignations and objections to deposition
designations;
f. Exchange of trial briefs and proposed findings of fact and conclusions of law (nonjury) or
requested points for jury charge (jury).
In addition, the Commerce Program Judge may establish procedures consistent with the requirements of each
case to ensure close interaction with the parties in order to minimize trial time.
There shall be established in the Commerce Program, an Alternative Dispute Resolution program for Commerce
Program actions, which may include, but is not limited to, mediation and the assistance of Commerce Program Judges
Pro Tempore.
1. Panel of Commerce Program Judges Pro Tempore. The Administrative Judge or designee shall
designate a panel of Commerce Program Judges Pro Tempore from among volunteers nominated and approved by the
Philadelphia Bar Association Business Law Section, Business Litigation Committee, who shall be distinguished attorneys
engaged in active practice of law with no less than fifteen (15) years trial experience including a practice focused on the
type of litigation described in section B.1. above (Cases Subject to Commerce Program). Commerce Program Judges
Pro Tempore shall serve without charge. Persons may be added to or removed from the panel as the Administrative
Judge or designee may determine consistent with the qualifications above.
The Court may order a Commerce Program case to be assigned for Settlement Conference to a Commerce
Program Judge Pro Tempore who shall, on a date certain, hold a Settlement Conference which must be attended by trial
counsel representing the parties, as well as any unrepresented parties. Counsel and unrepresented parties shall provide
to the Commerce Program Judge Pro Tempore prior to the Settlement Conference a fully completed Settlement
Memorandum, in a form to be established by the Commerce Program Judges. The Commerce Program Judge Pro
Tempore on such a referral is not authorized to rule on any motions, but will attempt to facilitate a settlement between
the parties.
2. Mediation.
a. Referral to Mediation and Selection of Mediator. Commerce Program cases may be
referred to nonbinding mediation at the discretion of the Commerce Program Judge, who may make such referrals at the
time of the Case Management Conference, at a Pretrial Conference referenced above, or at any other time. Where
appropriate and whether or not mediation is pursued at an early stage of the litigation, the Commerce Program Judge has
the discretion to refer cases to nonbinding mediation at a later stage of the proceedings.
The Court may permit the parties to choose the mediator from among the panel of Commerce Program Judges
Pro Tempore, or agree to pay for a mediator not on the panel. The order of reference to mediation shall not stay or delay
any scheduling dates, unless the Court so orders.
b. Conflicts of Interest. A mediator to whom a case is assigned must disclose to the parties and
to the Court any apparent conflict of interest. Unless the mediator determines consistent with any applicable ethical
requirements and guidelines that he or she should preside notwithstanding any such apparent conflict of interest and the
parties and the Court agree that such mediator nevertheless shall preside, another mediator shall be selected.
c. Confidentiality of Mediation. The order referring an action to mediation shall require that
the mediator report to the Court the disposition of the mediation in accordance with a schedule as determined by the
Court, under the guidelines below. The order shall also provide that all information received by the mediator as to the
merits of the matter, including the submitted memoranda, shall remain confidential and not be reported or submitted to
the Court by the mediator or the parties, except as necessary in a stipulation of settlement agreed to by the parties.
d. Mediation Procedure. The first mediation session preferably shall be conducted within 30
days of the execution of the order of reference, unless the Court establishes a different schedule. At least ten days before
e. Report; Extensions. If the action is not settled upon completion of the first session, the
mediator may schedule additional sessions on consent of the parties. However, at the end of the first session, any party
or the mediator may terminate the mediation effort, and in that case the mediator shall advise the Court forthwith that
mediation has been terminated but shall not disclose the identity of any parties who terminated or did not terminate the
mediation.
Except as set forth below, subsequent sessions should be concluded within 15 days from the date by which the
first session was to have been held according to the order of reference. The mediator shall report to the Court as to the
outcome of the mediation session(s) no later than 20 days from the date by which the first session was to have been held
according to the order of reference.
If mediation cannot be concluded within 15 days from the date by which the first session was to have been held
according to the order of reference, upon consent of all parties a 30-day extension of time to conduct further sessions
may be granted by the mediator. If such extension is granted, the mediator shall report to the Court as to the success or
lack of success of the additional sessions as soon as practicable but in any event no later than 5 days after the final
mediation session.
All deadlines and relevant procedures shall be set forth in a standard form order of reference.
BY THE COURT:
_______________________________
James J. Fitzgerald, III
Administrative Judge, Trial Division
This Administrative Docket is promulgated in accordance with the April 11, 1987 Order of the Supreme Court
of Pennsylvania, Eastern District, No. 55, Judicial Administration, Docket No. 1, Phila. Civ. *51 and Pa. R.C.P. 239,
and shall become effective immediately. As required by Pa. R.C.P. 239, the original Administrative Docket shall be filed
with the Prothonotary in a docket maintained for Administrative Dockets issued by the Administrative Judge of the Trial
Division and copies shall be submitted to the Administrative Office of Pennsylvania Courts, the Legislative Reference
Bureau and the Civil Procedural Rules Committee. Copies of the Administrative Docket shall also be submitted to
American Lawyer Media, The Legal Intelligencer, Jenkins Memorial Law Library and the Law Library for the First
Judicial District.
This case is subject to the Commerce Program because it is not an arbitration matter and it falls within one or
more of the following types (check all applicable):
1. Actions relating to the internal affairs or governance, dissolution or liquidation, rights or obligations
between or among owners (shareholders, partners, members), or liability or indemnity of managers
(officers, directors, managers, trustees, or members or partners functioning as managers) of business
corporations, partnerships, limited partnerships, limited liability companies or partnerships,
professional associations, business trusts, joint ventures or other business enterprises, including but
not limited to any actions involving interpretation of the rights or obligations under the organic law
(e.g., Pa. Business Corporation Law), articles of incorporation, by-laws or agreements governing such
enterprises;
2. Disputes between or among two or more business enterprises relating to transactions, business
relationships or contracts between or among the business enterprises. Examples of such transactions,
relationships and contracts include:
(1) Uniform Commercial Code transactions;
(2) Purchases or sales of business or the assets of businesses;
(3) Sales of goods or services by or to business enterprises;
(4) Non-consumer bank or brokerage accounts, including loan, deposit cash
management and investment accounts;
(5) Surety bonds;
(6) Purchases or sales or leases of, or security interests in, commercial, real
or personal property; and
(7) Franchisor/franchisee relationships.
4. "Business torts," such as claims of unfair competition, or interference with contractual relations or
prospective contractual relations;
6. Actions relating to securities, or relating to or arising under the Pennsylvania Securities Act;
7. Derivative actions and class actions based on claims otherwise falling within these ten types, and
consumer class actions other than personal injury and products liability claims;
9. Declaratory judgment actions brought by insurers, and coverage dispute and bad faith claims brought
by insureds, where the dispute arises from a business or commercial insurance policy, such as a
Comprehensive General Liability policy;
10. Third-party indemnification claims against insurance companies where the subject insurance policy
is a business or commercial policy and where the underlying dispute would otherwise be subject to
the Commerce Program, not including claims where the underlying dispute is principally a personal
injury claim.
5. Environmental claims not involved in the sale or disposition of a business and other than
those addressed in Commerce Program types 9 or 10 above.
7. Malpractice claims, other than those brought by business enterprises against attorneys, or
accountants, architects or other professionals in connection with the rendering of
professional services to the business enterprise.
8. Employment law cases, other than those referenced in Commerce Program type 3 above.
10. Petition Actions in the nature of Change of Name, Mental Health Act Petitions, Petitions to
Appoint an Arbitrator, Government Election Matters, Leave to Issue Subpoena, Compel
Medical Examination.
12. Domestic relations matters, and actions relating to distribution of marital property, custody
or support.
13. Any matter required by statute, including 20 Pa. C.S. Chapter 7, §§ 711 & 713, to be heard
in the Orphans' Court or Family Court Division of the Philadelphia Court of Common Pleas,
or other matter which has heretofore been within the jurisdiction of the Orphans' Court or
Family Court Division of this Court.
14. Any criminal matter other than criminal contempt in connection with a Commerce Program
action.
FIRM NAME
BY: ATTORNEY NAME
IDENTIFICATION NO.: XXXXX Attorney for Defendant: XYZ, Inc.
STREET ADDRESS
PHILADELPHIA, PA 191XX
TELEPHONE NO.: XXX-XXX-XXXX
: PHILADELPHIA COUNTY
PLAINTIFF : COURT OF COMMON PLEAS
:
v. : TERM, 20XX
:
DEFENDANT : No:
According to the Civil Cover Sheet and Commerce Program Addendum filed by Plaintiff
on [date] and served on [date], Plaintiff designated this action as [not subject to the Commerce
Program] [or] [subject to the Commerce Program, designating type[s] X [and X]].
[or] [This action is subject to the Commerce Program. It is not an arbitration matter and falls
within type[s] X [and X] in the Commerce Program types, as identified in the Commerce
[Any additional comments, with total document (excluding cert. of service, Commerce
Name of Attorney
Attorney for Defendant, XYZ, Inc.
[Include a copy of the complaint or other filing commencing the action, along with a
Certificate of Service identifying date and manner of service and names and addresses].
EXHIBIT C -- CASE MANAGEMENT ORDER
COMMERCE PROGRAM
CASE MANAGEMENT ORDER
TRACK
1. The case management and time standards adopted for the Commerce Program, "
track" cases shall apply and are incorporated.
3. Plaintiff(s) shall identify and submit Curriculum Vitae and Expert Reports for all expert
witnesses intended to testify at trial to all other parties not later than .
4. Defendant(s) and any additional defendant(s) shall identify and submit Curriculum Vitae
and Expert Reports of all expert witnesses intended to testify at trial to all other parties
not later than .
5. All Pretrial Motions (other than Motions in Limine) shall be filed not later than
(b) A list of all witnesses who may be called to testify at trial by name
and address. Counsel should expect witnesses not listed to be
precluded from testifying at trial;
(c) A list of all exhibits the party intends to offer into evidence. All
exhibits shall be numbered and exchanged among counsel prior to
the Conference. Counsel should expect any exhibit not listed to be
precluded at trial;
8. It is expected that the case will be ready for trial , which is the
earliest trial date pursuant to Pa. R.C.P. 212.1, and counsel should anticipate trial to begin
expeditiously thereafter.
9. All counsel are under a continuing obligation, and hereby ORDERED to serve a copy of
this Order upon all unrepresented parties and upon all counsel entering an appearance
subsequent to the entry of this Order.
BY THE COURT:
, J.
1
A Status Conference may be scheduled at six month intervals if requested by counsel and
approved by the Court.
2
The Court will provide for rebuttal expert reports to the extent appropriate.
EXHIBIT E - CLASS ACTION CASE MANAGEMENT ORDERS
:
:
:
Plaintiff(s) :
:
v. : No. -
:
:
:
:
Defendant(s) :
AND NOW, in consideration of the Parties’ consent to the following case management schedule
regarding preliminary objections, it is hereby ORDERED that:
1. Defendant shall file its preliminary objections on or before .
2. If Plaintiff amends a complaint in response to Defendant’s preliminary
objections, then the following deadlines shall apply:
a. Plaintiff shall file its amended complaint on or before .
b. Defendant shall file an answer or preliminary objections to such amended
complaint on or before . If the Defendant files
an answer, the Parties shall contact the Court regarding a case management
order for the certification stage of this action.
c. If Defendant filed preliminary objections in response to such amended
complaint, then:
i. Defendant shall file a brief in support of those preliminary objections
on or before .
ii. Plaintiff shall file a response to, and brief in opposition to, those
preliminary objections on or before .
, J.
DATED:
Agreed to as to form:
:
:
:
Plaintiff(s) :
:
v. : No. -
:
:
:
:
Defendant(s) :
ORDER
AND NOW, this day of 200__, upon consideration of the Defendant’s Preliminary
Objections to the Plaintiff’s Complaint and the Plaintiff’s response thereto, it is hereby ORDERED and DECREED
as follows:
1. The Preliminary Objections are Overruled.
2. The Defendant is directed to file an answer to the Complaint within twenty (20) days of the date of
entry of this Order.
3. The Parties shall jointly complete the attached case management order regarding class certification
and return a completed copy within thirty (30) days of the date of entry of this Order. If the Parties are
unable to arrive at an agreement as to all dates, they shall submit letters to the Court setting forth those dates
agreed upon and dates in dispute.
BY THE COURT,
, J.
:
:
Plaintiff(s) :
:
v. : No. -
:
:
:
Defendant(s) :
, J.
DATED:
Agreed to as to form:
:
:
:
Plaintiff(s) :
:
v. : No. -
:
:
:
:
Defendant(s) :
ORDER
AND NOW, this day of 200__, upon consideration of the Plaintiff’s Motion for Class
Certification, the Plaintiff’s response thereto, oral argument before the Court and all matters of record, and in accord with
the Opinion being filed contemporaneously with this Order, it is ORDERED and DECREED as follows:
1. The above captioned action is certified as a class action on the claims for
_______________________.
2. The cases shall consist of the following:
[DESCRIPTION]
3. Plaintiff __________ shall serve as class representative.
4. The Parties shall submit proposals for a notification procedure and proposed form of notice for class
members within thirty (30) days from the date of entry of this Order.
5. The Parties shall jointly complete the attached case management order regarding dispositive motions
and fact and expert discovery and return a completed copy within thirty (30) days of the date of entry
of this Order. If the Parties are unable to arrive at an agreement as to all dates, they shall submit letters
to the Court setting forth those dates agreed upon and dates in dispute.
BY THE COURT,
, J.
AND NOW, this day of 200__, upon consideration of the Parties’ consent to
the following case management schedule regarding class certification, it is hereby ORDERED that:
1. Fact Discovery: The period for fact discovery shall close on ________________. Depositions shall
be noticed to occur, and written discovery requests shall be served on or before the date referenced in this
paragraph.
2. Expert Discovery: The Parties shall meet on or before _____________ to discuss the need for
experts in this case. At this meeting, the Parties shall disclose whether they intend to present expert testimony
at trial in this matter. In the event either or both of the Parties desire to present expert testimony at trial of
this matter, the following deadlines shall apply:
a. If the Plaintiff desires to present expert testimony, then:
i. Plaintiff shall make its expert disclosures on or before ____________.
ii. Defendant shall make its expert disclosures on or before ___________.
iii. The Parties shall complete expert discovery on or before __________.
b. If Plaintiff advises at the meeting referenced above that it does not intend to present expert
testimony:
i. Defendant shall make its expert disclosures on or before ___________.
ii. Plaintiff shall make any responsive expert disclosures on or before
______________.
iii. The Parties shall complete expert discovery on or before __________.
c. As used herein, the phrase “to make expert disclosures” mens to provide, for each
, J.
DATED:
Agreed to as to form:
:
:
:
Plaintiff(s) :
:
v. : No. -
:
:
:
:
Defendant(s) :
ORDER
AND NOW, this day of 200__, upon consideration of the Defendant’s Motion for
Summary Judgment, the Plaintiff’s response thereto and all other matters of record, and in accord with the Opinion being
filed contemporaneously with this Order, it is hereby ORDERED and DECREED as follows:
1. The Motion is Denied.
2. The Parties shall contact the Court within thirty (30) days of the date of entry of this Order proposing
dates for a settlement conference, a pre-trial conference and trial.
BY THE COURT,
, J.
:
:
:
Plaintiff(s) :
:
v. : No. -
:
:
:
:
Defendant(s) :
AND NOW, this day of 200__, upon consideration of the Parties’ consent to the
following case management schedule regarding class certification, it is hereby ORDERED that:
1. Settlement Conference: A settlement conference shall be held on _____________.
On or before that date, all counsel shall serve all opposing counsel and file a settlement memorandum containing
the following:
a. The Plaintiff shall provide a concise statement of the theory of the case.
The Defendant shall provide a concise statement as to the nature of the defense;
b. A statement by the Plaintiff itemizing all damages sought by categories and amount; and
c. Defendant shall identify all applicable insurance carriers, together with corresponding limits
of liability.
2. Pre-Trial Conference: A pre-trial conference shall be held on ________________.
Fifteen days prior to pre-trial conference, all counsel shall serve all opposing counsel and file a pre-trial
memorandum containing the following:
a. The Plaintiff shall provide a concise statement of the theory of the case.
The Defendant shall provide a concise statement as to the nature of the defense.
b. A list of all witnesses who may be called to testify at trial by name and address. Counsel
should expect witnesses not listed to be precluded from testifying at trial;
c. A list of all exhibits the party intends to offer into evidence. All exhibits shall be numbered
and exchanged among counsel prior to the conference. Counsel should expect any exhibit
BY THE COURT,
, J.
Breakdown by track
EXPEDITED - litigant count is less than or equal to (4) four, and case type is one
of the following:
STANDARD - where the litigant count is greater than four (4) and the case type are the same as Expedited,
or
- where the case type (regardless of the number of litigants) is:
No
Notice of Case
Assignment to Management
Commerce Court and Conference (CMC) Parties CMC
Within confer to Within
random assignment to sent via Civil conducted by
60 Days resolve 90 Days
individual calendar of Administration CMC Civil Case
of Filing of Filing
Commerce Court Judge (Rm 296 CH) issues. Manager
(2)
Commerce
Program Judges
Pro Tempore
1
CMC ADR
Means for
Early
Disposition Scheduling
Discussion Limited Expedited
Issue, and Commerce Track
Pre Target Trial
Discovery Program Judges Date within
Dispositive 13 months
Motions Case Management Order of
Assignment of Case complaint
2
Management Track
CMC
Settlement, Pretrial Conference, Standard
Scheduling
and Trial Dates Track
& Deadline
Discovery Plan Target Trial
Preparation
Expert Testimony Arrangements Date within
Discussion
18 months
a. On stipulation of all
of
parties for supervision
complaint
of discovery
b. For mediation
3 Complex
Potential Track
c. ID particular Pro
Use of Target Trial
Tempore acceptable to
Judges Pro Date within
all
Tempore 2 Years of
Discussion d. Particular Pro complaint
Tempore must be
approved by Court
e. Use of a Pro
Tempore for discovery
or mendiation cannot
affect scheduling in the
CMO
“Business Calendar”.
following are appropriate matters to be assigned to the Business Calendar for all
general landlord and tenant issues shall not be assigned to the Business Calendar.
III. New matters shall be assigned to the Business Calendar at the request
of the plaintiff upon the filing of the Complaint, or of the defendant, not later than
ten days following the filing of defendant’s entry of appearance, but only with the
connection, the party moving shall set up, as soon as practicable, a chambers
IV. In connection with cases presently pending, but not yet assigned to a
trial date, either party may request assignment to the Business Calendar with the
VI. The Justice in charge of the Business Calendar may establish generally,
or in a particular case, informal procedures not inconsistent with law which he/she
VII. In the event of the absence of the Justice in charge of the Business
Calendar should be taken up with the Justice in charge of the Formal and Special
Cause Calendar.
2001, in Courtroom No. 17. Justice Michael Silverstein will be in charge of said
BY ORDER OF:
__________________________________
JOSEPH F. RODGERS, JR.
PRESIDING JUSTICE
FACT SHEET
ADMINISTRATIVE OFFICE
OF THE COURTS January 2007
455 Golden Gate Avenue
San Francisco, CA
94102-3688 Complex Civil Litigation Program
Tel 415-865-4200
TDD 415-865-4272
Fax 415-865-4205
www.courtinfo.ca.gov Complex civil cases are cases that require exceptional judicial management
to avoid placing unnecessary burdens on the court or the litigants. Complex
cases may involve such areas as antitrust, securities claims, construction
defects, toxic torts, mass torts, and class actions. The Judicial Council’s
Complex Civil Litigation Task Force was appointed in 1997 to find ways to
help trial courts manage complex civil litigation more efficiently and effec-
tively. When the task force concluded its work at the end of 1999, the coun-
cil’s Civil and Small Claims Advisory Committee assumed responsibility for
recommending improvements to complex civil litigation programs and rules.
History
For decades, complex litigation has been the subject of intense scrutiny and evalua-
tion. In 1996 in California, the Business Court Study Task Force, appointed by
then–Chief Justice Malcolm M. Lucas, conducted an exhaustive national and state-
wide review in which it solicited opinions from business leaders, judges, and attorneys
on the desirability of creating specialized courts for business cases. At the end of its
study the task force recommended against creating such courts.
The task force identified several reasons to develop complex litigation departments in
trial courts, rather than establish separate business courts:
• Responsiveness to the public. Business courts handle only business disputes; complex
litigation departments handle business matters plus a broader range of the public’s
disputes, including complex tort claims (such as mass torts) and other disputes
involving complicated legal and factual issues.
• Public perception. Business courts are viewed by many as assisting only the business
community; complex litigation departments handle complex cases affecting all
segments of society.
• Service to the public. Once business courts are established with separate jurisdiction
by statute, those courts can be used for only a limited number of cases. Complex
litigation departments, as part of the broader trial court system in a county, can
Complex Civil Litigation Program
Page 2 of 3
The Program
The Complex Civil Litigation Program began as a pilot in 2000 in six California trial
courts: the Superior Courts of Alameda, Contra Costa, Los Angeles, Orange, San
Francisco, and Santa Clara Counties. Alameda County has two judges dedicated to
the program; Contra Costa, San Francisco, and Santa Clara Counties each have one;
Los Angeles County has seven; and Orange County has five. The program was
Complex Civil Litigation Program
Page 3 of 3
designed to give judges training and resources to help them manage complex civil
cases efficiently and effectively. Participating courts have used their grant funds to
hire additional research attorneys and court staff and to improve technology, among
other uses. Several courts have held bench-bar symposiums to educate users about
areas of the pilot program such as discovery, case management, alternative dispute
resolution, substantive legal areas, and use of technology. Program judges meet twice
yearly to exchange information and participate in continuing education.
In August 2003 the Judicial Council received the National Center for State Courts’
report Evaluation of the Centers for Complex Litigation Pilot Program and forwarded it to
the Legislature and Governor. The lengthy report included information on the
number of complex cases filed; the impacts of complex litigation departments on case
and calendar management; the impacts on trial courts, attorneys, and parties; and
recommendations to the Legislature and the Governor concerning the continued
operation of complex litigation departments.
Grants
Funds for the program are made available from the Judicial Administration Efficiency
and Modernization Fund. Grant amounts vary by county, reflecting differences in the
numbers of courtrooms the courts designate for the program. In the 2006–2007 fiscal
year, funds allocated to the program total $3.426 million.
Contact:
Susan R. Goins, Senior Attorney, susan.goins@jud.ca.gov
Additional resources:
Reports and publications, www.courtinfo.ca.gov/reference/4_5civil.htm
EVALUATION OF THE CENTERS FOR
COMPLEX CIVIL LITIGATION PILOT PROGRAM
Final Report
June 30, 2003
General Conclusions
The recommendation to establish the Pilot Program was made in response to
concerns that state court tribunals were perceived to be insensitive to the needs of
business litigants. It was alleged that a lack of knowledge about substantive commercial
law on the part of California superior court judges contributed to an absence of cohesive
law governing business transactions, resulting in unpredictable decisions in commercial
disputes and uncertainty within the business community. Interviews with judges and
attorneys conducted at the inception of the Pilot Program tended to confirm these views.
In particular, case assignment to a master calendar system and over-reliance on referees
were identified as the two most significant factors contributing to excessive delay,
expense, and litigant dissatisfaction with complex case management.
The NCSC evaluation was designed, in part, to assess how well the Pilot Program
addressed these and other identified issues related to complex case management. Both
interviews with judges and attorneys at the conclusion of the evaluation period and
empirical analysis of data compiled about complex case management suggest that the
approach adopted by the Pilot Program addressed those problems effectively. The
v
screening procedures employed by the pilot program courts produced a mix of cases that
appear in most respects to meet the statutory definition of complexity under Rule 1800,
and cases assigned to the pilot program received considerably more individual attention
from pilot program judges than complex cases that were not assigned to the pilot
program. The result, according to attorneys whose cases were assigned to the pilot
program, was improved judicial comprehension of legal and evidentiary issues, fewer
instances of excessive or inappropriate referee appointments, closer judicial supervision
of and insistence on case management requirements including referee decisions. These
impressions were confirmed by the empirical examination of the pilot program cases that
demonstrated measurably higher numbers of interim dispositions, suggesting more
effective and faster case resolution, compared to non-pilot program cases.
Key Findings
Findings are presented in two areas. First, general observations are offered about how
complex cases were managed in California before implementation of the pilot program,
based on interviews with attorneys and judges. Second, findings related to the
effectiveness of the pilot program are identified, based on comparisons between complex
cases assigned to the pilot program and those managed by non-pilot program courts as
well as on interviews of attorneys whose cases were assigned to the pilot program during
the evaluation period.
vi
Another major point of dissatisfaction with complex case management before
implementation of the pilot program was a widespread perception of inappropriate
reliance on court-appointed referees to conduct pretrial management of complex cases,
resulting in excessive costs for litigants with little benefit in terms of effective case
management. Attorneys and some of the judges specifically cited the referee pay
structure as problematic—referees are compensated by the amount of time spent working
on a case, creating an incentive for needless delay of complex cases, as well as the failure
of judges to supervise or provide effective direction to referees. Referring to the pilot
programs, attorneys reported that referee appointments were reserved for more complex
cases for which referee involvement was considered more appropriate, and that judicial
supervision of referees was improved, resulting in more efficient case management.
vii
Finding 6: Cases assigned to the pilot program showed measurable progress
toward resolution during the evaluation period.
The length of the pilot program and the evaluation did not allow for sufficient
time to adequately calculate time to disposition. However, there were indications that the
cases assigned to the pilot program progressed steadily toward final disposition during
the evaluation period. This is an important finding insofar that both attorneys and judges
complained that complex cases would “languish” without significant progress toward
resolution before the implementation of the pilot program. Indeed, over 10% of pilot
program cases were more than five years old at the inception of the pilot program, which
lends support to the validity of this complaint, at least in some types of cases. Two thirds
of the pilot program cases demonstrated measurable progress, averaging 1.6 phases
during the evaluation period with phases defined as pleadings, discovery, settlement
negotiations, and post-discovery/trial readiness. That is, the majority of cases that
entered the pilot program during the pleading stage (e.g., identification of and notice to
relevant parties) had concluded discovery and were in the midst of settlement
negotiations during the evaluation period. Similarly, the majority of cases that entered
the pilot program while the parties were engaged in discovery had concluded settlement
negotiations and were ready for trial during this period. Almost one-third of the cases in
the pilot program had been disposed by the end of the evaluation period, although the
disposition rates were affected by how the cases were assigned to the pilot program at
each of the sites.
Finding 7: The pilot judges limited their use of referees.
Before the pilot program, a generalized concern for attorneys was the over-
reliance on referees. The pilot program judges appointed a referee for some aspect of
pretrial management (usually discovery purposes) in just 20 percent of the cases, which is
a significant drop in the usage of referees. Pilot program judges were significantly more
likely to appoint referees in provisionally complex cases and those cases that scored high
on certain indicia of complexity. Construction defect cases were most likely to have a
referee appointed. The implication of the reduced rate of referee appointments is that
pilot program judges were directly supervising these cases, thereby promoting greater
judicial control of case management and reducing litigation costs for the parties.
Finding 8: Informal coordination was a common tool for pilot program judges.
The Deskbook recommends the formal coordination or consolidation of related
cases. Over one-fifth of the cases involved coordination or related actions, but the
majority of those cases were filed within the same court, making formal coordination
procedures unnecessary. Only very small percentage of applicable cases required formal
coordination under rules 404-404.10 of the California Rules of Court. The use of
informal coordination for related cases filed within the same court raises a question about
the suitability of existing case management technology, which is not capable of
identifying and tracking the progress of related cases without the assignment of a
“master” case number.
viii
Finding 9: Case management orders were reserved for those cases that were
considered highly complex.
The Deskbook on the Management of Complex Civil Litigation recommended that
judges develop and enter a comprehensive case management order. The evaluation of the
pilot program indicated that a case management order was filed in only 30 percent of the
cases. Judges appeared to be filing a case management order in only those cases they
considered more complex. For instance, case management orders were filed in nearly 60
percent of those cases that were provisionally complex. This suggests that a large
proportion of complex cases assigned to the pilot program can be managed with
established case management procedures and appropriate levels of judicial supervision.
Recommendations
The pilot program featured specialized case management for complex civil
litigation, judges experienced in both substantive law and complex case management
practices, reduced caseloads, and additional staffing and technological resources. Pilot
program judges viewed their primary objective as identifying the key legal issues in a
given case and focusing pretrial activities on resolving those issues as efficiently as
possible. The general means for accomplishing this objective included active judicial
oversight of case management, including the development of clear expectations for case
management, and consistent enforcement of those expectations.
The most significant improvements in complex civil case management appeared
to result from two specific features of the pilot program: an individual calendar system
and a caseload that was sufficiently reduced to permit more intensive case management
by the pilot judges. While the current pilot program shows great promise, some aspects
can be modified to increase the program’s effectiveness.
Recommendation 1: Specialized procedural rules for complex cases should be
developed.
A defining characteristic of complex cases is the existence of multiple legal issues
and large numbers of parties. The existing civil procedure provisions, however, are
tailored for routine civil cases. Although the Deskbook assumes that judges have the
authority to engage in issue-specific case management practices, the language of the
statutes and rules suggest otherwise. For example, the existing summary judgment
statute does not permit summary adjudication of an individual legal issue or claim of
damages unless doing so completely disposes of the case, a cause of action, or an
affirmative defense. Specialized rules or statutes for complex cases that enhance judicial
case management powers would authorize judges to conduct case management activities
more effectively than under the current Code of Civil Procedure.
Recommendation 2: A workload assessment study should be conducted to help
determine the appropriate number of judges and supporting court staff.
The average caseload assigned to each judge varied considerably from judge to
judge, and from site to site, and there was no consensus as to an appropriate caseload size
or even how to define a “case”. A workload assessment should be conducted to allow
ix
case assignments to equalize the workload and help determine the appropriate staffing
levels for courts handling complex cases.
Recommendation 3: Screening and assignment procedures should be established
to ensure that complex cases are identified and referred to the appropriate court.
Most of the pilot sites had fairly effective screening and assignment procedures to
identify complex cases. Los Angeles, however, had a decentralized process that
interfered with prompt assignment and early case management activities. The
decentralized process resulted in needless delays. The Los Angeles program should be
modified to include initial identification and immediate assignment of all types of
complex cases at filing based on objective criteria indicated on the Civil Case Cover
Sheet. The supervising judge for complex litigation should then ensure that the case
meets basic criteria for inclusion in the pilot program.
Recommendation 4: Training and staff development should be an ongoing
process for judges and staff handling complex cases.
Improving morale among non-pilot program civil division judges, as well as
training and development for pilot program judges and staff, would enhance the
effectiveness of the program. A rotation among judges assigned to the pilot program in
Orange and Los Angeles counties would help alleviate some of the frustration of civil
division judges who desire the intellectual and professional challenges that characterize
complex cases. A mentoring approach in the single judge courts would also improve the
knowledge and experience of the civil bench in general. In addition, educational
workshops on complex case management issues may be appropriate for all pilot program
staff and should be offered on a regular basis.
Recommendation 5: Case management technology should be developed and used
throughout the pilot program.
Case management technology that permits judges and their staffs to monitor case
progress more accurately, organize court documents more coherently, and communicate
with multiple attorneys would increase the efficiency of the pilot courts. Currently, only
Orange County employs imaging technology on a routine basis, and none of the pilot
program courts has advanced e-filing beyond an experimental basis. More frequent use
of Web-based case management systems would enhance the productivity of the courts by
facilitating communication with multiple parties and ensuring accurate documentation of
case management activities.
Recommendation 6: Practices used in the pilot program courts should be
encouraged throughout the state.
The pilot program sites were carefully chosen and quickly absorbed the major
concentrations of complex civil cases within the state. Yet complex cases are filed in
other courts around the state. The lessons learned by the pilot program should be made
available to and used by courts throughout California. For instance, even courts that
normally employ a master calendar system for civil cases should assign complex cases to
an individual judge for case management purposes—and reduce that judge’s caseload
accordingly. The AOC should strongly encourage judges managing complex cases to
attend the semi-annual meetings of the pilot program judges.
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PART 1 – PROJECT BACKGROUND AND OVERVIEW
The genesis for the California Complex Civil Litigation Pilot Program (pilot
program) began more than five years ago with a report of the Business Court Study Task
Force (business task force) that made a series of recommendations to the Judicial Council
of California concerning the need and feasibility of establishing a specialized court in
California to handle business and commercial cases. The concerns in California that
prompted the creation of the business task force were similar to those in other states –
namely, the perception that state court tribunals had become insensitive to the needs of
business litigants both in how cases were processed and in the substantive law developed
by state court judges and implemented by state court juries.1 In particular, the business
task force acknowledged widespread perceptions by the business community that a lack
of knowledge about business transactions and substantive commercial law among the
judiciary was contributing to uncertainty within the business community, unpredictable
results in commercial disputes, and an absence of cohesive law governing business
transactions in California.
Unlike such task forces in many other states, however, the business task force
ultimately concluded that the concept of a business court would not be supported by
important constituencies within California, and it discouraged the creation of a “business”
or “commercial” court on a pilot basis or otherwise.2 According to Justice Richard
Aldrich, who chaired the business task force and a successor group, the Complex Civil
Litigation Task Force (complex task force), the business task force members felt that a
court dedicated solely to business and commercial litigation would be perceived as elitist
and might reflect a pro-business bias.3 Instead, the business task force viewed the more
salient issue as the need to develop specialized expertise among judges of the superior
courts to manage complex litigation of all types – business and commercial, tort, and real
property – and to equip those judges with the support staff, technology, specialized case
management procedures, and training necessary to improve the quality of decision-
making in complex cases. The business task force then recommended the creation of a
complex task force to make specific recommendations to the Judicial Council on steps to
improve the management of complex civil litigation in California.
In August 1997, the Judicial Council charged the complex task force to pick up
where the business task force left off. Specifically, it instructed the new task force to
prepare a manual on complex civil case management for state judges; to develop
guidelines for the identification of complex cases; to recommend appropriate statutory
and rule changes for complex case management; to oversee and assist in the
establishment of pilot programs in urban counties; and with the Center for Judicial
Education and Research (CJER), to develop specialized curricula and educational
programs on effective complex case management. In fulfilling its charge, the complex
1
Executive Summary, Final Report of the Business Court Study Task Force (May 16, 1997).
2
Id. at 5-6.
3
Remarks of Justice Richard Aldrich delivered at the Justice Roundtable, an annual meeting of the Board
of Directors and the Corporate Counsel Committees of the National Center for State Courts, in Washington,
DC, November 16, 1999.
