Filing Cases on the Commercial Court Docket

In “Business Dispute? It Should Go to the Business Court Docket” (InsideTrack, Sept. 15, 2021), State Bar of Wisconsin legal writer Joe Forward provided an update on the Commercial Court Pilot Project with insight from members of the Business Court Advisory Committee.

The article notes the benefits of filing cases on the commercial court docket, which now includes 26 counties. It also notes that some commercial cases are required to be assigned to the commercial court docket in participating counties, but this might not be happening because attorneys either don’t know the commercial docket exists or don’t know the requirements.

The article elicited numerous lengthy comments. Because the comments exceed the 500-word limit for inclusion in this “Inbox” column in Wisconsin Lawyer, abridged versions of some comments appear below. To see all the full comments posted to the InsideTrack
article, visit the article online.

Note: Waukesha County Circuit Court Judge Michael Aprahamian, who hears commercial court cases, provides an update on the expansion of the commercial court docket, as well as the requirements, in this month’s “Solutions” column elsewhere in this issue.

Reader: I take issue with the article’s content for many reasons, some of which are explained below, in no particular order of importance.

First, its one-sided cheerleading lacks any input from the many of us in the bar (including justices, judges, and former judges) who view the business court as an assault on judicial independence and the principle of equal access to justice.

There are compelling arguments against the business court as it exists now in Wisconsin, which the article omits but which lawyers need to know in order to decide whether participating in the commercial docket serves the best interests of their clients and otherwise furthers the integrity of the courts.

Second, the article surprisingly concludes, with no supporting data, that lawyers are underutilizing the business court docket“(l)ikely because of the pandemic slowdown or lack of awareness among lawyers.” But the pandemic presents no impediments to e-filing.

And, as much as our former Chief Justice and her advisory committee have pushed the business court over the past four years (as members of the latter continue to do in your article), it is doubtful that Wisconsin commercial litigators are ignorant of the docket’s existence.

I would wager that the more likely reason for the business court’s failure to gain traction is the absence of objective data supporting the need for the courts in the first place or even demonstrating that the courts are an improvement, in any respect, over non-business courts in handling commercial cases.

Third, your article repeats the advisory committee’s nonsense that we need a limited number of specialized judges to ensure that Wisconsin’s business cases are handled effectively. Simply put, it is pure myth that these commercial cases are more difficult than the vast array of civil cases that come before the circuit courts on a regular basis, such as medical malpractice, legal malpractice, products liability, construction disputes, constitutional challenges, family custody and placement, eminent domain, easement disputes, power line cases, on and on.

Fourth, analogizing the business court to treatment courts, such as a mental health or drug courts, is false equivalency. This is true for many reasons but, as pertinent here, the litigants in these treatment courts do not participate in choosing the court’s judges nor does the Chief Justice.

Fifth, publishing business court decisions invites confusion among counsel and the courts as to their significance, because these circuit court decisions are in no way precedent and should never be cited as such. Circuit court judges already deal with too many improperly cited unpublished court of appeals’ cases.

Sixth, why doesn’t this “Pilot Project” collect data comparing the business court’s performance with that of non-business courts in the handling of commercial cases?

In a chronically underfunded court system with substantial unmet needs, why is it essential that we redirect our increasingly scarce resources toward protecting big-business interests? More to the point, why should big-business interests be privileged by our supreme court to have their own special deal in our circuit courts?

Attorney Richard G. Niess
Madison

Response: As members of the original Commercial Court Pilot Project Exploratory committee and as the “steering committee” overseeing the operation of the project, we must respond to the comment of former Judge Niess calling into question the fundamental purposes of the Commercial Court Pilot Project.

This is a pilot project of the supreme court, which means that it is an experiment, subject to evaluation and modification as the project goes forward, so responsible criticism and suggestions are, of course, welcome; however, significant misstatements of facts and, more important, misunderstanding of the purpose of this project are not, we believe, productive.

This is an attempt by the supreme court to recognize that disputes between businesses sometimes have unique characteristics which require expertise or specialized training.

