One of President Calvin Coolidge's most notable quotes is "The chief business of the American people is business." Just a few years later, the American people felt the practical weight of this phrase in action (business in disarray) through the Great Depression.
In 2013, the state of Michigan implemented the business court program in earnest. Since that time, for many practicing attorneys in Oakland County, it seems like the business of practicing law in Oakland County is the business court. While by no means a comparable event to the Great Depression in scope or in outcome, in my 20 years of private practice, the formation of the business court has been one of the most impactful events in the practice of law in our county.
According to the state of Michigan, "business courts are intended to provide a case management structure that facilitates more timely, effective, and predictable resolution of complex business cases. Specialized dockets improve the efficiency of the courts, which benefits all litigants." Countless debates have transpired on whether the business courts achieve this goal all the time, some of the time, or none of the time. I offer my unsolicited (though somewhat relevant given the "business court" theme of March's LACHES by the OCBA) perspective on the efficacy of the business court.
For me, the business court is a success most of the time. Yes, there is increased predictability. By having a limited number of judges handling business court cases, attorneys have learned the tendencies and idiosyncrasies of the judges and their staffs. Prior to the recent amendments to the Michigan Court Rules, the Oakland County Business Court was one of the first, if not the first, to establish a "business court protocol," which created certain early procedures that looked more like the Federal Rules of Civil Procedure, particularly in the pretrial and scheduling context. Along with the business court came the "Business Opinions and Orders" search engine, which offered practitioners a resource to research the opinions of a particular judge on substantive legal issues. Certainly, by their appointment as business court judges, the judges gain greater experience and fuller knowledge of the subject matters of the disputes before them (e.g., the enforceability of restrictive covenants, tenants' rights in commercial real estate cases, and, ugh, the omnipresent "minority oppression" statute).
Of course, there are downsides to the business court. Sometimes style and personality conflicts arise between judges and lawyers. For those who practice almost exclusively in business court, there can be a form of "boredom" that arises between the judge and the lawyer. However, the biggest downside for me has been the loss of opportunity to practice before the other judges of the county.
In October 2021, after 20 years of private practice, I decided to go in-house with a longtime client. The thought process behind that decision (spoiler alert) may be the subject of a future article. However, as it relates to this article, my newly formed perspective as an in-house counsel (the other general topic of March's LACHES) has opened my eyes to another benefit of the business court: early mediation of business disputes.
In the first few years of the business court, the business court judges, particularly in Oakland County, were strong advocates for early mediation. Judicial "advocacy" for mediation can come in two forms: (1) strongly suggesting to counsel (and counsel agreeing) that, given the nature of the dispute, the parties should engage in mediation, or (2) ordering the parties to mediate under MCR 2.410(C)(1).
Thinking that they were "losing their day in court," some lawyers and litigants would groan audibly when driven to mediation at the outset of a case. However, slowly, the method behind the madness revealed itself, and the uninitiated started to become the converted to the benefits of early mediation. For me, after 20 years of litigating, nine years of litigating almost exclusively in business court, and now serving as in-house counsel, I have learned to understand and accept the following two axioms: (1) Nearly every business dispute centers on one or two legal disputes as to uncontroverted Michigan law, and (2) nearly every business dispute includes no more than a handful factual disputes that are almost all based on credibility assessments by the finder of fact. Said bluntly and overbroadly, discovery can be a colossal waste of time in terms of "discovering" anything that will ultimately lead to resolving a business dispute (no matter how large or small).
Of course, litigators believe the outcome of a case (resolved through mediation, summary disposition, or trial) can be beneficially impacted by discovery, and this can certainly be true, particularly when the defense to a lawsuit relies on a single legal issue (e.g., whether a contract is clear and unambiguous). We all want our "Vincent LaGuardia Gambini" moments in a deposition or courtroom, but they can be few and far between.
It is in early mediation that a skilled lawyer really shows their skills. The most skilled lawyers (I recall one of my early mentors as being one of the best at this) can look at a dispute in its earliest stages and predict the course of the dispute over the forthcoming 12 to 18 months and craft a resolution strategy that makes the most business sense to the client. With the benefit of foresight, client management, objective analysis of legal and factual disputes, and trust in the mediation process, lawyers can provide their best service and advocacy by creating resolution pathways at the outset of the case and avoid turning business disputes into "business quicksand."
In the years since the formation of the business courts, I have noticed business court judges have become less inclined to strongly suggest or order early mediation, instead leaving it to the lawyers to decide the merits of early mediation. However, far too often judges hear the following refrain from the lawyers: "Judge, I think we need a little bit of discovery before we can engage in mediation." Often, months - if not years - and countless dollars later, cases are no closer to finding the "discovery holy grail," and litigants are no closer to achieving a business resolution to their business dispute.
There is certainly a place for discovery in business court cases. However, as a former full-time business court lawyer and now a full-time in-house counsel who still finds himself in the occasional business court dispute, I look forward to an increased push by business court judges and lawyers toward early mediation.
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Kaveh Kashef is the 89th president of the Oakland County Bar Association.
