ADR SPOTLIGHT: Preparing the client for facilitation in the Business Court

By Jon Kingsepp

For many years, those of us who have practiced business and commercial litigation have long lamented the lengthy process and expense of litigating these cases in the circuit courts.  Finally, and with assistance of many experienced business lawyers, the Michigan Supreme Court and Michigan legislature adopted the Michigan Business Act effective January 1, 2013.  MCLA 600.8031 et seq.  Immediately SCAO and others rapidly embarked upon the action plan to get these courts up and running.  Those counties with a Business Court acted rapidly to adopt the local administrative orders (LAO).  The LAO’s varied from circuit to circuit as to the process to be implemented, but more important, many of the LAO’s set forth the philosophy and goal of the particular Business Court.  Many attorneys, who have not had extensive experience in business and commercial cases, and also complex litigation, are going to find innovation in the Business Court.  The process is different, the priorities emphasized, and the action plan a matter of focus by the Court.  In nearly every instance, facilitation, mediation will be the process toward dispute resolution.  Query: do you know the difference between the two? In addition there may be early neutral evaluation, joint fact-finding, lose-lose situations to be explored, expert determination and other dispute mechanisms. This article is intended to describe the importance of the dispute resolution process in the Business Court.

Trial counsel when retained by the client in a business court matter must be prepared to be imaginative, informed and “appropriately aggressive” in the business court. What does that mean?  Look at the facts of the case, the client demands and expectations and begin to capsulate the available mechanisms to resolve the dispute short of trial. Realizing the change, counsel has an obligation to advise their client about the Business Court and the process toward dispute resolution that may play a significant part within that court toward the resolution of the case.  The days of prolonged adversarial litigation, i.e. “fighting to the end,” “I want a trial,” are going to be far and few, or over.  Not to say discovery disputes will still occur as will contentious motions, but concurrence is more the word of the day.  Thus early in the case, the client has to be aware of how matters will proceed in the business court and those measures that must be taken to accomplish that court’s goal of resolving disputes as quickly as possible in the business court.

Once involved in the case, it is extremely important to develop the initial strategy of client representation. Do the proof plan, the client strategy letter, and discuss with the client the strength and weakness in the case.  Know that all legal issues are covered.  Realize there may be a need to file an amended pleading and try to determine when that will occur, before discovery is complete or after discovery has initiated.

Once the legal issues are identified as well as the claims or defenses, the next target is use of the Michigan One Court of Justice website.  Go to the most important link, “cases, opinions, orders” and you will find what decisions your business court judge has issued which may provide volumes of information to you about that court.   This site can be a treasure trove of information about court opinions involving legal issues, claims and defenses that may well provide guidance in your case and insight into what problems or issues you may have.  Reference to these court decisions or orders might well frame your discovery process, case strategy, and client discussion about settlement.

But there can be another resource of information that involves the process.  For instance go on the internet and hit for example, “adversarial facilitation” you will find a plethora of information about different dispute resolution processes which may well govern your strategy when dispute resolution comes into play. 

The business court model fosters imagination particularly in the complex litigation matter.  This imagination can extend to a process involving discovery disputes, evaluative measures, in limine motions, and even the range of damages to lock in if there is a trial.  It is the complexity of the facts or law in the case that will principally drive the particular process you may want to utilize, for instance, the buyout of a business interest, the most important issue is generally value, try to work to narrow the range of contested value which in turn will focus the extent of necessary discovery in the case; or a complex development matter involving real estate, attempt to identify and narrow the real issues which might be done by joint utilization of a real estate developer to mediate the real issues in the case.

Embarking upon the concepts of dispute resolution is not done in isolation.  Get the client involved to become familiar with a particular process you are considering or may want to use to handle disputes involving discovery.  This familiarity will be important to the client when the realization kicks in the court expects there to be some final process of dispute resolution before any trial is to be scheduled.  The client being part of the process fosters an understanding and awareness that a direct benefit flows to the client in potentially reduced time and expense to litigation.

While addressing the approach of the type of dispute resolution process you may prefer, the analysis also will focus on the portrayal of the client case.  Many times, pictures are louder than words even in a business or commercial case.  Sometimes contract disputes involving contract language, a visual portrayal can be significant in highlighting the issue within the text and the reasonable or unreasonable application of that language being employed by one side. In that same diagram of contract language you insert principles from reported decisions that support your position or interpretation of the language that is contested.  That type of demonstration later can be an exhibit at trial or an attachment to a motion for summary disposition.

Another alternative involving preplanning is having an expert involved in the dispute resolution.  As an example, an issue arising on the defective reseeding or replacement of sod on a football field can require the presence of an expert to address the particular manner in which the field was or was not properly remediated.  That type of presentation is not for the benefit of the facilitator but is more important to the client on the other side who adamantly claims there was or is no defect.

In other matters, in dispute involving accountant experts, it is not unusual to have these experts present in the facilitation who can assist in the problem solving. Many times those experts have a common understanding on certain applicable principles used in valuations, but their differences may be on the application of the facts to those principles.  The process itself may result in a settlement or it may drive counsel to agree to the application of certain principles and a concurrence of those facts that are in dispute.

A similar approach can be applicable in complex construction disputes in which certain facts are not contested and the case can be minimized by agreeing to the disputed facts and contrary evidence that may avoid the use of experts or at least a reduction of time they will spend in the case.

Sometimes the use of experts can result in the eventual determination of a high low figure agreed to by counsel but withheld from the fact finder.  In those instances the facts and some expert testimony may drive the case, but time and money is saved by focus on the critical issues.

A recent seminar discussed various techniques about problem solving, for example, the use of Evidence Best Practice (EBP), differentiated case management, and proportionate discovery dispute resolution advisor. The fact such varied measures exist speak volumes about how imaginative counsel must be in the business court practice.  The goal is accelerating the resolution of the business or commercial matter to a conclusion that minimizes unnecessary client expense and time in court.  So long as that goal is met, there will be more cases in the business court because of the corporate America determination that courts can still resolve its disputes economically.  The business court attorney adaptability to the varied solutions and the goal of the business court will enhance the practice of law. 
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For more than four decades, Jon Kingsepp has represented clients in jury and non-jury trials in cases involving municipal law, real property, patent and copyright infringement, and complex business disputes. He has authored numerous articles regarding trial tactics and the effectiveness of mediation, has participated in hundreds of ADR proceedings either as an advocate or a neutral, and is a founding member of Professional Resolution Experts of Michigan - PREMi (www.premiadr.com).