Endnotes and Resources: The Steady Growth of Business Courts

Endnotes

1 Some courts’ civil systems have both specializations within their dockets. Thus, in practice, there is no inherent reason that a specialized business court docket must be excluded from a civil system if the court system were to include a complex-case specialization as well. Second, the jurisdictional definition of what constitutes a complex case could encompass business and commercial cases falling within that definition, as well as other subject matter. If so, designated complex-litigation judges will have repeated experience with a distinct subset of complex business/commercial cases, will develop a greater expertise in handling those cases over time compared to judges with a general docket, and will effectively become specialized-business-court judges relative to those with a general docket.

2 Judge Tennille shared these observations with the author in December 2010.

3 Maryland Rule 16-205(c), governing assignment to the BTCMP, directs the assigning judge to consider the following factors in actions presenting complex or novel commercial or technological issues: “(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.”

4 The information in these charts and concerning unsuccessful programs can be found in American Bar Association Section of Business Law’s Committee on Business and Corporate Litigation, 2004-11; Bach and Applebaum, 2004; Minnesota Judicial Branch, 2001; and Toutant, 2006.

5 This does not mean the business court is statewide; it only means that a business court was created somewhere within a state.

6 Since 2003, the Delaware Chancery Court’s jurisdiction has twice changed to add some entirely nonequity commercial and technology disputes.

7 One lesson from these unutilized dockets and nonjury programs is that a significant population of litigants and lawyers are either entrenched in the familiar litigation structures or are genuinely more interested in maintaining traditional forms of litigation for considered reasons. Some, even including judges, argue, e.g., that jury trials are inconsistent with business-docket specialization, an issue not addressed herein. For the present, for reasons not the subject of this article, it appears that litigants and lawyers using business courts are primarily seeking knowledgeable and efficient judicial operation and oversight of traditional litigation structures.

Resources

American Bar Association, Ad Hoc Committee on Business Courts (1997). “Towards a More Efficient Judiciary,” 52 Business Lawyer 947.

American Bar Association, Section of Business Law, Committee on Business and Corporate Litigation (2004-11). “Chapter 5, Business Courts.” Review of Annual Developments in Business and Corporate Litigation. Chicago: American Bar Association.

American Bar Association, Section of Business Law, Committee on Business and Corporate Litigation, Business Court Subcommittee. www.abanet.org/dch/committee.cfm?com=CL150011

American Bar Association, Section of Business Law (2008-09). “Establishing Business Courts in Your State 2008-2009.” Pamphlet, American Bar Association, Chicago. http://meetings.abanet.org/webupload/commupload/CL150011/sitesofinterest_files/establishing-business-courts0809.pdf

Applebaum, L. (2008). “The ‘New’ Business Courts: Responding to Modern Business and Commercial Disputes,” 17:4 Business Law Today.

— (2007). “Complex Litigation Courts and Business Courts: Some Brief Observations on Connections and Similarities.” Paper, American Bar Association Section of Business Law Summer Meeting.

Applebaum, L., and C. E. Manning (2009). “Specialized Business and Commercial Courts Around the Globe: A Summary World View.” Paper, American Bar Association Section of Business Law Spring Meeting.

Bach, M. L., and L. Applebaum (2004). “A History of the Creation and Jurisdiction of Business Courts in the Last Decade,” 60 Business Lawyer 147.

Business Litigation Session Resource Committee (2003). “The Business Litigation Session in Massachusetts Superior Court: A Status Report.” www.abanet.org/buslaw/committees/CL150011pub/materials/reports/2003MassachusettsReport.pdf

Chief Justice’s Commission on the Future of the North Carolina Business Court (2004). “Final Report and Recommendation,” October 28. www.ncbusinesscourt.net/ref/Final%20Commission%20Report.htm

Dibble, T., and G. Gallas (2004). “Best Practices in U.S. Business Courts,” 19:2 Court Manager 25.

Law Commission of India (2003). “Proposal for Constitution of Hi-Tech Fast-Track Commercial Divisions in High Courts.” 188th Report.  www.lawcommissionofindia.nic.in/reports/188th%20report.pdf