Litigation For Business and Commerce What Works Best 588 Page Manual

BUSINESS AND CORPORATE LITIGATION COMMITTEE FORUM:
AN INTRODUCTION TO BUSINESS COURTS AND COMPLEX

LITIGATION COURTS - WHAT WORKS BEST AND WHY
San Francisco
August 13, 2007
TABLE OF CONTENTS
1. Mitchell L. Bach and Lee Applebaum, A History of the Creation and Jurisdiction of
Business Courts in the Last Decade, 60 Bus. Law 147 (2004)1
AVAILABLE IN CD-ROM ONLY
2. Florida Business Courts

a. Orlando-Orange County – Ninth Judicial Circuit – Business Court Procedures
b. Miami-Dade County – Eleventh Judicial Circuit – Administrative Order
c. Tampa-Hillsborough County – Thirteenth Judicial Circuit – Administrative Order
3. Georgia - Business Case Division of the Fulton Superior Court – Order

4. Illinois – Circuit Court of Cook County – Standing Order

5. Massachusetts – Suffolk Superior Court – Rules for Filing in Business Litigation Session
and Notice to the Bar
6. State of Maryland - Business and Technology Court Task Force Report

7. State of New York – Administrative Order

8. North Carolina Business Court – Amended General Rules of Practice and Procedures
9. Philadelphia Commerce Case Management Program – Procedure for Disposition of

Commerce Program Cases Filed on and after January 1, 2000
1
Copyright 2004 by the American Bar Association. Reproduced from The Business Lawyer, Vol.
60, No. 1 (November 2004), with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic
data base or retrieval system without the express written consent of the American Bar
Association.
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10. State of Rhode Island and Providence Plantations Business Calendar – Order
11. Websites and Links
12. Judicial Council of California -- Fact Sheet – Complex Civil Litigation Program (January
2007)
13. Paula L. Hannaford-Agor, Nicole L. Mott and Timothy F. Fautsko, National Center for
State Courts and California Administrative Office of Courts, Evaluation of the Centers
for Complex Civil Litigation Pilot Program (June 30, 2003)
14. Complex Civil Litigation Pilot Program in Maricopa County, Joint Report Submitted to
the Arizona Supreme Court submitted by the Superior Court in Maricopa County and the
Complex Civil Litigation Court Evaluation Committee (December 2006)
15. The Business Litigation Session Resource Committee, The Business Litigation Session in
Massachusetts Superior Court: A Status Report (February 2003)
16. Chief Justice’s Commission on the Future of the North Carolina Business Court, Final
Report and Recommendation (October 28, 2004)
17. Report of the Office of Court Administration to the Chief Judge on the Commercial
Division Focus Groups (July 2006)
18. Lee Applebaum and Merrick L. Gross, Business Courts (Revised July 2007)
19. Lee Applebaum, Complex Litigation Courts and Business Courts: Some Brief
Observations on Connections and Similarities (August 13, 2007)
20. Bios
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WEBSITES AND LINKS
(Revised July 2004)
BUSINESS COURT WEBSITES OR RELATED LINKS
Atlanta, Fulton County Superior Court Business Case Division,

www.gasupreme.us/amended_rules/bus_court.pdf
Baltimore City Circuit Court, Business and Technology Case Management Program,
www.baltocts.sailorsite.net/civil/BTCMP/BTCMP.html
Chicago, Circuit Court of Cook County Commercial Calendars,

http://www.cookcountycourt.org/divisions/law/CommercialCalendars.asp
Delaware Court of Chancery,

http://courts.delaware.gov/Courts/Court%20of%20Chancery/
Las Vegas, Eighth Judicial District Court of Nevada, Business Court,

http://www.co.clark.nv.us/clarkcountycourts/ejdc/courts-and-judges/specialty-courts.html
Maine, Business and Consumer Docket

http://www.courts.state.me.us/opinions/adminorders/JB_07_1%20BCD.htm
Maryland, Business and Technology Case Management Program,

http://www.courts.state.md.us/businesstech/
Massachusetts, Business Litigation Session

http://socialaw.gvpi.net/sll/lpext.dll/sll/bls?f=templates&fn=main.htm (fee)
Miami, Eleventh Judicial Circuit Complex Business Litigation Section,