1
task force contributed two of the fundamental cornerstones that ultimately led to the pilot
program. First, it recommended the adoption of Rule 1800 of the California Rules of
Court, which defines a complex case as one “that requires exceptional judicial
management to avoid placing unnecessary burdens on the court or the litigants and to
expedite the case, keep costs reasonable, and promote effective decision making by the
court, the parties, and counsel.”4 The rule also specified certain types of cases that should
be presumed complex unless a judge determines otherwise, and set out additional criteria
for identifying complexity. These criteria were then added to the Civil Case Cover Sheet,
which is filed with initial pleadings in all civil cases.5
The Complex Civil Litigation Task Force also developed the Deskbook on the
Management of Complex Civil Litigation as a reference manual for state judges. The
Deskbook outlines case management techniques for complex cases generally as well as
practices geared for specific types of complex cases. More importantly for the
subsequent direction of the pilot program, it provides what has become the principle
judicial strategy for managing complex cases: early and active judicial involvement in the
development and oversight of a case management plan for the orderly conduct of the
litigation. Effective case management hinges on defining and clarifying the disputed
issues in the case and then structuring the pretrial activities to narrow and resolve as
many issues as possible. In contrast to routine civil procedures in which a bench or jury
trial is the presumed disposition for the case (even though it is recognized that a trial is a
rare occurrence), complex case management makes a timely and just settlement or other
pretrial disposition the explicit objective of pretrial activities and embraces the use of
various forms of alternative dispute resolution as an integral part of achieving that
objective.
In 2000, with authorization and funding from the California legislature, the
Judicial Council established the pilot program in the Superior Courts of Los Angeles,
Orange, Contra Costa, Santa Clara, Alameda, and San Francisco Counties. Participation
in the pilot program required each site to commit to an individual calendar system
dedicated exclusively to complex cases with a substantially reduced caseload that would
permit participating judges to engage in intensive case management supervision.
Fourteen judges – six in Los Angeles County, four in Orange County, and one each in the
other four counties – were selected to participate in the pilot program based on their
training, experience, interest in business and complex litigation, and commitment to
engaging in ongoing judicial education. The $2.855 million annual appropriation by the
California legislature for the pilot program provided each site with funds for additional
staffing, technology, and other resources necessary to implement the program. Although
some of the details differed from site to site, the overriding judicial philosophy for the
program was active judicial oversight of case management including the development of
clear expectations and consistent enforcement of those expectations.
4
California Rules of Court, Rule 1800(a).
5
California Rules of Court, Rule 982.2.
2
NCSC Evaluation of the Complex Civil Litigation Pilot Program
The enabling legislation for the pilot program required a report evaluating the
effectiveness of the pilot program, including the number of complex cases filed, the
impact of the pilot program on case and calendar management, and their impact on the
trial courts, the attorneys, and the parties. The Administrative Office of the Courts
(AOC) contracted with the National Center for State Courts (NCSC) to conduct this
evaluation. To do so, however, the NCSC first needed to address a major methodological
challenge – namely, the absence of a theoretical framework in which to consider why
cases assigned to the pilot program are managed more effectively than cases assigned to
non-pilot courts. One of the hallmarks of a rigorous, independent evaluation is a solid
understanding of program objectives, as well as how program operations are intended to
achieve those objectives. From that beginning, evaluators must identify valid and reliable
measure on which to determine whether, and how well, program operations further
program objectives. With respect to complex litigation a number of business and
commercial courts around the country have made claims about the effectiveness of
various case management techniques, but none has previously evaluated its performance
empirically. One of the first major challenges for the NCSC was to develop a tentative
theory of complex litigation management against which to assess the findings from the
three components of the evaluation.
To do this, the NCSC reviewed the Deskbook on the Management of Complex
Litigation and scrutinized various case management techniques employed by the pilot
judges to try to identify the specific advantages they offered over case management
practices for non-complex civil cases. This process led the NCSC to consider the
characteristics that make cases complex and the implications those characteristics have
for the effectiveness of different case management techniques. In doing so, the NCSC
examined how the case management techniques employed by the pilot program judges
are purported to affect the life cycle of complex civil cases compared to that of non-
complex cases. The NCSC also considered how different dimensions of case complexity
and specific case management techniques might affect case processing. The following
section describes the tentative working theory that the NCSC developed for conducting
the evaluation.
The Unique Life Cycle of Complex Cases: A Tentative Working Theory
While routine civil cases tend to have a fairly straightforward and predictable life
cycle, the life cycle for complex cases appears to differ in three significant ways: the
length of the pleading stage, the direction (linear or circular) of discovery and
negotiations, and the use of a trial on the merits as an interim or final disposition.
In routine civil cases, the pleading stage usually lasts 30 days.6 During that time,
parties are identified and legal claims and defenses are articulated. Ninety-five percent of
all civil cases have no more than two plaintiffs; seventy-five percent have no more than
two defendants.7 In fact, the typical civil case involves one plaintiff asserting a single
6
CAL. CODE CIV. PROC. §§ 430.10-430.90.
7
1996 Civil Justice Survey of State Courts (data collected by the National Center for State Courts under a
grant from the U.S. Department of Justice, Bureau of Justice Statistics, on civil cases from 45 courts
3
cause of action against one or two defendants.8 In a complex case, however, the pleading
stage lasts for a much longer period of time, often lasting four to six months. More
complex cases often involve cross and third party claims, which necessarily lengthen the
pleading stage as newly added parties are served, retain counsel, and file responsive
pleadings. Cases involving large numbers of parties also require more time for the
lawyers to organize themselves and begin preparations for the discovery and negotiation
phases of litigation.
During discovery in routine civil cases, parties exchange information about their
respective claims and defenses, identifying areas of agreement and disagreement about
the facts and applicable law governing the case. After discovery, the parties enter a
period of negotiation in which they attempt to resolve the case without judicial
involvement. Approximately two-thirds of all civil cases are settled by the parties, and
over 25% result in either a dismissal or a default judgment.9 Fewer than 10% of civil
cases nationally require a judicial decision on the merits (summary judgment, bench or
jury trial).10
In complex cases, however, discovery and negotiation stages tend to progress in a
circular rather than linear fashion. For example, a key case management strategy
espoused by the pilot program judges is to have the parties identify which issues and
claims apply to which parties and to select the most salient issues as the focus of
intensive discovery and settlement negotiations. As key issues are resolved, tangential
issues either become moot or are resolved with less effort in subsequent cycles of
discovery and negotiation. Each cycle of discovery and negotiation provides
opportunities for interim dispositions that reduce the number of remaining parties or the
scope of disputed issues.
In the vast majority of routine civil cases, the period of negotiation is followed by
a dismissal or settlement of the case. In rare cases, a decision on the law (summary
judgment) or the facts (bench or jury trial) resolves any remaining issues.11 Some routine
cases will require a minimal amount of post-verdict or post-judgment involvement by the
trial court, but for the vast majority of cases, a trial on the merits signals the end of the
case for the trial court. Trials are also rare in complex civil litigation, but in contrast to
routine civil litigation, a trial in complex litigation can function as an interim disposition
to help parties assess the potential liability of respective defendants or gauge the potential
representing the 75 most populous counties in the United States (on file at the National Center for State
Courts).
8
Id.
9
1992 Civil Justice Survey of State Courts, (data collected by the National Center for State Courts under a
grant from the U.S. Department of Justice, Bureau of Justice Statistics, on civil cases from 45 courts
representing the 75 most populous counties in the United States, on file at the National Center for State
Courts).
10
Id.
11
The 1992 Civil Justice Survey of State Courts found that civil cases resulted in a summary judgment in
3.7% of cases and in bench and jury trials in 2.6%. Id.
4
range of damage awards.12 This information can then be used in subsequent settlement
negotiations. Even if repeated cycles through discovery and negotiation are ultimately
unsuccessful at disposing of all the parties and disputed issues, the process tends to
whittle down the number of parties and hone the disputed issues so that by the time the
case goes to trial, it is no more complex than other routine civil cases.
It was recognized from the very beginning of the evaluation that the time frame
established for the evaluation would be insufficient to use filing-to-disposition time, a
commonly used measure of case processing efficiency, as a measure in the evaluation. A
1992 national study of civil litigation found that civil cases with 7 or more parties13 had
an average filing-to-disposition time of 33 months, and 20% of those cases had a filing-
to-disposition time of more than 49 months.14 Given an evaluation period of only 33
months, and realistically fewer than 20 months in which to collect data, it was understood
that only a small proportion of the cases assigned to the pilot program would be
completely disposed during the evaluation period, making it difficult to assess this
commonly used measure of case management efficiency in cases assigned to the pilot
program. It was necessary, therefore, to identify some interim measures to assess case
efficiency. Using this tentative theory of complex litigation, the NCSC chose to examine
the number of interim dispositions and the number of parties disposed over the course of
the evaluation period instead.
One difficulty associated with an examination of complex litigation is that case
complexity has at least three different dimensions. Some cases are legally complex – that
is, the applicable law governing the case is particularly complex and requires a great deal
of judicial training and experience to master. These types of cases are often characterized
by numerous motions and arguments presented in briefs and in-court hearings on the
applicable law. Once the legal complexity is mastered, however, neither the facts of the
case nor the logistics of its management are necessarily more complex than in non-
complex civil cases. Cases that are characterized by legal complexity may require
specialized training for the trial judge on substantive law, but do not necessarily require
other types of case management techniques unless other dimensions of complexity are
present in the case.
Other cases are characterized by evidentiary complexity – the nature of the
evidence requires specialized expertise, such as scientific, engineering, financial, or
economic evidence and expert testimony. These cases likewise require judicial training,
but in a professional discipline other than law. They often involve large volumes of
evidence that require considerable time and attention to review and fully comprehend.
12
See generally JUDICIAL COUNCIL OF CALIFORNIA, DESKBOOK ON THE MANAGEMENT OF COMPLEX CIVIL
LITIGATION (2000) [hereinafter DESKBOOK]; NATIONAL CENTER FOR STATE COURTS, MANAGING MASS
TORT CASES: A RESOURCE BOOK FOR STATE TRIAL COURT JUDGES (1995); FEDERAL JUDICIAL CENTER,
MANUAL ON COMPLEX LITIGATION (3d ed. 1995).
13
The presence of multiple parties is one indicia of complexity identified by Rule 1800 and is frequently
utilized by the pilot program courts as eligibility criteria for assignment to the pilot program.
14
Civil Justice Survey of State Courts, 1992 (data collected by the National Center for State Courts under a
grant from the U.S. Department of Justice, Bureau of Justice Statistics, on file at the National Center for
State Courts).
5
Like legal complexity, evidentiary complexity often requires specialized judicial training,
although a popular approach that many of the California superior courts used before the
pilot program was to appoint a referee with specific knowledge about the subject matter
of the case.
Many complex cases are logistically complex in that they involve large numbers
of parties represented by many attorneys and frequently large volumes of evidence. In
some cases, the logistical complexity involves coordinating case management for several
cases with similar or identical factual claims. Much of the difficulty in these cases is
coordinating the activities of many people and ensuring that all of them have access to
the same information about case events and court decisions. A popular technique for
managing logistically complex cases is appointing one or two attorneys to serve as liaison
counsel for each side of the case or cases, who are responsible for disseminating
information to the parties and communicating with the court. Information technology,
such as Internet list-servs and secured Web sites, can facilitate this function.
Different types of cases involve different types of complexity and in different
combinations. Some cases may involve only one dimension of complexity, whereas
other cases may involve two or even all three dimensions. Because caseload composition
– the type and proportion of different types of cases – can differ substantially among
complex litigation courts, the NCSC believed that it was important to control for the type
of complexity inherent in each case when evaluating the effectiveness of the pilot
programs.
The assignment of a single judge to supervise all aspects of complex cases is the
cornerstone of case management strategies for the pilot program courts.15 Its objective is
to enhance the progress of case resolution through closer and more efficient judicial
supervision. Having one judge handle all case activity improves the judge’s
understanding of the legal and factual issues of the case, permits more informed decision
making about the prioritization of pretrial activities including discovery, facilitates
smoother working relationships with counsel, and encourages more consistent oversight
and enforcement of case management deadlines – all of which is intended to result in
earlier resolution of cases. In other words, frequent judicial involvement encourages the
parties to continue successive iterations of the discovery and negotiation phase of the
complex case life cycle, which promotes incremental case resolution in most instances
and, for those cases in which a trial on the merits is necessary, ensures that the disputed
issues of the case are fairly well developed before the trial begins.
This understanding of how judicial involvement facilitates case resolution led the
NCSC to an expectation of how the pilot program courts work and possible measures of
how well they might perform. A direct correlation was expected between the number of
times the pilot judge becomes formally involved in the case (e.g., case management
conferences, status conferences, settlement conferences) and the number of interim
dispositions (e.g., settlements, dismissals) that would occur over time. Similarly, there
15
See generally JUDICIAL COUNCIL OF CALIFORNIA, DESKBOOK ON THE MANAGEMENT OF COMPLEX CIVIL
LITIGATION (2000); NATIONAL CENTER FOR STATE COURTS, MANAGING MASS TORT CASES: A RESOURCE
BOOK FOR STATE TRIAL COURT JUDGES (1995); FEDERAL JUDICIAL CENTER, MANUAL ON COMPLEX
LITIGATION (3d ed. 1995).
6
would be an indirect relationship between the amount of judicial involvement in the case
and the number of parties who were still actively involved in the case.16
Components of the NCSC Evaluation
To provide the broadest possible assessment of the Complex Civil Litigation Pilot
Program, the NCSC used multiple methodological approaches including site
observations, telephone interviews with judges and lawyers, and an empirical
examination of key case management characteristics for complex cases in the pilot
program compared to complex cases in non-pilot program courts. The first approach was
purely a descriptive documentation of the policies, procedures and court resources that
each court employed to manage its complex litigation caseload. This component of the
evaluation is discussed in Part 2. A second approach consisted of in-depth telephone
interviews with pilot program judges and attorneys to ascertain their opinions about the
management of complex litigation in California both before and after the implementation
of the pilot program. This component is discussed in Part 3. The final approach,
discussed in Part 4, was an empirical examination of key case management
characteristics for complex cases assigned to the pilot program that was compared to
similar characteristics in complex cases managed by non-pilot courts. Part 5 includes
conclusions from the evaluation and recommendations for the future operation of the
courts handling complex litigation.
16
Some types of cases may be more intractable than others, requiring a proportionately greater number of
case events to achieve a similar number of interim dispositions and removal of parties from active
involvement in the case.
7
8
PART 2 – PILOT PROGRAM DOCUMENTATION
NCSC conducted a series of site visits to each of the pilot program sites to
document the pilot program through direct observation and interviews with the pilot
program judges, pilot program staff and other key superior court officials.17 The program
documentation focused on several key areas: case assignment policies, staffing,
specialized procedures for complex litigation, and the impact of the pilot program, if any,
on non-pilot program operations. To complement the second round of attorney
interviews, discussed in Part 3, these interviews also solicited the views on qualitative
aspects of the pilot program including the judges’ views about optimal case management
techniques and suggestions for change. Because the majority of those questions focused
on how pilot program judges approached the task of complex case management and their
assessments of how well those approaches worked, judges’ responses to those questions
have been integrated with the pilot program documentation. Judges’ suggestions about
how to improve the pilot program have been incorporated into the evaluation conclusion
and recommendations in Part 5 as appropriate.
Documentation of the pilot program was extremely important because the degree
of program variation from site to site was one of the more challenging aspects of this
evaluation. The basic criteria for obtaining state funding for the pilot program was a
commitment by each site to dedicate one or more judges to the exclusive management of
complex cases. Decisions about staffing levels and other resources for the pilot program
(e.g., facilities and technological support) as well as the development of local rules and
practices for managing complex cases were largely at the discretion of the pilot judges
themselves. Although institutional and environmental constraints such as existing state
statutes, court rules, and the existing infrastructure and culture of the superior court in
each jurisdiction resulted in many similarities among key program characteristics, there
were also some important differences among the various pilot programs. The NCSC
believed that it was important to document these program characteristics, not only as a
record of the pilot program, but also to inform the evaluation team about the possible
sources of site-specific variations in other components of the evaluation.
17
The NCSC deliberately waited until the very end of the evaluation period (July 2002) to compile the
program documentation because many of the program characteristics were likely to change, and in fact did
change, over the course of the pilot program in response to the actual case management needs of complex
cases. For example, several pilot courts began with an expectation that they would conduct a significant
numbers of trials, an assumption that later proved incorrect in most sites. To ensure confidentiality of
individual comments, this report uses the generic term “court officials” to refer to any of the individuals
interviewed in conjunction with the site visits.
9
This part provides a subjective description of the six pilot courts, with a focus on
case assignment policies, program staffing, use of technology, specialized procedures for
complex litigation, judicial philosophy about complex case management techniques and
procedures, and the perceived impact of the pilot program on non-pilot court operations.
Following the individual site descriptions is a summary of recommendations that judges
and court staff from all of the pilot sites expressed during the site visits.
Case Assignment Procedures
The six pilot courts tend to identify and assign cases in a similar manner, using
objective procedures and criteria to screen cases and determine eligibility. The pilot
judges in the single judge sites, and the supervising judges in Los Angeles and Orange
Counties, review cases before accepting them into the program. By local practice in Los
Angeles County, superior court judges sitting on the civil bench can opt to retain complex
cases that might otherwise be assigned to the pilot program. Decisions to accept other
complex cases are based on perceived need and complexity.
Program Staffing
Program staffing for each of the pilot program courts had only minor differences.
Typically, pilot program staff consisted of five to seven individuals including one or
more clerks, a court reporter, a bailiff, and one or more research attorneys. See Table 2.1.
Pilot program staff were not shared with non-complex civil divisions. Generally the
judges’ senior clerk was the lynchpin for pilot program operations. This individual,
according to those interviewed, was usually at the “heart of the action” and simply made
things work for the judge both in and out of the courtroom. In the words of one judge, “I
couldn’t do all this without her.”
10
Table 2.1:
Program Staffing Matrix (per judge)
Counties
Court Clerk 2 2 2 2 1 1
Court Reporter 1 1 1 1 1 1
Bailiff 1 1 1 1 1
Research Attorney 1 2** 1 1 1 1
Case Manager 1
Records Clerk 1
Intern 1
Technology Support 1*
* Shared by all pilot judges
** One position vacant at the time of the site visit
There were some minor differences in staffing among the various programs.
Research attorneys in particular were used differently, depending on the personality and
judicial style of the pilot program judges. Their responsibilities ranged from assisting
courtroom clerks, providing legal research support, and checking case law to
coordinating mediation for parties and acting as judges pro tempore. Staff in the pilot
program courts seemed to communicate well and more often than not their interactions
were described as communicative and team-oriented. Both of the large multi-judge
courts expressed a need for “floater clerks” to back up their divisions when additional
support staff was needed on very large cases or when staff were on leave.
The need for formal training was not a major concern for most of the judges and
court staff interviewed. Judges believed that the semi-annual meetings sponsored by the
AOC were beneficial for education, information sharing, and assisting judges in solving
common problems. The vast majority of those interviewed agreed that these important
semi-annual meetings should be continued by the AOC, although several judges thought
it would be beneficial to sponsor additional AOC/Center for Judicial Education and
Research courses on specific topics such as determination of insurance coverage and
management of large construction liability cases.
Technology
Each pilot court purchased different technology equipment to expedite case
processing. Some of these expenditures have been allocated to in-court technology, such
as smart boards, data ports, and computers. One court contracted with a firm specializing
in electronic presentations to provide these services on a rental basis. This court is
11
piloting electronic filing and had already run successful tests to make sure the system can
accept a large amount of data in a short period of time.
Although only a couple of the more “computer friendly” judges have
experimented with Web-based case management for a handful of cases, all of the judges
recognize the benefits of these systems for communicating with attorneys, especially in
multiparty suits, and view these systems as the next logical step in technology to support
the management of complex litigation for all of the pilot program sites. Indeed, these
technologies should be integrated with superior courts’ Web sites. Most of those
interviewed also recognized the benefit of using document imaging as their primary case
processing system. And, as an extension of the use of imaging, individuals from each
court stated that they expected in the future to be able to have litigants’ attorneys
electronically file documents.
Complex Case Management
The judicial philosophy concerning complex case management was consistent
throughout all of the pilot sites. The pilot judges viewed their role as proactive managers
of the cases filed in their courts whose primary objective is to help the parties identify the
key areas of dispute and conduct a sufficient investigation into those areas to make
informed judgments, facilitate negotiations among the parties, and make dispositive
rulings as necessary to resolve the suit. To effectuate this role, they relied on a
combination of substantive knowledge about complex litigation, case management skills
including scheduling date-certain case events such as status conferences, hearings, and
trials, and a consistent, even-handed approach when dealing with counsel for the parties.
As a rule, the pilot program judges disfavored the use of referees except for the limited
purposes of managing discovery, usually in construction defect cases. All of these
techniques were credited with providing attorneys with solid expectations about the
judges’ approach to cases, thus enhancing the attorneys’ incentives to move the cases
toward resolution. The small number of cases that actually went to trial in the six
complex litigation courts tends to substantiate the effectiveness of this approach.
Effects on Non-Pilot Court Operations
In general, the establishment of the pilot program was perceived as having a
positive effect on the operation of the civil court system, although some concern was
expressed regarding the ability of judges assigned to the regular civil bench to challenge
their skills by hearing more interesting, complex cases.
One area that may need review is the method by which complex cases in Los
Angeles County are screened in the judicial districts outside of the downtown courthouse
as well as the discretionary retention of complex cases by superior court judges in those
districts. The practice is ingrained in the organizational culture of that court system, but
as a practical matter, transferring cases from those districts to the pilot program often
takes several months, which undermines the objective of early judicial involvement in
case management activities.
It is the belief of many judges working in the pilot courts that an undocumented
benefit of the program is fewer appeals of complex cases. Moreover, when cases are
appealed, the pilot judges reported that those cases are better organized, and have clearer
12
and more concise orders and supporting documentation. As a result, appellate judges
spend less time finding documents and rulings, and making decisions whether to affirm
or overturn the cases.
Individual Programs
The pilot program courts were similar in many respects, but individual courts
demonstrated subtle differences in procedures, staffing, and judicial philosophy. The
following sections detail program characteristics for each pilot site.
Contra Costa County (Martinez)
Contra Costa County, with the city of Martinez as the county seat, is one of nine
counties in the San Francisco-Oakland Bay Area. Six judges are assigned to the civil
division of the Superior Court of Contra Costa County, one of whom manages all of the
complex litigation cases. The NCSC conducted interviews with Judge David Flinn, the
pilot court judge; Judge Garrett Grant, the Presiding Judge of the Superior Court of
Contra Costa County; and Mr. Ken Torre, the Executive Officer of the Superior Court of
Contra Costa County.
Contra Costa employs a three-step process for assigning cases to the pilot
program. Initially, newly filed civil cases are identified by court staff in the intake
section of the clerk’s office using the “Rule of 7” – a local screening criteria requiring
that a case have seven or more parties and be designated as complex on the Civil Case
Cover Sheet18 by the plaintiff’s lawyers or counter-designated by a defendant’s
attorney.19 If a case meets these initial criteria, it is referred to the presiding judge of the
superior court for review. The presiding judge examines the initial pleadings and makes
a decision either to forward the case to the pilot judge for his review, or to send the case
back to the clerk’s office for reassignment to the regular civil case calendars of the other
civil division judges. The pilot judge also has an opportunity to review the case before
accepting it into the pilot program. If, in his judgment, the case does not fit the criteria
for inclusion in the pilot program, or if a peremptory challenge has been filed,20 the pilot
judge will send the case back to the presiding judge for reconsideration or for
reassignment to another judge in the civil division. At any given time, approximately 180
to 200 cases are active in the pilot program in Contra Costa. Most of these cases were
transferred from other judges within the civil division or retained by the pilot program
judge.
Staff support for the pilot judge consists of 6 individuals – a courtroom clerk,
court reporter, bailiff, research attorney, case manager, and records clerk – who work
18
Form 982.2(b)(1) has been adopted for statewide use by the Judicial Council of California. The Civil
Case Cover Sheet provides basic information about the case at filing including whether the case meets any
of the criteria for management as a complex case under Rule 1800.
19
Some cases have fewer than seven parties, but were accepted into the pilot program because they
involved dimensions of complexity other than large numbers of parties.
20
Cal. Code Civ. Proc. §170.6.
13
together as a team to calendar, call, and hear cases. The judge does appoint referees21 to
hear certain issues, primarily in construction defect cases.22 More often than not, referees
are appointed at the request of both parties and are primarily used to settle cases. After
the referee negotiates a settlement, the case is referred to the pilot judge for approval and
closure of the case. Court officials estimate that most complex litigation cases with
referees are disposed within two years of filing.
The pilot judge did not express a need for additional training and believed that the
semi-annual conference held with other complex litigation judges from the six pilot
courts was sufficient to exchange information and learn from others involved in complex
litigation.
Although pilot program funds have been used to purchase video recorders, DVD
players, personal computers, a white board, and remote data access for counsel in the
courtroom, these tools are not used extensively. Court officials involved in the pilot
program would like to pursue electronic filing, document imaging, and case-based Web
sites to manage complex cases. At the time of the on-site visit, court officials were in the
process of converting their case processing system.
Although the complex litigation court in Contra Costa County exhibited many
benefits, it has increased the workload of the other judges hearing civil cases in the
Superior Court. As a result of complex cases only being heard by one judge, court
officials stated the other judges hearing civil cases are overloaded, which affects court
staff morale. In addition, court officials reported that some of the non-pilot judges
assigned to the civil division are concerned about being precluded from hearing these
more interesting and legally challenging cases.
Santa Clara County (San Jose)
The pilot program is located within the Superior Court of Santa Clara County in
the downtown section of San Jose. Twenty-one judges are assigned to the court’s civil
division, one of whom reviews and hears all complex litigation cases as part of the pilot
program. The NCSC conducted interviews with Judge Jack Komar, the pilot court judge;
and Judge Richard Turrone, the Presiding Judge of the Superior Court of Santa Clara
County.
The pilot program in Santa Clara County employs a one-step assignment process,
which was the most common process among the pilot sites. Plaintiffs’ attorneys indicate
that a case is complex on the civil case cover sheet at the time of filing or a defense
attorney submits a counter-designation. Court clerks initially assign the case to the pilot
judge, who determines if the case is actually complex. If it is not, it will be sent to the
presiding judge for reassignment. Court officials estimate that 8% to 10% of cases are
returned for reassignment. Approximately 170 complex cases are active in the court on
an annual basis.
21
See generally CAL. CODE CIV. PROC. §§ 638-645.2 for rules governing the appointment of referees. In
complex litigation cases, referees are used primarily for management of discovery.
22
It is important to note that due to the proximity of the naval base in Martinez, California and resulting
building projects, in recent years the court has experienced more construction defect cases.
14
Staff support for the pilot judge consists of four individuals – a courtroom clerk
who is a trained paralegal and also serves as the case coordinator, a research attorney, a
court reporter, and a bailiff. Those interviewed believed that working as a team is what
makes the pilot program effective and efficient.
The pilot judge and court staff in Santa Clara County did not report a need for
specific training in complex case management. They believe that best teacher in complex
litigation is experience in the courtroom as well as the judges’ participation in the semi-
annual meetings of complex litigation judges from the pilot courts.
To reach the stage in a case where a settlement is possible, the pilot judge
reported that he manages his cases using established timelines and case management
conferences. For example, within 110 days from the date of assignment, a case
management conference is held. According to the pilot judge, these techniques provide a
sense of predictability and continuity in the process for attorneys and their clients. In
short, attorneys know what is expected of them and what to expect from the court when
they come into the pilot program, which promotes settlements.
In the area of technology, court officials expressed an interest in improving case
processing through document imaging and electronic filing systems. The pilot judge has
established case-based Web sites for certain cases. Due to the improved communication
capabilities, he can more effectively control the pace of litigation and can provide notice
to parties regarding various actions in a case. The judge would like to expand the use of
technology by posting tentative decisions on case-based Web sites. For in-court
purposes, the pilot judge also uses a smart board system,23 touch screens and other
electronic enhancements, some of which are provided by the lawyers, to process
information more effectively during trial.
San Francisco County
More than 20 judges are assigned to the civil division of the Superior Court of
San Francisco County, one of whom was selected to manage all of the complex cases
through the pilot program. The NCSC conducted interviews with Judge Stuart Pollak,
the pilot court judge from the inception of the pilot program in January 2000 through
January 2002; Judge Richard Kramer, pilot program judge; Gordon Park-Li, Executive
Officer for the Superior Court of San Francisco County; Judge Ronald Quidachay,
Presiding Judge for the Superior Court of San Francisco County; and Elena Simonian,
court administrator. These court officials estimated that the number of active complex
litigation cases in the pilot program averages 100 cases.
The pilot program in San Francisco County also uses a one-step process for case
assignment purposes. Complex cases are initially identified and assigned to the pilot
program after being designated complex on the Civil Case Cover Sheet, and the pilot
program judge reviews the case to determine its acceptability into the program. It was
reported that some attorneys try to get non-complex cases assigned to the pilot program
in order to obtain the special attention they believe their cases deserve or to expedite
advancement through the civil litigation system. Those cases and others that are
23
A smart board system is a form of demonstration technology that facilitates viewing of documents,
illustrations, and other exhibits during in-court proceedings.
15
erroneously assigned to the pilot program are quickly identified and sent to the presiding
judge for reassignment to the regular civil division of the superior court.
The judge’s staff is similar to other pilot courts with the exception of having two
research attorneys. Court staff include a court reporter, two court clerks, two legal
research attorneys (one position was vacant at the time of the on-site visit), a bailiff, and
occasionally an intern. Because processing complex cases is so labor-intensive, court
officials believed that teamwork by the pilot program staff is what makes the program
work in San Francisco County. Additional training for the judge and court staff was not
considered necessary by court officials.
The major benefit of the pilot program, according to those interviewed, is the
assignment of an experienced judge who is dedicated to hear the majority of complex
cases. Court officials specifically cited judicial experience in complex litigation, attorney
education about case processing requirements, and individual judicial attention to cases
as the reasons for timely management, earlier case settlements and fewer appeals. The
use of hands-on management also was credited with fostering respect for the judge and
his expectations in a case, control of continuances by the court, and proactive
communication from the pilot judge to the parties’ lawyers.
Specific case management techniques include holding an initial case management
conference as soon as possible after the assignment date, usually around 30 days.
Thereafter, the pilot judge holds a series of subsequent case management conferences,
helping to control every phase of the case from filing to settlement or trial. The current
pilot judge does not regularly use referees, although the previous pilot judge generally
discussed this option with attorneys at the initial case management conference and often
appointed mediators for settlement conferences in larger, more complex cases. To
improve the conduct of complex trials, when they occur, the pilot judge frequently
bifurcates trial issues (e.g., key legal and factual issues to be resolved). He also uses this
approach as a method of organizing case management and discovery, so those issues can
be tried sooner.
Court officials expressed the need for an imaging system24 that would facilitate
the identification of documents, complement electronic filing capabilities, and encourage
the use of Web sites to manage individual cases, all of which are expected to reduce
delays in case processing. The Court uses e-mail to send information to parties on
hearing dates as well as to provide notice to the attorneys about the need for a hearing on
a specific issue in a case.
One unmeasured benefit identified by court officials was the effect of the pilot
program on the California Court of Appeal due to the manner in which appeals from the
pilot program are prepared, packaged and sent for review. It was the consensus of those
interviewed that the Court of Appeal had an easier time reviewing and deciding cases that
came from one judge experienced in complex litigation, rather than from many judges
inexperienced in complex litigation that were working in a civil court of general
jurisdiction.
24
Imaging technology is used to produce an electronic image of paper documents, which are then available
for viewing on computer terminals at any location to which access is permitted.
16
Alameda County (Oakland)
The pilot program court for the Superior Court of California, County of Alameda
is located in Oakland and is served by one judge who has an active caseload of 90 to 120
cases. In comparison, it was estimated that a judge hearing regular civil cases in
Alameda County has an active caseload of approximately 350. The NCSC visited the
pilot program on the afternoon of July 19, 2002, and conducted interviews with Judge
Ronald Sabraw, the pilot program judge; Judge Harry Sheppard, the Presiding Judge of
the Superior Court of Alameda County; and Mr. Arthur Sims, Executive Officer.
As in other pilot program courts, cases are initially identified as complex by the
plaintiff’s attorney or a defense attorney through use of the civil case cover sheet filed in
the clerk’s office. Sixty days after filing, the pilot judge holds a hearing to determine
whether the case is eligible for inclusion. These determination hearings are scheduled on
the same calendar with law and motion hearings, which in Alameda County are
conducted by the pilot program research attorney under the supervision of the pilot
program judge. The presiding judge of the superior court does not get involved in the
assignment process unless a motion to disqualify the pilot judge is filed.
Once a case is accepted into the program and the determination hearing held, a
case management conference is held within 30 to 60 days. At this conference, timelines
and deadlines are set for filing of answers and cross complaints. The parties are also
advised that if the case goes to trial for an extended period of time, the trial may be
conducted by another judge.
Court staffing is similar to other pilot courts. Staffing includes a research
assistant, a court reporter, a bailiff and two courtroom clerks who work in close proximity
and effectively as a team. In the area of training, it was suggested that training in
management of large construction defect cases and disputes over insurance coverage
would be useful. It would also be beneficial to have an annual conference of complex
litigation courts to be attended by judges, research assistants and courtroom clerks.
Court officials reported that the pilot judge’s temperament and case management
skills, and the expertise of his court staff, were essential to the success of the pilot
program. The pilot judge reported that he relies heavily upon the research attorneys to
explain case processing and courtroom procedures to attorneys and to warn the attorneys
about ex parte communication. The research attorneys encourage and coordinate
mediation hearings and are the central point of communication between the court and
counsel for most cases.
In the area of technology, the Superior Court of Alameda is equipped with
dataports for PC’s in the courtroom and at times uses a smart board to display bar-coded
exhibits and other evidence. Although all court cases in Alameda County are imaged,
court officials want to start managing cases through the use of case-based Web sites and
electronic filing.
Orange County (Santa Ana)
Orange County has an estimated population of 2,950,000, 34 cities, and covers a
798 square mile area. Over the years the county has experience rapid rates of growth
with homes being built in large tracts or subdivisions. This population expansion and the
17
location of companies offering technological services gives rise to many complex civil
cases, especially construction defect cases, filed in the Superior Court of Orange County.
There are 27 superior court judges assigned to work in the regular civil division of the
Court. Five fulltime judges are assigned to the pilot program. Most of the asbestos cases
are collected in one judge’s inventory, which also includes a variety of other case types.
The NCSC conducted a group interview with all of the pilot court judges except one
(who was unavailable), as well as individual interviews with Judge C. Robert Jameson,
the supervising judge for the pilot program; Mary Lou des Rochers, Executive Director,
Management Services for the Superior Court of Orange County; and Vicki Brizuela, the
Clerk of the Complex Civil Litigation Pilot Program.
All operations of the pilot program were recently relocated to the county’s Civil
Complex Center. This recent move to a building dedicated to complex litigation has not
only provided adequate courtroom space to hear complex cases, but it has also increased
the spirit and morale of judges and court staff. Court officials estimated judges in the
pilot program carried an average caseload of approximately 210 active cases at any given
time.
Each judge has a five-member staff that includes a court reporter, bailiff, clerk,
assistant clerk and research assistant. The court is technologically advanced and self-
contained, so the pilot program has a full time staff member to provide technological
support to judges and court staff. Because the pilot program in Orange County includes a
large number of construction defect cases, the use of referees and mediators to assist with
certain issues is prevalent. Further, in order to better manage cases, judges use their
research attorneys as judges pro tempore for some status conferences. According to court
officials, this special use of research attorneys not only helps keep cases moving, but also
provides a sense of teamwork within the pilot program.
The pilot program in Orange County uses a two-step assignment process. Cases
that are initially identified as complex based on the Civil Case Cover Sheet are randomly
assigned to the pilot judges, but will be reassigned if there is a successful challenge to the
judge. Cases that do not meet the eligibility criteria for the pilot program are forwarded
to the presiding judge for reassignment to the regular civil division. The supervising
judge will also accept cases transferred from judges in the civil division that were not
immediately recognized as complex at the time of filing.
