Business Court Judges Spoke ? Attorneys Listened: "Early" and "Evidence Based Practices"

By:  Richard L. Hurford and Earlene Baggett-Hayes

Kudos to the ADR Section, chaired by Joseph Basta, and the Business Law Section, chaired by Doug Toering, for holding a highly informative summit on November 12, 2015, that received rave reviews.  The summit featured eight of the State’s twenty-one Business Court Judges, a broad ranging discussion of case management methodologies; insightful hand-outs that set forth what the Business Court Judges use and refer to in managing their dockets; and, breaking news on recently adopted protocols and processes in the Oakland and Macomb County Business Courts.  The more than 60 attorneys in attendance were treated to numerous “take aways” that will greatly assist in the effective representation of their clients in the Business Courts.  The Judges who participated in the program included:  Hon. Brian R. Sullivan and Hon. Lita M. Poptke (Wayne County); Hon. Kathryn A. Viviano and Hon. Richard L. Caretti (Macomb County); Hon. Wendy L. Potts and Hon. James M. Alexander (Oakland County); Hon. Archie C. Brown (Washtenaw County); and Hon. Christopher P. Yates (Kent County).   

Following a brief overview of the importance of evidence based practices and the trend toward the earlier resolution of litigation (provided by PREMi members Richard L. Hurford and Earlene Baggett-Hayes), the Judges in attendance provided a summary of the practices in their Business Courts and then fielded questions from the audience.  Doug Toering was masterful in organizing the question and answer portion of the program.  Not one question went unanswered. 

The Judges uniformly emphasized the importance of “early” and the utilization of “evidence based practices” as a critical tool in achieving the fair, cost effective, and efficient management of the Business Court dockets.  The term early was used frequently in such various contexts as “early” case management conferences; the “early” appointment of a neutral who would be available throughout the life of a dispute to assist the parties in the resolution of issues; the “early” mandatory exchange of base discovery materials; the “early” use of ADR; and strategies to facilitate the “early” use of ADR by, inter alia, employing proportionate or staged discovery techniques. 

The importance of “evidence based practices” became readily apparent.  The working definition of evidence based practices during the program was:  

The conscientious, explicit and judicious use of current best evidence in making decisions about the management of a dispute. It means integrating individual judicial and legal expertise with the best available external evidence from systematic research.

Each of the Business Judges provided numerous specific examples of the evidence based practices pursued in their courts.  Illustrative of these approaches are the new protocols announced at the seminar by the Business Courts in Oakland and Macomb Counties.  In Macomb County the Business Court Judges now issue a Notice and Order to Appear in all Business Court cases shortly after the filing of the responsive pleading.  The Oakland County Business Court has implemented a standing Case Management Protocol for all Business Court cases (that can be accessed on the Court’s web site). 

In putting together these protocols, the Oakland and Macomb Business Courts worked closely with experienced, respected and talented litigators in each of their counties that functioned as a type of advisory committee.  The mission of these advisory committees was similar – to explore the potential efficacy of various evidence based practices and the formulation of recommendations for the Court’s consideration.  Although each Court worked independently with different advisory committees, the protocols are very similar and, as discussed by the other Judges at the seminar, not unlike the case management initiatives being pursued in the Wayne, Kent and the Washtenaw County Business Courts.  While an article could be devoted to the significance of each evidence based practice, one in particular is worthy of further discussion – proportionate or staged discovery. 
An incredibly valuable tool for all trial courts is a publication by the Supreme Court Administrative Office entitled the Caseflow Management Guide (a copy of which was provided to all the summit attendees).  The purpose of the Guide is to provide trial judges with case flow management techniques and suggestions and explores a number of “evidence based practices” that can be employed throughout the life of the litigation.  One such practice discussed in the Guide is “proportionate” or “staged” discovery:

The following approach… is aimed at minimizing the time and expense devoted to discovery while promoting nontrial dispositions at the earliest point in the process…— initial discovery focuses on the information needed for settlement with discovery for trial provided only in cases that are likely to be tried.

In sum, it will not be surprising for the Business Courts to ask the parties to identify that discovery essential to engage in a meaningful ADR event and to focus on completing that discovery as soon as possible.  An ADR event would then be scheduled before all discovery is completed and in advance of the discovery cut-off date.   The parties could then pursue whatever additional discovery that many be necessary to prepare for a trial in the event the ADR event was not successful in resolving the entire dispute.

One other handout provided to the seminar attendees was the recently issued Michigan Judges Guide to ADR Practices and Processes (2015) also published by the Supreme Court Administrative Office.   This Guide, as well as a web based summary, was introduced to all the trial court judges throughout the state at a state judicial conference held in late October.  The Guide discusses a whole host of ADR processes and provides an overview of the indications for using each process and its optimal timing.  If attorneys are interested in determining what judges are being advised as to how and when the various ADR strategies might be most profitably used in any given setting, they would be well advised to study these documents that can be found on SCAO’s web site.  Doug Van Epps, the Director of the Office of Dispute Resolution of the Supreme Court’s Administrative Office, is owed a debt of gratitude for his work in compiling this invaluable resource for judges that is also being made available to practitioners.

The power of “early” and “evidence based practices” led one Business Court Judge to predict these practices will soon become the norm in all trial courts throughout the state.  This is very similar to Judge Yates’ prediction when the Business Courts were first implemented over three years ago.  Judge Yates opined in his message to the public entitled Specialized Business Dockets:  An Experiment in Efficiency:
The SBD pilot projects should benefit all litigants in Michigan by spawning innovations such as electronic case filing and proactive judicial intervention that can be incorporated into all litigation, regardless of its complexity.  In other words, the SBD pilot projects will not only assist the business community, but also enhance the State of Michigan as a whole by creating a more efficient, responsive court system.   For this, we should all be grateful.

The November 12 program truly underscored the commitment of the Judges to the Business Court “experiment.”   It was most gratifying to see their interaction and collaborative style.  The experiment will continue and the Judges will continue working together in implementing those evidence based practices that will enhance the speed, efficiency and justice provided to all citizens of the state. 

Thanks to all the Judges who participated and congratulations to the Chairs of the ADR and Business Law Sections, Joe Basta and Doug Toering, for orchestrating this program.