http://jud11.flcourts.org/programs_and_services/complex_business_litigation.htm
New York, Supreme Court Commercial Division, http://www.nycourts.gov/comdiv/
North Carolina Business Court, http://www.ncbusinesscourt.net/
Oregon, Lane County Circuit Court Commercial Court Program,

http://www.ojd.state.or.us/lan/Commercial%20Court/Comm%20Court.htm
Orlando, Ninth Judicial Circuit Complex Business Litigation Court,

http://www.ninja9.org/Courts/Business/Index-BC.htm
Philadelphia, Court of Common Pleas Commerce Case Management Program,

http://courts.phila.gov/common-pleas/trial/civil/commerce-program.html
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Reno, Second Judicial District Court of Nevada, Business Court,
http://www.leg.state.nv.us/CourtRules/SecondDCR.html;
http://www.washoecourts.com/index.cfm?page=courtcal&dept=B9
Rhode Island, Superior Court Business Calendar,

http://www.courts.state.ri.us/superior/publisheddecisions.htm
Tampa, Thirteenth Judicial Circuit Complex Business Litigation Division,

http://www.fljud13.org/division_genciv_cbld.htm
COMPLEX LITIGATION PROGRAM WEBSITES OR RELATED LINKS1
Arizona, Superior Court in Maricopa County, Complex Civil Litigation Pilot Program
http://www.supreme.state.az.us/courtserv/ComplexLit/default.htm;
California, Alameda County Superior Court, Complex Civil,

http://www.alameda.courts.ca.gov/courts/news/2000/pr000327.shtml
California, Los Angeles Superior Court, Complex Civil,

http://www.lasuperiorcourt.org/courtrules/Chapter7.htm#7.3k
California, Orange County Superior Court, Complex Civil,

http://www.occourts.org/complexcivil/
California, San Francisco Superior Court, Complex Civil,

www.sfgov.org/site/uploadedfiles/courts/complex_lit.pdf
California, Santa Clara County Superior Court, Complex Civil,

http://www.sccomplex.org/home/index.htm
Connecticut, Superior Court, Complex Litigation Docket,

http://www.jud.ct.gov/external/super/spsess.htm#ComplexLitigationDocket
Philadelphia, Court of Common Pleas Complex Litigation Center,

http://courts.phila.gov/pdf/civil2001/clc.pdf
Pittsburgh, Court of Common Pleas of Allegheny County, Complex Case Judge

set by Local Rule, http://www.pabulletin.com/secure/data/vol36/36-44/2149.html
1
We are not including complex litigation tracks within differentiated case management systems, unless
specific judges are assigned to those tracks.
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OTHER RESOURCES
National Center for State Courts
(a) Complex Litigation Resource Guide,

www.ncsconline.org/wc/CourTopics/ResourceGuide.asp?topic=ComLit#Comp
(b) Business Courts Resource Guide,

www.ncsconline.org/wc/CourTopics/ResourceGuide.asp?topic=SpecCt&guide=170
(c) State Links for Business Courts and Complex Litigation,

http://www.ncsconline.org/wc/CourTopics/statelinks.asp?id=10
Journal of Business and Technology Law, University of Maryland School of Law,

http://www.law.umaryland.edu/journal/jbtl/index.asp;
http://www.law.umaryland.edu/journal/jbtl/documents/bus_tech_courts.doc
Bach, Mitchell L., and Lee Applebaum, A History of the Creation and Jurisdiction of
Business Courts in the Last Decade, 60 Business Lawyer 147 (2004)
http://www.finemanlawfirm.com/publications/final_online.pdf
Florida State Courts, Task Force on Management on Cases Involving Complex

Litigation, Reference Materials,
http://www.flcourts.org/gen_public/cmplx_lit/reference.shtml
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BUSINESS COURTS
(Revised July 2007)
I. WHAT IS A BUSINESS COURT?
A. NATURE OF JURISDICTION
1. Are there specifically defined categories of cases within court’s jurisdiction?
2. Are there specifically excluded categories of cases outside court’s jurisdiction?
3. Is a complexity component required?
4. Is there a jurisdictional amount in controversy for non-equity claims?
B. JUDICIAL ASSIGNMENT
1. All matters typically heard by a single judge.
2. If there is more than one judge on a business court, do judges act as mediators
in each other’s cases?
II. CREATING A BUSINESS COURT
A. MECHANISMS FOR CREATING BUSINESS COURTS