This is not at all unlike other dockets such as the juvenile court docket, or specialty courts like drug, OWI, veterans, or mental health courts, to cite a few. In each of these cases, judges are selected and educational opportunities are made available so that the judges presiding in those courts can bring special expertise to the problems facing the litigants.

Disputes between businesses often involve many innocent bystanders, employees, customers, suppliers, and sometimes communities at large. Business courts do not favor business over individual litigants or big business over small business.

What the pilot project has done is to select judges who not only have substantial prior experience litigating commercial disputes, either as judges, lawyers or both, but who also have a commitment to continue to enhance that knowledge and to make room on their dockets to give these cases the space and attention that they need.

This is not because businesses deserve to go to the front of the line, but because employees, customers, and other innocent parties are often tragically affected by business disputes over which they have no control whatsoever. In addition, early contact with the court and intensive oversight often leads to faster resolution, saving the parties money and the court system resources.

In the case of the commercial court docket, like most other specialty courts, the assigned judges accept these additional duties with little or no docket relief because they are willing to share their experiences to improve the judicial system and many of the judges currently assigned to hear cases in the commercial court docket have in the past or currently preside over other specialty dockets.

As noted, this is a pilot project. As we have gone forward, the steering committee has recommended and the supreme court has adopted improved procedures, expanded the types of cases assigned to the commercial court docket, and increased the number of judicial districts and counties in the pilot project.

We accept, indeed we solicit, comments on how to improve the pilot project. The supreme court will decide whether the project has been worth the effort just as the court does in so many other initiatives undertaken to improve the delivery of legal services to the citizens of the state of Wisconsin.

Attorney Laura Brenner, Judge Michael Aprahamian, and Judge James Morrison

Reader: It will be interesting to see whether the data gathered on this pilot project demonstrate that specialty business courts bring more efficiency and fairness to the resolution of commercial disputes.

I’m skeptical. I share Judge Niess’s concerns. This project seems to be a solution in search of a problem. What is so different about commercial disputes that they should be directed to selected judges instead of being assigned like other cases?

I was a circuit court judge in Dane County for 10 years before retiring four years ago. Like all my colleagues, I handled cases of the sort described by Judge Morrison. Of course I was assigned those cases in the ordinary manner.

I did not need a specialty business court to handle that kind of issue with what seemed to be reasonable efficiency and fairness. I’m sure most judges have done the same thing. Likewise, we have all dealt with discovery issues, motion practice, and calendaring, and have learned through training and experience how to do these things as efficiently and fairly as possible. It’s just part of the day-to-day work of a trial judge.

I do object to the attempt to bolster this project by saying it is like a treatment court. It is not. I had the privilege of serving four years in our drug treatment court and six in our OWI treatment court. Treatment courts are very different from the business court project. Treatment courts do not handle litigation. A drug or OWI treatment court works with criminal offenders whose criminality is associated with drug or alcohol dependency. Participants must meet established criteria, but participation is voluntary. The judge works as part of an interdisciplinary team to ensure that participants get into treatment and complete treatment. Participants return to court at specified intervals for an extended period of time, perhaps a year or so. Treatment court judges get specialty training because they deal with issues outside the usual litigation docket of a trial judge.

The principles governing treatment courts are rigorously evidence-based. Research shows that treatment courts work. However, because treatment courts are so different from the business court project, it is not reasonable to draw any inference about how well the business court project will work by comparing it to treatment courts.

Fundamentally, it is worth remembering that treatment courts were designed to solve a well-defined, recognized problem: that locking people up does nothing to address the addiction that got them into trouble with the criminal justice system. In fact, treatment courts are sometimes referred to as “problem-solving courts.”

This brings us back to the question: just what is the problem the business court project is trying to solve? Given the issues articulated by Judge Niess, is it worth it?

Perhaps we will see, but in the meantime, I respectfully suggest we do away with the notion that this project is like a treatment court, because it simply is not.

John Markson
Middleton