A three-year pilot program set to begin in July will test the validity of a dedicated trial court for large claim business cases and other commercial disputes, but state officials are confident this second attempt at such a court will be more successful than a failed 1990s attempt.
The pilot court, which was established under the direction of the Wisconsin Supreme Court, will be set up in two Wisconsin jurisdictions — Waukesha County Circuit Court and the state’s eighth judicial district in the state, which is comprised of seven counties in northeastern Wisconsin.
The establishment of a dedicated business docket is considered a competitiveness issue for Wisconsin, in part because all of its Midwestern neighbors and 26 states in all have such a court for the purpose of expediting business cases.
“We are kind of late to the game in the sense that Wisconsin is just taking this action now,” says Lon Roberts, former secretary of the Wisconsin Department of Financial Institutions. “It has been an issue for the practicing bar and commercial litigants in our state for quite some time.”
Clogged courts
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Lon Roberts |
Roberts notes that state circuit courts have become clogged with a variety non-civil (i.e., criminal) cases, which also is the case nationwide. As a result, sophisticated business-to-business civil litigation has been delayed because criminal cases and other nonbusiness matters have priority due to constitutional guarantees for a fair and speedy trial.
Business interests here and elsewhere have increasingly looked to either arbitration or mediation outside the judicial system to resolve such matters, even though most business litigants would much rather have a constitutional court decide their case. “With mediation, there really is no final decision,” states Roberts, who retired from the private sector in December 2015 after more than 40 years with the Ruder Ware law firm in Wausau and recently was appointed to the state Public Service Commission. “It becomes an attempt to just try to get people to settle.”
Some business cases, particularly those involving asbestos claims and the cleanup of Environmental Protection Agency Super Fund sites, are also very lengthy and would benefit from judicial specialization, adds John Rothstein, an attorney with Quarles & Brady. Rothstein chaired a Business Court Advisory Committee established by Chief Justice Patience Roggensack of the Wisconsin Supreme Court. Under the program, Roggensack has the authority to select the initial judges who would be appointed to the commercial court dockets.
According to Rothstein, courts in Milwaukee County and elsewhere in Wisconsin already recognize the benefits of dedicated dockets in the circuit courts for the efficient handling of different types of cases including family matters, sensitive crimes, probate, children’s court, small-claims, felonies, and misdemeanors.
The feeling among business attorneys and their clients is that if courts would establish a separate docket for business cases, a court that would give such cases special attention on a regular basis, the cases would be heard promptly and be supervised by people who understand commercial transactions.
In addition, the results of those cases will be more uniform across the state. “One of the benefits of a business court is specialization where you have different dockets for different kinds of cases,” Rothstein says. “There should be improved [judicial] performance.”
Noting that business courts have become the norm nationwide, Lucas Vebber, general counsel for Wisconsin Manufacturers & Commerce, advocated for the pilot program in 2016 testimony before the state Supreme Court. He noted that many members of the Wisconsin judiciary are experienced litigators who are intimately familiar with complex business litigation, and the pilot court would leverage their experience to achieve efficiencies and improve the administration of justice.
Vebber also cited the business development benefits of having such a court. “At a time of increasingly competitive national and international economic conditions, every step that Wisconsin can take to improve our business climate and help achieve efficiency will make us more competitive,” he stated.
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Second time around
The state has learned from an earlier attempt to establish a business court in Milwaukee, which failed because it was voluntary, procedurally flawed, and never gained the necessary traction. For example, there was no mechanism to get a summary judgment, which is a way to dispose of cases early on if defendants think they have a strong enough case, and there was limited opportunity for discovery. “There are some procedural things that were not done in the Milwaukee test case that will not be part of our pilot project, which really allows us to go right through the system, as it’s presently organized, in an expeditious manner,” Roberts states.
The pilot program will be run on the premise that no new courts will have to be established and no new judges hired in either Waukesha County or the eighth judicial district. Roberts and Rothstein believe there are enough judges on the bench in both pilot areas who understand commercial litigation and, if properly managed by the clerk of courts, the judges can not only fulfill their obligations with respect to other cases, but also give the business courts special attention during the pilot.
Reporting requirements ensure the Supreme Court will be able to track the commercial court dockets, looking for data such as the number of cases filed, the average length of cases, and survey comments from participating attorneys, and then make any necessary improvements before the business docket is implemented statewide.
Roberts believes a business-focused court docket will gain wide acceptance. “It’s going to get strong support by the business community and also the civil trial bar,” he opines. “It’s been something that has been a long time coming. It’s a really good approach to do this on a pilot basis and work out the bugs before it goes statewide.”
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