1. Legislation
2. Administrative Order of Court
B. PERSONS AND ENTITIES WHO MAY BE INVOLVED

1. Judiciary/Administrative Office of Courts
2. Bar
a. Is the effort solely among “business lawyers”?
b. Are various Bar constituencies engaged in the process?
3. Legislature
4. Governor’s Office
5. Business Community
6. General Community
C. STUDY AND RESEARCH

1. Look at structure and experience in jurisdictions with business courts.
2. Study what types of business court programs are most compatible to the
circumstances in the interested jurisdiction.
3. Contact members of Courts and the Bar across the Country with experience
concerning business courts.
4. Obtain reports, recommendations, studies and other business court literature.
D. CONSIDER ALL PERSPECTIVES

1. Consult and confer with all segments of community in developing effort.
2. Hold discussions over concerns and issues raised in formative process.
E. FINANCIAL AND RESOURCE CONSIDERATIONS

1. Will there simply be a reallocation of existing funds and judicial resources?
2. Will new funding be sought, and if so what will the source of funds be?
III. COURT OPERATION
A. JUDGES
1. How many judges will be assigned?
2. How will judges be selected?
3. What role will judicial education play?
4. How long will judges serve?
B. STAFF
1. Will there be law clerks?
2. Will business court have separate administrative staff?
C. OPINIONS
1. Will opinions be required in any or all cases?
D. USE OF TECHNOLOGY
1. As a case management tool.
2. As a case presentation tool.
IV. JURISDICTIONS WITH BUSINESS COURTS
A. DELAWARE COURT OF CHANCERY

1. Traditional equity jurisdiction over business disputes.
2. Expansion of jurisdiction to mediate and/or adjudicate certain monetary
business disputes, expressly including technology disputes.
3. Long history of quality in decision making, and body of opinions/authority.
B. NEW YORK SUPREME COURT COMMERCIAL DIVISION

1. Broad jurisdiction over specific types of equity and non-equity cases.
2. Located in 10 different County or District Supreme Courts (trial courts).
3. Jurisdictional amounts in controversy vary by County ($25,000 to $100,000).
4. Uniform rules across all County Commercial Division.
5. Business Lawyers volunteer as settlement masters/mediators.
C. CIRCUIT COURT OF COOK COUNTY (CHICAGO)

COMMERCIAL CALENDARS
1. Only hear certain non-equity cases.
2. Broad jurisdiction with specific case types.
3. Relatively low amount in controversy; large volume of cases.
4. Equity cases heard in separate Chancery Division.
D. NORTH CAROLINA BUSINESS COURT

1. State-wide jurisdiction.
2. Seven specific case categories automatically within jurisdiction.
2
3. Other cases may be admitted if involve business dispute of a complex nature.
4. Mandatory mediation.
5. Extensive use of technology.
E. NEW JERSEY
1. Two large counties where all complex business cases go to specific judge.
2. Four counties with pilot program where certain business cases may go to
specific Chancery Judge.
3. New Jersey has an existing specialized case track for complex case assignment
to single judge, which includes, but is not limited to, complex business cases.
F. PHILADELPHIA’S COMMERCE CASE MANAGEMENT PROGRAM

1. Hears broad list of business and commercial disputes, non-equity and equity.
2. No complexity requirement (jurisdictional minimum $50,000).
3. Business Lawyers volunteer as settlement masters/mediators.
4. Experimenting with new ADR procedure.
G. SUFFOLK SUPERIOR COURT (BOSTON), BUSINESS LITIGATION

SESSION
1. Hears broad list of business and commercial disputes, non-equity and equity.
2. Some complexity requirements.
3. Functions as a regional court for Boston and three surrounding counties.
H. LAS VEGAS AND RENO, NEVADA BUSINESS COURTS

1. Some designated categories of business disputes.
2. Will hear other business cases if complex.
I. RHODE ISLAND SUPERIOR COURT BUSINESS CALENDAR

1. Will hear a broad range of business and commercial disputes.
2. Also hears state-law insolvency proceedings and complex cases involving
government parties.
3. Use of non-lawyers in mediation as well as lawyers.
J. MARYLAND’S BUSINESS AND TECHNOLOGY CASE MANAGEMENT

