Tuesday, June 09, 2015
Ind. Courts - More on: Supreme Court creates commercial courts working group
A group of nearly 20 lawyers and judges will convene this summer to establish parameters for a new type of court in Indiana. The state already has specialty courts that try drug cases or those involving veterans – but most of those are criminal cases. [ILB: Here is the order establishing the group and naming the members.]
The newest courts will hear complex civil cases brought between businesses. Commercial courts exist in almost two dozen other states and help to clear cases which would otherwise bog down a docket. They’re designed to be “business friendly” – but what that means for a state is a bit of a gray area. * * *
For the court system, Indiana Chief Justice Loretta Rush says business friendliness is about expediency…
“What we want to do, and our responsibility, is to make sure we have an attractive environment for business litigation," Rush says. "And if you want to get your case moved, you can get your case moved.”
But others say that doesn’t mean an unequal application of the law.
“Well, when you say ‘business friendly,’ keep in mind both parties are businesses,” says Ohio Chief Justice Maureen O’Connor. Her state has had business courts for almost a decade.
“So you’re not favoring a business over an individual or tipping the scales and [saying] ‘I want to be business friendly, so I’m going to rule in favor of the business party as opposed to the individual private person,’” she says. * * *
“What businesses like, as I’ve always understood about one, the American legal system – and I think the Indiana legal system holds true to this notion – is consistency, knowing the lay of the land, knowing what you can expect, knowing what you can plan on,” [State Sen. John] Broden says.
Right now, it’s hard to know even when a case will be heard. Chief Justice Rush says some cases languish for years before they go before a judge. Indiana Supreme Court Justice Steven David, who will also sit on the piloting committee, says the state wants to ensure that dockets move more smoothly and predictably. If the commercial courts don’t do that, he says, they may be scrapped. [ILB: Some may say this bogging down of cases is what has happened with the Tax Court.]
“This would be an option, so obviously if it doesn’t prove to be more efficient, more effective for those that would utilize it, we won’t continue the pilot project. We feel very strongly it has worked in other states and the model will work here in Indiana. And it will be good for all litigants and it will be good for business here in Indiana and I think that’s good for everybody.”
But there’s that phrase again – “good for business”. Ohio Supreme Court Chief Justice Maureen O’Connor says some of the county business courts there have folded because judges objected to the whole notion businesses – or any group – would be treated differently under the law.
“There are judges who have the philosophy that there should be no such thing as a specialized docket," O'Connor says. "That if you’re elected to be a judge, that you are competent to handle any case that comes before you and no party should be given preferential treatment. They view specialized dockets as preferential treatment.”
Indiana, it’s worth noting, already does this for drug cases and for veterans. Most legal scholars agree it’s not an infringement of the Constitution’s Fourteenth Amendment guarantee to equal protections. And O’Connor says in Ohio, business courts have worked the same way specialty courts in Indiana do – with judges becoming an integral part of resolving potential litigation – often, before it starts in earnest.
“The judge literally rolls up his or her sleeves and gets involved in this case early on, sets the discovery schedule and the vast majority of these cases settle,” she says. * * *
Chief Justice Rush says she doesn’t think it’s likely each Indiana county will have its own commercial court. Instead, she envisions a regional system where several neighboring counties share jurisdiction over the business cases in their area.