Can your clients do better in the new "business courts?

“I’m always amazed by how few lawyers know that there are now business courts specifically designed to handle complex litigation,” the Honorable Ben Tennille (North Carolina) told a roomful of lawyers at last weeks’ spring meeting of the ABA Business Law Section in Denver, Colorado. As Chief Special Superior Court Judge for Complex Business Cases, Tennille has witnessed the nationwide and now global trend. A Google Alert for “business courts” brings him news every day, he says—the latest was from Ghana. China, Pakistan, Morocco, and other countries have already established business courts.

Closer to home, the current economic crisis has stalled some states’ efforts to set up a special forum for complex business litigation: Colorado, Mississippi, and West Virginia have received approval but no funding. However, business courts are already up and running in AZ, AL, CT, IL, DE (the long-standing Delaware Chancery Court), FL, GA, MA, ME (a business and consumer court), MD (business and technology), MS, NC, NH, NV, NY, OH, OR, PA, RI, and SC.

What’s sparking the trend? “There’s a view in this country that we have a crisis in civil litigation,” Tennille said. The Final Report by the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System (2009) recognized the severity of the crisis and recommended changes, including early management of e-evidence, early mediation, early trial dates, and early and active judicial supervision. “That is exactly the way every business court is run, to increase efficiencies and lower costs,” Tennille says. They are “test labs” for experimental application of technology and procedure. Change is coming, and it will be “dramatic and hard,” Tennille promises. It will require new attitudes by attorneys, financial experts, and their clients. Case in point: Tennille decided Vernon v. Cuomo, an IP case recently reported by BVWire™. Not only did the judge “persuade” the parties to stipulate to a court-appointed expert (Mike Pellegrino), but he ultimately fashioned a sophisticated remedy—a fair value/royalty share arrangement—based on Pellegrino’s values.