PROGRAM
1. Hears only complex business and commercial cases.
2. Expressly includes technology/computer/bio-tech disputes in its jurisdiction.
3. Statewide in all counties.
4. Detailed rules on judicial education.
K. FLORIDA’S NINTH JUDICIAL CIRCUIT (ORLANDO) COMPLEX

BUSINESS LITIGATION COURT
1. Broad list of cases, equity and non-equity.
2. Amended to include some complexity requirement.
3. Minimum amount in controversy $75,000.
4. Mandatory mediation.
3
L. BUSINESS CASE DIVISION OF FULTON COUNTY SUPERIOR COURT
(ATLANTA)
1. Pilot program.
2. Limited list of designated areas of dispute that must be heard.
3. Other cases must be complex business and commercial cases.
4. Amount in controversy must be $1 Million or more.
5. Flexible development of this court in pilot process.
6. Extensive use of technology.
7. Recent expansion of a party’s ability to request inclusion
M. HAWAII, FIRST CIRCUIT COURT (HONOLULU)

1. Assigning certain contract disputes to arbitration for the first time.
N. OREGON, LANE COUNTY (EUGENE) CIRCUIT COURT COMMERCIAL

COURT PILOT PROGRAM
1. Presiding judge determines what cases get in program, but lengthy list of case
types listed for judicial consideration.
2. Includes cases types found in other broad jurisdiction business courts, as well
as product liability, mass tort and environmental litigation, among other types.
3. Cases outside of Lane County may be transferred to Commercial Court.
4. Parties have good faith obligation to attempt early ADR.
O. FLORIDA’S ELEVENTH JUDICIAL CIRCUIT (MIAMI) COMPLEX

BUSINESS LITIGATION SECTION
2. Minimum amount in controversy $75,000 required in certain cases.
3. ADR mandatory.
P. FLORIDA’S THIRTEENTH JUDICIAL CIRCUIT (TAMPA) COMPLEX

BUSINESS LITIGATION DIVISION
2. Minimum amount in controversy $75,000 required in certain cases.
Q. MAINE’S BUSINESS AND CONSUMER DOCKET

1. Includes both business to business and consumer v. business litigation, but no
mandatory case list.
2. Judges given broad discretion in determining cases that will be heard and in
shaping the process; complexity issues are important factors.
3. ADR strongly endorsed.
R. OTHER JURISDICTIONS
1. Oklahoma legislature passed law allowing Supreme Court to create business
courts in cities with population in excess of 300,000, but no court rules effecting
that legislation put in place yet.
4
2. Michigan had legislatively created “Cybercourt” which was never funded;
legislation is being studied to create a business court.
3. Business case track being developed in Cobb County, Georgia.
4. South Carolina is moving to develop complex business court pilot program in
three counties.
5. Studies into creating business court program or dockets in Missouri, New
Hampshire and Ohio.
V. OBJECTIVES
A. CREATING A BODY OF LAW

1. Create a body of law that is reasoned, consistent, increases predictability and
ability to assess risk.
2. Will there be written opinions?
B. DEVELOPING SPECIALIST JUDGES

1. Judges who hear business cases consistently will develop an expertise in how
to handle the law in those cases.
2. Judges who hear business cases consistently will develop an expertise in how
to handle complexities of those cases.
3. Judges will also develop an understanding of how business parties and their
counsel function and operate in litigating and settling cases.
VI. TYPICAL POINTS OF DISCUSSION
A. ARGUMENTS, PERCEPTIONS AND REALITIES