The first case management conference is usually held 60 to 90 days after
assignment to the pilot program, and follow-up conferences are usually held every 30 to
60 days thereafter. Unlike many of the pilot program sites where judges are extremely
proactive in case management activities, the judges in Orange County place the
responsibility on attorneys to make motions at case management conferences to move the
case forward. At the request of lawyers, referees are appointed and frequently used in
construction defect cases to achieve settlement. While most complex cases settle, one of
the pilot judges is in trial for an estimated 200 days per year, an unusual amount of time
when compared to the number of courtroom trials days experienced by other pilot judges.
Orange County has the most sophisticated use of case management technology
among the pilot sites. Document imaging is used to record and track all filings in
complex cases. Some judges notify attorneys of case events via e-mail, which is
18
followed by a hard copy that is mailed to the parties. All program judges post tentative
decisions for law and motion matters on the court’s website. Most judges in the pilot
program still work from files during hearings, and at times make notes on the calendar
which are then entered into the court’s imaging-based case processing system when the
minute order is prepared. Some judges do not request files for specified hearing types,
relying instead on the imaging system or copies from it.
For trial purposes, the court has contracted with an outside vendor to provide
technological support and a presentation system in the courtroom. The system includes
components such as a server that can read presentation software, a VCR, evidence exhibit
capabilities, and large screen projection system. During hearings and trials, the court is
able to provide attorneys with a more up-to-date system to present and share case
information with judges, court staff, attorneys, and jurors. The system, which is
permanently located in the courtroom, is the only one permitted to be used for evidence
presentation purposes. The cost of the system, $550 per day, is shared by all parties to an
action who use the equipment. This rental requirement has caused minor concern for law
firms that have their own in courtroom computer equipment, but the pilot judges believe
that having the same equipment available to all parties justifies the cost to individual
parties. An evaluation of this approach for providing presentation systems is scheduled
to be conducted.
In the area of training, court officials stated that court staff were quite
professional, had good morale, and did not need specific training. On the other hand,
some judges stated even though they attended AOC-sponsored civil litigation training
courses, they would like additional education on class action wage and salary suits,
construction defect cases and additional training on dealing with multi-party complex
consumer cases brought under §17200 of the Business and Professions Code.
Los Angeles County
Los Angeles County has a population of over 9.8 million people, larger than the
population of 42 states. The Superior Court of Los Angeles County consists of twelve
judicial districts and 59 court buildings located throughout the county. Based on this
population and the amount of business transacted in the county, the Civil Division of the
Superior Court of Los Angeles County is one of the largest and busiest in the country.
Approximately 50 judges work in the regular civil division of the Superior Court and six
judges are assigned to the pilot program, which is located on separate floors in a large
county building northwest of downtown. The NCSC conducted interviews with Judge
Carolyn Kuhl, the supervising judge of the pilot program; Judge Gary Klausner,
supervising judge for the Civil Division; and, in a group setting, with all of the
participating pilot program judges.
Because of the decentralized nature of the Superior Court of Los Angeles County,
the case assignment process for the pilot program in Los Angeles differs dramatically
from the other pilot sites. All class action cases are filed in the downtown Los Angeles
division. They are initially identified as complex based on information on the Civil Case
Cover Sheet and are immediately assigned to the pilot program. Complex cases filed in
one of the other 12 judicial districts in the county are assigned to a civil court judge who
reviews the case approximately 30 to 60 days after filing and has the discretion to either
19
retain the case in the district or refer it to the pilot program for case management
purposes. Court officials estimated that two-thirds of the cases referred to the pilot
program from the judicial districts are ultimately determined to be complex. Those cases
that are determined to be not complex are sent back to the judicial districts for
reassignment on the regular civil docket.
The supervising judge for the pilot program reviews new cases referred from the
regular civil departments for eligibility in the pilot program and coordinates the case
assignments of five other judges working in the court. The assistant assignment judge
reviews the class action cases. Cases are assigned to judges on a rotating basis. When a
judge appears to have too many active cases assigned or too many cases going to trial,
they may request to be taken off of the assignment wheel for a time in order to balance
the workload, which averages 40 to 60 active case groupings at any given time.25 As an
example of the unique methods used by the Court to balance caseload and assignment,
the supervising judge described six complex case groupings involving insurance claims
on earthquake damage that included nearly 2,000 separate cases. Cases were assigned to
each of the six judges based on the litigants’ insurance carriers. Each of five judges was
assigned all those cases filed against one of the five major carriers, while the sixth took a
mix of other, non-major carrier suits.
Three to five weeks after a complex case has been accepted and assigned, the first
case management conference is held. The six pilot judges have developed and use
standard forms, such as a case management order and trial readiness orders, for case
management purposes. The pilot judges in Los Angeles use the case management
conferences in a unique manner, giving lawyers “homework assignments” including
expectations to report progress and completion of tasks to the court.
The pilot program relies on the superior court’s existing Sustain case processing
system to process and track actions in cases. As papers are filed in the clerk’s office,
papers are entered into the file jackets in chronological order. This practice poses
problems for the pilot judges and court staff when filing information needs to be located
in the courtroom during hearings or trials. Court officials believe this “hunt for papers”
can be alleviated by the use of imaging and eventually through electronic filing.
Each judge has a 4-member staff consisting of a research attorney, court reporter,
judicial clerk, and courtroom assistant/calendar specialist. As a matter of practice, the
pilot judges do not favor the use of referees to resolve issues or to help settle cases, which
they believe hinders their ability to control the pace of litigation, encourages the use of
continuances, and increases the cost of discovery to parties. Their preferred style is
proactive management of cases and judicial control of timelines, which promote a sense
of certainty and predictability for lawyers. The judges also encouraged the use of
mediation. According to those interviewed, it is this combination of techniques that
results in settlement for the vast majority of complex litigation cases.
25
Complex cases in the Superior Court of Los Angeles County are identified for case management
purposes as groups of related cases. Consequently, the number of individual cases that may be related to
the group is much larger.
20
The number of weeks in trial for the pilot judges in Los Angeles averages two to
three weeks per year. Judges in Los Angeles reported that the pilot program has resulted
in fewer appeals being filed. They also believe that appeals are packaged more uniformly
and provide appellate judges information in a more understandable and organized form,
thus saving decision-making time and money.
In the area of training, judges stated that there was benefit to the semi-annual
meetings that had been held for complex litigation judges and for the most part they were
self-trained. They acknowledged that judges that are new to the pilot program bench
need a thorough orientation to the pilot programs and training in the various techniques
that have been developed by other complex litigation judges to manage cases. It was also
recognized that court staff had a difficult job processing and keeping track of the many
filings and timeframes associated with complex cases and needed more training in
organization, time management and computer skills.
21
similar caseload compositions,28 staffing and other resources. Several of the judges
expressed interest in participating in a workload assessment that would determine an
appropriate caseload size and help each of the pilot sites make the most efficient use of
resources without compromising the quality of judicial decision making and management
that has become the hallmark of the pilot programs.
The final issue was the future direction of technological support for the pilot
programs. Although several of the courts invested substantially in courtroom technology,
actual bench or jury trials in complex cases are rare occurrences. The vast majority of
cases are disposed through settlement negotiations. The more pressing need is for case
management technology that will permit the pilot judges and their staff to monitor case
progress more accurately, organize court documents (motions, briefs, documentary
evidence) more coherently, and communicate with multiple attorneys and parties more
effectively. Only Orange County currently employs imaging technology on a routine
basis and none of the pilot courts have advanced e-filing beyond an experimental and
small-scale basis, but both of these technologies would enhance the productivity of the
pilot courts. More aggressive use of Web-based case management systems would
likewise be a benefit in complex case management.
allegations and causes of action, and collections of uniquely-identified cases involving similar parties or
causes of action (e.g., the “clergy” cases filed against the Los Angeles Diocese).
28
Orange and Contra Costa Counties had larger concentrations of construction defect cases than the other
sites. In most other respects, however, all of the sites had similar ratios of provisionally and non-
provisionally complex cases.
22
PART 3 – INTERVIEWS WITH JUDGES AND ATTORNEYS
The second methodological approach employed in the evaluation consisted of two
rounds of in-depth telephone interviews with pilot program judges and attorneys.29 The
first round of interviews were conducted between April and July 2000 – after the
implementation of the pilot program in most courts, but well before the judges and
attorneys had become deeply involved in cases assigned to the program.30 The second
round of interviews was conducted with attorneys who had recent experience in cases
assigned to the pilot program.31 These interviews, which took place in April through
July, 2002, focused on the major issues that had been identified in the first round of
interviews to determine the extent to which the pilot program had addressed them. The
interviewers also solicited the judges’ and attorneys’ suggestions for ways to improve the
handling of complex cases in California courts. The second round of interviews with
pilot program judges was conducted as part of the pilot program documentation in
conjunction with the site visits in July 2002. Because so many of the questions in the
second round of interviews dealt with how pilot program judges actually approached the
task of complex case management in their respective courts, their responses were
incorporated in the discussion in Part 2 of this report.
The NCSC considered this subjective component of the evaluation to be critical
from the very beginning of the project. First, it was important to help the NCSC identify
specific issues and opinions about complex case management practices in California
before the existence of the pilot program. This information was used not only as a
baseline with which to compare interview responses before and after implementation of
the pilot program, but also to develop tentative theories about complex civil litigation and
measures for the empirical component of the evaluation. The first round of interviews
also documented the pilot program judges’ initial expectations about various case
management techniques they planned to utilize in their respective courts for comparison
with what was actually done. Finally, the second round of interviews with attorneys
provided valuable insights about the pilot program performance – in essence, putting
much needed flesh on the bones of the pilot program documentation and empirical
examination.
There was tremendous consensus in the first round of interviews that the master
calendar system and, to slightly lesser extent, inappropriate appointment of referees were
the two most significant problems associated with complex case processing in California
29
The NCSC also attempted to interview litigants in complex cases to assess their views, but was unable to
identify a sufficient number of litigants to participate in the interviews. See Appendix A for a detailed
discussion.
30
The judges interviewed for this task were all of the judges participating in the pilot program at that time.
The attorneys interviewed included individuals referred by the pilot program judges and key leaders from
the Association of Business Trial Lawyers, the Association of Defense Counsel, the American Board of
Trial Advocates, Consumer Attorneys of California, Trials Lawyers for Public Justice, and the American
Corporate Counsel Association. Most of the interviewed attorneys had substantial experience in complex
litigation and a sizable proportion had litigated at least one complex case before the referring pilot program
judge.
31
Second interviews were also conducted with the pilot judges during on-site visits, which are reported in
Part 2.
23
prior to implementation of the pilot program. The master calendar system was criticized
for involving too many judges with too little experience in the pretrial phase of complex
case management, thus introducing unpredictability in decision making and diffusing
judicial accountability for effective case management. Dissatisfaction with referee
appointments focused on the compensation structure for referees, which was alleged to
contribute to case delay and excessive costs, particularly in combination with inadequate
judicial supervision of and direction for referee activities. The second round of
interviews revealed that both of these issues were addressed satisfactorily by the pilot
program. The overwhelming consensus of attorneys in the second round of interviews
was that the pilot judges understood the legal and evidentiary issues, managed the cases
expeditiously, and restricted referee appointments to appropriate cases.
Both rounds of interviews with attorneys posed some methodological difficulties
that may limit the generalizations that can be drawn. See Appendix A for a detailed
discussion of methodological limitations. Nevertheless, there was sufficient consistency
in the responses that the NCSC believes that they are a valid reflection of the general
views of those attorneys who are familiar with the issues and problems related to
complex litigation management. The following discussion summarizes the protocols
developed for conducting both sets of interviews, a general description of the judges and
lawyers who participated in those interviews, and findings and conclusions from this
component of the evaluation.
24
dealt with the management of complex cases, the role of special masters, and judicial
competency in complex case management.
Most of the interviewed judges were from Orange and Los Angeles Counties, and
the attorney population fell along similar lines. See Table 3.1. Interviewers did not
specifically ask attorneys if they typically represented plaintiffs or defendants, and less
than half of the interviewed attorneys provided this detail. Of the attorneys who divulged
their practice type, over two-thirds were plaintiff attorneys and slightly under a third were
defendant attorneys.
Table 3.1:
Pre-Program Interviews
Alameda 1 1
Contra Costa 1 9
Los Angeles 6 16
Orange 4 28
San Francisco 1 6
Santa Clara 1 3
San Diego - 1
Total 14 64
Interviewers asked the attorneys about their complex law practices, and three
areas emerged as the most common practice types. Construction defect was the most
common practice area (37% of interviewed attorneys), followed by insurance coverage
(16%) and class action lawsuits (11%). Most construction defect attorneys were located
in Orange County, while the majority of attorneys specializing in insurance coverage
cases tended to practice in Los Angeles. The other areas of complex law specialization
included business litigation, patent and technology cases, eminent domain, and unfair
competition cases. The majority of attorneys practicing in eminent domain law resided in
Orange County, while most patent and technology specialists practiced in Northern
California. It was not clear from the interviews whether these practice concentrations
resulted from specific clusters of specializing attorneys or whether the method of
interview referrals caused these practice groupings to occur.
25
round of interviews. To survey attorneys who had first-hand experience with the pilot
program, the NCSC used the database of complex cases that was compiled as part of the
empirical evaluation (see Part 4) and selected 100 disposed cases.32 A weighted sampling
technique was used. All 20 completely disposed cases that were initially filed after the
inception of the pilot program were selected. The NCSC then randomly selected 40 cases
retained by the pilot program judges at the beginning of the pilot program and 40 cases
transferred from non-pilot judges at the beginning of the pilot program. Participating
pilot sites were asked to provide the names and contact information of the lead attorneys
on each side of the case.
Due to sampling and response rate issues, NCSC staff ultimately conducted
interviews with 36 attorneys (an overall response rate of 21%). Of the original sample of
attorneys, the NCSC had the most success identifying, locating and securing the
cooperation of attorneys from cases filed in Contra Costa County (34% response rate).
The response rate for attorneys in Orange County were the second highest at 18%,
followed by Los Angeles (13%) and San Francisco (8%). Consequently, attorneys in
Orange and Contra Costa Counties account for nearly 90% of the interviews. See Table
3.2.
Table 3.2:
Post-Program Interviews
Counties Attorneys
Orange 17
Contra Costa 15
Los Angeles 3
San Francisco 1
Total 36
As noted above, the NCSC staff also conducted a second round of interviews with
pilot program judges in conjunction with site visits to document how the pilot program
was implemented in each court. Individual interviews took place with the pilot program
judge in the Superior Courts of Alameda, Contra Costa, San Francisco, and Santa Clara
Counties, and with the supervising judges of the pilot programs in the Superior Courts of
Los Angeles and Orange Counties. Group interviews were conducted with the remaining
pilot program judges in Los Angeles and Orange Counties. Summaries of those
interviews have been incorporated into Part 2 of this report.
32
The sample was drawn only from disposed cases for two reasons: to ensure that the attorneys
experienced the Pilot Program through the end of the case, and to increase the likelihood of candid answers
from the attorneys about their experience under the Pilot Program, which might be compromised if cases
were still under active supervision by the pilot program judges.
26
Findings
From the first round of interviews, the NCSC found that the master calendar
system of case assignment and the role of referees in complex case management both
contributed to attorney dissatisfaction with complex case management in many areas of
the state. The following section describes these issues in detail.
Master Calendar versus Individual Calendar Systems
In the first round of interviews, use of a master calendar system was identified as
the single most significant obstacle to effective complex case management in California,
from which all other issues and problems arose. Under a master calendar system, civil
cases are not assigned to a judge until they reach trial. Thus, during the pretrial phase, all
motions and other pre-trial matters are randomly assigned to a fixed panel of judges
designated to hear specific discovery and law and motion issues. No single judge has
primary responsibility for managing these cases from initial filing to resolution. Instead,
multiple judges hear motions, discovery disputes, and other pretrial matters.
A variety of issues were reported to result from the use of the master calendar
system. These include the lack of a single point of judicial accountability for case
supervision, insufficient judicial involvement in pretrial management (e.g., identifying
and resolving key legal issues and creating a discovery plan) of complex cases, and lack
of judicial knowledge about and experience in specific areas of substantive law. In the
first round of interviews, the master calendar system was also criticized for involving
judges who lack either the experience or skills to engage in effective case supervision.
The pilot program, of course, mandates the use of an individual calendar system.33
Thus, on the surface, it appears to solve the problems associated with master calendar
systems. Nevertheless, it is useful to discuss the alleged shortcomings of the master
calendar system and to examine the extent to which an individual calendar system
actually addresses those problems.
In the first round of interviews, judges and attorneys were asked whether they
agreed with the statement that too many judges in their respective courts are involved in
the pretrial management of complex litigation. Most judges thought that the lack of
single judicial assignment in the master calendar system presented a serious problem in
complex case management. Of the ten non-Orange County judges, all either agreed or
strongly agreed with the statement that too many judges are involved in the pre-trial
management of complex litigation. However, the Orange County judges, reflecting their
experience with a single judge assignment system, disagreed strongly with the statement
that too many judges were involved in complex cases.
33
Issues associated with the master calendar system did not, for the most part, apply to the Orange County
Superior Court, which instituted a single assignment complex court panel in 1991. For this reason, Orange
County has been analyzed separately in the section dealing with the general opinions of attorneys and
judges. In addition, despite the prevalence of a master calendar system, some complex cases were assigned
to a single judge in the non-Orange county trial courts. In order to take into account instances where
complex cases were assigned to one judge, questions about recently litigated cases have been separated into
two sets: those whose cases were assigned to one judge and those whose cases were managed under a
master calendar system. This section also distinguishes general from case specific opinions where
appropriate.
27
Similarly, the majority of attorneys outside of Orange County thought that the
master calendar system presented serious problems for competent complex case
management. Nearly 62% of the interviewed attorneys either agreed or strongly agreed
with the statement that too many judges were drawn into the pre-trial aspects of complex
litigation. Some attorneys argued that this system forces the parties to educate new
judges about a case’s particulars throughout the lifetime of the case, needlessly
prolonging complex cases. Other attorneys stated that the master calendar system
brought about inconsistencies, disorganization, and confusion in the processing of
complex cases. One attorney described the system as an “inane” way to process complex
cases.
Not all attorneys outside Orange County, however, felt negatively about the
master calendar system. Some commented that their cases were so complicated that it
did not matter whether one or several judges handled the case. Other attorneys stated that
a master calendar system sometimes worked to their advantage because eventually they
would be assigned a judge better qualified at handling complex cases. This is perhaps a
cynical view that reiterates a general consensus that most civil division judges are not
particularly well-qualified to manage complex litigation, so random assignment to
multiple judges throughout the pendency of the case can only improve the odds of
appearing before a qualified judge at least once.
Among the attorneys in Orange County, most expressed approval for the Orange
County’s system of single assignment. One attorney called the Superior Court of Orange
County a “gem” and contrasted it to Los Angeles where judges often allow attorneys to
“churn cases” and keep them “going in all directions.” Another Orange County attorney
commented that cases litigated in Orange County were treated as the federal courts
handle them. Seventy-two percent (72%) of the Orange County attorneys disagreed with
the statement that too many judges were involved in complex litigation.
Another major criticism of the master calendar system by judges and attorneys
was that it interferes with the ability of judges to engage in substantial pretrial
management and supervision of complex cases. Among the non-Orange County judges,
most believed that judges generally did not spend nearly enough time on complex case
management before implementation of the pilot program. The civil calendars, which
generally consisted of 300 to 400 general civil cases, precluded judges from spending
significant amounts of time on complex litigation. Indeed, because accountability for
case management is diffused among multiple judges in a master calendar system, judges
had little incentive to become involved in pretrial activities beyond those specifically
requested by the parties (e.g., discovery motions).
As an indicator of the comparative benefits of an individual calendar system, the
judges in the Superior Court of Orange County had more positive views on the levels of
judicial involvement. The judges in Orange County commented that they had the time
and resources to give these cases sufficient attention. But one of the judges argued that
the amount of judicial involvement in pretrial management was related more to the type
of case than to overwhelming caseloads or general lack of resources. According to this
judge, construction defect cases require little attention because the attorneys who handle
these types of cases generally have been working with each other for an extended period
of time. In other types of complex cases – business litigation, for example – the attorneys
28
may not have known or worked with each other previously, necessitating more judicial
involvement and supervision.
In both rounds of interviews, attorneys were asked to comment about several
aspects of judicial involvement in cases that they had recently litigated, such as status
conferences, court accessibility, and judicial enforcement of established case
management deadlines. In the first round of interviews, attorneys whose cases were
managed under a master calendar system expressed neutral or negative views regarding
the levels of judicial involvement for each of these components.34 Only 27% indicated
that judges frequently held status conferences to keep up with these cases, while the
remaining attorneys stated that judges would sometimes (40%) or never (33%) hold
status conferences.
Attorneys in the second round of interviews, in contrast, reported much higher
levels of judicial supervision of complex cases. These attorneys had cases recently
resolved through the pilot program. All but two of the attorneys indicated having status
conferences at least once every four months, and all reported having at least one status
conference at some time during the pendency of the case. Half had conferences every
three months, and over one-quarter (28%) had conferences every two months. Another
13% had status conferences on a monthly basis.
Similar contrasts could be found in attorney views about the degree of court
accessibility in the first round and second round interviews. In the first round of
interviews, slightly over half (53%) reported that the courts were not accessible in
complex cases that they had recently litigated. Among the remaining attorneys, only
18% reported that courts were regularly accessible and 23% indicated that they were
somewhat accessible. Among attorneys in the second round of interviews, over 90%
reported that the judge was accessible and helpful, with 76% indicating that the judges
were very accessible and helpful. Only two attorneys reported that the judge was not
very accessible and helpful. When asked whether the judge required compliance with
case management deadlines, over half (53%) of the attorneys from the first round of
interviews claimed that the judges rarely if ever enforced case management deadlines
compared to only 12% of attorneys in the second round of interviews.
During the preliminary interviews,35 the master calendar system – and, to a lesser
extent, the individual calendar system – was faulted for assigning complex case
responsibility to judges who lack expertise in substantive law and case management
techniques. Moreover, many lawyers criticized judges for lacking interest in business or
commercial litigation and for being unwilling to spend the necessary time and attention
on complex cases. In the first round of interviews, attorneys were asked to give their
34
In comparison, attorneys in the first round of interviews whose cases were assigned to a single judge for
pretrial management had more positive views about the level of judicial involvement. Ninety percent
(90%) of the attorneys reported that the judge regularly (45%) or sometimes (45%) held status conferences,
and only 11% said that status conferences were never held. Similar reports were given about court
accessibility. Over half reported that the courts were very accessible (51%) and that the judge enforced
case management deadlines (55%).
35
Recall that the NCSC conducted a number of preliminary interviews to develop the protocols for the first
round of interviews.
29
opinions on the matter of judicial competency in complex litigation in their respective
courts. The pilot program judges were also asked to assess the level of competence in
complex case management of their judicial colleagues in their respective jurisdictions.
There was a striking difference of opinion between the Orange County judges and
non-Orange County judges, due presumably to the different calendar systems for
complex litigation. The Orange County judges strongly agreed that their judicial
colleagues had sufficient knowledge about complex commercial law and sufficient
experience in complex litigation, while the Los Angeles and northern California judges
disagreed.36 See Figure 3.1.37 Although attorney opinions on this topic also varied a
great deal, the geographic difference was much less dramatic. See Figure 3.2. In fact,
there was no significant difference in attorney opinions with respect to judges’
substantive knowledge and a much less pronounced difference with respect to judges’
experience in complex case management.38
10 8.7
Mean level of agreement
8 7.3
6
3.7
4 2.7
1.5
2 1.0
0
Orange County Los Angeles Northern California
36
It is not clear whether the Orange County judges were rating all Superior Court judges or only those
assigned the complex litigation calendar.
37
Knowledge of law F (2, 10) = 7.093, p = .012; Experience in complex litigation F (2, 11) = 31.167, p <
.001.
38
Knowledge of law F (2, 60) = 1.699, ns; Experience in complex litigation F (2, 61) = 4.460, p < .016.
30
Figure 3.2: Attorneys' Assesment of Judicial Competence in
Complex Litigation
10
Mean level of agreement
8
6 4.5
3.8 3.4
4 3.0
2.4 2.2
2
0
Orange County Los Angeles Northern California
When attorneys were asked about judicial knowledge of the facts and law in a
recently litigated case, however, there was a strong correlation between attorney ratings
of judicial understanding and the calendar system under which the case was managed.
See Figure 3.3. For cases assigned to a single judge, the vast majority of attorneys (80%)
reported that the judge understood the case very well and only 11% indicated
dissatisfaction with judicial comprehension. For cases managed under a master calendar
system, however, over 40% reported that the judges involved in those cases had little or
no understanding and only a third reported good judicial comprehension of the case.
100%
80%
80%
60%
35% 41%
40%
24%
20% 9% 11%
0%
Very Well Moderately Well Not at all well
Did implementation of the pilot program continue the high regard for judicial
competence that was found for cases assigned to an individual calendar? The answer is a
resounding “yes”. In the second round of interviews, 95% of attorneys rated judicial
understanding of the issues as well, and 80% rated it very well. In fact, only two
attorneys rated judicial competence as average or lower. There was no appreciable
31
difference among the sites for this measure.39 The judge’s prior case experience was the
reason most commonly cited by attorneys for these ratings. Another 11% credited the
fact that the judge had sufficient time to manage the case, which in turn provided
opportunities for the pilot judges to focus the parties on key issues in dispute. For
example, 88% of the attorneys reported that the judge was helpful with clarifying the
issues of the case, and 76% said the judge was very helpful.
Delay in case processing and resolution was reported as a serious problem in
complex litigation in the first round of interviews. Use of a master calendar system and
over-reliance on referees were cited as the most prominent factors contributing to delay
in complex cases. Judges and attorneys reported that as a result of the referee
appointment system, judges often gave their complex cases less attention and rarely
attempted to impose tight deadlines or manage these cases in a way that discouraged
delay. Instead of closely supervising these cases, judges were reported to delegate case
management duties to referees. Referees were reported to have little incentive to handle
cases expeditiously because their compensation was based on the amount of time they
spend managing the parties through discovery. Furthermore, referees could not afford to
alienate the parties by appearing to favor either side. These factors combine to produce
significant delay, and it was reportedly not uncommon for cases to languish for years
before finally being resolved.
Delay is also prevalent when complex cases reach the trial stage. A sizable
number of attorneys (38%) indicated that their most recently litigated complex case went
to trial, and delay was an issue in 44% of these cases.40 According to attorneys in the
first round of interviews, many judges fail to supervise and adequately tackle complicated
legal issues before trial and these unresolved legal and factual issues cause significant
postponements. One attorney remarked about a judge who put off resolving issues until
the case actually went to trial. This attorney claimed that the “judge literally went into
the case blind” and had to delay the case on numerous occasions in order to resolve a
variety of legal issues. Other attorneys complained about the postponements arising from
evidentiary issues that should have been decided before trial.
In contrast to attorneys in the first round interviews, those that participated in the
second round of interviews overwhelmingly (97%) reported that the case was managed
expeditiously, and apparently without sacrificing time for conducting meaningful
discovery. Interestingly, the attorneys were split in terms the degree of judicial
involvement in pilot program cases compared to complex cases not assigned to the pilot
program. Just over half (53%) said there was more judicial involvement in pilot program
cases, but another 43% said it was about the same as other cases. One respondent
thought there was less judicial involvement in his pilot program case that in non-program
cases.
39
Chi-Square (d.f. 4) = 6.531, ns.
40
The proportion of attorneys who reported trial experience is extremely high given the low trial rates in
civil litigation. Presumably this occurred because these attorneys were initially identified by the pilot
judges as those who were known to have substantial experience in complex litigation. It is reasonable to
assume that the pilot judges identified those attorneys with whom they had the most interaction in complex
cases – namely, those whose cases proceeded to trial.
32
The Role of Referees in Complex Litigation
Another area of concern identified in the first round of interviews was the role of
referees in complex litigation. Some judges and attorneys thought highly of the referees,
while others possessed a dim view.
Judicial preferences and case type influenced the utilization of referees among the
pilot judges in the first round of interviews. Some judges tended to appoint referees in a
large proportion of their complex cases, while others used them sparingly. Several of the
pilot judges indicated that referee use depended upon the case type (e.g., more frequently
in construction defect cases, but rarely in eminent domain or trade secrets cases). The
role of the referee, according to the pilot judges, was to oversee discovery and manage
the routine aspects of complex case management. Referees also helped judges resolve
technical issues in construction defect cases. Many construction defect cases involved
engineering issues dealing with building quality, and referees were often needed to help
the court decide these matters effectively.
Another possible difference in judges’ reliance on referees may have been
individual preferences for engaging in detailed supervision of pretrial case management.
Although the first-round interview questions did not specifically focus on this topic, there
was a clear difference of opinion among many of the judges interviewed concerning their
interest and willingness to become involved in resolving discovery disputes or in
organizing large volumes of evidence and testimony. Some judges expressed the belief
that these types of activities were quintessentially judicial in nature and should not be
delegated. Others believed that detailed case management was best left to the parties
with the assistance of a referee.
The judges in the first-round of interviews held a variety of opinions about
referees. Some judges thought that referees brought an important level of management
and knowledge expertise to complex case litigation. One judge commented that their
court was “very lucky” to have referees with the knowledge and capability to help in the
management of complex cases. Others argued that referees were crucial in preventing the
court from getting too involved in time-consuming discovery disputes. But other, judges
expressed reservations about employing referees. For example, they objected to the delay
associated with using referees. Nearly one-third of the judges thought that referees
lacked incentives to encourage early case resolution. They specifically cited referee pay
structure, in which compensation is based on the amount of time spent working on a case,
as an incentive for needless delay of complex cases. The judges also cited the referees’
need for maintaining the goodwill of all parties as another problem in complex litigation.
If a referee ruled against one party too frequently, that party would be unlikely to use that
particular referee in the future. According to the judges, fear of losing future business
often resulted in drawn-out discovery and a propensity to shy away from immediate
resolution of otherwise solvable disputes.
Finally, some judges indicated that they did not often have time to adequately
supervise the referee’s work. Approximately two-thirds of the judges agreed with the
following statement: “Some judges lack the time and resources to adequately supervise
the work of referees.” Lastly, judges expressed concerns about delegating what they
considered a public responsibility into the private arena.
33
The attorneys in the first round of interviews indicated that referees were used
frequently in complex cases they handled. Approximately two-thirds of the attorneys
specified that a referee was assigned in complex cases they had recently litigated.
According to the attorneys, the parties made the referee selection in 80% of the complex
caseloads. A minority of complex cases involved referees chosen by the judge from a list
of names submitted by the parties. Only on a very few occasions did the judge choose a
referee without input from the parties involved in the case. Referees tended to manage
only discovery or discovery and mediation. There were few instances in which a referee
was appointed only to mediate a case.
The attorneys in the first round of interviews likewise held a range of differing
views regarding the role for referees. They claimed a variety of benefits from utilizing
referees, one of the most important of which was the time referees are able to devote to
complex case discovery. According to the attorneys, complex cases are often
characterized by a large amount of detailed discovery that courts simply do not have time
to oversee. The attorneys argued that referees are advantageous because they have the
“time, motivation, and resources” to delve into the “minutia” of complex case discovery.
The attorneys also commented that the informal and expeditious nature of referee
oversight provides another advantage for using these private judges. Finally, many
attorneys claimed that referees bring a high degree of informality to discovery disputes;
they often settle conflicts between parties over the phone and they usually are amenable
to hearing discovery conflicts without the need for extended notice. In contrast,
discovery disputes brought before the court require more extensive briefing and usually
are not heard until several months after filing. Several attorneys mentioned that referees
are also sought for their expertise in insurance coverage and construction defect issues.
Lastly, some attorneys argued that referees played a key role in bringing complex cases
to settlement. The referees had the time and resources to engage in settlement options
that the trial judges lacked.
The attorneys also expressed a variety of reservations about referees. One
prominent complaint involved the amount of time referees spend resolving discovery and
other pretrial related disputes. Almost half (44%) of the attorneys thought that referees
lack incentives to limit discovery or to encourage early case settlement. According to
one attorney, it was not uncommon for referees to prolong pretrial proceedings needlessly
so that hearings, which normally took half an hour, would last up to 4 or 5 hours. The
attorneys cited the referee compensation system as a key factor contributing to this
pretrial delay problem. Another issue concerned the inclination among many referees to
“split the baby”, a phrase describing occasions when a referee refuses to consistently rule
in a party’s favor, even when one party acts unreasonably or is legally wrong. Rather
than doing so, referees were reported to issue favorable findings for one party and then
rule for the other party on the next occasion. Another attorney claimed that referees
would “split the difference” –making compromise rulings that favored neither party – as
a way to maintain good relations with both parties to insure future business.
Attorneys also claimed that over-reliance on referees contributes to the lack of
judicial involvement in complex cases. Seventy-one percent of the attorneys indicated
that judges did not have the time or resources to adequately supervise the work of
referees. The attorneys commented that this situation often results in judges who lack any
34
understanding of the case and who are unable to impose their own decisions on these
cases. A final cited drawback was the expense of employing referees. Special masters
are expensive; according to some attorneys, it is common to pay referees $300-$400 an
hour.
There were some site differences in attorney views of the use of referees, with
attorneys in Orange County having somewhat more favorable views than in the other
sites. See Figure 3.4. Attorneys practicing in Los Angeles and in the four Northern
California sites were more likely to agree with statements that referees lack incentives to
limit discovery and encourage settlement than attorneys practicing in Orange County.41
Attorneys in all jurisdictions agreed that judges lack the time and resources to supervise
referees effectively, although this was not quite as pronounced in Orange County
compared to the other sites. Attitudes toward the use of referees in complex litigation
may be a reflection of local legal culture. It is also likely to be a byproduct of the master
calendar system that would encourage excessive or inappropriate use of referees in
certain types of cases. That is, judges may be more inclined to appoint a referee to
manage discovery and other pretrial matters to compensate for the relative lack of judicial
oversight that is possible in the framework of a master calendar system. In contrast, an
individual calendar system provides a framework in which the assistance of a referee may
be less necessary and the activities of the referee can be more closely supervised.
10
7.5 7.5
8 6.23 6.06
5.46
6 4.28
4
2
0
Los Angeles Orange No. California
41
F (2, 75) = 3.083, p = .052.
42
This was consistent with the data collected in the empirical examination. See Part 4. Note, however, that
only four of the pilot sites were represented in the second round of attorney interviews, and in two of the
35
role of the referee was to manage the discovery process. In the remaining third (32%),
the referee oversaw settlement negotiations.
Attorneys in the second round of interviews reiterated many of the previous
observations about the advantages and disadvantages of referees. Cost was the most
frequently cited disadvantage (28%),43 followed by the observation that decisions by the
referee are not final and can be appealed to the judge (17%). Other reported
disadvantages were that the referees are too busy and cause delays, that people with the
authority to settle the case do not always attend settlement negotiations because the judge
is not there (6%), that the referee does not enforce deadlines (6%), and that referees take
more time than a judge (6%). Compared to the first round of interviews, however, these
types of disadvantages seem to be a much less prevalent concern by the attorneys. It is
important to note also that 28% of the attorneys reported no disadvantages to having a
referee assigned to the case.
