Business court judges: Help us help you help your clients

There is strong demand for cases to be resolved as efficiently as possible

By Lee Dryden
The Daily Record Newswire

DETROIT - Michigan's business court judges say they are committed to getting cases resolved as efficiently as possible - a task that is made easier when the lawyers working on the case have that cooperative spirit as well.

Timely resolution of complex cases has been the goal of the specialized business dockets that were launched statewide in circuit courts in 2013. Early judicial involvement and a variety of alternative dispute resolution practices are at the strategic core of the effort.

Eight of Michigan's 21 business court judges gathered Nov. 12 in Troy for a discussion with attorneys on "Business Courts and Early ADR: The Latest from Bench & Bar." It was sponsored by the State Bar of Michigan's ADR Section and the Business Law Section's Small Business Forum and Commercial Litigation Committee.

Judge panelists included James M. Alexander and Wendy L. Potts of Oakland County, Richard L. Caretti and Kathryn A. Viviano of Macomb County, Lita Masini Popke and Brian R. Sullivan of Wayne County, Archie C. Brown of Washtenaw County, and Christopher P. Yates of Kent County.

As nearly 99 percent of civil cases in Michigan do not go to verdict, there's a demand for resolving cases as efficiently as possible.

"I believe that there are a number of reasons business courts have been well received by counsel," said Douglas L. Toering, an attorney who moderated and helped plan the event.

He mentioned early judicial involvement, early mediation or other ADR, and discovery issues such as determining what is needed before mediation and how much when considering the nature of the case.

Judges stressed the importance of all parties communicating early and often - including mediators or facilitators if needed - so core issues are identified and, hopefully, resolved.

History

Business courts - which were launched statewide in 2013 - provide a case management structure that facilitates more timely, effective and predictable resolution of complex business cases, according to the Michigan Courts website.

Public Act 333 of 2012 requires circuit courts with three or more judges to create a specialized business court docket. Any case with a commercial or business dispute must be placed on the business docket, even if it includes nonbusiness claims. Courts with fewer than three judges may have a business court but it is not required.

Gov. Rick Snyder said when the bill was signed, "Establishing business courts helps solve complex business cases and provides an important tool for ensuring a strong economic climate."

It was a 12-year effort to establish business courts in Michigan as detailed in a 2013 article Toering wrote for Business Law Today on the American Bar Association website.

In 2001, then-Gov. John Engler signed a bill to create a "cyber court" for business or commercial disputes over $25,000. It gave the judge the discretion to broadcast proceedings online and called for cases to be conducted by audio, video or Internet conferencing.

While the state's budgetary woes prevented the cyber court from being funded, it formed the basis for much of the business court statute, Toering wrote.

Also in 2001, the State Bar of Michigan's Business Law Section Council formed a committee to weigh if the state should set up a business court. That resulted in an executive committee that drafted a pilot proposal that was presented in 2003 to judges in Oakland, Wayne and Kent counties.

The committee continued its work and a bill to create a business court stalled in 2005.

In 2010, the State Bar's Judicial Crossroads Task Force adopted the committee's recommendations and called for the Michigan Supreme Court to create pilot business dockets in at least two circuits, Toering wrote.

Macomb County began its Specialized Business Docket in November 2011, followed by Kent County in March 2012 and Oakland County in July 2012.

Keeping cases moving

Business court judges and their staffs work to keep a steady caseflow in a user-friendly environment. Some courts are busier than others and busy criminal and family dockets can take up much of their time.

In Kent County, Yates is the only judge for the business court, which now has 1,000 cases. His staff scours the docket for cases that can be moved along, including "zombie cases which need to be put out of their misery."

Cases involving low-dollar amounts, collection or one issue are set for settlement conferences almost immediately, Yates said.

"My goal is simply to get you out of there and keep you moving," he said.

Potts said Oakland County hired a case manager who identifies cases that don't belong in the business court. She noted that a case that is filed for summary disposition in her court now will be heard in February.

"We're really, really backed up," she said.

Popke, the newest business court judge in Wayne County, is drawing on her years of business law experience.

Her goal is to be hands-on and flexible to help lawyers resolve cases while not wasting their time on practices that are not working for a given case. Business court efforts can be "very tailored to individual cases."

"I want to be the judge I wanted back 20 years ago," she said.

Viviano mentioned the importance of appropriate scheduling in her Macomb County court and not issuing a trial date until issues are resolved. She said she is active in settlement conferences and wants the decision-makers present.

Many ADR options

Judges have a wealth of ADR strategies they can employ depending on what is the best fit for a given case. These include: arbitration, mediation, early neutral evaluation by an expert, summary jury trials, mediation/arbitration, case evaluation, moderated settlement conference, and many more detailed on the Michigan Judges Guide to ADR Practice and Procedure on the Michigan Courts website.

In fact, ADR options are growing so quickly that judges, lawyers and administrators are invited to submit their favored processes for inclusion in updates to the guide.

"I'm a very active settlement conference judge," Caretti said. "I've never met an early resolution I didn't like."

Yates has found that getting involved is effective.

"If I participate in the settlement conference, people tend to take them very seriously. We resolve an awful lot of cases that way," he said.

Sullivan added, "I try to meet with the lawyers as early as I can. The only way to settle is to get them talking. The best way to get them talking is to put a neutral person in the room."

That's important as 98 percent of cases settle at all levels - despite lawyers' common refrain that they will take cases to trial, Sullivan said.

The Alternative Dispute Resolution Section of the State Bar of Michigan states nearly 70 percent of cases sent to mediation result in settlements the same day. More than 90 percent of mediation participants are satisfied even if the case is not resolved there.

Another advantage highlighted by the State Bar - along with flexibility, time and money savings - is that while mediation does not force parties to settle, it helps both parties assess risks prior to trial. Mediation also can save money on discovery when used early in the process.

Lawyers can help

During the business court discussion, judges offered their assistance to lawyers while describing how lawyers can help themselves - and their clients - in return.

Knowing the material, sticking to the court schedule and working cooperatively with opposing counsel topped the list. The discovery process was a common topic as well.

"Discovery isn't a game," Alexander said. "Discovery isn't something where you call up the other lawyer at 5:01 on Wednesday and then you check the box that I tried to make contact.

"This is business court. It's business. You've got to make business decisions and your client has got to make business decisions."

Popke said the court's role is especially important in discovery in business cases. She said it's important to balance broad discovery and fishing, and avoid parties delving into an entire corporation.

Parties have been dealing with some cases for years so they don't need unlimited discovery, Brown said.

"You know your case," he said.

Yates lamented the deluge of paper he receives in his role. He mentioned three motions with more than 25 pounds of paper in recent weeks and asked lawyers to consider whether some documents are needed.

Judges praised attorneys' professionalism in business courts and their willingness to embrace the concept.

"It really is as intellectually challenging as anything I've ever done in my career," Yates said. "The work you do is astonishingly good."

Unique event

Toering expressed his appreciation for the judges attending the event to share insights, especially Yates and Brown from long distances. He said it's significant to have such a large percentage of the state's business court judges in the same room.

He said it's unusual for two areas of the State Bar to overlap and plan an event, but it's helpful for the ADR and Business Law sections to learn each other's areas.

Published: Wed, Nov 25, 2015

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