1. Is a business court an elitist idea or a wise use of resources beneficial to all
cases on the docket?
2. Will business courts siphon off best judges, or do judges simply go to their
areas of interest?
3. Will a business court be a burdensome expense?
4. Will court decisions show a bias towards businesses? Is this generally an
irrelevant argument since the parties are typically both businesses, and even
where a non-business may be a party, what legitimate basis is there to assume that
the mandate of any business court is to favor businesses over the government or
individuals independent of how the law in any individual case should be applied?
5. Will parties be denied a jury and other procedures, or do most business courts
keep basic rules of their civil trial divisions?
6. Will the judges in a civil trial division not assigned to the business court want
to “lose” those cases from their dockets?
7. Should there be any sort of rotation of judges on a business court? What
amount of time on the bench is needed to provide the value of judicial
specialization?
5
COMPLEX LITIGATION COURTS AND BUSINESS COURTS:
SOME BRIEF OBSERVATIONS ON CONNECTIONS AND SIMILARITIES
By
Lee Applebaum1
In a 1983 article, Judge Posner identified at least two types of specialization in
connection with judging: specialization of function and specialization of subject matter.
The Honorable Richard A. Posner, Will the Federal Courts of Appeals Survive Until
1984? An Essay on Delegation and Specialization of the Judicial Function, 56 S. Cal. L.
Rev. 761, 778-780 (1983) (hereinafter “Posner”). He observed that specialization in a
specific subject matter had largely been rejected in the federal appellate courts.2 He
adduces the less obvious concept, however, that appellate “judges are specialized – to
judging [,a]nd it goes without saying, to the law.” Id. at 778 & n.44.
Complex litigation courts and business courts somewhat map these ideas. The
complex litigation court model is not focused primarily upon subject matter, but on the
1
Lee Applebaum is a litigation partner with Fineman, Krekstein & Harris, P.C. in
Philadelphia. He is Vice-Chair of the Committee on Business and Corporate Litigation’s
Subcommittee on Business Courts within the American Bar Association’s Section of
Business Law. He has written numerous articles on business courts and spoken
extensively on the topic. The observations herein were written in conjunction with the
program, Business and Corporate Litigation Committee Forum: An Introduction to
Business Courts and Complex Litigation Courts - What Works Best and Why, being
presented at the Section of Business Law’s Annual Meeting in San Francisco on August
13, 2007. More elaborate discussions of what makes up business courts and complex
litigation courts can be found in the other materials provided in connection with that
program. These comments address some commonalities that may not otherwise be
addressed in those materials; and hopefully adduce some useful points for discussion.
2
Even the federal appellate courts have a specialized subject matter tribunal, the United
States Court of Appeals for the Federal Circuit. Judge Pauline Newman described the
Federal Circuit’s formation as addressing a demand for coherence in patent law. The
Honorable Pauline Newman, The Sixth Abraham L. Pomerantz Lecture: Commentary on
the Paper by Professor Dreyfuss, 61 Brooklyn L. Rev. 53, 55 (1995).
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composition of factors affecting the legal process.3 The judge able to handle these cases
well must master the function of judging, and the generally applicable legal principles
that cut across all case types.
Business courts may include a complexity component,4 but always are defined by
a subset of legal subject matter that is less than the universe of all potential disputes. In
3
In California’s complex litigation court these factors may include: numerous pre-trial
motions that raise difficult or novel legal issues requiring time-consuming resolution;
large numbers of witnesses; voluminous documentary evidence; large numbers of parties
with different counsel; coordinated actions; or cases calling for “substantial post
judgment judicial supervision.” California Court Rule 1800(b). See generally Jeffrey W.
Stempel, A More Complete Look at Complexity, 40 Ariz. L. Rev. 781 (1998).
4
For example, Maryland Rule 16-205(c), addressing the assignment of cases to
Maryland’s Business and Technology Case Management Program, provides:
On written request of a party or on the court's own
initiative, the Circuit Administrative Judge of the circuit in
which an action is filed or the Administrative Judge's
designee may assign the action to the program if the judge
determines that the action presents commercial or
technological issues of such a complex or novel nature that
specialized treatment is likely to improve the
administration of justice. Factors that the judge may
consider in making the determination include: (1) the
nature of the relief sought, (2) the number and diverse
interests of the parties, (3) the anticipated nature and extent
of pretrial discovery and motions, (4) whether the parties
agree to waive venue for the hearing of motions and other
pretrial matters, (5) the degree of novelty and complexity of
the factual and legal issues presented, (6) whether business
or technology issues predominate over other issues
presented in the action, and (7) the willingness of the
parties to participate in ADR procedures.
There are no specific types of commercial or technological disputes that are mandated for
inclusion in the Maryland business court’s jurisdiction.
In North Carolina, which provided a model for the Maryland program, there are
similar guidelines addressing complexity factors that would indicate a case is appropriate
for inclusion in the North Carolina Business Court. North Carolina Superior Court Rule
2.1(d). More recently, the North Carolina Business Court’s jurisdiction was expanded to
require mandatory inclusion of certain specific types of disputes, e.g., corporate