Disadvantages notwithstanding, a substantial majority (72%) of the attorneys felt
that the appointment of a referee was appropriate and rated their satisfaction with the
referee at an 8 or higher on a 10-point scale. See Table 3.3.44 Only two reported ratings
at a 5 or below. These high ranks may be a reflection of more effective judicial
supervision over the activities of referees, may indicate that their use was limited to
appropriate cases, or be a more general approval for the use of referees in complex cases
in Orange and Contra Costa Counties.
sites this representation was marginal, at best. Site differences, therefore, might also be a function of the
small sample size rather than an actual difference in court practices.
43
In 79% of cases, the parties paid the referee fees, whereas in 11% of cases, the court paid for the service
and the remaining 10% the services were paid by the county or were reported as being provided for free.
44
Note that Table 3.3 excludes responses from attorneys whose cases did not involve a referee appointment
as well as those that did not respond to the question.
36
Table 3.3:
Attorney Satisfaction with Referee
Score N % Cum %
1 0 0.0% 0.0%
2 0 0.0% 0.0%
3 1 5.6% 5.6%
4 0 0.0% 5.6%
5 1 5.6% 11.1%
6 2 11.1% 22.2%
7 1 5.6% 27.8%
8 9 50.0% 77.8%
9 3 16.7% 94.4%
10 1 5.6% 100.0%
Total 18 100.0%
45
This was particularly a problem under the master calendar system where significant disruptions would
occur in trial calendars if a complex case actually went to trial.
37
Attorney Comparisons of Case Processing Characteristics
In addition to comparing attorney responses in the first and second rounds of
interviews, the NCSC also asked attorneys in the second round of interviews to comment
on their experience with cases in the pilot program compared to recent complex cases that
were not assigned to the pilot program. In general, responses to these questions were
mixed at every stage of the litigation process. See Table 3.4. Although only a handful of
attorneys reported that cases assigned to the pilot program were managed less efficiently
than cases assigned to non-pilot courts, nearly two-thirds (63%) did not report an
appreciable difference.
Table 3.4:
Compared to non-pilot cases, attorneys rated cases assigned to pilot program as…
38
Table 3.5:
Compared to non-pilot cases, what did the judge do differently to
facilitate the discovery process?
N %
Nothing 10 38.5
Was more involved 5 19.2
Set a discovery plan 4 15.4
Appointed referee/discovery referee 3 11.5
Did not micromanage the case 2 7.7
Was more lenient with deadlines 1 3.8
Made advisory rulings early in the process 1 3.8
Total 26 100.0
Nevertheless, the attorneys were divided on their ratings of the case management
techniques employed during discovery. 70% said the case management techniques
expedited a resolution and 67% said they improved quality, but only half said they
reduced costs.
39
assigned to the pilot program received individual attention from judges who are, by all
accounts, experienced, knowledgeable, and genuinely interested in complex litigation.
Moreover, these judges have a caseload that is sufficiently reduced to permit them the
relative luxury to engage in substantial supervision and involvement in pretrial case
management activities. The overwhelming consensus of attorneys in the second round of
interviews was that the pilot judges understood the legal and evidentiary issues, set
reasonable time limits on discovery, were accessible and helpful in keeping the cases
moving forward toward resolution, enforced case deadlines, and managed the cases
expeditiously.
With respect to issues concerning excessive or inappropriate use of referees, there
was also improvement over the first round of interviews. The proportion of attorneys
reporting the use of a referee reduced substantially from 80% in the first round interviews
to 53% in the second round interviews. Moreover, the general consensus was that
appointment of a referee was appropriate, and the participation of a referee did not tend to
diminish the effectiveness of judicial case management. Methodological concerns
suggest caution in relying too heavily on these findings, however. The sample is fairly
small and a significant proportion of attorneys participating in the second round
interviews were from Orange County, where attorney views of referees were generally
more favorable than in other jurisdictions. See Appendix A.
Attorneys in the second round of interviews also reported fairly high ratings for
judicial case management techniques. Curiously, only about half of these attorneys
reported that specific aspects of case processing were significantly improved compared to
complex cases assigned to non-pilot courts. Again, the apparent improvement may be a
function of the change to an individual calendar system under the supervision of a judge
experienced in complex litigation management, rather than an inherent improvement in
case management techniques. Part 4 turns to the question of whether it is possible to
discern an improvement in case processing through empirical rather than subjective
measures.
40
PART 4 – EMPIRICAL EXAMINATION OF CASE CHARACTERISTICS
IN THE COMPLEX CIVIL LITIGATION PILOT PROGRAM
46
It was clear from the report dates recorded on the data collection forms and by the number of forms
received by the NCSC that many of the pilot courts fell behind on their data collection activities over the
course of the evaluation period, which became particularly problematic in calculating filing-to-disposition
times. A thorough discussion of the complications related to data collection is included in Appendix A.
41
program court provided a Data Form 1, a Data Form 2 and at least one Data Form 3.
Figure 4.1 illustrates the final composition of the pilot dataset.
Final Dataset
1,361 Cases
42
Each case in the final dataset had a minimum of one Data Form 3, but the majority of
cases had at least two, and over 15% reported seven or more. See Figure 4.2. The most
Data Form 3s received on any one case was 22.
10% 7+
15%
11%
47
See Part 2.
48
Assuming that the average assignment-to-disposition time for these cases is 24 months (a relatively
aggressive estimate), the pilot program courts would have cleared between 43 and 54 cases per month over
the 16-month data collection period.
49
Recall from Part 2 that court officials estimated that the average number of active cases assigned to the
Pilot Program at any given time was 100 cases in San Francisco, and between 90 and 120 cases in
Alameda.
43
Table 4.1:
Distribution of Pilot Program Cases, by Site
County n %
To compile a comparable dataset about complex cases from non-pilot courts, the
NCSC proposed a weighted sampling approach in which data from complex cases were
collected in approximately the same geographic area and with the same case type
distribution that was found in early analyses of the pilot program data. The NCSC also
wanted to capture complex cases from both individual calendar and master calendar
courts. Both the NCSC and the California Administrative Office of the Courts
recognized from the beginning of the evaluation that developing a baseline for this type
of evaluation would be extremely difficult in terms of securing a comparable sample of
complex cases. In particular, it was anticipated that it would be difficult to identify
complex cases in non-pilot courts using the standard case management systems currently
in place in the superior courts.
The Superior Court of San Diego County was specifically targeted as a potential
source of baseline data because it operates a complex litigation docket that resembles the
pilot program in place in Orange County, ensuring that a sufficient volume of complex
cases would be easy to identify. The AOC staff surveyed other counties in California to
determine if they could contribute complex cases to the baseline and if those cases could
be easily identified (e.g., by case type or because of specialized treatment by the court).
Finally, the NCSC took a random sample of non-pilot cases from the AOC-maintained
list of coordinated cases, which by definition are complex cases sharing a common
question of law or fact.
These efforts yielded a baseline dataset of 137 complex cases from 19 separate
counties. Almost half of the cases were drawn from the Superior Court of San Diego
County (47.4%). Non-pilot program cases from the Superior Court of Alameda County
accounted for 16.8% of the sample. The remaining counties each contributed fewer than
10 cases each to the dataset.
The baseline dataset consisted of information extracted from case records
designed to mirror the type of data elements provided in the pilot dataset. Because there
was only one opportunity to extract data (instead of the monthly progress reports in the
44
pilot program dataset), the baseline data collection form captured case events and interim
and final dispositions from the initial filing date through June 2002.
In addition to differences in the geographic distribution of cases, there were also
significant differences in the caseload composition of the baseline and pilot datasets. See
Table 4.2. Nearly three-quarters (72.3%) of the baseline dataset consists of case types
defined as “provisionally complex,”50 but only half of the cases in the pilot program
dataset (50.8%) fell into this category. The pilot program dataset has a much greater
concentration of non-provisionally complex cases such as breach of contract/warranty
cases, business tort, eminent domain, and other civil case types.51
50
Provisionally complex cases under Rule 1800 (b) include antitrust or trade regulation claims;
construction defect claims involving many parties or structures; securities claims or investment losses
involving many parties; environmental or toxic tort claims involving many parties; claims involving mass
torts; claims involving class actions; and insurance coverage claims arising out of any of these claims.
CAL. RULES OF COURT, Rule 1800 (b).
51
As discussed in Part 1, different types of cases involve different dimensions of complexity and may
require different types of case management techniques for effective judicial oversight and management.
Nevertheless, it is not clear that case types defined as provisionally complex are inherently more complex
and difficult to manage than other types of complex cases. Consequently, the results of statistical
comparisons of the baseline and pilot program datasets should be interpreted cautiously.
45
Table 4.2:
Case Type Distribution
Pilot Program
Provisionally Complex Cases Baseline Cases Cases
n % n %
One of the original goals in establishing the pilot program was to manage all
forms of complex litigation, not merely commercial litigation.52 Looking at the
breakdown of case types, it appears that the pilot program has also been successful at
meeting this objective. Although one-quarter of the cases can be fairly characterized as
commercial litigation (e.g., securities, antitrust, breach of contract/warranty, and business
tort), over one-third (37.4%) of the cases consist of complex tort actions,53 and the
52
See Part 1.
53
Complex tort cases include construction defect, toxic tort/environmental, mass torts, product liability,
fraud, medical malpractice, professional negligence, and other personal injury/personal damage/wrongful
death cases.
46
remainder could fall into either category. In short, the pilot program has not become a
“boutique” court reserved for the business community, but is available to all litigants who
meet the program’s general eligibility criteria regarding complexity.
Complex Cases Assigned to the Pilot Program
What kinds of cases were ultimately assigned to and accepted into the pilot
program? As a general rule, it appears that the various screening procedures employed
by the pilot program courts were reasonably effective at distinguishing complex cases
from non-complex cases. Half of the final dataset consisted of provisionally complex
cases, which by definition are presumed to be complex unless a judge determines
otherwise after reviewing the initial pleadings. But even by other recognized measures of
complexity, the cases that were retained in the pilot program were fairly complex. For
example, over 80% of the cases in the pilot program dataset had been formally
determined to be complex. See Table 4.3. Only eight cases were retained in the pilot
program despite a formal determination that they were not complex.
Table 4.3
Complexity Determination
Moreover, compared to cases that were excluded from the dataset because of incomplete
case information – that is, Data Forms 2 or 3 that were never submitted – cases in the
dataset were significantly more likely to be provisionally complex under Rule 1800,54
were more likely to be formally determined to be complex,55 and indicated a significantly
higher total number of factors related to complexity on the Civil Case Cover Sheet .56
This suggests that many of the cases that were ultimately excluded from the dataset were
determined to be not complex and were reassigned to the respective courts’ civil division
calendars.
A formal determination of complexity was not known for the remaining portion of
the dataset (“unknown”), in all likelihood because a complexity determination hearing
54
M (Excluded cases) = .44, M (Included cases) = .54, F (1, 2149) = 20.541, p < .001.
55
M (Excluded cases) = .74, M (Included cases) = .99, F (1, 1515) = 135.613, p < .001.
56
M (Excluded cases) = 2.16, M (Included cases) = 2.72, F (1, 2135) = 34.782, p < .001.
47
had not yet been held when this piece of information was collected. Several
characteristics of those cases suggest that they were somewhat less complex than those
that were officially designated as complex. For example, one characteristic of
complexity is the total number of factors related to complexity – and the breakdown of
those factors –indicated on the Civil Case Cover Sheet. See Table 4.4. Cases in which
the complexity determination was unknown indicated fewer total factors related to
complexity on the Civil Case Cover Sheet. Specifically, they were significantly less
likely to involve large numbers of separately represented parties, extensive motion
practice, large amounts of documentary evidence, and large numbers of witnesses. They
were also marginally less likely to be provisionally complex under Rule 1800. Although
there was no statistically measurable difference in the maximum number of plaintiffs,
cases for which the complexity determination was unknown also had significantly fewer
defendants.57
Table 4.4:
Indicia of Complexity
Cases Complexity
Determined to be Determination
Complex Unknown F p-value
*Significant at α = .05
**Significant at α = .10
One interesting feature of the pilot program caseload is how these cases were
assigned to the program and the relative age of the caseload. There were three primary
methods through which cases could be assigned to the pilot program in each court, which
account for 92% of all cases: transfer from another civil division judge (37%), retained
by the pilot judge (26%), or assigned to the program at filing (30%). See Figure 4.3.
57
The statistics for the maximum number of plaintiffs and defendants are based on truncated samples, thus
controlling for highly skewed means due to the handful of cases in which the number of plaintiffs or
defendants exceeded 1,000.
48
Figure 4.3: Timeline for Pilot Cases
Programs Begin
Filed Prior to 2000 (Jan.- April, 2000) Filed After Program Begins
But there were significant variations among the sites, which corresponded to
unique local conditions at the inception of each pilot program. See Table 4.5. Orange
County, which operated a complex civil calendar before the inception of the pilot
program, had the highest proportion of cases retained by the pilot judges. Los Angeles,
San Francisco and Contra Costa Counties, all of which apparently had substantial
complex caseloads prior to the inception of the pilot program, had the highest percentage
of transferred cases from other judges from the civil divisions of their respective courts.58
Table 4.5:
Method of Entry to the Pilot Program, by Site
Other/unknown
Transfer from Retained by Pilot Newly assigned method of entry
another judge (%) Judge (%) case (%) (%)
Site n
58
In Los Angeles, all cases except class action cases originally filed at Central Civil are technically
“transferred” from other judges in the civil division insofar that those judges have the discretion to retain
them for case management purposes if they so choose. For cases filed after April 1, 2000, however, the
transferring judge served primarily as a screening mechanism and did not typically engage in pretrial case
management activities. For the purposes of this evaluation, therefore, cases filed after April 1, 2000 that
were transferred to the pilot program within 120 days of filing were coded as newly assigned cases.
49
The distinction among the various methods of entry to the program is important
for analytical reasons. Preexisting cases that were assigned to the pilot program after its
inception could have been at any stage in the litigation – pleadings, discovery, settlement
negotiations, pretrial, or even post-judgment supervision – when they entered the
program. The effect of the program, therefore, could be minimal or substantial
depending on the amount of pretrial management that had already taken place. Similarly,
most of the pilot judges received a substantially reduced caseload after the inception of
the pilot program, giving them the opportunity to dedicate significantly more time and
attention to their preexisting complex cases.59 Finally, we know that the assignment
policies differ somewhat from site to site.60 Therefore, cases in some courts may
experience a slight delay before substantive case management activities can typically
occur.61 All of these factors affect the relative age of the caseloads in each of the sites.
See Table 4.6. Although less than 5% of the cases were more than 5 years old when the
pilot program was initiated, more than half the caseload did preexist the program.
59
Judges from the complex litigation division of the Superior Court o f Orange County, which was the
precursor to the pilot program in that site, already had a reduced caseload compared to their colleagues in
the civil division. That caseload does not appear to have changed substantially since the inception of the
program.
60
See Part 2.
61
In Los Angeles, for example, the average amount of time between filing and assignment to the pilot
program was 72 days. In addition, 78 cases were transferred from other civil division judges after the
inception of the pilot program in Los Angeles County. On average it took 195 days – over 6 months – from
the original filing date to the transfer date to the pilot program. One case took almost 16 months to
transfer.
50
Table 4.6:
Number of Cases Filed, by Year of Filing
Year n % Cumulative %
62
These include case management orders, initial case management conferences and subsequent status
conferences, and the appointment of referees to oversee discovery. See generally JUDICIAL COUNCIL OF
CALIFORNIA, DESKBOOK ON THE MANAGEMENT OF COMPLEX CIVIL LITIGATION §§ 2.20-2.56 (2000).
51
Case Management Orders
One of the most heavily emphasized recommendations in the Deskbook on the
Management of Complex Civil Litigation is that judges develop and enter a
comprehensive case management order for “the just, speedy, and economical
determination of the litigation.”63 Interestingly, a case management order was only filed
in 30% of the cases. As a general rule, the pilot judges appear to have reserved the use of
case management orders for the more complex cases on their calendars. For example,
provisionally complex cases were significantly more likely to have a case management
order filed (59%) than non-provisionally complex cases (46%).64 Also, the average
number of complexity measures indicated on the Civil Case Cover Sheet was
significantly larger for cases with a case management order (3.1) than those without an
order (2.5).65 This suggests that a large proportion of complex cases assigned to the pilot
program do not necessarily require specialized case management procedures per se, but
instead can be successfully managed using the established case management procedures
for civil litigation with appropriate levels of judicial supervision.
Coordination and Consolidation
Another recommendation is for the formal coordination or consolidation of
related cases.66 Over one-fifth (21.4%) of the cases involved coordination or related
actions, but the majority of those related cases (68.2%) were filed within the same court,
making formal coordination procedures unnecessary.67 Only 15% of those cases were
actually sought to be formally coordinated under Rules 404-404.10 of the California
Rules of Court. Informal coordination appears to be a common tool for the pilot judges,
but it does raise a question about the suitability of existing case management technology
to identify and track the progress of related cases. Anecdotal reports from the courts
suggested that this was an ongoing challenge. The NCSC was unable to identify
“clusters” of related cases in the dataset unless they had been formally coordinated, and
so could not examine the effectiveness of the pilot program when large numbers of
related cases were only informally coordinated.
Appointment of Referees
The first round of interviews68 with judges and attorneys identified over-reliance
on referees for discovery and other pretrial case management activities as a concern for
both judges and lawyers. Overall, the pilot program judges appointed a referee for some
63
Id. at § 2.30[1].
64
F (2,1358) = 9.856, p < .001.
65
F (2, 1358) = 17.790, p < .001.
66
Coordination can be done either formally pursuant to CAL. CODE CIV. PROC. §§ 404-404.10 or
informally by agreement of the parties, counsel, and as necessary, other judges. Consolidation, in contrast,
refers to the formal merging of cases into a single master case for trial purposes. DESKBOOK, supra note
12, at § 2.61[3][b].
67
Other related cases were filed in Superior Court in other counties in California (6.9%), other state courts
(6.8%), and other federal courts (2.7%).
68
See discussion supra, at pp. 32-36.
52
aspect of pretrial management in 20% of the cases, usually for discovery purposes.
Compared to the 80% of attorneys who reported the appointment of a referee in their
complex cases in the first round of interviews, this is a significant drop in usage. Across
all of the sites, pilot program judges were significantly more likely to appoint referees in
provisionally complex cases (73%) compared to non-provisionally complex cases
(44%)69 and in cases exhibiting a larger average number of complexity indicators on the
Civil Case Cover Sheet (3.10 compared to 2.68).70 Construction defect cases were most
likely to have a referee appointed.71
There were, however, striking differences across sites concerning the appointment
of referees. See Table 4.7. The pilot program judges in Orange and Contra Costa
Counties had the highest proportion of referee appointments, both over 25% of their
cases. In contrast, the pilot program judge in San Francisco appointed referees in less
than 15% of his cases, and the pilot program judges in the remaining three sites did so in
less than 10% of their cases.
Table 4.7:
Cases with Referee Appointment
Site n %
69
F (1,1359) = 74.696, p < .001.
70
F (1, 1359) = 15.136, p < .001.
71
Chi Square = 242.031, p < .001.
53
appointments. Apparently, local court culture continues to play a major role in the
referee appointment rate.
Status Conferences and Other Case Management Events
One measure of productivity that was captured in the dataset was the number of
case management activities or “events” that took place during the pendency of the suit.72
The importance of this information is rooted in the tentative hypothesis that frequent
judicial involvement in case management keeps the momentum for moving through
iterations of the complex civil case life cycle – discovery, settlement negotiations, and
interim dispositions on discrete issues or parties – until the case is completely resolved.
The NCSC expected to find a positive correlation between the number of case events, the
number of interim dispositions, and the number of parties dismissed from the suit. By
extension, a direct relationship between the number of case events and both the
proportion of cases completely disposed and the amount of time from filing to disposition
was also expected.
On a global level, the data do appear to support the theory that cases assigned to
the pilot program progress steadily toward final disposition. See Table 4.8. In each
monthly report, court staff indicated the current stage of litigation for the case. From this
information, The NCSC expected to see the aggregate caseload move gradually from the
beginning stages of litigation to more advance stages of litigation during the evaluation
period, which indeed occurred. Of the 897 cases for which there is more than one Data
Form 3,73 nearly two-thirds (64.9%) reported some progress during the evaluation period.
For example, of the 363 cases that began the evaluation period in the pleading phase of
litigation, 286 (79%) had progressed beyond this phase by the end of the evaluation
Almost one-third (32%) had completed discovery and were in the trial readiness/pretrial
phase of litigation. On average, these cases progressed 1.6 phases during the evaluation
period, with phases being pleadings, discovery, settlement negotiations, and post-
discovery/trial readiness.
72
Ongoing discussions with pilot judges and court staff during the evaluation period confirmed that much
of the case activity that takes place in complex case management is relatively informal (e.g., telephone
calls, e-mail correspondence, tentative settlement agreements concerning specific issues or parties) and
may not be memorialized as part of the formal case record. These types of events, although obviously an
important part of complex case management, could not be captured in the data collection instruments
because the court clerks assigned to the pilot programs, who were responsible for completing the monthly
data forms, often are not aware when these events occur. The NCSC strongly suspects, therefore, that the
dataset significantly underreports the amount of case activity that took place during the data collection
period.
73
Two or more Data Form 3s were needed to establish any change in case status.
54
Table 4.8:
Case Status Progress
Within individual cases, the amount of actual case activity appears modest, with
status conferences comprising the bulk of these activities. See Table 4.9. These various
case events led to a total of 1,445 interim dispositions (average 1.06 per case),
collectively disposing of 26,925 parties, during the evaluation period.74 See Table 4.10.
Table 4.9:
Case Activity
Average
Total per case
74
There was a marginal correlation between the total number of case events and the total number of interim
dispositions. Pearson’s correlation coefficient = .06, p = .052.
55
Table 4.10:
Interim Dispositions
Average per Plaintiffs Defendants
Total case Disposed Disposed
Of the 1,361 cases in the dataset, 414 (32.3%) were reported as completely
disposed by the end of the evaluation period. Again, this disposition rate varied
considerably from site to site. See Table 4.11. This variation is most likely related to
how the majority of cases were assigned to the pilot program in each of those sites.
Cases that were retained by the pilot judges had the highest disposition rate at 41.9%,
cases that were transferred from other civil judges had the second highest rate at 34.2%,
and newly assigned cases had the lowest rate at 24.5%.75
75
Chi Square = 28.231, p < .001.
56
Table 4.11:
Disposed Cases, by Site
Completely
Disposed (%)
The average filing-to-disposition period for disposed cases was 24 months, but it
should be noted that many of the pilot program cases had been filed before the inception
of the pilot program and were later transferred to the pilot program from another civil
division judge or were retained by the pilot program judges after the inception of the pilot
program.76 The filing-to-disposition time by itself, therefore, does not accurately capture
the effect of the pilot program. From the time cases were assigned to the pilot program,
disposition times range from 12 months for newly assigned cases (filing-to-disposition)
to 17 months for cases retained by the pilot judges (program inception to disposition).
Transferred cases fell in the middle with 15 months (transfer to disposition). This is, of
course, a preliminary estimate of disposition time as only one-third of the cases were
complete disposed. A longer evaluation period would be necessary to make a more
reliable estimate of average filing-to-disposition times.
76
Estimates of filing-to-disposition times are necessarily longer than actual disposition times due to delays
in collecting a large portion of the data. See Appendix A.
77
The data collection forms only allowed for a 3-digit number to enter the number of plaintiffs and
defendants in the case. Therefore, in many cases “999” was entered. However, some court personnel hand
entered the actual number in the margins of the data collection sheets (e.g., “2532” plaintiffs). To ensure
57
than the pilot program cases. Only 25% of the baseline cases were filed prior to 2000,
compared to 50% of the pilot program cases. The oldest case in the baseline sample was
filed in 1996, compared to 1976 for the pilot program dataset.
Table 4.12:
The Number of Litigants
consistency in the summary statistics, we analyzed only those cases with fewer than 999 plaintiffs or
defendants. However, without discounting the cases with large numbers of litigants, there were 76 cases in
the pilot program with “999” plaintiffs and 51 cases with “999” defendants. Four additional cases reported
litigant numbers higher than 999, ranging from 1000 to 2532. In sum, approximately 6% of the cases
involved 999 or more defendants. Approximately 4% of the cases involved 999 or more plaintiffs.
78
See Appendix A.
58
Table 4.13:
Percent of Cases in which Event Occurred
Conclusions
This portion of the evaluation was the most difficult of all of the evaluation
components for several reasons. One difficulty was that, other than utilizing an
individual calendar for assignment of complex cases, the pilot sites were not required to
implement similar procedures and practices as part of the pilot program. Each site could
use its funding for a variety of purposes including increased staffing, facilities,
technology, and education. See Part 2 for a description of the specific features of each
site. In effect, each site implemented its own unique pilot program, making it difficult to
compare aggregate case characteristics against a baseline.
A second difficulty was the very short time frame allotted for the evaluation – a
total of only 33 months, with realistically less than 20 months in which to collect data. A
national study of civil litigation, conducted in 1992, found that civil case with 7 or more
parties79 had an average filing-to-disposition time of 33 months, and 20% of those cases
had filing-to-disposition times of more than 49 months.80 The NCSC recognized at the
very beginning of the evaluation that only a small proportion of the cases assigned to the
pilot program would be completely disposed during the evaluation period, making it
difficult to assess whether this commonly used measure of case management efficiency
would improve compared to non-pilot complex cases.
Finally, the nature of the pilot program suggested that a more global approach to
the evaluation would be more appropriate than an in-depth analysis of specific details of
the pilot program. For example, the caseload composition, the level and types of
complexity, the relative age of cases, and the types and frequency of case management
techniques that would be employed were all unknown at the outset of the pilot program.
79
The “Rule of 7” is an indicia of complexity used by at least one of the pilot program sites.
80
Civil Justice Survey of State Courts, 1992 (data collected by the National Center for State Courts under a
grant from the U.S. Department of Justice, Bureau of Justice Statistics, on file at the National Center for
State Courts).
59
The Administrative Office of the Courts and the NCSC agreed at the beginning of the
evaluation to focus on more general performance measures, rather than the effectiveness
of specific case management practices.81
Nevertheless, a few conclusions can be made with reasonable certainty. First, it is
apparent that the cases that were assigned to the pilot program meet the general criteria
for inclusion in the program. Not only were the majority of cases formally determined to
be complex, they also met the criteria for complexity along a number of different
measures including provisional complexity, the number of complexity indicators on the
Civil Case Cover Sheet, and the number of parties. A small proportion of cases that had
not been formally determined to be complex at the time of data collection appeared to be
somewhat less complex than the designated cases, but nonetheless were more complex
than cases that were excluded from the dataset.
Substantial differences were noted among the sites in terms of how cases were
assigned to the pilot program. The Superior Court of Orange County had the greatest
proportion of cases retained by the pilot judges, which ostensibly were a remnant of that
court’s previous complex litigation docket. The Superior Courts in Los Angeles, San
Francisco and Contra Costa had the greatest proportion of cases transferred from other
civil division judges, while the majority of cases in Alameda and Santa Clara were new
cases filed after the inception of the pilot program. These differences in how cases came
into the pilot program have a dramatic effect on other measures of effectiveness,
especially disposition rates.
The NCSC examined how closely the cases adhered to the case management
recommendations outlined in the Deskbook on the Management of Complex Civil
Litigation and found that they were followed selectively, but appropriately in most cases.
A case management order was used in only one-third of the cases, but these were
generally filed in more complex cases. Coordination of related cases was done
informally as related cases tended to be filed in the same court, rather than in other
courts, which would require more formal coordination. The rate of referee appointments
appears greatly reduced from those reported during the first round of interviews, and the
appointments that were made appear to be based on high levels of complexity, especially
in construction defect cases. Nevertheless, there are still local variations in referee
appointment rates that cannot be explained solely on objective case characteristics. The
decision to appoint a referee still appears to be a feature of local court culture.
A comparison of case activity does reveal significantly greater case activity in the
pilot program cases compared to baseline cases, even taking into account that the pilot
program cases only include information on case events that took place during the
evaluation period. It is unquestionable that the pilot program cases are subject to
significantly closer judicial supervision than the baseline cases. The short time frame
allotted for the evaluation and the small proportion of fully disposed cases in the dataset
made it difficult to assess the overall impact of increased judicial supervision on the
overall filing-to-disposition rate, but preliminary data suggest that the judicial
management techniques employed by the pilot program judges significantly decrease the
81
Geographic considerations also argued against a focus on pilot program minutiae.
60
amount of time needed to dispose complex cases. The Administrative Office of the
Courts should continue to monitor filing-to-disposition times for cases assigned to the
pilot program to verify the filing-to-disposition rate based on a larger proportion of newly
filed cases, rather than on the older transferred and retained cases that made up the bulk
of fully disposed cases in the evaluation dataset.
61
62
PART 5 – CONCLUSIONS AND RECOMMENDATIONS
The impetus for the creation of the pilot program began with recognition of
several pervasive problems associated with the management of complex civil litigation in
the superior courts throughout California. Of particular concern were courts that
assigned complex cases on a master calendar system, in which judicial responsibility for
case management was diffused among a relatively large number of judges. Moreover,
large caseload assignments prevented judges in both individual and master calendar
systems from dedicating adequate time and attention to complex cases, and few judges
had sufficient training or experience in complex case management. Frequent use of
court-appointed referees for discovery and settlement purposes did not provide a
satisfactory remedy in most jurisdictions. There were widespread perceptions that the
compensation system for referees provided perverse incentives to prolong discovery
rather than seek a speedy and just resolution to complex cases. The costs associated with
referee appointments, as well as the lack of effective judicial oversight of referee
activities, contributed to litigant and attorney dissatisfaction.
The remedy proposed by the pilot program for these various ills was a specialized
case management system for complex civil litigation that featured judges experienced in
both substantive law and complex case management practices, a substantially reduced
caseload that permitted judges to focus exclusively on complex cases, and additional
staffing and technological resources for case management purposes. The pilot program
judges viewed their primary objective as identifying the key legal issues in a given case
and focusing litigant pretrial activities (e.g., discovery and settlement negotiations) on
resolving those issues as efficiently as possible. Although some of the pilot program
details differed from court to court, the general means for accomplishing this objective
was active judicial oversight of case management including the development of clear
expectations for case management and consistent enforcement of those expectations.
Interviews with attorneys who participated in the pilot program suggest that this
approach effectively addresses the major problems associated with complex litigation
management. The attorneys reported that judges had better understanding of the legal
and evidentiary issues and more effective management of pilot program cases compared
to their assessments in the first round of interviews. Theyalso reported improved use of
referee appointments – that is, fewer instances of excessive or inappropriate referee
appointments and better judicial supervision of referee activities.
Many of these impressions were confirmed with an empirical examination of the
pilot program cases. The cases managed under the pilot program were appropriately
characterized as complex by a number of different criteria. Indeed, the pilot program
cases were significantly more complex using these measures than a sample of complex
cases that were not assigned to the pilot program, which was compiled for baseline
comparison purposes. The data revealed an increase in the percentage of cases in which
various case management activities took place, resulting in a commensurate increase in
interim dispositions, compared to the baseline cases. This is particularly remarkable
given the difference in the average level of complexity between the pilot and baseline
63
datasets. Moreover, the pilot program dataset only recorded information on case events
and dispositions that occurred during the pilot program, rather than during the entire
pendency of the case as was the case for the baseline dataset.
The data also confirm a slight reduction in the referee appointment rate compared
to the baseline cases, which suggests more direct judicial attention to cases as well as
lower litigation costs for parties. But this reduction was concentrated in four of the
courts: Los Angeles, Alameda, San Francisco, and Santa Clara. The pilot program courts
in Orange and Contra Costa Counties continued to appoint referees at approximately the
same rates as the baseline cases.
The most significant improvements in complex civil case management appear to
result from two specific features of the pilot program: an individual calendar system and
a caseload that is sufficiently reduced to permit more intensive case management by the
pilot judges. Each site varied in terms of program staffing and resource allocation,
average caseload size, and preferred case management practices, but these did not appear
to make a significant difference in overall performance in cases. Differences in case
processing times, which are necessarily preliminary estimates due to the short timeframe
for the evaluation, were related to how each case was assigned to the pilot program
(retained, transferred, or newly filed) rather than to its treatment once assigned to the
program.
Preliminary data suggest that the judicial management techniques employed by
the pilot program judges significantly decrease the amount of time needed to dispose
complex cases. The Administrative Office of the Courts should continue to monitor
filing-to-disposition times for cases assigned to the pilot program to verify the filing-to-
disposition rate based on a larger proportion of newly filed cases, rather than on the older
transferred and retained cases that made up the bulk of fully disposed cases in the
evaluation dataset.
Program Recommendations
As a general observation, the pilot program appears to address most of the
problems associated with complex case management fairly well. There are, however,
some aspects of the pilot program that could be modified to improve its effectiveness.
Specialized Procedures for Complex Litigation Management
One of these is the development of specialized procedural rules for complex
cases. A defining characteristic of complex cases is the existence of multiple legal issues
and dozens, or even hundreds, of parties. The primary objective of judicial involvement
in these cases is to identify which issues apply to which parties and to select the most
salient issues as the focus of intensive discovery and settlement negotiations. As key
issues are resolved, tangential issues either become moot or are resolved with less effort.
The existing civil procedure provisions, however, are tailored for routine civil
cases, which typically involve a single cause of action and no more than 5 parties. The
Deskbook on the Management of Complex Civil Litigation assumes that judges have the
authority to engage in issue-specific case management practices. Although many of the
pilot program judges report that they were moderately successful at securing the consent
64
of the parties to specialized case management procedures, the judges claim that the
statutes themselves do not permit this level of judicial discretion sua sponte. For
example, the existing summary judgment statute does not permit summary adjudication
of an individual legal issue or claim of damages unless doing so completely disposes of
the case, a cause of action, or an affirmative defense. Similarly, the statutes do not grant
judges the discretion to reorder trial preferences for litigants. Specialized rules or statutes
for complex cases that enhance judicial case management powers, especially in the
conduct of discovery and settlement activities and summary adjudication of issues, would
authorize judges to conduct case management activities more effectively than under the
current Code of Civil Procedure.
Workload Assessment
One of the striking differences among the various pilot program courts was the
average caseload assigned to each judge, which varied considerably from judge to judge
and from site to site. There was no consensus as to an appropriate caseload size, and the
various performance measures examined in the course of the evaluation did not indicate
an optimal caseload size. This disparity could be resolved through a workload
assessment study, which would help determine the appropriate number of judges and
supporting court staff given variations in case complexity. Currently, all complex cases
are treated and counted equally, regardless of their case type, the number of parties, or
other indicia of case complexity. A workload assessment study for complex litigation
would allow case assignments to equalize the workload and help determine the
appropriate staffing levels for courts handling complex cases.
Case Screening and Assignment Policies
Most of the pilot sites have developed fairly effective screening and assignment
procedures to ensure that complex cases are identified and referred to the pilot program
courts in a reasonably expeditious fashion. Los Angeles, however, has a decentralized
process that interferes with prompt assignment and early case management activities.
Although complex cases filed downtown are immediately assigned to the pilot program,
cases filed in the other judicial districts are reviewed by a civil division judge who has
discretion to refer the case to the pilot program or to retain the case at the judicial district.
