By: Sean D. Wallace; Judge, Circuit Court for Prince
George’s County, Maryland; Past President, American College of Business Court
Judges
State trial courts handle
more than 90% of the civil litigation in the United States. However, in the
early 1990’s there was growing concern that these courts were incapable of
effectively and efficiently resolving business disputes. These cases often were
assigned to a master calendar system under which several judges would handle
different and discrete portions of the litigation without any type of
coordination. This division of tasks prevented effective management of these
complex cases, while depriving judges of both the incentive and opportunity to
develop expertise in all aspects of commercial litigation. As a result,
business litigants began to rely more frequently on federal courts and private
Alternative Dispute Resolution (ADR) forums, where a single judge or neutral
would manage all aspects of the litigation.
In an effort to address
those concerns, judges, lawmakers, litigators and commercial interests pushed
for creation of specialized business dockets or courts at the state trial
level. The commercial interests were clear to emphasize that they were not
seeking a back-door way to achieve tort reform or otherwise “game the system.”
Thus, consumer and employment litigation was exempted from the proposals.
Instead, businesses sought to create a forum for resolving their disputes with
reasonable promptness and based on informed legal principles. Policy makers
support this goal for economic development reasons, under the assumption that
businesses would be attracted to jurisdictions where the courts provide such
efficient and predictable adjudication.
As a result, there are now
28 states with some form of business courts. The forms of those courts vary
tremendously. Some courts have state-wide authority while others are housed as
specialized dockets or divisions of existing courts in major metropolitan
areas. Some “business” courts are courts of equity (like the Delaware Court of
Chancery), others are courts of law only (e.g., the Commercial Calendar”
of Chicago’s Cook County Circuit Court), while many encompass both law and
equity. Some limit their jurisdiction to a defined list of case types; others
impose a complexity requirement; and some open their dockets to more subjective
criteria, such as the presence of novel issues that will make important
advances in the law. Regardless of their format, these courts all include case
assignments to “specialist judges,” experienced in the management of complex
litigation and versed in the substantive law of corporate governance,
transactions and related subjects.
International
Judicial Monitor