governance, anti-trust, trademark and cases involving the Internet, electronic commerce,
and biotechnology. N.C. Gen. Stat. § 7A-45.4.
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these courts, the judge either possesses specialized knowledge of commercial and
business law, or will develop that knowledge through repeatedly hearing cases arising
from this subject matter.
There is no pure distinction separating complex litigation court cases from
business court cases.5 There will be certain types of subject matter that tend toward
complexity, and these will repeatedly appear in the complex litigation judge’s court.
Undoubtedly, these will include complex business and commercial cases.6 Thus, the
complex litigation judge will develop some experience in these areas.7
Likewise, there are business courts that will only hear complex business or
commercial cases, such as the North Carolina Business Court or Maryland’s Business
and Technology Case Management Program8; but even in business courts of broader
jurisdiction requiring no special complexity element as a part of their jurisdiction,9
5
Nor are the two inherently mutually exclusive. Mitchell L. Bach and Lee Applebaum, A
History of the Creation and Jurisdiction of Business Courts in the Last Decade, 60 Bus.
Law. 147, 205-206 (2004) (hereinafter “Business Court History”).
6
Under California Court Rule 1800(c), cases recognized as provisionally complex
include antitrust, trade regulation and securities claims, among others. As stated in the
December 2006 “Joint Report to the Arizona Supreme Court Submitted by the Superior
Court in Maricopa County and the Complex Civil Litigation Court Evaluation
Committee” concerning the progress of the Complex Civil Litigation Program in
Maricopa County (Phoenix), there were a significant number of contract cases in the
program, along with some cases involving anti-trust, securities and shareholders
derivative litigation; and all but one case involved a business on one or both sides of the
dispute. Id. at page 4.
7
Under Arizona Rule of Civil Procedure 8(i)(2)(F), in addition to the complexity factors
found in the California program, another factor favoring a complex case designation is
whether: “The case would benefit from permanent assignment to a judge who would have
acquired a substantial body of knowledge in a specific area of the law….”
8
Supra note 4.
9
These courts, such as the Supreme Court of New York’s Commercial Division, the
Philadelphia Court of Common Pleas Commerce Case Management Program and the
more recently created business courts in Tampa, Miami and Orlando, Florida, may
include even non-complex cases within their jurisdiction if there is a minimum amount in
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complex commercial and business actions are inevitably part of the inventory. Thus, the
business court judge in either complex or broad jurisdiction business courts will develop
skills in handling complex litigation.
Judge Posner’s observation of a specialized function in appellate courts of general
jurisdiction is that the function of judging itself is a form of specialization, i.e. judges are
people who have dedicated their vocational lives to judging, and in doing so have
developed skill, knowledge and wisdom in being able to make judicious decisions. Such
people stand in contrast to lawyers (who are not making these kinds of legal decisions in
their practice and are dedicating time to non-legal tasks) or those who might be part-time
judges, like federal regulatory commissioners or most arbitrators. Posner at 778.10
A complex litigation court is not co-extensive with this idea of judging qua
judging as a specialized function. In creating a complex litigation court, there is an
additional specialization in the judging function. Thus, the complex litigation judge is not
just a specialist because he or she is judging, but is a specialist in judging certain kinds of
cases from a case management perspective. Recognizing the great significance of a well
run and respected legal process, the complex litigation judge specializes in judicial
management skills; in not simply deciding wisely, but in putting difficult cases in a
position where wise decisions can be made.11 Put another way, the complex litigation
judge becomes expert in understanding the interaction between difficult cases and the
dispute and the cases fall into certain defined subject matter categories. See also Business
Court History at 223-228.
10
The thought comes to mind of the professional sports official whose work is seasonal,
rather than dedicated to study and practice on a year-round basis.
11
California Court Rule 1800(a) states that a complex case is one that “requires
exceptional judicial management to avoid placing unnecessary burdens on the court or
the litigants and to expedite the case, keep costs reasonable, and promote effective
decision making by the court, the parties and counsel.” (Emphasis added).
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legal process, and learns how to manage the forum in which the parties and litigants can
progress in moving toward sound decisions that command respect and appreciation. 12
The complex litigation judge’s specialty is to make the unclear more clear, the
disorderly more orderly and to have the firmness and determination to remove doubt
from those participating in the process. This judge is like the captain of a ship during a
storm. All others may doubt, but the captain maintains the focus and clarity to instruct,
command and guide. The others rely upon the captain’s leadership; and their trust in that
leadership allows them to play their roles fully, without confusion or half-heartedness, in
getting through that storm. A good captain likewise recognizes that he cannot carry out
every function on the ship, but must trust others to do their jobs and provide information
that will inform the decisions that can guide them all to port safely.
Thus, establishing a complex litigation court necessarily creates this sub-