Even the most quickly assigned cases take an average of 72 days to transfer. In other
cases, the average delay is over 6 months. The assignment process in all of the Los
Angeles districts should include initial identification and immediate assignment of
complex cases at filing based on objective criteria indicated on the Civil Case Cover
Sheet, with review by the supervising judge for complex litigation to ensure that the case
meets basic criteria for inclusion in the pilot program. Cases that do not meet these
criteria can then be referred back to the judicial districts for routine case management.
Judicial Assignment, Training, and Staff Development
Other needs associated with the pilot program include improving morale among
non-pilot program civil division judges as well as training and development for pilot
program judges and staff. A rotation among judges assigned to the pilot program in
Orange and Los Angeles Counties would help alleviate frustration of civil division judges
who want the intellectual and professional challenges that characterize complex cases.
Assigning one new judge in a program ordinarily staffed by four to six judges would not
65
unduly disrupt program management, and would offer civil division judges the possibility
of future involvement in the pilot program. A mentoring approach would effectively
address this issue in the single judge programs. One judge could be used primarily to
process cases, hear motions and hold case management conferences, while the other
judge could be used for settlement conferences, to preside over long trials, and to manage
complex cases if the primary judge is disqualified for some reason. The other benefit of
this type of system is the fact that if one of the judges leaves the bench for whatever
reason, a judicial officer trained and knowledgeable in complex litigation is ready to
assume the role as primary judicial officer in the single judge complex court.
Training was not a cited as a critical need by the pilot program courts, but several
of the judges identified the semi-annual meeting of pilot judges as an excellent way to
exchange information and ideas about managing complex cases. Other judges expressed
a desire for training on specific substantive topics such as determination of insurance
coverage, class action wage and hour suits, and construction defect suits. Given the team
atmosphere in which each of the sites operate, educational workshops on complex case
management issues may be appropriate for all pilot program staff. The workshops could
be conducted jointly with the semi-annual judicial meetings.
Technological Support
Several of the courts invested substantially in courtroom technology. However,
actual bench or jury trials are rare occurrences, so the more pressing need is for case
management technology that permits judges and their staff to monitor case progress more
accurately, organize court documents more coherently, and communicate with multiple
attorneys more effectively. Only Orange County currently employs imaging technology
on a routine basis and none of the pilot program courts have advanced e-filing beyond an
experimental and small-scale basis, but both of these technologies would enhance their
productivity. More frequent use of Web-based case management systems would likewise
be a benefit in complex case management.
Future Expansion of the Pilot Program
Notwithstanding the apparent success of the pilot program, it is not clear that
expansion of the program to additional courts would be advisable at this time. It appears
that the existing pilot program sites were well chosen insofar that they quickly absorbed
the major concentrations of complex civil cases within the state. Only the Superior Court
of San Diego County, which also operates a complex litigation docket similar to the
program that previously existed in the Superior Court of Orange County, has a substantial
complex civil caseload. Indeed, in gathering data for the baseline sample, it was difficult
to identify complex cases that were not already assigned to one of the pilot program
courts.
Complex civil cases are filed in other courts around the state, of course, and the
lessons learned through the pilot programs about effective complex case management
should be made available to and used by those courts. Even courts that normally employ
a master calendar system for civil cases should assign complex cases to an individual
judge for case management purposes – and reduce that judge’s caseload accordingly to
permit the judge to exercise appropriate judicial oversight. The AOC should strongly
encourage judges managing complex cases to attend the semi-annual meetings of the
66
pilot program judges. The ability to interact with peers that are experienced in complex
case management can only enhance their ability to manage these cases without significant
costs to the pilot programs themselves.
67
68
APPENDIX A – METHODOLOGICAL CONSIDERATIONS
Two of the three components of the NCSC evaluation involved substantial data
collection and analysis efforts. Part 3 of the evaluation discusses the survey data
collected through telephone interviews with judges and attorneys about their respective
views about complex litigation management in California both before and after
implementation of the pilot program. Part 4 discusses objective characteristics (case
type, number of litigants, case management procedures, number and types of case events,
filing to disposition times) of cases assigned to pilot program, and similar information
about non-pilot program cases. From these analyses, the NCSC makes several
conclusions about the effectiveness of the pilot program overall. Nevertheless, the
approaches employed in both components posed some methodological difficulties that
may limit the generalizations that can be drawn. This Appendix outlines the major data
limitations of the evaluation and discusses the implications for its overall reliability.
82
The NCSC anticipated conducting interviews with litigants referred by the interviewed attorneys, the
American Corporate Counsel Association, the California Chamber of Commerce, and other sources.
The NCSC employed a very different sampling approach in the second round of
interviews, but still encountered difficulties related to the geographic representativeness
of the interview population. To identify attorneys for the second round of interviews, the
NCSC attempted to contact the lead attorneys from a random sample of disposed cases
that were assigned to pilot program. The sample of cases was drawn from the database of
pilot program cases in January 2002, which at that time consisted of 317 disposed cases.83
Because several of the pilot sites had fallen behind in their data collection efforts (see
discussion of methodological issues related to the empirical study, below), the sample of
cases that was randomly drawn for the second set of interviews consisted of 37 cases
(13%) from Los Angeles County, 73 cases (26%) from Contra Costa County, 154 cases
(54%) from Orange County, and 19 cases (7%) from San Francisco County. The dataset
at that time did not include any cases from Alameda or Santa Clara Counties.
Consequently, no attorneys with cases in those counties were included in the second
round of interviews.
A second difficulty involved identifying and securing the cooperation of attorneys
to participate in the second round of interviews.84 Using the sampling procedure, a total
sample of 200 attorneys was expected. In attempting to contact these attorneys, however,
the NCSC encountered several problems. Many of the pilot sites did not have complete
or accurate attorney contact information for the selected cases. In approximately one-
third of the cases, the NCSC was unable to identify attorneys who were sufficiently
familiar with the case to conduct the interview. Moreover, a total of thirteen attorneys
were listed as the primary contact for more than one of case in the random sample,
accounting for 37 cases, thus reducing the total number of identified attorneys in our
sample to 118.
Securing the cooperation of the attorneys was also problematic. Ten percent
(10%) of the attorneys could not be contacted, despite numerous attempts to do so. The
NCSC also encountered a great deal of resistance from attorneys who did not
immediately understand that these interviews were part of an official evaluation that was
being conducted under the authority of the California AOC and with the full knowledge
and consent of the pilot sites.85 Many attorneys were surprised, and even offended, that
their names and contact information had been obtained from court records. Other
attorneys were reluctant to participate due to concerns that the information sought in the
interviews was protected by attorney-client privilege. Some attorneys, especially in
83
Of the 317 cases, 34 were individual cases that were coordinated under a master case or otherwise related
to other cases in the sample. To avoid duplication of cases, only the master cases were included in the
dataset from which the sample was drawn.
84
For the first round of interviews, the NCSC was able to tell prospective interviewees that a particular
judge had recommended that we speak with him or her about their knowledge of complex litigation
management in California, which tended to increase their willingness to participate in the interviews.
85
To address concerns in the second round of interviews, the AOC and the participating pilot sites sent
letters to all of the attorneys for whom we had mailing addresses assuring them that the evaluation was
sanctioned by the AOC and encouraging the attorneys to cooperate in the interviews. NCSC staff also
faxed copies of the interview questions to the attorneys before each interview so they could see that we
were only seeking information about the management of their respective cases, and not privileged
information. Nevertheless, these efforts did not improve the response rate of attorneys appreciably.
jurisdictions that employed an individual calendar system for complex cases, were
unaware that their cases had been assigned to a pilot program, and thus did not
understand the significance of their participation in the interviews. Overall, nearly one
third (31.3%) of the attorneys refused to participate in the survey for one reason or
another.
Analysis of the first round of interviews was also complicated by differences in
the complex case management practices in each of the respective pilot sites before the
inception of the pilot program. For most of the sites, the pilot program was the first time
a specialized docket had been dedicated exclusively for complex cases. The Superior
Court of Orange County, however, had been operating a complex litigation calendar since
1991. A designated panel of judges have exclusive jurisdiction over the complex
caseload and have established specific procedures for handling complex cases. As a
result, the Orange County site did not radically change its operations with the inception
of the pilot program. Indeed, many of the procedures that have been adopted for the pilot
program are based on the Orange County model. This situation made evaluating
attorneys’ and judges’ views difficult because many of the issues and problems
associated with complex civil litigation had been effectively resolved in Orange County.
A final issue that affected analysis of the interview data was the lack of a clear
geographic distinction between attorneys whose experience in complex litigation
occurred under a master calendar system and those whose experience occurred under a
single judge assignment system. Although the Superior Court of Orange County has
operated a complex litigation program since 1991, about one-third of the Orange County
attorneys reported that their most recent complex case had been managed under a master
calendar system.86 Many of the attorneys in jurisdictions that traditionally operate under
a master calendar system had cases that were assigned to a single judge for pretrial
management purposes. This situation complicated the analysis insofar as the general
views of attorneys about complex litigation management may have reflected attitudes and
opinions about the calendar system in their respective jurisdiction, but their most recently
litigated case experiences may reflect the inherent advantages or disadvantages of the
other system. For analysis and reporting purposes, therefore, the NCSC distinguished
wherever possible between Orange County and non-Orange County data, and between
master calendar system data and single judge assignment calendar data.
86
These attorneys may have litigated their cases in a California superior court other than Orange County or
their most recent complex case may not have satisfied the criteria for eligibility for the Orange County
complex litigation program.
dispositive rulings) for the previous month for every case assigned to the pilot program
until the case was fully disposed. One-third of the cases in the final dataset consisted of
only a single Data Form 3.
There are two possible conclusions that may be drawn from this. One is that there
was only one month during the entire data collection period in which any official activity
took place in those cases.87 This is a plausible interpretation given that ongoing
discussions with pilot program judges and court staff during the evaluation period
confirmed that much of the case activity that takes place in complex case management is
relatively informal (e.g., telephone calls, e-mail correspondence, tentative settlement
agreements concerning specific issues or parties) and may not be memorialized as part of
the formal case record. These types of events, although obviously an important part of
complex case management, could not be captured in the data collection instruments
because the court clerks, who were responsible for completing the monthly data forms,
often were not aware when these events occur. It is highly likely, therefore, that the
dataset significantly underreports the amount of case activity that took place during the
data collection period. A second possibility is that pilot program staff did not complete
data collection for a sizeable portion of their cases, especially as many of the sites did not
collect data until very late in the evaluation period. The truth is likely to be a
combination of these two possibilities.
Another problem arose as a result of the delay in completing monthly reports by
several of the courts. Each Data Form 3 included a “report date” in which the pilot
program court staff were instructed to enter the date that the report was completed.
Timely completion of those monthly reports would have provided a reasonably accurate
estimate of the litigation stage for each of the cases (e.g., pleadings, discovery, settlement
negotiations, pretrial, trial, post-judgment), including the month in which the case was
completely disposed. Because several of the courts did not collect the data on a monthly
basis, but instead completed all of the Data Form 3s in December 2001,88 the report date
cannot be used as a reliable proxy for estimating litigation stages and final disposition
dates. Calculations of filing-to-disposition periods are likely to be significantly inflated –
that is, the actual filing-to-disposition periods are shorter than the data suggest – and the
evaluation findings should be viewed with this in mind.
87
Approximately half (49%) of these cases were completely disposed at the time the data were collected.
88
One-third of the Data Form 3s (33.4%) had a final report date of either November 30, 2001 or December
31, 2001.
of the pilot program provides an additional level of confidence in the overall assessment
of the pilot program that might not otherwise be appropriate.
APPENDIX B – STATUTE 68617
68617. On or before October 30, 2002, the Judicial Council shall submit a report to the
Legislature and the Governor regarding the effectiveness of the Centers for Complex Litigation
established pursuant to the Budget Act of 1999. The report shall examine, among other things,
the number of complex cases filed, the impact of the centers on case and calendar management,
and the impact on the trial courts, the attorneys, and the parties, and shall make recommendations
to the Legislature and the Governor.
APPENDIX C – ATTORNEY INTERVIEW PROTOCOL #1
1. Before we begin, can you tell me about the types of complex cases that you
typically litigate in the Superior Court? Are you normally involved in
litigation only in _____ County? Or do you handle cases in other parts of
California too?
We've already talked to a number of Superior Court judges in connection with this
evaluation and we think that we have a reasonably good idea of how the judges view their
ability to manage complex litigation. We'd like to hear your views concerning the issues
that they identified.
3. Think about the complex case that most recently concluded (by any
disposition – settlement, summary judgment, trial).
a. How was that case managed by the court?
b. Was it assigned to a single judge or assigned to the master calendar?
c. If the case actually went to trial, was the trial judge the same as the judge
who handled the pretrial management of the case?
d. If you found yourself dealing with more than one judge over the course of
the litigation, what impact (if any) did that have on your ability to move
the case forward to a resolution?
e. How did the management of this case compare to other complex cases that
you have filed in the Superior Court?
4. If the case was assigned to a single judge, how often did you meet with him or
her for status conferences or other meetings?
a. How well did the judge understand the legal and factual issues of those
cases? Were there any particular factors that contributed to the judges'
ability to understand those issues (e.g., prior experience in complex civil
litigation, sufficient time and attention to the details of the case)?
b. How accessible was the judge for resolving discovery disputes or other
problems as the case progressed? How helpful was the judge in this
regard?
c. Would the judge lean on the parties to meet case management deadlines?
Or would the judge let the parties set and manage their own deadlines as
they saw fit?
d. How easy or difficult was it to find out how the judge might view any
particular issue? [prior rulings on similar issues, word of mouth in the
legal community, discussions during status conferences or other meetings
with the court]
e. In your opinion, did the judge manage that case in a reasonably
expeditious fashion? Did the judge allow sufficient time for the parties to
complete discovery and prepare for trial?
f. How did the level of judicial involvement in this case compare to other
complex cases?
7. Did the court order the parties to engage in any form of ADR in that case? If
so, how helpful was that process?
8. Did the case ultimately go to trial?
a. What was the schedule for trying the case (e.g., half-day trials, 4-day trial
weeks)?
b. Did the judge make any other accommodations (e.g., bifurcated trial, use
of technology, facility changes) based on the complexity of the case?
c. How well did those accommodations work for your ability to present
evidence and testimony in a coherent manner?
d. Did you encounter any delays due to legal issues that were not resolved
prior to trial? If so, please describe those problems.
9. If you could make three changes to the way that the California Superior
Courts manage their complex litigation calendars, what would they be?
c. The referees and special masters who are appointed to help manage
complex cases lack sufficient financial incentives to limit discovery or
encourage early settlement of these cases.
d. Some judges lack the time and resources to adequately supervise the work
of court-appointed referees and special masters.
i. Some judges are so concerned about the impact that a complex case will
have on their trial calendars that they will order the parties to engage in
additional settlement negotiations or ADR, even when the likelihood of
success is extremely low.
11. Are you aware that California has begun a Complex Litigation Pilot Program
in several courtrooms around the state?
a. If so, are you familiar with the specifics of that program?
b. What do you expect the pilot program to accomplish? What would you
hope to see it accomplish?
12. Our next task in this evaluation will be to interview litigants about their
experiences with complex litigation in the California courts. Are the specific
individuals – clients or other individuals that you know– that you would
recommend that we contact for their views? Please provide names and
telephone numbers. Can we use your name when we contact them?
APPENDIX C - ATTORNEY INTERVIEW PROTOCOL #2
Scheduled interview date: ___ ___ / ___ ___ / ___ ___ ___ ___
M M D D Y Y Y Y
OPEN-ENDED QUESTIONS
a. New date/time: ___ ___ / ___ ___ / ___ ___ ___ ___
M M D D Y Y Y Y
13. To begin, I’d like to confirm some background information about the case that
you participated in [from the California pilot program]. The case that we’d
like to discuss with you is [confirm the following information]:
a. Case Name:
b. Docket #:
c. Case type: ________________________________________________________
16. Do you normally practice in complex litigation, or was this case an exception
for you?
[Circle one]
[Circle one]
YES NO
b. How well did the judge understand the legal and factual issues of this
case?
c. Were there any particular factors that contributed to the judges' ability to
understand the legal and factual issues of this case (e.g., prior experience
in complex civil litigation, sufficient time and attention to the details of
the case)?
d. How accessible and how helpful was the judge for resolving discovery
disputes or other problems as this case progressed?
e. How helpful was the judge at clarifying the primary issues in the case and
developing procedures to handle them?
h. How did the level of judicial involvement in this case compare to other
complex cases in which you’ve been involved?
i. How satisfied were you overall with the judge assigned to your case?
[Prompts: mutually agreed upon by the parties, selected by the judge from a slate of
nominees by the parties, randomly selected by the judge, recommended by the judge]
b. Please describe the role of the discovery referee [or special master].
[Prompts: helped parties develop a case management plan, managed the discovery
process, acted as a mediator or otherwise facilitated settlement negotiations]
c. What were the disadvantages of having a discovery referee [or special
master] in this case?
d. Who paid the discovery referee [or special master] in this case?
APPROPRIATE INAPPROPRIATE
f. Were you satisfied with the work of the discovery referee or special
master? Why or why not?
[Circle one]
SATISFIED UNSATISFIED
1 2 3 4 5 6 7 8 9 10
Very Unsatisfied Very Satisfied
20. Did the court order the parties to engage in any form of ADR in this case?
[If No: Skip to # 9 below]
[If Yes:]
i. How helpful was that process, and what in particular made it
helpful or unhelpful?
• How did the pleading stage of this case differ from that of other
(i.e., less complex) cases?
• How did the pleading stage of this case differ from cases not part
of the pilot program?
23. Please describe any settlement negotiations that took place in this case.
• How did the settlement negotiations that took place in this case
differ from those of other (i.e., less complex) cases?
• How did the settlement negotiations that took place in this case
differ from those in cases not part of the pilot program?
24. How did the pilot program affect settlement negotiations, settlement
agreements, or other case dispositions?
25. Our records indicate that there [CONFIRM RECORD: was / was not] a trial in
this case.
a. Please describe the trial.
[Prompts]:
• How long did the trial last?
• Is it under appeal?
• How did the trial in this case differ from that of other (i.e., less
complex) cases?
• How did the trial in this case differ from trials not part of the
pilot program?
26. Did the judge make any special accommodations based on the complexity of
the case (e.g., bifurcated trial, use of technology, facility changes)?
[If applicable:]
a. How well did those accommodations work for your ability to present
evidence and testimony in a coherent manner?
27. Did you encounter any problems or delays due to legal issues that were not
resolved prior to trial?
28. Would you recommend any changes or ways to improve the pilot program,
and, if so, what would you recommend?
29. Describe your overall impression of the California Complex Litigation Pilot
Program and your main reason (or reasons) for this impression.
i. How would you compare the overall management of this case to other
complex cases that you have filed in the Superior Court that are not part of
this pilot program?
[Circle one]
UNFAVORABLE FAVORABLE
iii. Do you believe that there is a need for such a program at all?
[Circle one]
YES NO
30. Based on your experience with the California Complex Litigation Pilot
Program, which of the following recommendations would you make for the
program’s future?
3. Compared to the general civil cases on your calendar, did you find that the
complex cases on your calendar were more likely or less likely to adhere to the
case management schedule? Why or why not?
4. Alternative Dispute Resolution (ADR) techniques are often, but not always, very
effective for resolving cases without going to trial. In managing complex cases,
have you had circumstances in which you thought that ADR would not be helpful
in resolving the case? If so, what did you do?
5. When your complex cases do go to trial, what if anything do you change about
your trial schedule or procedures to minimize the disruptive effect on your
calendar? [For example, half-day trials, four-day trial weeks, bifurcated trials,
etc.]
7. In cases in which you appointed a special master, for what types of activities did
you grant him or her a great deal of discretion to manage the case (e.g.,
scheduling matters, discovery matters, settlement negotiations)? What types of
activities did you prefer to supervise more closely or handle yourself?
8. How are legal staff (research attorneys, law students, etc) used in your court.
How much do you rely on legal staff to manage your caseloads? How many legal
staff do you use? Are they permanent or temporary?
c. The referees and special masters who are appointed to help manage
complex cases lack sufficient financial incentives to limit discovery or
encourage early settlement of these cases.
d. Some judges lack the time and resources to adequately supervise the work
of court-appointed referees and special masters.
l. Lack of direct communication between trial counsel and the judge creates
confusion about court orders and prevents counsel from accurately
predicting judicial decisions on key issues.
m. Some judges are so concerned about the impact that a complex case will
have on their trial calendars that they will order the parties to engage in
additional settlement negotiations or ADR, even when the likelihood of
success is extremely low.
13. Before this appointment to the Complex Litigation Pilot Program, what was your
professional background and previous experience in complex litigation?
14. Our next task in this evaluation will be to interview attorneys and litigants about
their experiences with complex litigation in the California courts. Are the specific
individuals – attorneys or litigants – that you would recommend that we contact
for their views? Please provide names and telephone numbers. Can we use your
name when we contact them?
COMPLEX CIVIL LITIGATION PILOT PROGRAM
IN MARICOPA COUNTY
DECEMBER 2006
COMPLEX CIVIL LITIGATION COURT EVALUATION COMMITTEE
(PAST AND PRESENT MEMBERS AND SUPPORTERS)
COMMITTEE MEMBERS
COMMITTEE SUPPORTERS
George Knecht
Sr. Business Analyst
Maricopa County Clerk of Court
COMMITTEE STAFF
Jennifer A. Greene
Court Projects Unit * Court Services Division
Administrative Office of the Courts
JOINT REPORT TO THE ARIZONA SUPREME COURT
SUBMITTED BY THE
SUPERIOR COURT IN MARICOPA COUNTY AND THE
COMPLEX CIVIL LITIGATION COURT EVALUATION COMMITTEE
Table of Contents
PAGE
A. Introduction …………………………………………………………... 1
1. Rules ……………………………………………………………….. 2
F. Conclusion ……………………………………………………………. 7
Appendices
Appendix A
Rules of Civil Procedure Applicable to Cases in the Complex Civil Litigation Pilot
Project in the Superior Court in Maricopa County
Appendix B
Summary of Complex Civil Litigation User Survey Results
JOINT REPORT TO THE ARIZONA SUPREME COURT
SUBMITTED BY THE
SUPERIOR COURT IN MARICOPA COUNTY AND THE
COMPLEX CIVIL LITIGATION COURT EVALUATION COMMITTEE
DECEMBER 2006
A. INTRODUCTION
The Supreme Court established the Complex Civil Litigation Pilot Program at the
Superior Court in Maricopa County in January 2003 on an experimental basis pursuant to
Supreme Court Administrative Order No. 2002-107.1 The Order also appointed members
to the Complex Civil Litigation Court Evaluation Committee to monitor the program and
directed the committee to file a joint report with the Presiding Judge in Maricopa County
at the conclusion of the program. This report responds to that directive.
The Complex Civil Litigation Court in Maricopa County is one of many similar programs
around the country. Within the last five years, the number of business or complex civil
specialty courts has grown from six states to no less than sixteen states. Interest in
implementing these types of courts continues to grow.2 In keeping with this trend, the
American Bar Association’s Conference of State Trial Judges initiated a Business and
Commercial Court Judges Committee in 2003. Last year several business and complex
civil court judges established the American College of Business Court Judges with some
initial funding provided by the Brookings Institute. These organizations facilitate the
exchange of ideas and best practices for trying complex cases touching on commercial
and corporate governance issues.
Although business and complex civil court programs vary from state-to-state in many
respects, they generally fall into either one of three distinct categories: pure business
courts, where the parties must be commercial entities but the dispute need not be
complex; complex business courts, where parties must be commercial entities and the
case must be complex; or complex civil courts, like the California and Maricopa Superior
Court programs, where the parties need not be businesses, but the case must be complex.
1
The program was extended by two years in Administrative Order No. 2004-27 (April 28, 2004).
2
The list of states includes Delaware, California, Connecticut, Florida, Georgia, Hawaii, Illinois, Maine,
Maryland, Massachusetts, Nevada, North Carolina, New Jersey, New York, Pennsylvania, and Rhode
Island. Other states known to be considering such a program include Michigan, Ohio, and Oklahoma.
Colorado considered establishing a commercial division in Denver and decided against it for the time
being. Wisconsin offered a business court in Milwaukee for a few years, but the program has been shelved
for lack of interest. See, Business and Technology Courts, A Survey of Existing State Business and
Technology Courts (March 2005), Univ. Maryland School of Law; Civil Action (Winter 2004) National
Center for State Courts, Williamsburg, VA; M. Bach & L. Applebaum, A History of the Creation and
Jurisdiction of Business Courts in the Last Decade, The Business Lawyer (November 2004); and
information provided by Lee Applebaum, Vice-Chair, Subcommittee on Business Courts, ABA Business
Law Section.
1
B. PROGRAM COMPONENTS
1. Rules
The Complex Civil Litigation Pilot Program consists of several new rules of civil
procedure for use by the parties in designating complex cases and designed to emphasize
active pre-trial management by the judge. The rules applicable to the program cases
appear in Appendix A.
2. Three-judge panel
The Superior Court in Maricopa County designated three judges assigned to the civil
bench to preside over program cases, Hons. Kenneth Fields, Pendleton Gaines and
Rebecca Albrecht. Judge Albrecht retired in 2005 and was replaced by Judge Janet
Barton. In-coming program cases have been assigned to one of the three judges on a
rotating basis. In addition to handling complex cases, each of these judges also presided
over a full complement of non-complex civil matters. The program judges have attended
a variety of specialized trainings out-of-state that focused on complex case management.
They have also had opportunities to learn from other complex and commercial case
judges from jurisdictions outside Arizona. They have shared what they learned with
other judges on the civil bench in Phoenix.
The Presiding Civil Department Judge acted as the program’s gatekeeper, ruling on all
motions for complex designation filed by parties seeking to have their cases formally
assigned to the Complex Litigation panel.
3. Electronic filing/e-courtrooms
After the first year of the program, the superior court initiated its first electronic filing
program through LexisNexis. This program was implemented exclusively for cases in
the pilot program. Once it was available, all participating parties were required to file
their pleadings electronically. Program participants have electronically filed 144,600
pages of documents with the court.3 LexisNexis has electronically served a staggering
3,262,159 pages of documents on program participants in just three years.4 The user
survey revealed that being able to e-file was either very important or somewhat important
to 83 percent of responding attorneys. The court is in the process of implementing e-
filing in all divisions court-wide, so the complex litigation program will soon lose this
advantage over the regular civil divisions.
In addition to learning how to work with e-filing, each program judge presided over an e-
courtroom equipped with the most up-to-date electronic technology for evidence
3
Data provided by LexisNexis as of October 19, 2006.
4
According to LexisNexis, if these pages were stacked up, the stack would roughly equal the height of a
103-story building.
2
presentation, electronic recording and computer-enhanced judicial management of the
courtroom.
The court created a special position for an experienced staff attorney to assist program
judges with research and drafting. The attorney also serves as a liaison between the
judges to ensure consistent rulings on similar issues, an important goal of the program.
Generally speaking, judges at Maricopa Superior Court do not have access to a law clerk
or must rely on law-trained bailiffs for assistance with research and drafting.
The IT staff at Maricopa Superior Court customized a new module for the court-wide
case management system (iCIS) to assist in tracking pilot program cases. Judicial
assistants for each of the program judges input pre-defined data in this application,
including type of complaint, whether the case was a class action, whether a master was
appointed, number of trial days, number of motions filed, date and type of disposition, if
any, and a brief explanation of the gatekeeper’s decision to admit or deny admission for
each case.
6. Filing fee
Six months into the program, the Maricopa County Board of Supervisors approved a
special $500 filing fee, which parties were required to pay upon admission to the
program. The user survey disclosed that nearly 80 percent of responding lawyers agreed
the $500 fee was not a disincentive to participation in the program. The fee was waived
or reduced in some cases. Revenue generated by this fee totaled $258,600 over three
years, or approximately $86,000 a year. This is less revenue than originally anticipated.
To date, expenditures, totaling $43,128,5 have been focused on the staff attorney position,
which was only recently filled ($36,200), equipment and supplies ($4,400) and limited
funding of education and training ($2,500) for the panel judges. This is less than the
level of additional training for the judges anticipated when formation of the Complex
Court was first recommended. The superior court and clerk of court’s office have picked
up all other costs associated with the program. Projections indicate that absent additional
funding sources or increased utilization of the program, the program will not bring in
enough revenue to support the staff attorney position beyond 2009.
5
Data current as of October 19, 2006, provided by Maricopa County Superior Court Administration.
3
C. PROGRAM CASES
Complex case designation was sought in 301 cases, several of which were consolidated
matters. The court admitted 91 cases, a number that actually represents approximately
242 separate actions. The court denied motions for designation in 59 cases. In four
cases, the parties either resolved their disputes or moved to another jurisdiction while the
motion to designate was pending. Common characteristics of cases denied admission to
the program have been lack of complexity and because they were too old to benefit from
early and active judicial management.
A total of 5,246 individual plaintiffs and 1,352 defendants were represented in the
program cases. More than 560 attorneys entered appearances in these actions. Litigants
filed nearly 17,000 motions, of which 2,622 were substantive in nature. The program
judges presided over ten trials. Approximately 70 percent of the cases in the program
were newly-filed cases. Approximately 30 percent of the cases were resolved within the
four-year pilot phase. Fifteen cases were dismissed; judgment was entered in six other
cases.
All but one case involved businesses on one or both sides of the dispute. The one non-
business case was a divorce action requiring division of a multi-million dollar estate with
interests in California and Arizona. As reported by the court, approximately 39 percent
of the complex cases were classified as “tort non-motor vehicle.” Contract disputes
comprised another 30 percent of the caseload. The other 30 percent fell into an “other
civil” category. The attorneys who responded to the committee’s user survey provided
more specific information about case types. Their descriptions indicate a majority of the
claims were based on construction defect or contract. Additional case types reported
were product liability, anti-trust, insurance coverage, securities, shareholder derivative
suits, toxic tort, securities, and medical and legal malpractice.
The committee did not undertake a comparative analysis of case processing efficiencies
between cases in the program and those not in the program, since no two complex cases
are sufficiently alike to permit meaningful data. Additionally, with fewer than 100 cases
in the program so far, most of which have not yet been completed, the sample size is too
small to render valid empirical data. Consequently, the committee surveyed participating
attorneys for an indication of whether the program is meeting its stated goals.
4
In September 2006, the AOC conducted an online survey of the 560+ lawyers who had
entered appearances in program cases. Responses were received from 83 attorneys. The
survey results are summarized in Appendix B.
By a large majority, attorneys who responded to the survey were veteran lawyers with
experience in handling complex cases. Three out of four responders reported they have
been in practice for ten years or more. Seventy percent described themselves as defense
lawyers. More than half work in firms of more than 20 lawyers and have handled five or
more complex cases in the past ten years.
Administrative Order No. 2002-107 directs the committee to provide the court with
recommendations for modifications “to procedural rules, staffing, and funding parameters
as needed” and “for implementing the program in other counties and/or on a statewide
basis as the committee deems appropriate.”
Absent a substantial influx in cases, additional funding for this program will be needed
within the next few years to support the program’s staffing and training needs. The $500
filing fee needs to be supplemented through legislative appropriation or some other
source.
5
Recommendation No.3. Find ways to increase case volume preferably without changing
the rules for admission
A large majority of program participants have expressed a desire to see the program
continued without modifying the rules. However, funding constraints threaten the
program’s continued viability and efficacy unless more cases are designated complex. At
the same time, voluntary participation is a desirable feature of the Arizona program that
distinguishes it from most other similar programs around the country. Therefore, the
committee prefers to approach the problem of case volume in a way that would maintain
the voluntary nature of participation but assist the court in identifying the most deserving
cases, not only to increase funding for the program, but also to remove them from the
regular civil calendar. Internal case processing in the clerk’s office should be modified to
bring newly-filed presumptively complex cases to the attention of the program
gatekeeper automatically. The civil cover sheet may be used for this purpose. The
gatekeeper could then notify presumptively-eligible petitioners to consider moving for
complex case designation under A.R.Civ.P. 8(i). With experience, the court can identify
the appropriate categories of cases to be handled in this fashion. For example, experience
to date has demonstrated that construction-defect claims involving more than 20 homes
typically require extensive judicial involvement in coordinating discovery and therefore
should be considered presumptively complex and automatically screened by the program
gatekeeper as recommended here.
In the view of everyone involved, the committee’s periodic meetings with program
judges and court administrators have been essential to steering the program through the
pilot phase. Committee members have actively assisted in promoting the program,
including arranging and conducting a February 2005 continuing legal education session
that attracted more than 70 participants. On-going collaboration between practitioners
and the superior court will play a critical role in ensuring accountability, refining the
program’s parameters, and possibly even identifying new funding options.
The original committee envisioned a complex division in both Maricopa and Pima
County Superior Court locations. Pima County declined to participate. Given the volume
of program cases to date and the limited funding options, the establishment of complex
civil divisions in other counties does not appear practical or necessary at this point in
time. The presiding civil department judge entertained one motion for complex case
designation filed by a party in an out-of-county case from Coconino County. Current law
permits a change of venue to another county in civil cases by either the consent of the
parties or by court order based on a determination of good and sufficient cause. A.R.S.
§12-401 et. seq.
6
F. CONCLUSION
Over the past four years, the committee has had the pleasure of watching this program
grow from a concept into a reality of recognizable value to the legal community. Many
people deserve acknowledgement for this accomplishment, not least of which are the
judges, clerks, administrators, and judicial staff at the Superior Court in Maricopa
County. They have laid a solid foundation on which to continue to build. The committee
urges the court to continue the program with the eventual goal of making it a permanent
part of the judicial landscape in Arizona.
7
Appendix A
(3) In those counties in which a complex civil litigation program has been
established, in addition to the description required by (1), the caption shall
also identify the action as complex if the action meets the criteria listed in
Rule 8(i).
Appendix A-1
[New] Rule 8 (i) Complex Civil Litigation Program Designation
(1) Definition. In those counties in which a complex civil litigation program has
been established, a “complex case” is a civil action that requires continuous judicial
management to avoid placing unnecessary burdens on the court or the litigants and to
expedite the case, keep costs reasonable, and promote an effective decision making
process by the court, the parties, and counsel.
(2) Factors. In deciding whether a civil action is a complex case under subdivision
(a), the court shall consider the following factors:
(A) Numerous pretrial motions raising difficult or novel legal issues that will be
time-consuming to resolve;
(B) Management of a large number of witnesses or a substantial amount of
documentary evidence;
(C) Management of a large number of separately represented parties;
(D) Coordination with related actions pending in one or more courts in other
counties, states or countries, or in a federal court;
(E) Substantial postjudgment judicial supervision;
(F) The case would benefit from permanent assignment to a judge who would
have acquired a substantial body of knowledge in a specific area of the law
(G) Inherently complex legal issues;
(H) Factors justifying the expeditious resolution of an otherwise complex dispute;
(I) Any other factor which in the interests of justice warrants a complex
designation or as otherwise required to serve the interests of justice.
(3) Procedure for designating a complex case. At the time of filing the initial
complaint, a plaintiff may designate an action as a complex case by filing a motion
and separate certification of complex case identifying the case attributes outlined in
(2) justifying the designation. The certification shall be in a form approved by the
Supreme Court and must be served on the defendant along with the motion at the
time of service of the complaint. Plaintiff’s certification, and any controverting
certificate of a party represented by an attorney, shall be signed by at least one
attorney of record in the attorney’s individual name. A party who is not represented
by an attorney shall sign the party’s certification of complexity or controverting
certification.