specialized set of judges within the judging specialty. The goal of this specialization is to
manage cases in such a way as assure that: (1) a decision can be timely made; and (2) the
case is presented in such a way that a decision can be judiciously made. Complex case
management that fails to meet these objectives could drag on for years, with a series of
piecemeal, non-conclusive, decisions; where final resolution comes from exhaustion
12
Of course, our expectations must also be managed. Shortly before his death, Chief
Justice John Marshall wrote: “Though the hope of deciding causes to the mutual
satisfaction of the parties would be chimerical, that of convincing them that the case has
been fully and fairly considered, that due attention has been given to the arguments of
counsel, and that the best judgment of the Court has been exercised on the case, may be
sometimes indulged. Even this is not always attainable. In the excitement produced by
ardent controversy, gentlemen view the same object through such different media, that
minds not unfrequently receive therefrom precisely opposite impressions. The Court,
however, must see with its own eyes, and exercise its own judgment, guided by its own
reason.” Mitchel v. United States, 34 U.S. 711, 723 (1835).
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more than a global address of all important issues. This is destructive to confidence in
the court system and to efficient docket operation.
Similarly, business courts are creating a specialized set of judges who can make
timely and informed decisions that instill confidence in the court system and create
efficiency. Where cases are capably handled and decisions are reasoned, explained and
based upon sound and developed knowledge of the relevant law, even the losing party
will have less about which to complain. Weakly reasoned opinions, unexplained results
or an unevenly handled case management process provide the loser with grounds to gripe
about injustice; and may even give the winner a sense that the result was more fortuitous
than fair – likewise creating doubt in the system’s reliability. Under such circumstances,
litigants and lawyers may well turn to other forums (arbitration, mediation, federal court
or even other states’ business courts) to obtain a greater sense of order and predictability.
The specialized business court is aimed, in part, at reducing this doubt and stopping this
flight. Mitchell L. Bach and Lee Applebaum, A History of the Creation and Jurisdiction
of Business Courts in the Last Decade, 60 Bus. Law. 147, 152, 183 (2004); Ad Hoc
Committee on Business Courts, Business Courts: Towards a more Efficient Judiciary, 52
Bus. Law. 947, 954 (1997).
In sum, both the complex litigation court and the business court are based upon
judicial specialization, aimed at improving the reliability of decision making and
establishing courts that engender public trust. Ultimately, both are anchored in having
the right judges for the job.13
13
See, e.g., John J. Gibbons, The Quality of Judges is what Counts in the End, 61
Brooklyn L. Rev. 45 (1995).
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Lee Applebaum
Lee Applebaum is a partner in the Philadelphia firm of Fineman, Krekstein & Harris,
P.C.’s litigation group, focusing his work on business and commercial matters. He is the
long standing vice chair of the Business Courts Subcommittee of the ABA Committee on
Business and Corporate Litigation, and was chair of the Philadelphia Bar Association’s
Business Litigation Committee in 2005 and 2006, which works co-operatively with
Philadelphia’s Commerce Court. He is co-author of A History of the Creation and
Jurisdiction of Business Courts in the Last Decade, 60 Bus. Law. 147 (2004), and over
the last 4 years has been the coordinating editor and a co-author of the Business Courts
chapter in the ABA’s Annual Review of Developments in Business and Corporate
Litigation. Mr. Applebaum has spoken nationally on business courts numerous times,
including at the first two meetings of the American College of Business Court Judges.
He has written and spoken extensively on Philadelphia’s Commerce Court, and is
coordinating a project between Philadelphia lawyers and law students in creating a
summary, by topic, of the over 700 opinions issued by that business court.
{00053409;v1}
SUPERIOR COURT OF ARIZONA
IN MARICOPA COUNTY
From the Chambers of Central Court Building Phoenix, Arizona 85003
Hon. Janet E. Barton 101/201 West Jefferson PHONE (602) 506-5340
Suite 7A
BIOGRAPHICAL INFORMATION
Janet E. Barton, a Judge of the Maricopa County Superior Court, obtained her
undergraduate degree in Accounting from the University of Kentucky in 1975. After
working for nearly seven years in private industry in Lexington, Kentucky, Janet enrolled
in the University of Kentucky College of Law, graduating With Distinction in 1985.
Janet was admitted to the State Bar of Arizona and joined the law firm of Snell & Wilmer
in 1985. From 1991, until her appointment to the bench in July of 2000, Janet was a
partner in the firm. During her 15 years with Snell & Wilmer, Janet practiced primarily
in the areas of commercial and state and local tax litigation.
Janet is a Fellow of the Arizona Bar Foundation and a member of the American, Arizona
State, and Maricopa County Bar Associations. She is also a member of the National
Conference of State Trial Judges and the American College of Business Court Judges,
serving as the Treasurer for that organization. Within the Maricopa County Superior
Court, Judge Barton is the Associate Presiding Judge for the Civil Department, one of the
three Complex Civil Litigation Court Judges, Chair of the Court’s Jury Management
Committee and a member of the Court’s Judge Pro Tem Committee. Judge Barton also
serves on the Board of Directors of the Arizona Trial College, and is a member of the
Lorna Lockwood Inn of Court, the Arizona Town Hall and Soroptimist International of
Phoenix.
Judge Barton’s is located in the Central Court Building, Suite 7A.