The signature of an attorney or party constitutes a certification by the signer that the
signer has considered the applicability of Rule 8(i) of the Arizona Rules of Civil
Procedure; that the signer has read the certificate of complexity or controverting
certificate; that to the best of the signer’s knowledge, information and belief,
formed after reasonable inquiry, it is warranted; and that the allegation as to
complexity is not set forth for any improper purpose. The provisions of Rule 11(a)
of these Rules apply to every certification of complexity filed under this Rule.
Appendix A-2
and the defendant disagrees with the plaintiff’s assertion as to complexity, the
defendant shall file and serve no later than that party’s first responsive pleading a
response to plaintiff’s motion and a controverting certification that specifies the
particular reason for the defendant’s disagreement with plaintiff’s certificate.
(6) Action by court. The presiding judge of the court or designee shall decide, with
or without a hearing, whether the action is a complex case within 30 days after the
filing of the response to the designating party’s motion. The court may decide on its
own motion, or on a noticed motion by any party, that a civil action is a complex
case or that an action previously declared to be a complex case is not a complex
case. This ruling may be made at any time during the pendency of an action, for
good cause shown. If the court finds that an attorney or party has made an
allegation as to complexity which was not made in good faith, the court, upon
motion or upon its own initiative, shall make such orders with regard to such
conduct as are just, including, among others, any action authorized under Rule 11(a)
of these Rules.
(7) Not Appealable. Parties shall not have the right to appeal the court’s decision
regarding the designation of an action as complex or noncomplex.
COMMENT
Proposed Rule 8(i) is intended to establish a process by which the
parties can alert the court to the complex nature of their dispute.
However, the determination that a case is, in fact, eligible for the
complex litigation program is to be made by the presiding judge or
designee. The parties are not to self-select in the absence of a
determination by the court on good cause shown.
Justification for this rule: This rule sets the standard for
determining whether a case is eligible for participation in the
complex case program. It also sets out a process for designating a
case as complex and for contesting the designation. A ruling on
whether a case is eligible for the complex case program is not
appealable to promote early final resolution of the issue of eligibility
for participation in the program. This is in keeping with one of the
overall goals of the program: to achieve finality for complex cases in
an expedited manner.
Appendix A-3
[New] Rule 8(i) Program Designation Certification Form
IN THE SUPERIOR COURT OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
)
_______________________, ) Case No. _______________________
Plaintiff )
) 9 Certification of Complexity
vs. ) 9 Joint Certification of Complexity
) 9 Contravening Certification
_______________________, )
Defendant )
)
The (undersigned certifies) (parties certify) that this action is a complex case for the
following reasons:
9 Numerous pretrial motions raising difficult or novel legal issues that will be time-consuming to
resolve
9 Management of a large number of witnesses or a substantial amount of documentary evidence
9 Management of a large number of separately represented parties
9 Coordination with the following related actions pending in one or more courts in other counties,
states or countries, or in a federal court:
_______________________________________________________________________________
_______________________________________________________________________________
9 Substantial postjudgment judicial supervision
9 The case would benefit from permanent assignment to a judge who would have acquired a
substantial body of knowledge in a specific area of the law
9 Inherently complex legal issues
9 Factors justifying the expeditious resolution of an otherwise complex dispute
9 The following other factor(s) warranting designation as a complex case, in the interest of justice:
________________________________________________________________________
________________________________________________________________________
The (undersigned certifies) (parties certify) that this action is not a complex case for the following
reasons:
________________________________________________________________________
________________________________________________________________________
___________________________________ _____________________________________
(Attorney for) (Plaintiff) (Defendant) (Attorney for) (Plaintiff) (Defendant)
Appendix A-4
[New] Rule 16.3. Initial Case Management Conference in Cases Assigned to the
Complex Civil Litigation Program
Appendix A-5
concerning the matters to be raised at the conference, shall attempt in good
faith to reach agreement on as many case management issues as possible,
and shall submit a joint report to the court no later than seven (7) days
before the initial case management conference. A party who fails to
participate in good faith shall be subject to sanctions.
COMMENT
Justification for this rule: Rule 16.3 is intended to supplement the
Arizona Rules of Civil Procedure in a manner that will provide
judges and litigants with appropriate procedural mechanisms for the
fair, efficient and expeditious management of discovery, disclosures,
motions, service of documents and pleadings, communications
between and among counsel and the court, trial, and other aspects of
complex civil litigation. Other than as specifically set forth, cases
assigned to the complex litigation program are not exempt from any
normally applicable rule of procedure, except to the extent the trial
judge may order otherwise. Proposed Rule 16.3 should be available
to any trial judge who wishes to follow it, in whole or in part, in
managing a civil dispute, even in cases that are not formally
assigned to a complex litigation program.
Case Management Resources. In considering procedures for
management of a complex civil case, the court, in its discretion, may
look for guidance to the Manual for Complex Litigation published
by the Federal Judicial Center and to similar complex litigation
manuals used by courts in other jurisdictions.
Appendix A-6
[New] Rule 39.1. Trial of Cases Assigned to the Complex Civil Litigation Program.
COMMENT
Justification for this rule: See 16.3.
Appendix A-7
Appendix B
Complex Civil Litigation User Survey
Results Summary
October 2006
Total 37 28 14 1 3
Responses
Response 45% 34% 17% 1% 4%
Percent
Total 30 30 19 2 2
Responses
Response 36% 36% 23% 2% 2%
Percent
Total 24 26 28 2 3
Responses
Response 29% 31% 34% 2% 4%
Percent
Appendix B-1
The judge(s) in my CCL case (s) were more experienced in dealing with
complex issues than judges who are not assigned to the CCL pilot
program.
Total 39 29 8 3 3
Responses
Response 48% 35% 10% 4% 4%
Percent
CCL judges, overall, have more familiarity with complex case law to
decide such cases fairly and accurately than judges who are not in the
CCL pilot program
Total 28 37 9 5 3
Responses
Response 34% 45% 11% 6% 4%
Percent
Total 37 28 14 1 3
Responses
Response 45% 34% 17% 1% 4%
Percent
Appendix B-2
Given that CCL judges have long-term judicial assignments (not
rotated), trial counsel and their clients are more able to accurately
predict the course of the case in cases assigned to the CCL program
than in cases not assigned to the CCL program.
Total 45 24 8 5 1
Responses
Response 54% 29% 10% 6% 1%
Percent
Clients generally are happy with the operation of the CCL program.
Total 26 26 25 3 3
Responses
Response 31% 31% 30% 4% 4%
Percent
Total 1 9 21 30 20
Responses
Response 1% 11% 26% 37% 25%
Percent
Appendix B-3
Rulings are just as consistent.
Total 2 14 23 35 6
Responses
Response 2% 18% 29% 44% 8%
Percent
Total 3 29 30 13 5
Responses
Response 4% 36% 38% 16% 6%
Percent
Total 4 18 28 28 2
Responses
Response 5% 22% 35% 35% 2%
Percent
Appendix B-4
Most non-complex judges have sufficient experience in complex
litigation to manage their caseloads in an efficient and effective manner.
Total 4 14 28 31 4
Responses
Response 5% 17% 35% 38% 5%
Percent
Total 2 27 32 15 3
Responses
Response 3% 34% 41% 19% 4%
Percent
Yes No
Total 65 17
Responses
Response 79.3% 20.7%
Percent
Appendix B-5
Reform the existing program but do not eliminate it completely.
Yes No
Total 22 43
Responses
Response 33.3% 65.2%
Percent
Yes No
Total 3 73
Responses
Response 3.9% 96.1%
Percent
Expand the volume of case types that are admitted to the program.
Yes No
Total 44 36
Responses
Response 55% 45%
Percent
Appendix B-6
Support legislation that would provide for a statewide Complex Civil
Litigation program.
Yes No
Total 67 15
Responses
Response 81.7% 18.3%
Percent
Yes No
Total 74 6
Responses
Response 92.5% 7.5%
Percent
Total 41 27 14
Responses
Response 50% 33% 17%
Percent
Appendix B-7
Please indicate the types of case(s) that you have handled in the Complex
Litigation pilot.
Yes No
Total 18 64
Responses
Response 22% 78%
Percent
Appendix B-8
How many complex civil cases (pilot and non-pilot) have you handled in
the Superior Court in Maricopa County or elsewhere in the past 10
years?
1 to 4 5 to 10 11 to 20 21 +
Total 36 24 15 6
Responses
Response 44% 30% 19% 7%
Percent
1 to10 11 to 20 21 to 50 51 +
Total 20 12 19 29
Responses
Response 25% 15% 24% 36%
Percent
Defendant’s Plaintiff’s
Attorney Attorney
Total 54 23
Responses
Response 70.1% 29.9%
Percent
Appendix B-9
How many years have you been an attorney?
1 to 10 11 to 20 21+
Total 22 23 36
Responses
Response 27% 28% 44%
Percent
Appendix B-10
THE BUSINESS LITIGATION SESSION IN
MASSACHUSETTS SUPERIOR COURT: A STATUS REPORT
February 2003
FOREWORD AND ACKNOWLEDGEMENTS
The dedication of a separate session of the Superior Court to the resolution of business
disputes has been considered for some time in the Commonwealth both by the judiciary and by
legal practitioners. It was not until October 2000 that this possibility became a reality when
Superior Court Chief Justice Suzanne V. DelVecchio launched the Business Litigation Session
of the Suffolk Superior Court as a two-year pilot program, with Superior Court Associate Justice
Allan van Gestel presiding.
To assist with this ambitious program, Chief Justice DelVecchio also appointed a
committee of attorneys from a variety of backgrounds to provide input and feedback to the
public and the Chief Justice. In an effort to obtain informed responses about the impact of the
Business Session on the practice of law in the Commonwealth and the experiences of
practitioners with the Session, members of the Committee traveled the state, speaking with
practitioners in every county. The Committee examined how other states had implemented
business litigation courts, and commissioned a professional survey of attorneys with cases before
the Business Session. Committee members also consulted the judges appointed to the Business
Session and the Chief Justice of the Superior Court regarding various aspects of the operations of
the Session.
This report is the written culmination of the work of the Committee over the past two
years. It is intended to provide members of the legal and business community with information
on the operation of the Business Session in its first two years, and to make recommendations
concerning the future of the Session.
This report was prepared with the assistance of numerous individuals and institutions, to
whom we are grateful. In particular, we wish to acknowledge the New England Legal
Foundation for its financial support, and EMC Corporation and Chris Goode at EMC for their
valuable in-kind assistance. A number of attorneys and paraprofessionals from Hill & Barlow,
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, Holland & Knight, and McDermott, Will &
Emery assisted in the work of the Committee and the preparation of this report, including Sarah
Herlihy, Melissa Nott, James Wodarski, Lauren Benowitz, Rebeccah Weiss, Amy LaPrade, and
Terrence McNeil.
The Committee would also like to acknowledge the assistance of Chief Justice
DelVecchio, Business Session Presiding Justice Allan van Gestel, and Associate Justice Margot
Botsford. During the two-year pilot program, they have provided valuable information and
assistance to the Committee and have been extremely generous in discussing the inner workings
of the Business Session.
As a final note, the members of the Committee would like to express our sadness upon
the passing of one of our members, Richard Testa. While his legacy reverberates within the
larger legal community of which he was such an integral part, we are fortunate to have benefited
from his insight as well.
The establishment of the Business Litigation Session of the Suffolk County Superior
Court in October 2000 represented the culmination of a long-discussed innovation within the
Massachusetts trial court system. After considerable debate among the judiciary and members of
the bar, in September 2000 Superior Court Chief Justice Suzanne DelVecchio announced a two-
year pilot program in which a session of the Superior Court sitting in Suffolk County would be
set aside for complex commercial litigation, with Associate Justice Allan van Gestel presiding.
The decision to create the Business Session was not without controversy. Numerous
members of the bar and the judiciary voiced concern that a separate session for complex cases
would be “elitist” and would be used to dispense “better” justice to the business community than
to less-affluent litigants; that it would unnecessarily impede the appropriate allocation of judicial
resources within the Superior Court civil sessions, when other mechanisms such as special
assignments could be utilized more efficiently; and that it would require judges who would
prefer to serve as generalists into forced specialization of their docket. Yet there also existed
disputes in particular were being increasingly litigated through alternative dispute resolution
services which provided a system of private justice not available to many litigants, which did not
produce publicly-available judicial opinions, and which deprived the public of a broader
jurisprudential foundation in the field of business law. Complex commercial cases requiring
specialized knowledge were many times assigned through the rotation system to judges with
little experience in the area. And, the Commonwealth’s reputation as a judicial forum hostile to
1
Meanwhile, state courts around the country have increasingly adopted specialized
business courts, with positive results. Building on the experience of other states, the Business
Litigation Session in Suffolk County Superior Court was born. After two years of operation, all
indicators suggest that the experiment has been highly successful and should not only be made
permanent, but should be expanded to other counties. In particular, the Committee recommends
that the session include cases from Middlesex, Norfolk, and Essex counties in addition to Suffolk
County, with the expectation that the session will ultimately encompass cases filed statewide as
the structure is refined and the pool of interested and experienced judges is expanded.
• The recent trend in state court administration -- concurrent with the trend in the
practice of law -- weighs heavily in favor of establishing specialized tribunals for
commercial litigation;
• 83% of the survey respondents reported that the existence of the Business Session
had enabled them to provide better legal service to their clients. The primary
reasons cited by the respondents were (i) the assignment of one judge throughout
the case, (ii) the timeliness of hearings and decisions, and (iii) the establishment
of firm trial dates;
• Nearly two-thirds of all respondents (60%) reported that they are more likely now
to recommend that a client file suit in the Business Session rather than using
private dispute resolution services, and a similar number (58%) rated their
experience with the Business Session more favorable than their experience with
ADR for resolving commercial disputes;
• Nearly all respondents (95%) stated that the Business Session should be made
permanent, with 89% indicating that it should be expanded to counties other than
Suffolk County;
2
• The best practices which have emerged from business courts established in other
states include (i) the assignment of cases to a single judge from filing to trial,
(ii) early and active judicial involvement in case management, (iii) early
application of ADR as a complement to judicial resources to expedite case
resolution, and (iv) the incorporation of appropriate technology to support the
court’s case management and trial activities. While the Business Session has
adopted a number of these best practices, the lack of adequate resources for
technology will substantially hinder the fulfillment of the Session’s potential to
adjudicate complex business disputes in the future;
• Cases filed in Middlesex, Norfolk, and Essex counties should be eligible for
acceptance into the Business Session, in addition to those filed in Suffolk County;
• In all other counties, parties should be allowed to “opt in” to the Session by
mutual agreement, and a small pool of interested judges with extensive experience
in complex commercial cases should be named to receive special assignments for
disputes satisfying the criteria for acceptance into the Business Session;
• The locus of the Business Session should remain in Suffolk County for the
present; and
• The criteria for acceptance of cases into the Business Session should not be
currently expanded to encompass non-commercial complex disputes, although
such an expansion may be advisable in the future.
Much credit for the apparent success of the Business Session lies with the selection of the
judges who have agreed to serve in it: Presiding Justice Allan van Gestel, Judge Margot
Botsford, Judge Nonnie Burnes, and Judge Gordon Doerfer have all brought necessary
experience and wisdom to the Session. As in the past, the Committee believes that the key to the
future success of the Business Session will lie in the identification of judges with similar
experience and interest in presiding over the types of complex commercial litigation which
3
BACKGROUND OF THE BUSINESS LITIGATION SESSION
The establishment of the Business Session in the fall of 2000 capped a five-year process
involving input from numerous members of the bar and the judiciary. While the Delaware
Chancery Court has long stood at the forefront of business litigation through an experienced
judiciary well versed in the development and promulgation of business jurisprudence, until
recently few other states had followed suit. In the wake of the establishment of a separate
Commercial Division of the Supreme Court in New York in 1995, the Corporate Law and
Business Litigation Committees of the Boston Bar Association, with the approval of then BBA
President Joel Reck, began studying the feasibility of establishing a similar specialized tribunal
The New York model has proved instructive. In January 1993, four judges of the state
Supreme Court were assigned administratively to hear commercial cases in New York County
(Manhattan), and in November 1995 a more formal Commercial Division was established. In
November 1996, the Chief Administrative Judge of the New York State Unified Court System
reported that since the tribunal’s inception, overall there had been:
Of particular note was the fact that the Commercial Division was created through the court’s
rule-making powers, with no new courthouses or courtrooms needed to institute the Division.
The experiment has been received favorably within the New York business community:
according to the Chairman of the Business Council of New York State and then-Chairman of the
4
Board and Chief Executive Officer of Texaco, Inc., Peter I. Bijar, “[W]e have now gone . . . from
a court system that often evoked frustration among businesses, to a business court that is the
envy of other states . . . [T]he Commercial Division is an asset to the business community in
Meanwhile, after almost a year of inquiry and study, the BBA committee began
conferring with the Superior Court judiciary regarding the feasibility of establishing a similar
session in the Commonwealth. During those discussions a number of issues were raised, such as,
for example, concern regarding the necessity for such a tribunal in light of the availability of
special assignments for complex commercial cases. Others were concerned with the potential
perception that the business tribunal would serve as an “elite” court, dispensing “better” justice
on a selective basis to the business community and to the detriment of other litigants. In
addition, some raised very pointed concerns regarding the effect of such a tribunal on the ability
of the Chief Justice to appropriately allocate judicial resources, particularly in the event there
were not a sufficient number of cases to keep the business judges occupied.
Such concerns echoed those identified by the American Bar Association in a May 1997
report issued by the ABA Ad Hoc Committee on Business Courts.4 In response, the ABA Ad
Hoc Committee, along with other bar association and judicial committees, identified numerous
policy considerations in favor of such tribunals. Many states, including Massachusetts, have
experienced a shift from public to private dispute resolution providers, such as the American
Arbitration Association or other ADR services. To the extent such cases do not re-enter the
judicial system, the development of comprehensive decisional case law on business and financial
judges with appropriate expertise to litigation requiring that expertise, judicial resources may be
5
appropriately targeted through the removal of otherwise time-consuming cases from the regular
docket: as the ABA Ad Hoc Committee observed, “the work of more than four generalist judges
can be accomplished by three specialty business judges.”5 Such resource allocation issues can be
even further alleviated if the business jurists are made available for other assignments if
workloads became uneven. Also, the concerns surrounding “elitism” have to some extent been
undercut by the existence of other well-accepted specialty courts such as those handling probate,
family, juvenile, traffic, drug-related, or criminal matters. Recently, for example, some members
of the Massachusetts bar have advocated for the establishment of a specialized trust and estate
Finally, as the ABA Ad Hoc Committee observed in response to the argument that many
Unfortunately, the failure to build an expertise and the cost of being a Renaissance
lawyer exacts a high price which must be paid by someone. In the case of the private bar,
that someone, namely the public that retains lawyers to provide services, simply refused
any longer to pay the price for the non-expert lawyer to dabble in various fields. The
public has forced reluctant lawyers to develop experience, expertise and knowledge in the
field of law which they practice . . . There are no similar direct pressures on the judiciary,
but to the extent that it resists specialization, it imposes significant costs on society.7
In light of these policy considerations, many states have adopted specialty business
• Beginning in 1993, New York adopted first a pilot program and then a formalized
Commercial Division handling only commercial disputes;
6
• In 2000, the Court of Common Pleas of Philadelphia County, Pennsylvania has
assigned two judges to hear commercial cases;
• In 2000, California instituted a three-year pilot program to create six urban centers
to serve as regional clearinghouses for complex litigation;
recent survey conducted by the United States Chamber of Commerce on perceptions regarding
the state’s reputation for its ability to effectively handle business litigation. The nationwide
survey, conducted among corporate and in-house counsel in 2001, placed Massachusetts near the
bottom of the country in a variety categories. According to that survey (relevant portions of
7
In 1999, members of the Massachusetts legislature filed a bill to adopt a Complex Case
Division within the trial court. Then-BBA President Lauren Rikleen appointed an ad hoc
committee to study the feasibility of the legislation; that committee concluded that specialization
within the court was desirable but could be achieved through a different mechanism than that
proposed by the legislation. Specifically, the BBA Committee recommended that two judges be
assigned to a special business court division of Suffolk County to hear cases that involve certain
defined issues. The BBA Committee further recommended that cases be eligible for the business
court division based solely on the issues in the case, without regard to the amount in controversy
(except that the amount must meet the minimum ad damnum for all Superior Court cases) or
whether the parties in the case were individuals or entities. In so doing, the BBA Committee
also considered whether the special assignment system -- already available for complex cases --
could address the needs of complex cases without the addition of a business court division; the
committee concluded that it would not satisfy the need for a specialized judiciary to develop a
In the summer of 2000, Superior Court Chief Justice Suzanne V. DelVecchio announced
the creation of a special session in the Suffolk Superior Court to hear business-related cases. The
Business Litigation Session was initiated as a two-year pilot program commencing on October 2,
2000, with the Honorable Allan van Gestel, an Associate Justice of the Superior Court, presiding.
8
OPERATION OF THE BUSINESS LITIGATION SESSION
A. Criteria
According to the Notice to the Bar announcing the opening of the Business Litigation
Session of the Suffolk Superior Court (attached as Appendix B hereto), cases involving the
• claims to determine the use or status of, or claims involving, intellectual property;
• claims to determine the use or status of, or claims involving, restrictive covenants;
• claims arising from transactions with banks, investment bankers and financial
advisers, brokerage firms, mutual and money funds involving complex issues;
9
• claims by or against a business enterprise involving complex issues to which a
government entity is a party; and
The venue and jurisdictional limits of the Business Session pilot program have been
confined to Suffolk County. While venue can, in some cases, be waived, jurisdiction cannot be
waived. Cases filed in the Business Session are reviewed to confirm that venue and jurisdiction
are appropriate.
As with any new process, there has been some confusion regarding the proper procedures
for filing cases in the Business Session. In Devellis v. Hewlett-Packard Co., Sup. Ct. Civil
Action No. 01-0169 (June 21, 2001) (attached as Appendix C hereto), Judge van Gestel clarified
1. By plaintiffs’ filing with the Suffolk Civil Clerk’s Office and utilizing the
special BLS Civil Action Cover Sheet describing why counsel believes the
case belongs in the Session; after which the Presiding Justice of the BLS
will review the complaint to assess its appropriateness.
If the session Judge denies the motion then there is no appeal to or right to
reconsideration by the Presiding Justice of the BLS. If, however, the
session judge allows the motion, the Presiding Justice of the BLS still
retains the discretionary authority to consider and decide upon the
appropriateness of the transfer before it becomes effective.
10
transfer is sought ought to be given the courtesy of notice because the
potential for transfer may affect scheduling and other issues.
As these guidelines make clear, once jurisdictional and venue considerations are satisfied,
the Presiding Justice of the Business Session has the final authority to decide whether to accept a
B. Operation
During its two-year existence, several Superior Court judges have been assigned to
adjudicate cases within the Business Session, with Associate Justice Allan van Gestel serving as
the Presiding Justice of the Session since its inception. Prior to his appointment to the Appeals
Court, Judge Gordon L. Doerfer served as the Session “back-up” judge, handling cases that
Judge van Gestel could not adjudicate due to substantive or scheduling conflicts. With an
increasing caseload and Judge Doerfer’s departure, Judge Nonnie S. Burnes was selected to
serve as “back-up” judge for the Session. The necessity for appointment of a second judge to the
Business Session soon became apparent, and Judge Margot Botsford joined the Session in
January 2002. Judge Botsford currently manages the coordinated asbestos litigations pending in
Superior Court that had previously been administered by the Honorable Hiller Zobel until his
retirement, with the remainder of her docket comprised primarily of cases within the Business
Session. New cases accepted into the Business Session are assigned alternately to Judge van
Gestel or Judge Botsford. Each of the judges who have served in the Business Session were
selected based upon his/her experience with and interest in adjudicating complex business
litigation.
Cases accepted into the Business Session are assigned to a single judge and are expected
to remain with that judge throughout the life of the case. The continuity of a single judge
permits ongoing management of discovery and the narrowing of legal issues throughout the case.
11
Shortly after assignment of a case to the Business Session, a Rule 16 conference is scheduled to
establish a case-specific tracking order. At that time, a presumptive trial date is identified by the
Business Session judge in consultation with the parties. The dates selected for trial are blocked
out on the calendar of the judge, and will not be changed absent extraordinary circumstances.
Initial concerns that a specialized business court would not carry a large enough caseload
appear unwarranted. In all, 610 cases have been accepted into the Business Session from
October 2, 2000 through January 28, 2003, with the frequency of filings increasing over time:
currently, approximately 5-7 new cases are accepted into the Business Session each week, with
that number continuing to rise as attorneys become more familiar with the Session. Upon the
Business Session’s inception, 81 cases satisfying the case intake criteria that were already
pending in Suffolk Superior Court were transferred into the Session either sua sponte, by motion
of one of the parties, or on the recommendation of a judge in the regular session. As of January
28, 2003, 529 new cases have been accepted into the Business Session and 59 cases have been
rejected (mostly for venue-related reasons but increasingly due to a lack of complexity). Of the
610 cases in the Session, 374 have been disposed of; of those, 188 have settled, and the
remainder have been resolved by trial, dispositive motion, or, in a few instances, removal to
federal court. While the total number of cases currently handled by the Business Session is less
than the docket found in other civil sessions, cases accepted into the Session generally appear to
be more consistently complex than the case load found in such other sessions.
Data regarding the types of cases admitted into the Business Session indicate that
practitioners are using the Session for the complex types of business litigation originally
contemplated by the Notice to the Bar. A substantial percentage of the cases accepted into the
Business Session involved claims for breach of contract or tortious conduct involving business
12
relationships, followed by other commercial claims (including insurance, construction, real estate
and consumer matters) involving complex issues and claims involving restrictive covenants; the
remainder of the Business Session docket consists of a wide range of commercial litigation,
SURVEY RESULTS
In order to ascertain the progress of the Session, the Committee, through subcommittee
chairs Andrew Grainger of the New England Legal Foundation and Paul Dacier of EMC
the end of the Session’s first year and a half of operation. The survey was conducted by an
independent research organization, Atlantic Research & Consulting, in order to (i) measure
willingness to recommend the Session to clients and peers, and (iv) gauge interest in geographic
The survey indicated an extremely high degree of satisfaction with the Session. Among
• 83% of respondents stated that the Business Session enabled them to give better
legal service to their clients. When asked to describe how the Business Session
allowed them to do so, respondents cited in particular the assignment of a single
judge throughout the case, the timeliness of decisions and hearings, and the firm
trial dates;
• 94% of respondents were “extremely satisfied” or “very satisfied” that the judge
was prepared for their case;
13
• 91% of respondents were “extremely satisfied” or “very satisfied” with the
firmness of the schedule established by the Business Session for their case;
• 58% of respondents stated that their experience with the Business Session was
“more favorable” than their experience with private ADR, and 60% stated that
their experience in the Business Session would make them more likely in the
future to recommend the Session to their clients than ADR;
• 95% stated they believed the Business Session should be made permanent, with
89% favoring expansion to other counties.
A copy of the survey results is attached as Appendix E hereto.12 Significantly, satisfaction levels
among the survey respondents were consistent across all major analytic subgroups, such as
practitioners from small, medium, and large firms, and those representing individuals versus
corporations.
Respondents were first asked to indicate the nature of the case they litigated before the
14
What is the nature of your case? (Top Mentions) (Multiple responses
accepted) (N=94)
satisfied (6 or 7 on a 7-point scale) that the judge was prepared for their case. No respondent
reported dissatisfaction (1 or 2 on a 7-point scale) with the judge’s preparedness. The average
How satisfied or dissatisfied are you that the judge was prepared for your case?
(N=91)
6 24%
5 3%
4 0%
3 2%
2 0%
Extremely dissatisfied 0%
The survey further indicated that practitioners were pleased with the ability of the
Business Session to establish firm dates for their cases. A strong majority of respondents (91%)
15
reported that they were satisfied (6 or 7 on a 7 point scale) with the firmness of the schedule
established by the Business Session for their case. No respondent reported dissatisfaction (1 or 2
The survey further suggested that the establishment of firm trial dates has had a positive
effect on the progress of cases. Fifty-three percent (53%) of respondents agreed that the
establishment of firm dates changed the way in which they litigated their case. More than half
(58%) of responding attorneys indicated that the establishment of firm dates by the Business
Session facilitated earlier settlement in their cases. Forty-six percent (46%) of respondents said
that it has enabled them to better or more efficiently prepare for their case, while 12% reported
that it has streamlined discovery, and 10% said it has reduced the costs of litigation.
What effect has the establishment of firm dates had on your case? (Multiple
responses accepted) (N=49)
Other 6%
resolution in the Business Session. The strong majority (87%) of those respondents who had
filed an emergency motion reported that they were satisfied (6 or 7 on a 7-point scale) with the
promptness and efficiency with which the Business Session ruled in their emergency motion. No
respondent reported dissatisfaction (1 or 2 on a 7-point scale) with the promptness and efficiency
16
How would you rate your satisfaction or dissatisfaction with the
promptness and efficiency with which the BLS ruled on your emergency
motion? (N=52)
6 12%
5 7%
4 4%
3 2%
2 0%
Extremely dissatisfied 0%
The survey also asked respondents to indicate the total number of motions they filed
during the time period their case had been in the Business Session. Forty-five percent (45%) of
respondents stated that they had filed three or more motions, 24% had filed two motions, 18%
had filed one motion. Only 10% of respondents had not yet filed any significant motions at the
A full 83% of respondents reported that the Business Session had enabled them to give
better legal services to their clients, primarily due to the assignment of one judge throughout the
case (47%), and the Business Session’s ability to set and maintain firm litigation deadlines (44%
cited the timeliness of decisions, 40% cited the timeliness of hearings and 24% cited firm trial
dates).
17
In what way has the Business Session enabled you to give better legal service to
your clients? (Multiple Responses accepted) (N=78)
Other 3%
The survey results also suggested that the existence of the Business Session may result in
recapturing some of the business litigation that has opted for private ADR service in recent years.
Virtually all of the respondents (97%) reported they would recommend the Business Session to
their clients, with a majority (60%) further indicating they would be more likely to recommend
that a client file suit in the Business Session rather than using a private mediation or arbitration
process. Fifty-eight percent (58%) of respondents stated that their experience with the Business
Session compared more favorably to their experiences with private alternative dispute resolution.
Respondents were nearly uniform (88%) in stating that they were very satisfied or
extremely satisfied with the Business Session. Fully 95% expressed their opinion that the
18
How would you rate the Business Litigation Section overall? (N=94)
6 36%
5 9%
4 2%
3 1%
2 0%
Extremely dissatisfied 0%
No
2%
Don't know
3%
Yes
95%
19
Expansion of the Business Session
Similarly, the vast solid majority (89%) of respondents believed that the Business Session
should be expanded, with many (25%) stating that it should be expanded to all counties
statewide. For those who specified individual counties for expansion, Middlesex County topped
the list (69%), followed by Norfolk County (49%) and Essex County (16%).
Don't know
5%
No
6%
Yes
89%
To where would you like to see the Business Session expand? (Multiple responses
accepted) (N=83)
Middlesex 69%
Norfolk 49%
Essex 16%
Worcester 11%
Plymouth 4%
Hampden 1%
Other 6%
Don't know 1%
20
The survey also provided respondents with an opportunity to provide comments
regarding improvements to the Business Session. Several respondents suggested the addition of
a law clerk dedicated to the Session; others recommended more judges for the increasing
caseloads; and still others specifically expressed dissatisfaction with the circuit system in civil
sessions other than the Business Session. There were also a number of positive comments
as well as by the increasing frequency of cases applying for acceptance into the Session, the
Business Session has become well integrated into the legal community. Chief Justice
DelVecchio and Judges van Gestel and Botsford are regular fixtures on bar panels, in the local
media, and in other public arenas discussing the Business Session. Numerous media articles --
including op-ed pieces by members of the Committee and bar journal articles by Session
judges -- have been devoted to the operations of the Business Session. The center for
which addresses the various legal issues handled within the Session and at which Session judges
serve as keynote speakers. Session judges and members of the Committee have met with
representatives from other states and from other countries regarding the operations of the
Session. The Business Session has been increasingly woven into the fabric of the legal
community in Massachusetts, and there appears a clear mandate to continue the work of the
21
“BEST PRACTICES” FROM BUSINESS COURTS IN OTHER STATES
The Committee also considered in detail the “best practices” in business court
administration gleaned from experiences in other states, and appointed a subcommittee, headed
by Deborah Thaxter of Nixon Peabody and James Marcellino of McDermott, Will & Emery, to
According to the National Center for State Courts, the four “best practices” for case
1. Single Assignment – cases are assigned to a single judge for all case
management purposes from filing to trial.
2. Early and Active Judicial Involvement – the business court judge takes a
direct and active role in managing the case, including developing the case
schedule; appointing quasi judicial personnel (i.e., mediators); oversight of
frequent and meaningful case status conferences; and direct availability to
counsel and parties to help resolve case management disputes and
problems.
The Committee’s review of the operation of specialized business courts in California, Delaware,
New York and North Carolina reveal that these courts have incorporated, to a much greater
degree than in Massachusetts, each of these best practices despite the fact that some of the courts
22
California
California determined that it needed a specialized court for complex cases dealing with a
broad range of subject matters, not just business issues. Accordingly, California developed a
California created the Complex Civil Litigation Pilot Program in six counties in 2000.
The program was designed to give judges training and resources to help them manage complex
civil cases with greater effectiveness and efficiency. The pilot program provided funds for
augmenting the personnel and technological resources dedicated to complex civil cases. Courts
used their grant funds to hire additional research attorneys and staff and to improve technology.
Pilot courts held symposia to educate and share information with users of the complex litigation
system regarding discovery, case management, ADR, substantive legal areas and the use of
technology. Judges in the pilot program meet twice a year to exchange information and
participate in continuing education. The Legislature allocated almost $3 million per year to the
pilot program.
As part of its initiative, California created and distributed the Deskbook on Management
of Complex Civil Litigation to all judges in the state. The manual is intended to enable all judges
to identify and handle complex cases more efficiently and equitably. California also created a
specialized judicial curriculum devoted to complex civil case management and substantive law
Additionally, Orange County created a Complex Litigation Center. The center focused
monitors located throughout the courtroom. There are also specialized computer displays that
23
allow attorneys and witnesses to draw on the exhibits and maps, which can then be saved and
stored. This technology was implemented by a private company and is available to parties on a
Delaware
The Delaware Chancery Court was established in 1792 and has fully incorporated each
“best practice” into its operation. The Chancery Court’s jurisdiction is purely equitable and all
cases are heard without a jury. The judge handling a case is responsible for all fact finding,
rulings and written final opinions. This approach results in an extensive body of case law on
business matters. The scholarly culture of the Chancery Court is one of its chief benefits, and
emphasizes opinion writing among the judges. Further, the geographic proximity of all the
judges on the Chancery Court bench encourages collaboration and collegiality, allowing judges
In the Chancery Court, new cases are assigned to a judge on the day they are filed,
allowing the judge to make initial decisions regarding scheduling orders. The early assignment
to a single judge creates immediate accountability and responsibility for the progression of the
case.18
Judges on the Chancery Court bench may refer cases to ADR where appropriate.
Because Chancery Court judges have their own separate dockets, a matter referred to mediation
The Chancery Court is also active in incorporating technology to facilitate the disposition
of business cases. The court allows attorneys to appear by videoconference for case conferences
and hearings. Delaware has a virtual docketing system in place, allowing every member of the
24
court to see the entire docket as cases are filed. The Chancery Court also allows attorneys to
submit briefs on CD-ROM with hyperlinks to case law. Electronic filing is used to expedite time
sensitive cases.
New York
New York instituted an administrative session for business litigation in 1993, which in
1995 expanded into a more formalized Commercial Division. Similar to the Business Session,
the Commercial Division has judges with experience in handling commercial cases. Judges in
the Commercial Division are assigned to a case from filing to resolution and are expected to set
Program. Commercial Division judges may refer cases to ADR upon consent of the parties or on
its own initiative. Parties may choose the form of ADR they wish to utilize (mediation, early
neutral evaluation, arbitration, etc.). Parties ordered into the ADR program may choose to use
the court’s resources or private services. There is no charge for litigants who use standard ADR
The Commercial Division maintains a website and regularly posts leading decisions. The
Commercial Divisions in New York and Monroe Counties are pilot venues for electronic filing
New York recently created the “Courtroom for the New Millennium” for the Commercial
Division. The courtroom provides parties with state of the art technology and serves as a
technological training ground for the rest of the state. The courtroom features:
25
(e) touch screen monitor;
(f) capabilities for computer generated animation;
(g) customized integrated electronic podium;
(h) personal computer docking stations;
(i) video cassette recorder;
(j) component computers designed to run all courtroom software.22
North Carolina
North Carolina established its Business Court in 1995. All cases in the Business Court
are assigned there by the Chief Justice of the North Carolina Supreme Court. Judges in the
Business Court are required to write an opinion on the final disposition of all cases. Delaware’s
experience indicates that the requirement of a written opinion on all cases will help North
A key element to the Business Court is case management. A single judge is responsible
for a case from the time it enters the Business Court until its final disposition. The specialization
of Business Court judges is another benefit of the system. Judges who address only business
cases develop an expertise and proficiency that allows the judge to handle cases more efficiently.
The Business Court uses electronic filing and courtroom presentation extensively. The
court is wired for videoconferencing and all participants in a trial have access to their own
technology. The judge can control all the technology in the courtroom. Attorneys trying a case
in the Business Court have a variety of technologies available to them to enhance presentation.
Even witnesses are able to use tools such as a touch screen to help them illustrate their testimony.
Private foundations provided the funding for development of the technology used by the
Business Court.24
Using the criteria identified by the National Center for State Courts, the Business Session
has been successful in adopting certain “best practices” and not as successful in adopting others.
26
As is reflected in the survey results, the experience and capabilities of the judges assigned to the
session have been exemplary. The adoption of strong case management techniques such as the
assignment of a single justice throughout the life of a case, the establishment of customized
tracking schedules, the use of frequent case management conferences, and the setting of firm trial
dates has yielded very high satisfaction levels from litigants regarding the ability of the Session
to effectively resolve disputes. And, the Session is beginning to produce an evolving body of
At the same time, the Session has not been particularly focused on engaging the use of
ADR services in conjunction with its operations. While one of the goals of the Session is to
provide a viable forum for business disputes which have increasingly turned to ADR, as the
Session expands it may consider adopting more formalized mechanisms for incorporating
alternative dispute resolution techniques into its case management approach. For example, the
New York Commercial Division has established a formalized ADR process under the auspices of
the Division, and in Delaware cases are often sent to other Chancery judges to serve as
mediators.
technology into the Session. By necessity and by design, the Session has been budget-neutral,
and has not required any additional facilities or personnel to maintain operations. This fiscal
austerity, however, has had an opportunity cost: in stark contrast with the keen focus on
technology exhibited in virtually all other business courts, at the present time, for example, the
Session does not even regularly provide manual stenographic services to litigants for hearings.
As noted above, California’s Orange County has created a special “wired” courtroom for its
complex litigation; Delaware allows attorneys to submit briefs on CD-ROM with hyperlinks to
27
case law; New York has built a “Courtroom for the New Millennium” featuring real-time court
reporting, touch screen monitors, personal computer docking stations and customized courtroom
software; North Carolina has tapped into a private foundation for funds to develop technology in
its business court, which allow attorneys, judges, and even witnesses to access documents
electronically; and, by proposing a new “cybercourt” designed to minimize even the need for a
physical presence in the courtroom, Michigan hopes to take the process one step further. While
the newly revitalized docket computerization program within the Massachusetts statewide court
system will undoubtedly provide great improvements in the technological infrastructure, the
The Committee firmly recommends that the Business Session be made a permanent
session in the Superior Court. The survey results speak for themselves regarding the
endorsement of the Business Session among its practitioners: as noted above, virtually all
respondents (95%) affirmatively indicated that they believed the Session should be made
permanent. In these times of fiscal austerity, the Session has effectively served as a specialized
tribunal without the expenditure of additional funds from the trial court budget. The pilot
program has been a success; the Business Session has proven its value to the wider legal
There also appears to be strong support for expanding the session into other counties in
Business Session survey showed that the vast majority of respondents believed that the Business
Session should be expanded, with many advocating for its expansion statewide.
28
Accordingly, a subcommittee, headed by Michael P. Angelini, Esq. of Bowditch &
Dewey in Worcester, and former Worcester County Bar Association President James D.
O’Brien, Jr., Esq., was created to consider and gather information from the legal community
regarding the potential expansion of the Business Session, both geographically and in the types
of cases accepted. Members of the subcommittee contacted Bar Association leaders from each
county to solicit their views regarding the desire and/or need for expansion of the Business
Session; these interviews were supplemented by contacts with lawyers from that county with
business litigation practices. The subcommittee members then traveled to various regions of the
Commonwealth to meet with bar leaders and business practitioners to discuss their thoughts on
After these meetings, the subcommittee determined that while there was significant
business activity and a real interest in the Business Session outside of metropolitan Boston, the
interest lessened the further the subcommittee ventured outside of Boston. As a result of these
discussions and after consultation with the Business Session presiding judge regarding caseload
considerations, the Committee has concluded that the following would be in the public interest:
2. Continue, for now, the locus of the Business Session in Suffolk County,
even for cases from Essex, Middlesex, and Norfolk counties. The two
current Business Session judges, in conjunction with the Chief Justice and
the office of Suffolk County Clerk Michael Donovan, have developed
procedures to efficiently handle the intake and administration of cases
accepted into the Business Session; as in Delaware, the physical proximity
of the judges here has also assisted their ability to coordinate the
development of jurisprudence within the Business Session. The
proximity of these counties to Suffolk should minimize inconvenience to
29
parties, especially given the fact that many of the cases anticipated to be
filed in the Business Session are litigated by the same practitioners who
practice in the Business Session now.
3. Allow parties from other counties to “opt in” to the Business Session by
mutual consent and, in jury cases, by waiver of venue-driven jury
selection.
5. Do not, for now, expand the subject matter of cases eligible for acceptance
into the Business Session to include non-commercial complex cases.
While such expansion may be desirable in the future, such decisions
should be made after the results of the geographic expansion of the court
are analyzed and addressed.
CONCLUSION
Based upon all indicators, the establishment of the two-year pilot Business Litigation
Session in Suffolk County has been a successful and cost-effective innovation within the
Massachusetts court system. By providing a specialized forum staffed with judges experienced
with and interested in adjudicating complex commercial disputes, and by adopting more active
judicial oversight of cases within the session, the Business Session has been very well received
by business litigation practitioners and by the broader legal community. Importantly, the
Business Session has been cost-neutral, and has not required any additional facilities or
personnel. These results mirror the success of similar business tribunals in other states, and
30
should serve to elevate Massachusetts’s reputation regarding its ability to handle business
litigation.
While a number of legitimate concerns were raised prior to the establishment of the
Business Session, it appears that many of these concerns have either been addressed or have been
counterbalanced by the other policy considerations favoring the permanence and expansion of
the Session. For example, the concern regarding the provision of an “elite” session for a well-
heeled few has to some degree been allayed by the results of the survey conducted last spring: as
the survey noted, the positive reviews for the Session appear uniform across all demographic
lines, including practitioners from small, medium, and large firms, as well as those representing
individuals versus corporations. In addition, the Session appears not to have created any
significant case resource allocation issues: a ready supply of complex commercial litigation has
filled the Session’s docket, and Judge Botsford in particular has taken on a substantial number of
cases not formally accepted into the session. As with any administrative system, there exists a
tension between providing specialized services and allocating resources most efficiently. The
establishment of the Business Session appears to have achieved an appropriate balance between
The Committee recommends that the two-year pilot program for the Business Session in
Suffolk County be made permanent, and that the Business Session be expanded to allow
acceptance of appropriate cases from Middlesex, Essex, and Norfolk counties. For cases filed in
other counties, the Committee recommends that parties be allowed either to “opt in” to the
Business Session, or to apply for special assignment from among a limited pool of judges named
to accept complex commercial cases. Currently, the Committee does not recommend that the
subject matter criteria for acceptance into the Business Session be expanded to include non-
31
commercial complex litigation, although expansion of the criteria may be desirable in the future.
Finally, while the Committee anticipates that the two current judges assigned to the Business
Session may continue to adjudicate cases from other counties while sitting in Suffolk County,
their ability to do so should be closely monitored to determine whether additional judges should
It has been the Committee’s pleasure to provide analysis and make recommendations
concerning the future of the Business Litigation Session. We welcome public comment on this
Respectfully submitted,
February 2003
32
BOS1 #1313702 v1
1
See “A Proposal for Adjudication of Complex Commercial Cases,” Boston Bar Association.
2
Ibid., citing Press Release of November 7, 1996.
3
“New York Commercial Division Celebrates Fourth Anniversary,” The Metropolitan Corporate Counsel
(December 1999).
4
Report of the ABA Ad Hoc Committee on Business Courts, “Business Courts: Towards A More Efficient
Judiciary,” 52 Bus. Law. 947 (May 1997).
5
Ibid. at 952.
6
See “Practitioners Pushing for Trusts and Estates Session.” Massachusetts Lawyers Weekly (May 28, 2001).
7
Ibid. at 954.
8
U.S. Chamber of Commerce State Liability Systems Ranking Study, Final Report, Jan. 11, 2002.
9
The Notice to the Bar also specifies that the following types of cases are not eligible for assignment to the Business
Session:
• matters subject to compulsory arbitration or to the exclusive jurisdiction of the Probate, Land and
Housing Courts, the District Courts or the Boston Municipal Court;
• personal injury, survival or wrongful death matters;
• individual (non-class) consumer claims against businesses or insurers, including product liability
and personal injury cases;
• environmental claims not involved in the sale or disposition of a business;
• eminent domain matters;
• malpractice claims other than those designated above for the Special Sitting Justice;
• employment disputes not involving written contracts and employment discrimination cases;
• administrative agency review under G.L. 30, § 14, zoning and other appeals from administrative
agency orders;
• residential real estate and non-commercial landlord-tenant disputes; and
• occupational health or safety matters.
10
A listing of the cases accepted into the Business Session, by category, is attached as Appendix D hereto.
11
Participants were asked to rate their satisfaction levels on a scale of 1 to 7, with 7 being “extremely satisfied” and
1 being “extremely dissatisfied.” Responses of 6 on the 7-point scale were interpreted as “very satisfied.”
12
The survey was made possible by a grant from the New England Legal Foundation, for which the Committee is
grateful.
13
See Paula Hannaford, David Rottman, Roxana Gonzalez, Civil Action: A Briefing on Civil Justice Reform
Initiatives: Focus on Business and Complex Litigation Courts, National Center for State Courts (Aug. 2000).
14
In addition to the four states discussed here, a number of other states, including Colorado, Illinois, Maryland,
Michigan, Nevada, New Jersey, Ohio, Pennsylvania, Virginia, and Wisconsin are either considering or have
implemented some method for handling complex business cases.
15
See JUDICIAL COUNCIL OF CALIFORNIA, ADMINISTRATIVE OFFICE OF THE COURTS, FACT
SHEET: COMPLEX CIVIL LITIGATION.
16
See Remarks by Chief Justice Ronald M. George at the Inauguration of Orange County’s Complex Litigation
Center (Aug. 6, 2001), available at http://www.courtinfo.ca.gov/reference/speech0801.htm. See also DOAR,
HANDS ON TECHNOLOGY AT THE CIVIL COMPLEX LITIGATION CENTER.
17
See Hannaford, supra.
18
Id.
19
See The Commercial Division of The State of New York: Commercial Division Operating Statement, available at
http://www.courts.state.ny.us/comdiv/CD%20Operating%20Statement%202002%20-%20Introduction.htm.
20
See The Commercial Division of The State of New York: Commercial Division Alternate Dispute Resolution
Program, available at http://www.courts.state.ny.us/comdiv/ADR_Guide.htm.
21
See The Commercial Division of The State of New York: Electronic Filing Overview, available at
http://www.courts.state.ny.us/comdiv/e_filing.htm. The pilot program ran through July 2002.
22
See The Commercial Division of The State of New York: Courtroom for the New Millennium, available at
http://www.courts.state.ny.us/comdiv/Courtroom_Millennium.htm.
33
23
See North Carolina Business Court: About the North Carolina Business Court, available at
ttp://www.ncbusinesscourt.net/New/aboutcourt/.
24
See Report on Activities of the North Carolina Business Court 2000-2001, available at
http://www.ncbusinesscourt.net/ref/2001%20General%20Assembly.htm.
25
The expansion of the Business Session’s venue can be accomplished in several ways. First, cases from other
counties could be accepted into the Session by agreement and waiver of venue by all litigants. Similarly, waiver
could be attained by the plaintiff’s filing of an action in the Session and the defendant acceding to such filing. Or,
the Supreme Judicial Court could be petitioned to use its powers under Mass. Gen. L. ch. 234A, § 2 to allow for
acceptance of cases into the Session.
34
CHIEF JUSTICE’S COMMISSION ON THE FUTURE OF THE
NORTH CAROLINA BUSINESS COURT
INTRODUCTION
The North Carolina Business Court
National Trends
In the event the Supreme Court adopts the proposed rule and
rule revision set out above, the Commission recommends that Rule
2.1.1 and revised Rule 2.2 be made effective 180 days after the
date of their adoption. The purpose of a prospective effective
date is to provide clerks of court, judges, private attorneys,
and other interested persons adequate notice of and proper
training in the procedures described in these rules. The
Commission further recommends, however, that the Supreme Court
delay its adoption of Rule 2.1.1 and revised Rule 2.2 to afford
the General Assembly and the Governor the opportunity to
consider the recommendations of the Commission and to evaluate
an appropriate funding mechanism for ongoing operations of the
{00055053;v1}
-12-
Business Court.
Jurisdiction
{00055053;v1}
-13-
The Chief Justice of the Supreme Court may exercise
the authority under rules of practice prescribed
pursuant to G.S. § 7A-34 to designate one or more
special superior court judges to hear and decide
complex cases in one or more special classes of cases
that may be described by the rules of practice.
Judicial Tenure
Appeals Process
Revenue/Funding
General Expenses
{00055053;v1}
-21-
Initial Cost Recurring Cost2
Greensboro Upgrade3
5
Hardware maintenance covers the routine maintenance of new
equipment and should be considered a recurring cost of
maintaining the court’s computer systems. Hardware maintenance
includes travel and on-site support. The Greensboro location is
currently under contract. This estimate assumes AOC maintenance
at the Wake and Mecklenburg sites.
6
The Greensboro site is currently under contract for web
services and Internet access. Expansion of bandwidth is
required due to increases in the number and size of electronic
filings. The recurring cost listed replaces the costs of the
current contract. This estimate assumes AOC provision of
bandwidth to the Wake County and Mecklenburg sites.
7
Cost estimates include and reflect installation charges.
{00055053;v1}
-23-
Research Assistant Salary8 0.00 39,000.00
Staff Training9 2,500.00 0.00
8
The services of a law clerk are indispensable for proper
functioning of a Business Court installation. Due to the
extremely complex and technical nature of complex business
litigation, it is not possible for a single judge to manage a
caseload similar to that managed by Judge Tennille without the
assistance of a qualified research assistant.
9
This estimate reflects projected costs for the training
all courtroom staff, including judge and law clerk, over the
first two years of the new installation’s operation.
{00055053;v1}
-24-
Mecklenburg County Installation10
10
Cost estimates include and reflect installation charges.
11
The services of a law clerk are indispensable for proper
functioning of the Business Court. Due to the extremely complex
and technical nature of complex business litigation, it is not
possible for a single judge to manage a caseload comparable to
that managed by Judge Tennille without the assistance of a
qualified Research Assistant.
12
This estimate reflects projected costs for the training
all courtroom staff, including judge and law clerk, over the
first two years of the new installation’s operation.
{00055053;v1}
-25-
Total Costs
Conclusion
{00055053;v1}
-26-
ATTACHMENT
{00055053;v1}
-27-
REPORT OF THE OFFICE OF COURT ADMINISTRATION REPORT OF THE OFFICE OF COURT ADMINISTRATION
to the CHIEF JUDGE to the CHIEF JUDGE
on the on the
COMMERCIAL DIVISION FOCUS GROUPS COMMERCIAL DIVISION FOCUS GROUPS
J U LY 2 0 0 6 J U LY 2 0 0 6
THE C OMMERCIAL D IVISION of the S UPREME C OURT THE C OMMERCIAL D IVISION of the S UPREME C OURT
of the STATE of NEW YORK of the STATE of NEW YORK
TA B L E O F C O N T E N T S
PART VI: The Focus Groups’ Recommendations for the Commercial Division . . . . . . . . . . . .19
1
I
EXECUTIVE SUMMARY
T he Commercial Division is functioning well and provides many practices and innovations worthy of
consideration for use in other parts of the New York State court system. That is the clear-cut conclu-
sion of this Report of the Office of Court Administration to the Chief Judge on the Commercial Division
Focus Groups.*
The Focus Groups, conducted in five locations throughout the State between December 2005 and
February 2006, brought together current and retired judges, prominent commercial litigators and in-house
counsel of major corporations for a meaningful dialogue about the Commercial Division. Their discussions
generated a list of ideas that might work well elsewhere. This was not the only purpose of the Focus Groups.
Consistent with their charge, they also identified areas of the Commercial Division and commercial prac-
tice in New York State that could be improved.
The Focus Groups additionally demonstrated that they are a good tool for the court system to gather
and analyze information. Thus, one recommendation of this Report is to expand the focus group informa-
tion-gathering model to other areas in the court system.
The Focus Groups identified a dozen features of the Commercial Division that might be useful in
other courts, including:
require notice of applications for temporary restraining orders (“TROs”), except in extraordinary
circumstances;
address electronic discovery issues at an early conference;
encourage judges to exercise discretion whether or not to stay discovery, in whole or in part, on
the making of a dispositive motion;
encourage more proactive involvement of judges in settlement and alternative dispute resolution
(“ADR”);
improve support for use of outside technology in courtrooms;
encourage proactive, hands on, but adaptable case management;
give courts discretion to require a statement of uncontroverted material facts in support of (or in
opposition to) a motion for summary judgment;
impose page limits on motion papers;
establish uniform rules for other courts;
increase the use of in limine motions;
increase the use of e-filing; and
require pre-motion conferences prior to the filing of discovery motions.
These twelve items are the subject of Part V of this Report. The Focus Groups’ ideas targeted more
specifically at improving the Commercial Division and commercial practice generally in New York State
are treated in Part VI of this Report.
* For the preparation of this report we are especially grateful to Robert L. Haig, Esq. of Kelley Drye & Warren LLP, and Jeremy R. Feinberg,
Esq. and Gretchen Walsh, Esq. of the Office of Court Administration.
REPORT OF THE OFFICE OF COURT ADMINISTRATION to the CHIEF JUDGE on the COMMERCIAL DIVISION FOCUS GROUPS 3
II
A BRIEF HISTORY OF THE COMMERCIAL DIVISION
T he Commercial Division evolved from an experiment that began on January 1, 1993, when four Justices
of the Supreme Court were assigned to hear commercial cases in New York County. Their courtrooms
were called Commercial Parts and the Justices were assigned cases involving contracts, corporations, insur-
ance, the Uniform Commercial Code, business torts, bank transactions, complex real estate matters and
other commercial law issues.
This experiment involved significant collaboration between the Bench and Bar. Indeed, the idea
behind a permanent Commercial Division came from the State Bar Association’s Commercial and Federal
Litigation Section. Its comprehensive 1995 report studied the Commercial Parts initiative, deemed it high-
ly successful and recommended that it be institutionalized Statewide. The 1995 report advanced several
reasons supporting the creation of a separate division to handle commercial matters, including New York’s
role as a center of commerce, which the Section believed a commercial court would enhance, and the
unique attributes and complexity of commercial cases, which warrant specialized judicial treatment. Such
a court could combat a disturbing trend: businesses were increasingly resorting to other forums such as
Federal District Court, Delaware Chancery Court and private ADR methods to avoid what had been per-
ceived as New York’s overburdened state court system.
In response to the 1995 report, Chief Judge Judith S. Kaye created the Commercial Courts Task Force,
co-chaired by Hon. E. Leo Milonas and Robert L. Haig, Esq., to examine the Section’s report and develop
a blueprint for its implementation. The Task Force called for establishing a Commercial Division of the
Supreme Court in areas of the State with significant commercial litigation. On November 6, 1995, the
Commercial Division officially opened its doors in New York and Monroe Counties. Since then, the
Division has expanded to Albany, Erie, Kings, Nassau, Queens, Suffolk and Westchester Counties, and
throughout the Seventh Judicial District. Current Justices of the Division are listed in Appendix A to this
Report. The Commercial Division Law Report, issued four times per year in hard copy and electronically
on the Commercial Division website, contains summaries of recent leading opinions of the Commercial
Division Justices. The Commercial Division website can be found at www.nycourts.gov/comdiv.
The State’s business community, the commercial bar as a whole, and the Commercial and Federal
Litigation Section in particular, have all responded enthusiastically to the Commercial Division. The
Section referred to the Division as “a case study in successful judicial administration.” Business and legal
publications throughout the United States have commented favorably on the Commercial Division. At the
time of its inception, the Wall Street Journal stated “[w]hile several other States have been pushing for trial
courts devoted exclusively to business litigation, New York is the first in which a general trial court has
implemented such a program.” The National Law Journal touted the Commercial Division Justices for their
rigorous management of cases through “rapid disposition of motion practice, realistic and practical sched-
uling, and [the early setting of] trial dates…to promote efficiency.” The Division has also received excel-
lent reviews from business leaders and groups like the New York State Business Council. For example, in
1999, Peter I. Bijur, Chairman of The Business Council of New York State, remarked “We have now gone
in four years’ time from a court system that often evoked frustration among businesses, to a business court
that is the envy of other states.”
III
THE COMMERCIAL DIVISION FOCUS GROUP PROJECT
A common strategic planning tool in the private sector, focus groups are unusual in our court system.
Nonetheless, the Commercial Division Focus Groups were envisioned as a means of promoting can-
did dialogue among judges, lawyers and clients to generate new ideas, identify potential areas of improve-
ment, and assess application of “best practices” that have evolved in the Commercial Division to the court
system as a whole.
The Focus Groups were structured to ensure that the discussions would remain on point and key sub-
jects would be addressed, while allowing for a range of views and frank discussion. Each session was lim-
ited to between twelve and eighteen participants, balanced among experienced litigators, in-house counsel
from major corporations, and active and retired judges. Invitations – sent by letter by Chief Administrative
Judge Jonathan Lippman – included a pre-set list of topics such as Commercial Division rules, the role of
the judge and court staff, ADR, technology and general performance evaluation. A sample invitation letter
is annexed as Appendix B, and the list of Focus Group topics is annexed as Appendix C.
Each session was moderated by an experienced commercial litigator, Robert L. Haig, who in addition
to serving as Co-Chair of the Commercial Courts Task Force, has from the start had substantial involve-
ment in the expansion and refinement of the Commercial Division. Participants were assured that commen-
tary would be kept confidential; stenographic transcriptions of each Focus Group session referred to par-
ticipants by number, rather than name.
The Focus Groups took place in five locations over three months. The first two sessions were held in
December 2005 in New York and Nassau Counties. At the time, the Uniform Commercial Division Rules
(22 NYCRR 202.70) had not yet been adopted, and discussion included the varied practices that were in
effect at that time as well as the proposed uniform rules, which had already been the subject of public com-
ment. The new rules, effective in January 2006, provided fertile ground for discussion at the subsequent
sessions in Monroe in January, and in Albany and Onondaga Counties in February. A copy of the Uniform
REPORT OF THE OFFICE OF COURT ADMINISTRATION to the CHIEF JUDGE on the COMMERCIAL DIVISION FOCUS GROUPS 5
Commercial Division Rules is annexed as Appendix D to this Report.
Onondaga County, the only location that did not have a Commercial Division, was chosen because it
is a candidate for Commercial Division expansion. Indeed, as one attorney at the Onondaga Focus Group
recognized, the Fifth Judicial District is the only one with a major metropolitan area (Syracuse) without a
Commercial Division. Despite the presence of multiple Federal District and Magistrate Judges with court-
rooms and chambers in Syracuse, in-house litigation counsel from the area indicated that they would be
pleased to have a state court alternative for commercial disputes in Syracuse.
The use of the Focus Groups to gather feedback about the Commercial Division was a successful
experiment that bodes well for the model’s continued use throughout the court system. The Commercial
Division was envisioned as only the first of several areas in which frank discussion through Focus Groups
could lead to useful feedback. The New York court system had no past experience from which to draw upon
in designing and implementing this new means of research, however, leading to a number of concerns that
ultimately proved unfounded.
One concern had been whether people would actually attend and participate. In fact, they did, taking
time out of their days, whether they were lawyers, clients or judges. Some even traveled substantial dis-
tances to participate in Focus Groups well outside their home counties. Including judges in the Focus
Groups raised two other concerns: would other participants be intimidated, and would judges dominate the
discussion? Neither concern proved to be a problem. All speakers appeared to be open and free with their
comments. The moderator kept discussion flowing, and no particular speaker or group of speakers domi-
nated. Another concern that did not materialize was that participants would simply air complaints rather
than provide constructive feedback and comments. Although participants had ample opportunity, they did
not criticize the Commercial Division significantly and their remarks were largely positive and construc-
tive.
Clearly, the court system should embrace focus groups as an information-gathering tool for use in
other areas.
IV
W H AT T H E F O C U S G R O U P S R E V E A L E D
M any common themes emerged. Chief among these was that the Commercial Division has achieved
ia great deal of success and is viewed as a positive development in which the court system can and
should take pride. Among many illustrative comments is this one from a commercial litigator participant:
The only comment I would make is that, by and large, the members of the bar are very happy with the
commercial parts. I think, by and large, people are very happy and appreciate the fact that OCA did estab-
lish it…. But I think the certainty and the regularity have been a real incentive just to bring cases in the
Commercial Division.
I think the second thing is there is an expectation that the court is going to give you time, if you need it,
to sit down and hammer through, say, a contested TRO or something where the business is being jeop-
ardized.
And so, while you can’t predict the result, you can at least say to the client, “I’m going to go in and I’ll
be able to present the information and we should get a reasonable result,” which is not necessarily the
case in an ordinary IAS part, where there are a million things going on.
So, when I look at predictability, it’s that the judges are familiar with the general issues in commercial
practice and they will give you the time if you need it.
A senior in-house litigation counsel noted that the Commercial Division is particularly sensitive to the
difficulties of litigation involving business strategies, trade secrets and other confidential information,
which if made public could cause more difficulty than the underlying litigation itself:
The other factor that we appreciate in the Commercial Division is the appreciation or the perceived appre-
ciation from the judges in that area of the proprietary nature of some of the issues that may come up, and
there’s some concern that absent a Commercial Division that those issues may not be appreciated across
the board but particularly when you’re dealing with sensitive business strategy issues and those sort of
things that are not clearly IP issues but have some proprietary concerns that we want redacted from
records and such.
Even participants who have taken a skeptical view of specialized courts had kind words for the
Commercial Division. As a former judge stated:
I have been opposed to specialized parts and specialized divisions as a matter of principle, because I real-
ly believe in the merger of the courts. But having said that I have to concede the Commercial Division
seems to be working well where we have it. I’m not sure it is exportable to the smaller counties, but it
certainly is working well where we have had it. So I have to put a little asterisk next to my “merge the
court” in those specialized courts for this court here.
The Focus Groups were seeking not only feedback on the Commercial Division as a whole but also
reaction to certain aspects of its operation and practice. The next section of this Report will address suc-
cesses identified as worthy of consideration for use in other areas of the court system. These are not ranked
in terms of priority or degree of consensus, because the participants were asked not to attempt any rank-
ings. The output from the Focus Groups is exactly what was hoped for: a list of good ideas that may bene-
fit other courts, judges, lawyers and litigants.
There seems to be no doubt that the recently adopted uniform rules will significantly change current
practice in the Commercial Division. Indeed, much of the discussion in the final three Focus Groups cen-
tered on the new rules. Focus Group participants had many other suggestions as to how to improve the
Commercial Division, which are addressed in Part VI of this Report.
REPORT OF THE OFFICE OF COURT ADMINISTRATION to the CHIEF JUDGE on the COMMERCIAL DIVISION FOCUS GROUPS 7
V
I DEAS FOR EXPORTATION TO OTH ER PARTS OF TH E COU RT SYSTEM
Although Uniform Commercial Division Rule 20 codifies the practice that has long existed in the
Commercial Division, and in many other courts, participants raised a variety of potential problems that
could ensue unless the practice was followed in all courts. Some noted that litigants might engage in forum
shopping, refuse to bring cases in the Commercial Division, or disguise commercial matters in the hope of
litigating in other courts where they could seek TROs without notice.
Another major concern was incongruous results in the granting and denial of TROs. Participants
shared “war stories” of different judges treating multiple TRO applications in the same case inconsistently
and of procedural “nightmares” in which one losing party appealed and another losing party instead sought
relief in the court that issued the TRO. These problems, it was agreed, could be avoided if TROs normally
would be available only on notice, allowing the parties and the court to coordinate.
Requiring notice to the adversary on TRO applications would also have some positive side effects
according to the Focus Groups. Several judges, relying on their experience, recognized that requiring notice
might obviate the need for the TRO entirely. Appearing in chambers and working with the court, the par-
ties might be able to resolve their differences sufficiently by stipulation and prepare for a preliminary
injunction hearing. Another participant commented that requiring notice in all but the rarest of cases not
only fosters fairness but also helps speed resolutions:
That is particularly of interest to the business person who wants to get to the business courts, as some of
our clients call it, because they believe they’re going to get a more expeditious resolution, when we spend
the first month and a half of the case dealing with whether or not notice should have been given or
shouldn’t have been given up to the Appellate Division, back down to the trial Court. Notice is fairness.
Accordingly, the Focus Groups’ loud and clear recommendation is to export the requirement of notice
for TRO applications to the rest of the New York court system.
In an attempt to address this powerful new force in litigation, Uniform Commercial Division Rule 8(b)
requires the parties to consult about nine enumerated electronic discovery issues in advance of the prelim-
inary conference, and then address them with the court at that conference. Even at Focus Group sessions
preceding promulgation of Uniform Commercial Division Rule 8(b), participants generally favored its
approach. They suggested that although some types of cases (e.g., automobile accidents and medical mal-
practice) might not present the same magnitude of electronic discovery issues as commercial cases, it
would be worth considering sharing this practice with other courts (particularly in those counties without
Commercial Divisions, but with equally complex cases).
Those preliminary conferences can head off many electronic discovery issues. Spoliation motions
have become tactical weapons in litigation, and electronic discovery a “gotcha game,” where litigators are
sometimes more interested in obtaining adverse inference instructions than in obtaining the documents
demanded by their discovery requests. As participants noted, those scenarios can be minimized through
preliminary conferences when the court can also address any unfair financial burdens of electronic discov-
ery or even stay discovery (as discussed in the next section) pending a dispositive motion.
Although some participants were concerned that addressing electronic discovery issues at an initial
conference risked filling every case with battles over electronic evidence, the consensus was that these
issues were likely to arise anyway, with more disruptive effects, later in the litigation. The view was that
the disruptions could be minimized if the parties and the court worked to resolve them early in the case.
The rationale for addressing electronic discovery up front was neatly summarized by one upstate
Commercial Division Justice, who commented:
I guess it’s here to stay and we are going to have to learn to deal with it and that’s the way it is, and all of
us judges are going to have to accommodate ourselves to it and everybody else. Electronic life is a fun-
damental reality and we have to learn to deal with it.
Using the preliminary conference to address electronic discovery issues is one way to “learn to deal
with it.” It should be among the Commercial Division practices considered for use elsewhere in the New
York courts, particularly as these issues inevitably continue to grow in size and frequency.
REPORT OF THE OFFICE OF COURT ADMINISTRATION to the CHIEF JUDGE on the COMMERCIAL DIVISION FOCUS GROUPS 9
C. Issue Stays of Discovery Upon Dispositive Motions on a Case-By-Case Basis
The effect of a dispositive motion on discovery also generated substantial discussion. Three different
rules have existed in New York, along with a multitude of judicial opinions about them, many of which were
addressed in the Focus Group sessions. Pursuant to CPLR 3214(b), discovery is stayed pending resolution
of a dispositive motion “unless the court orders otherwise.” Until recently, a rule of some downstate
Division Justices had the practical effect of creating the opposite presumption – that discovery is not stayed
“unless the Justice directs.” Uniform Commercial Division Rule 11(d) eliminates any presumption and pro-
vides that the Justice has discretion in each case whether or not discovery should go forward.
With that backdrop, the participants recognized that a party’s role as plaintiff or defendant would like-
ly control its view of the stay. Plaintiffs seeking to get to trial as quickly as possible or gain settlement lever-
age would generally oppose the stay, while defense counsel, seeking to dispose of meritless or flawed cases
as inexpensively as possible, would want the stay. Several participants commented that with the rising costs
and burdens of electronic discovery, even a stay of only that type of disclosure could be of substantial ben-
efit. As one practitioner explained:
I’ll say it, for the people who we are representing, our customers, who say they want to get to a court-
house where they believe there will be an ability to resolve the case across the courtroom table as though
it was right across the board room table. That’s the atmosphere we need to create. And I believe by stay-
ing discovery while the motion is pending, saving the business person money, and having the opportuni-
ty for the business person to see what the other side has to say about their case…will help us resolve the
case.
Participants also recognized that different cases have different needs. To some upstate practitioners,
stays should usually be ordered as they allow cases to “take a breath” and prevent disproportionate amounts
of money from being spent by clients up front, especially in cases involving questionable merits. Due to
the more limited litigation budgets of smaller corporations, practitioners expressed the concern that allow-
ing discovery to proceed could have the detrimental effect of extracting premature settlements (or abandon-
ment of otherwise viable cases) simply to avoid the huge expense associated with discovery. In contrast,
other practitioners and judges recognized that limited discovery could be quite useful in some cases even
with a motion pending. If there are questions of witness availability, or other evidence where timing is
important, the court should have the ability to stay some, but not all, discovery. Similarly, if focused dis-
covery would help resolve a pending motion, it should take place.
The consensus favored a case-by-case approach on stays. As one Division Justice stated:
What concerns me about the stay of discovery is sometimes it’s a very tactical motion to do just that, stay
discovery. Not because you really think you have the likelihood of success on the merits. So having the
discretion to evaluate that case and deal with that case appropriately I think would be very useful.
The Division Justices who addressed this approach commented that they believed it would not be dif-
ficult, from reading the motion papers and hearing argument, to determine whether and to what extent a
stay should issue. Participants generally felt that getting the court involved, through early discussions of the
motion and a potential stay, might have the additional benefit of helping the court resolve the motion faster
(obviating the need for a stay), or establishing protocols to help the court and the parties jointly manage the
case more efficiently if it proceeds.
Thus, participants were generally of the view that judges in other New York courts should be encour-
Although all of the Division Justices were willing to help settle matters, several expressed some con-
cern that it might not be appropriate for the court to handle settlement talks in cases involving a bench trial.
As one Justice explained:
The first problem is that the judge says things in the course of the settlement discussion that may give
the litigants a view of what the judge’s thinking is, and that’s not appropriate until you’ve heard all the
case. I think that’s wrong.
You may say something that you might change your mind about, and that might influence the outcome
of the settlement negotiations, and that’s not fair.
The second is that I’m trying a case in which there are different amounts involved and people make
offers, and I have to determine what is a fair amount of compensation in a particular case. I’ve now deter-
mined what the defendant is prepared to pay. I’m certainly not going to – the tendency is that I’m not
going to find less than that amount.
The participants also identified a related problem: although consent of the parties and their lawyers
could cure much of the perceived difficulties in matters to be tried by the court, obtaining that consent
could be “illusory.” Lawyers might be reluctant to tell a judge that they do not want him or her to handle
settlement talks, rendering their consent less than meaningful.
Recognizing that different judges might have different comfort levels, and indeed different levels of
success in settling cases, the Focus Groups addressed other approaches of the Commercial Division that
could be adapted and used in other New York courts. First, the courts could use a consent form for parties
to prepare should they wish, at any time, to have the judge who is to preside over a bench trial oversee and
REPORT OF THE OFFICE OF COURT ADMINISTRATION to the CHIEF JUDGE on the COMMERCIAL DIVISION FOCUS GROUPS 11
direct settlement talks. The judge would not need to ask for consent, and the parties could approve the judi-
cial involvement without the risk of feeling pressured to do so. The consent form could also ensure that the
parties would not use the judge’s involvement in settlement as the basis for a later recusal motion.
Second, participants commented that additional resources should be available to judges in settling
cases, such as other judicial or quasi-judicial officers or alternative dispute resolution methods. The
Commercial Division has used such resources to varying degrees throughout the State. Although Division
Justices had varying views of the effectiveness of each of those options, they generally agreed that being
able to use any of them in a specific case would help. The Focus Groups agreed that individual cases might
be more or less susceptible to resolution through various different means, but that having court attorney
referees, Judicial Hearing Officers, lists of neutrals or even other judges from the same court available for
referral, could make a big difference.
Third, the Focus Groups noted with approval the new Uniform Commercial Division Rule 3, permit-
ting Justices to order that the parties attend free mediation through a court referral. The genesis of this rule
was the ADR program implemented in New York County where Division Justices have had the ability to
send cases to uncompensated mediators for the purpose of resolving all or some of the issues presented.
These mediators are lawyers who have attended training sessions focused on mediating commercial mat-
ters and who have agreed to volunteer their time to mediate Commercial Division cases. The new Uniform
Commercial Division Rule 3 provided a framework for discussion. Those in the New York County Focus
Group, where the essence of the rule had been in practice for a long time, gave their practical views and
suggestions on how other counties with Commercial Divisions, and indeed other courts, might take advan-
tage of similar practices. Those participants in other Focus Groups, applauding the new rule, offered their
respective experiences with ADR outside the New York courts, and offered similarly helpful suggestions
on how to make use of this good idea such as (1) avoiding interruptions during mediation since there is a
natural momentum that is lost if the parties are free to leave before the matter has been resolved, (2) requir-
ing that the corporate executive responsible for approving the legal bills be present at the mediation, and
(3) setting the proper mindset for the parties to a mediation (i.e., each party should be prepared to make a
major move and avoid trying to convince the other side of the weaknesses in its case).
Participants acknowledged that many cases, with the right mediator and involvement of the decision-
making parties, could reach settlement quickly and effectively through mediation. For example, one in-
house counsel at the New York County Focus Group commented “I believe if mediation is orderly and the
discussion process begins early, we are more likely ultimately to get a settlement.” He also commented that
even failed mediations were a good thing because they “began the process.” Other participants echoed this
sentiment by stating that even if the matters did not settle immediately, mediation could open a fruitful dia-
logue between business people on each side.
With regard to timing, in response to a Division Justice’s comment that he relies on counsel to advise
him whether mediation would be most appropriate before or after discovery, an in-house counsel quipped:
The only thing I would say…is that I wouldn’t assume that outside lawyers are giving you fully accurate
answers to those questions. I think if you talk to some of us on this side of the table, you would find that,
as a general matter, we’re ready sooner than the lawyers are.
The Focus Groups’ approval of the new rule, however, was tempered by a recognition that mediation
should not be forced on parties who are not ready. Some participants complained that even preparing for
Other useful comments emanating from the discussions included providing consistently “user-
friendly” mediator lists that would include, in addition to the mediators’ names in alphabetical order,
detailed information concerning the mediators’ backgrounds (e.g., admissions, education and professional
experience) and permitting the parties to choose their mediator rather than having one selected for them by
the judge. Some proposed encouraging the parties to agree in advance that after a certain time period of
volunteer mediation, the parties will share the expense of compensating the mediator should they wish to
continue the process. Additional suggestions included developing an anonymous method for parties to
declare their desire to participate in mediation so that they do not appear weak in open court; limiting
mandatory mediation to certain types of cases (e.g., promissory notes) or monetary limits (e.g., cases
involving ad damnum clauses of $ X or less); and calling on the Bar to provide feedback on their experi-
ences with the mediators so that ineffective mediators are taken off the list.
Expansion of the Commercial Division’s settlement practices and ADR methods to other parts of the
court system should bear these suggestions in mind.
Being able to use PowerPoint presentations (which one upstate participant called “the toy of the pres-
ent”), or employing large screens to place highlighted portions of key documents before the trier of fact,
seems to make a big difference. Some participants suggested that the court decide in the early conferences
whether use of technology at trial should be mandatory. In smaller cases, involving fewer documents, tech-
nology might still be helpful: having a large screen in the courtroom to display documents or play back por-
tions of deposition videos could be of great benefit.
REPORT OF THE OFFICE OF COURT ADMINISTRATION to the CHIEF JUDGE on the COMMERCIAL DIVISION FOCUS GROUPS 13
Focus Group participants were concerned, however, that the parties work together and not choose tech-
nological trial support vendors using conflicting systems. The immense benefits of avoiding a paper trial
can quickly diminish if the court is required, at the eleventh hour, to resolve disputes about logistical issues
in these situations. One possible solution is to have the parties choose their vendors and then have the ven-
dors jointly select a third party to provide equipment they can all use.
Although the participants did not want their cases moved too quickly, they also did not want them to
languish. Some judges and lawyers contrasted Commercial Division matters with cases that might never
move forward without court involvement. Other participants lamented what happens when a case has a
“hiatus.” The lawyers, no longer focusing on the matter due to the lack of realistic deadlines they know will
be enforced, have to “relearn” the matter quickly, often inefficiently and at great expense, once it restarts.
Courts should do what they can to prevent such lulls.
Finally, a number of participants spoke about how useful telephone conferences could be. Division
Justices observed that it is simply more cost-effective and efficient for certain conferences to be conduct-
ed by telephone rather than in person. This could help combat the inevitable delays in calendar calls, and
attendant time waiting in courtrooms. Practitioners – particularly in upstate New York where some have
significant travel burdens to reach the court – agreed that being able to “appear” by telephone would be
beneficial.
The Focus Groups also identified a number of reasons why the court should retain discretion not to
use SMFs in a given case. Certain matters, as some judges noted, are simple enough that good questioning
at oral argument can get to the heart of the issues without the need for added papers, time or expense. In
other matters, where the parties have disparate resources, one party could misuse the SMF to force the other
side to respond, paragraph by paragraph, to an unwieldy and lengthy SMF. And in some matters where the
attorneys are already quite good at focusing their arguments and engaging each other (and the court) in
their briefing, this added tool would not have the same benefit.
For all of these reasons, participants thought it was appropriate to consider SMFs in other parts of the
court system, so long as the court has discretion to decide whether they are appropriate in a given case.
REPORT OF THE OFFICE OF COURT ADMINISTRATION to the CHIEF JUDGE on the COMMERCIAL DIVISION FOCUS GROUPS 15
Participants did warn, however, of a potential risk of “sideshow” litigation over the length of briefs. A
motion to strike the brief or affidavit for exceeding or circumventing space limitations could require more
time and effort than would be saved by a shorter document. At a minimum, there might be an increase in
applications seeking (and opposing) court approval to exceed the page limit. Elsewhere, a practitioner
noted that pro se litigants present special problems for this type of rule since they may need greater lati-
tude in presenting their arguments to the court.
Any consideration of page limits should keep these concerns in mind.
Practitioners did offer a pair of caveats about adopting additional uniform rules, which are instructive,
however. First, participants recognized that uniformity is particularly helpful because everyone knows
where to find uniform rules. Thus, a uniform format would be a potential first step. Commenting on how
easy it is to find the uniform rules, another practitioner stated:
What I think the advantage is, as I look at these rules, is that if somebody needed to look them up, they
would know where to find them. Where for the rest of the practice throughout the districts if you tried to
look at the uniform rules in one district, summary judgment motions may be in 200, another one they
might be under 540 so I guess you want uniform format of the rules….
But as one upstate practitioner noted, uniformity only works if all of the courts operating under the uniform
rules embrace them:
[U]niformity and uniform rules means uniform across the state. And if the court system can do anything
to help the practitioner it would be to make sure that all the judges understand that uniform means uni-
form and that no one should have their own individual rules, to trump the uniform rules.
In support of e-filing, participants from both the Bench and Bar cited the ease of handling materials
containing trade secrets or other confidential information. They also noted that e-filing could spare attor-
neys the time and effort, and their clients the cost, of having to re-submit prior pleadings from the case ref-
erenced in later motion papers. Attorneys and clients who e-file would have the added benefit of easier
tracking of court filings and case progress through the program’s computerized docketing system.
Conversely, some participants raised concerns about the inability, or unwillingness, of practition-
ers to rely on computers to file papers. Some noted that small firm or solo practitioners, or those who are
not computer savvy, would be at a distinct disadvantage to the extent that e-filings received preferential
treatment, or were otherwise encouraged by the court. Others commented that if e-filing extended the dead-
line for filing papers from the close of business (i.e., while the courthouse was open), until midnight of that
day (i.e., before the computer’s time stamp changed to the next day), there would be potential for abuse.
Attorneys would have to check for notification from the e-filing system well after normal business hours
to see whether their adversary’s papers had been filed and determine what response, if any, would be
needed.
REPORT OF THE OFFICE OF COURT ADMINISTRATION to the CHIEF JUDGE on the COMMERCIAL DIVISION FOCUS GROUPS 17
On balance, the Focus Groups suggested that e-filing be expanded, so long as it is not made manda-
tory and those concerns are kept in mind. At a minimum, legislative action will be necessary to make this
a system-wide reality. Those cautioning against a rapid expansion also noted the need for additional train-
ing and lawyer assistance.
Indeed, judicial participants said that the courts would benefit from a rule that would help curtail dis-
covery motions, which are often counterproductive. One Division Justice said:
They’re very hard to decide on papers, because I’m going to boil it down to, I ask them for everything,
they gave me nothing, we gave them everything they asked for. And that’s not what we get. But for us to
go through it and figure out exactly what it is will take hours or days, whereas I can say to counsel, refine
it down, tell me what’s missing, in a conversation. We can get through that far more quickly than if I sit
there with the motion, the opposition, the reply, and I try and figure out what is it this interrogatory…
that’s why we would prefer to have the opportunity to deal with those discovery issues. And a lot of times
the solution is not going to be the request or the opposition, it’s going to be the middle ground that, you
know, through the conversation we figured out.
VI
T H E F O C U S G R O U P S ’ R E CO M M E N DAT I O N S F O R T H E
CO M M E R C I A L D I V I S I O N
O ne of the goals of the Focus Groups was to identify those areas of the Commercial Division’s prac-
tices and procedures that might be exported for use elsewhere within the court system – the preced-
ing sections identify many possible candidates. Another purpose of the Focus Groups was development of
ideas for improvement of the Commercial Division itself, to which this Report next turns.
The newly-adopted Uniform Commercial Division Rules significantly changed practice within the
Commercial Division and were themselves the subject of extensive discussion before they were adopted.
The new rules ensure consistency regarding rules of practice throughout the State. They address key
aspects of commercial litigation, including motion practice, electronic discovery, pre-trial conferences,
temporary restraining orders and trial scheduling. They also delineate definitive requirements governing
the cases that may be heard in the Commercial Division, including monetary thresholds throughout the
State. While the new rules also generated substantial discussion within the Focus Groups, the suggestions
below are independent of them. Needless to say, these suggestions for change within the Commercial
Division may themselves also be candidates for later expansion to other areas of the New York State courts.
REPORT OF THE OFFICE OF COURT ADMINISTRATION to the CHIEF JUDGE on the COMMERCIAL DIVISION FOCUS GROUPS 19
B. Provide Additional Judicial Support for the Commercial Division
Throughout the Focus Groups, participants agreed that it would be helpful to have additional judges
involved in the Commercial Division, particularly in those counties with only one or two judges currently
involved. Judges expressed the concern, echoing the comments regarding settlement practices described
above, that they would like to have another judge to whom they could refer a case for settlement discus-
sions (or trial) if the matter is a bench trial. They also recognized that there will be times when vacations
or other scheduling conflicts would mean that a single judge (or even both judges in a two-judge county)
may not be available. One judge noted that practitioners may be justified in their concern that the
Commercial Division rules and practices might be disregarded by a substitute judge lacking knowledge and
experience with them.
Practitioners raised the separate concern that reliance on a single judge to cover all Commercial
Division matters in one Judicial District could be problematic for practitioners who have had a bad expe-
rience with that judge. As one lawyer stated:
[I]t does seem that the concept of a commercial part would be more attractive to many practitioners if
they knew that their fate in that Division would not rest in the hands, as its been touched upon, by a
single judge with whom they get along, don’t get along or whatever, but for many practitioners perhaps
to have their role in the commercial system in the hands of one predesignated jurist might seem very
formidable. It would be almost the difference between practicing in Supreme Court and Surrogate’s
Court….
Relatedly, other participants noted that limiting the Commercial Division to a single judge would have
the unintended (if not undesirable) result of excluding excellent judges with both the interest and aptitude
in commercial matters from helping resolve the cases and furthering the Commercial Division’s mission.
The additional judicial support for the Commercial Division need not, however, be a judge assigned
to the Division. It could be designating other Supreme Court Justices or even Judicial Hearing Officers,
whether on an ongoing or one-time basis, to handle settlement discussions, trials or even overflow of
motions, as the needs of the court require. This practice has informally developed in several counties (New
York, Suffolk, and Kings), and it may be worthy of continuation and expansion to other counties in the
future.
Focus Group participants specifically identified a need for attention to such topics as spoliation, elec-
tronic discovery and modern business transactions – subjects that have undergone great change recently.
Several participants volunteered to serve as a resource for revising instructions.
REPORT OF THE OFFICE OF COURT ADMINISTRATION to the CHIEF JUDGE on the COMMERCIAL DIVISION FOCUS GROUPS 21
in memoranda, which are often one or two paragraphs in length, instead of full decisions. Greater resources
directed at these cases could assist in the development of commercial law.
Several Commercial Division Justices expressed concern that, although interlocutory appeals were
generally viewed as a positive feature by practitioners and clients, the passage of time while cases were on
appeal still counted against the court’s standards and goals statistics. They suggested that the Office of
Court Administration include a tolling provision to address this. Other participants suggested that it might
be worthwhile for OCA to study the percentage of Commercial Division cases that are reversed in the
Appellate Division. Finally, there was a suggestion that the Commercial Division itself be expanded to
other parts of the State – the more trial courts there are with a specialty in commercial matters, the more
commercial law will develop.
A L B A N Y CO U N T Y
E R I E CO U N T Y
K I N G S CO U N T Y
M O N R O E CO U N T Y a n d S E V E N T H J U D I C I A L D I ST R I C T
N A S S AU CO U N T Y
N E W YO R K CO U N T Y
Q U E E N S CO U N T Y
S U F F O L K CO U N T Y
W E STC H E ST E R CO U N T Y
REPORT OF THE OFFICE OF COURT ADMINISTRATION to the CHIEF JUDGE on the COMMERCIAL DIVISION FOCUS GROUPS 23
A P P E N D I X B : Invitation Letter to Focus Groups
Jonathan Lippman
Chief Administrative Judge
and
Justice of the Supreme Court November 2, 2005
XXXXX
XXXXXXXXXX
XXXXXXXXXXXX
Dear ____________:
The focus group will consist of commercial litigators, Chief Litigation Counsel of major corpora-
tions, and justices from the Commercial Division, New York County. We believe your expertise and
insights would be very beneficial to this project, which is of particular interest to Chief Judge Judith
Kaye in the 10th Anniversary year of the establishment of the Commercial Division. The focus group
will be facilitated by Robert Haig, Esq. of Kelley Drye & Warren, LLP, and Co-Chair of the Commercial
Courts Task Force, which was established by Chief Judge Kaye to create and refine the Commercial
Division.
During this session, which is expected to last 2 1/2 hours, Mr. Haig will be engaging you in a dis-
cussion concerning a variety of topics (a copy of the list of discussion topics is enclosed for your
review). All focus group discussions will remain confidential. The session will be tape recorded and
transcribed. All focus group participants’ comments included in the final report will be reported anony-
mously.
The focus group is scheduled to take place on Thursday, December 1, 2005 at 2 p.m. at the New
York County Supreme Court, 60 Centre Street, 7th Floor Conference Room. Please contact my
Principal Law Clerk, Gretchen Walsh (914) 997-7980, no later than November 14, 2005, regarding
your availability to attend the focus group session. I hope you will be able to participate in this impor-
tant effort.
I. Rules
A. Should changes be made to the current Guidelines for assignment of cases to the Commercial Division?
If so, what changes are needed most? These questions encompass the definition of a commercial case
in the Guidelines as well as the procedures for assignment of a case to the Commercial Division at the
inception of the case and for subsequently transferring cases into and out of the Commercial Division.
B. Should changes to be made to the current Rules of Practice in the Commercial Division? If so, what
changes are needed most?
C. Should the Guidelines, Rules and procedures in the Commercial Division be uniform throughout New
York State (or at least within particular counties or Judicial Departments)? Is uniformity appropriate
for some Guidelines, Rules and procedures and inappropriate for others? If so, which ones?
D. Does the Commercial Division have appropriate procedures for requesting adjournments? Does the
Commercial Division respond appropriately to such requests?
E. What are your views on the following Commercial Division innovations?
1. New York Rule 12 providing that a motion to dismiss or for summary judgment shall not stay
disclosure unless the Justice directs.
2. The requirement of statements of undisputed facts in connection with summary judgment
motions.
3. The requirement of notice to the opposing party prior to an application for a temporary restraining
order.
4. The use of pre-motion conferences.
REPORT OF THE OFFICE OF COURT ADMINISTRATION to the CHIEF JUDGE on the COMMERCIAL DIVISION FOCUS GROUPS 25
needed most? Should use of ADR be mandatory in more cases or fewer? Why? What kinds of ADR
should be used in Commercial Division cases under various circumstances?
IV. Technology
A. Is the Commercial Division using technology effectively to achieve its objectives? What improvements
should be made in the Commercial Division’s use of technology? In particular, please discuss electronic
filing of cases and other papers as well as technology provided by the Commercial Division for use dur-
ing trials, case management technology, and file storage and access technology.
V. General Evaluation
A. Does the Commercial Division dispose of cases too fast or too slow? What is the rationale for your
answer?
B. If you had a choice in commencing a case either in the Commercial Division or in other courts or
dispute resolution facilities, what would cause you to select an alternative to the Commercial
Division? Please consider, in particular, federal courts, other state courts such as the Delaware
Chancery Court, and private arbitration.
C. Are the decisions of the Commercial Division sufficiently predictable to enable businesses to
develop reliable business and litigation strategies? If not, what can and should the Commercial
Division do to increase predictability of its decisions?
D. Is the Commercial Division a cost-effective way to resolve commercial disputes? How can its cost-
effectiveness be improved?
E. What are your feelings about the ways in which the Judges, non-judicial personnel, litigators, and
clients interact and relate to each other in the Commercial Division?
F. Are any changes needed either in the non-judicial personnel assigned to the Commercial Division
or in the jobs to which they are assigned or in the way they do their jobs? If so, what specific
changes would you recommend?
G. Should the Commercial Division be doing more to educate the bar and the business community
about the operations and procedures of the Commercial Division? If so, what specific types of edu-
cation would be most effective and most useful?
(1) Breach of contract or fiduciary duty, fraud, misrepresentation, business tort (e.g., unfair competition),
or statutory and/or common law violation where the breach or violation is alleged to arise out of busi-
ness dealings (e.g., sales of assets or securities; corporate restructuring; partnership, shareholder, joint
venture, and other business agreements; trade secrets; restrictive covenants; and employment agree-
ments not including claims that principally involve alleged discriminatory practices);
(2) Transactions governed by the Uniform Commercial Code (exclusive of those concerning individual
cooperative or condominium units);
(3) Transactions involving commercial real property, including Yellowstone injunctions and excluding
actions for the payment of rent only;
(4) Shareholder derivative actions — without consideration of the monetary threshold;
REPORT OF THE OFFICE OF COURT ADMINISTRATION to the CHIEF JUDGE on the COMMERCIAL DIVISION FOCUS GROUPS 27
(5) Commercial class actions — without consideration of the monetary threshold;
(6) Business transactions involving or arising out of dealings with commercial banks and other financial
institutions;
(7) Internal affairs of business organizations;
(8) Malpractice by accountants or actuaries, and legal malpractice arising out of representation in
commercial matters;
(9) Environmental insurance coverage;
(10) Commercial insurance coverage (e.g. directors and officers, errors and omissions, and business inter-
ruption coverage);
(11) Dissolution of corporations, partnerships, limited liability companies, limited liability partnerships
and joint ventures — without consideration of the monetary threshold; and
(12) Applications to stay or compel arbitration and affirm or disaffirm arbitration awards and related
injunctive relief pursuant to CPLR Article 75 involving any of the foregoing enumerated commercial
issues — without consideration of the monetary threshold.
Rule 1. Appearance by Counsel with Knowledge and Authority. Counsel who appear in the
Commercial Division must be fully familiar with the case in regard to which they appear and fully
authorized to enter into agreements, both substantive and procedural, on behalf of their clients. Counsel
should also be prepared to discuss any motions that have been submitted and are outstanding. Failure
to comply with this rule may be regarded as a default and dealt with appropriately. See Rule 12. It is
important that counsel be on time for all scheduled appearances.
Rule 3. Alternative Dispute Resolution (ADR). At any stage of the matter, the court may direct or coun-
sel may seek the appointment of an uncompensated mediator for the purpose of mediating a resolution
of all or some of the issues presented in the litigation.
REPORT OF THE OFFICE OF COURT ADMINISTRATION to the CHIEF JUDGE on the COMMERCIAL DIVISION FOCUS GROUPS 29
(b) Papers submitted in digital format. In cases not pending in the court's Filing by Electronic Means
System, the court may permit counsel to communicate with the court and each other by e-mail. In the
court's discretion, counsel may be requested to submit memoranda of law by e-mail or on a computer
disk along with an original and courtesy copy.
Rule 5. (This rule shall apply only in the First and Second Judicial Departments) Information on
Cases. Information on future court appearances can be found at the court system's future appearance
site (www.nycourts.gov/ecourts). Decisions can be found on the Commercial Division home page of
the Unified Court System's internet website: www.courts.state.ny.us/comdiv or in the New York Law
Journal. The clerk of the part can also provide information about scheduling in the part (trials, confer-
ences, and arguments on motions). Where circumstances require exceptional notice, it will be fur-
nished directly by chambers.
Rule 6. Form of Papers. All papers submitted to the Commercial Division shall comply with CPLR 2101
and section 202.5(a). Papers shall be double-spaced and contain print no smaller than twelve-point, or
8 1/2 x 11 inch paper, bearing margins no smaller than one inch. The print size of footnotes shall be no
smaller than ten-point. Papers also shall comply with Part 130 of the Rules of the Chief Administrator.
Rule 7. Preliminary Conference; Request. A preliminary conference shall be held within 45 days of
assignment of the case to a Commercial Division justice, or as soon thereafter as is practicable. Except
for good cause shown, no preliminary conference shall be adjourned more than once or for more than
30 days. If a Request for Judicial Intervention is accompanied by a dispositive motion, the preliminary
conference shall take place within 30 days following the decision of such motion (if not rendered moot)
or at such earlier date as scheduled by the justice presiding. Notice of the preliminary conference date
will be sent by the court at least five days prior thereto.
Rule 10. Submission of Information. At the preliminary conference, counsel shall be prepared to furnish
the court with the following: (i) a complete caption, including the index number; (ii) the name, address,
telephone number, e-mail address and fax number of all counsel; (iii) the dates the action was com-
menced and issue joined; (iv) a statement as to what motions, if any, are anticipated; and (v) copies of
any decisions previously rendered in the case.
Rule 12. Non-Appearance at Conference. The failure of counsel to appear for a conference may result
in a sanction authorized by section 130.2.1 of the Rules of the Chief Administrator or section 202.27,
including dismissal, the striking of an answer, an inquest or direction for judgment, or other appropri-
ate sanction.
REPORT OF THE OFFICE OF COURT ADMINISTRATION to the CHIEF JUDGE on the COMMERCIAL DIVISION FOCUS GROUPS 31
Rule 14. Disclosure Disputes. Counsel must consult with one another in a good faith effort to resolve all
disputes about disclosure. See section 202.7. Except as provided in Rule 24 hereof, if counsel are
unable to resolve any disclosure dispute in this fashion, the aggrieved party shall contact the court to
arrange a conference as soon as practicable to avoid exceeding the discovery cutoff date. Counsel
should request a conference by telephone if that would be more convenient and efficient than an appear-
ance in court.
Rule 15. Adjournments of Conferences. Adjournments on consent are permitted with the approval of the
court for good cause where notice of the request is given to all parties. Adjournment of a conference
will not change any subsequent date in the preliminary conference order, unless otherwise directed by
the court.
Rule 17. Length of Papers. Unless otherwise permitted by the court: (i) briefs or memoranda of law shall
be limited to 25 pages each; (ii) reply memoranda shall be no more than 15 pages and shall not contain
any arguments that do not respond or relate to those made in the memoranda in chief; (iii) affidavits
and affirmations shall be limited to 25 pages each.
Rule 18. Sur-Reply and Post-Submission Papers. Absent express permission in advance, sur-reply
papers, including correspondence, addressing the merits of a motion are not permitted, except that
counsel may inform the court by letter of the citation of any post-submission court decision that is rel-
evant to the pending issues, but there shall be no additional argument. Materials submitted in violation
hereof will not be read or considered. Opposing counsel who receives a copy of materials submitted in
violation of this Rule shall not respond in kind.
Rule 20. Temporary Restraining Orders. Unless the moving party can demonstrate that there will be sig-
nificant prejudice by reason of giving notice, a temporary restraining order will not be issued. The
applicant must give notice to the opposing parties sufficient to permit them an opportunity to appear
and contest the application.
Rule 21. Courtesy Copies. Courtesy copies should not be submitted unless requested or as herein
provided. However, courtesy copies of all motion papers and proposed orders shall be submitted in
cases in the court's Filing by Electronic Means System.
Rule 22. Oral Argument. Any party may request oral argument on the face of its papers or in an accom-
panying letter. Except in cases before justices who require oral argument on all motions, the court will
determine, on a case-by-case basis, whether oral argument will be heard and, if so, when counsel shall
appear. Notice of the date selected by the court shall be given, if practicable, at least 14 days before the
scheduled oral argument. At that time, counsel shall be prepared to argue the motion, discuss resolu-
tion of the issue(s) presented and/or schedule a trial or hearing.
Rule 23. 60-Day Rule. If 60 days have elapsed after a motion has been finally submitted or oral argument
held, whichever was later, and no decision has been issued by the court, counsel for the movant shall
send the court a letter alerting it to this fact with copies to all parties to the motion.
REPORT OF THE OFFICE OF COURT ADMINISTRATION to the CHIEF JUDGE on the COMMERCIAL DIVISION FOCUS GROUPS 33
Rule 24. Advance Notice of Motions
(a) Nothing in this rule shall be construed to prevent or limit counsel from making any motion deemed
appropriate to best represent a party's interests. However, in order to permit the court the opportunity
to resolve issues before motion practice ensues, and to control its calendar in the context of the discov-
ery and trial schedule, pre-motion conferences in accordance herewith must be held. The failure of
counsel to comply with this rule may result in the motion being held in abeyance until the court has an
opportunity to conference the matter.
(b) This rule shall not apply to disclosure disputes covered by Rule 14 nor to dispositive motions pur-
suant to CPLR 3211, 3212 or 3213 made at the time of the filing of the Request for Judicial
Intervention or after discovery is complete. Nor shall the rule apply to motions to be relieved as coun-
sel, for pro hac vice admission, for reargument or in limine.
(c) Prior to the making or filing of a motion, counsel for the moving party shall advise the Court in
writing (no more than two pages) on notice to opposing counsel outlining the issue(s) in dispute and
requesting a telephone conference. If a cross-motion is contemplated, a similar motion notice letter
shall be forwarded to the court and counsel. Such correspondence shall not be considered by the court
in reaching its decision on the merits of the motion.
(d) Upon review of the motion notice letter, the court will schedule a telephone or in-court conference
with counsel. Counsel fully familiar with the matter and with authority to bind their client must be
available to participate in the conference. The unavailability of counsel for the scheduled conference,
except for good cause shown, may result in granting of the application without opposition and/or the
imposition of sanctions.
(e) If the matter can be resolved during the conference, an order consistent with such resolution may
be issued or counsel will be directed to forward a letter confirming the resolution to be “so ordered.”
At the discretion of the court, the conference may be held on the record.
(f) If the matter cannot be resolved, the parties shall set a briefing schedule for the motion which shall
be approved by the court. Except for good cause shown, the failure to comply with the briefing sched-
ule may result in the submission of the motion unopposed or the dismissal of the motion, as may be
appropriate.
(g) On the face of all notices of motion and orders to show cause, there shall be a statement that there
has been compliance with this rule.
(h) Where a motion must be made within a certain time pursuant to the CPLR, the submission of a
motion notice letter, as provided in subdivision (a), within the prescribed time shall be deemed the time-
ly making of the motion. This subdivision shall not be construed to extend any jurisdictional limita-
tions period.
Rule 25. Trial Schedule. Counsel are expected to be ready to proceed either to select a jury or to begin
presentation of proof on the scheduled trial date. Once a trial date is set, counsel shall immediately
determine the availability of witnesses. If, for any reason, counsel are not prepared to proceed on the
scheduled date, the court is to be notified within ten days of the date on which counsel are given the
Rule 26. Estimated Length of Trial. At least ten days prior to trial or such other time as the court may
set, the parties, after considering the expected testimony of and, if necessary, consulting with their wit-
nesses, shall furnish the court with a realistic estimate of the length of the trial.
Rule 27. Motions in Limine. The parties shall make all motions in limine no later than ten days prior to
the scheduled pre-trial conference date, and the motions shall be returnable on the date of the pre-trial
conference, unless otherwise directed by the court.
Rule 28. Pre-Marking of Exhibits. Counsel for the parties shall consult prior to the pre-trial conference
and shall in good faith attempt to agree upon the exhibits that will be offered into evidence without
objection. At the pre-trial conference date, each side shall then mark its exhibits into evidence as to
those to which no objection has been made. All exhibits not consented to shall be marked for identifi-
cation only. If the trial exhibits are voluminous, counsel shall consult the clerk of the part for guidance.
The court will rule upon the objections to the contested exhibits at the earliest possible time. Exhibits
not previously demanded which are to be used solely for credibility or rebuttal need not be pre-marked.
Rule 29. Identification of Deposition Testimony. Counsel for the parties shall consult prior to trial and
shall in good faith attempt to agree upon the portions of deposition testimony to be offered into
evidence without objection. The parties shall delete from the testimony to be read questions and
answers that are irrelevant to the point for which the deposition testimony is offered. Each party shall
prepare a list of deposition testimony to be offered by it as to which objection has not been made and,
identified separately, a list of deposition testimony as to which objection has been made. At least ten
days prior to trial or such other time as the court may set, each party shall submit its list to the court
and other counsel, together with a copy of the portions of the deposition testimony as to which objec-
tion has been made. The court will rule upon the objections at the earliest possible time after consul-
tation with counsel.
REPORT OF THE OFFICE OF COURT ADMINISTRATION to the CHIEF JUDGE on the COMMERCIAL DIVISION FOCUS GROUPS 35
attended by counsel and the parties, who are expected to be fully prepared to discuss the settlement of
the matter.
(b) Pre-trial Conference. Prior to the pretrial conference, counsel shall confer in a good faith effort to
identify matters not in contention, resolve disputed questions without need for court intervention and
further discuss settlement of the case. At the pre-trial conference, counsel shall be prepared to discuss
all matters as to which there is disagreement between the parties, including those identified in Rules
27-29, and settlement of the matter. At or before the pre-trial conference, the court may require the par-
ties to prepare a written stipulation of undisputed facts.
Rule 31. Pre-Trial Memoranda, Exhibit Book and Requests for Jury Instructions
(a) Counsel shall submit pre-trial memoranda at the pre-trial conference, or such other time as the court
may set. Counsel shall comply with CPLR 2103(e). A single memorandum no longer than 25 pages
shall be submitted by each side. No memoranda in response shall be submitted.
(b) At the pre-trial conference or at such other time as the court may set, counsel shall submit an
indexed binder or notebook of trial exhibits for the court's use. A copy for each attorney on trial and
the originals in a similar binder or notebook for the witnesses shall be prepared and submitted.
Plaintiff's exhibits shall be numerically tabbed and defendant's exhibits shall be tabbed alphabetically.
(c) Where the trial is by jury, counsel shall, on the pre-trial conference date or such other time as the
court may set, provide the court with case-specific requests to charge and proposed jury interrogato-
ries. Where the requested charge is from the New York Pattern Jury Instructions - Civil, a reference to
the PJI number will suffice. Submissions should be by hard copy and disk or e-mail attachment in
WordPerfect 12 format, as directed by the court.
Rule 32. Scheduling of witnesses. At the pre-trial conference or at such time as the court may direct,
each party shall identify in writing for the court the witnesses it intends to call, the order in which they
shall testify and the estimated length of their testimony, and shall provide a copy of such witness list to
opposing counsel. Counsel shall separately identify for the court only a list of the witnesses who may
be called solely for rebuttal or with regard to credibility.
Rule 33. Preclusion. Failure to comply with Rules 28, 29, 31 and 32 may result in preclusion pursuant to
CPLR 3126.