JUDGE ELIHU M. BERLE
Superior Court of California
County of Los Angeles
111 North Hill Street, Dept. 42
Los Angeles, California 90012
(213) 974-5659
Fax (213) 680-2071
Judicial Appointment
1996 Appointed to the Superior Court of California,
Superior Court Assignments
1999-present Civil trials (jury and non-jury); individual direct calendar court
Stanley Mosk Courthouse (Central Civil)
Los Angeles, California
1996-1998 Felony jury trials and criminal calendar department

Clara Shortridge Foltz Criminal Justice Center (CCB)
Los Angeles, California
Court of Appeal Assignment (By Chief Justice)
1/3 - 3/31 Justice Pro Tempore

2000 Court of Appeal of the State of California
Second Appellate District, Division Four
Judicial Activities
Judicial Council of California Civil & Small Claims Advisory

Committee (Chair 2002-2006; member 1999-2006)
Los Angeles Superior Court

Civil & Small Claims Committee (chair 2005 – 2006)
Rules Committee (chair 2001- present; member 1998-)
Executive Committee (1998, 1999)
Automation (Technology) Committee (1998- )
1
Judicial/Professional Organizations
The National Judicial College

Reno, Nevada
Member of the Board of Trustees (2002- )
National Conference of State Trial Judges (ABA Judicial Division)

Chair (2004-2005)
American Bar Association

Judicial Liaison to Litigation Section (2006-)
Judicial Liaison to the ABA Business Law Section (1999-02)
Judicial Liaison to the Committee on Business Courts (1997-02)
Bench/Bar Bankruptcy Council (2005- )
Court of Appeal Published Opinions (Authored as Justice Pro Tempore)
Simi Valley Adventist Hospital v. Bonta (2000) 81 Cal. App. 4th

346
Pacific Custom Pools, Inc. v. Turner Construction Co. (2000)
79 Cal. App. 4th 1254
Other Publications
California Civil Appellate Practice, "Applications and Motions,"

California Continuing Education of the Bar (3rd Edition,
1996; Revisions 1997-2006)
California Civil Appellate Practice, "Applications and Motions,"

California Continuing Education of the Bar (2nd Edition,
1985)
National Judicial College Alumni Magazine, A Proposal for

Civility in Litigation, Vol. XIII, No. 4 (1998)
abtl Report, "A Modest Proposal from the Bench," Vol. XX,
No. 1 (1997)
abtl Report, "The Case for the Master Calendar System," Vol. IV,
No. 1 (1979)
2
Lectures and Programs
American Bar Association, Bench/Bar Bankruptcy Conference,

judicial panelist: “The Effect of Bankruptcy on State Court
Litigation” (Washington, D.C., 2005)
American Bar Association, Business Law Section, judicial

panelist: California’s Complex Litigation Courts” (Seattle,
2004)
University of Maryland School of Law /American Bar Association

Second Annual Symposium, judicial panelist: Taking
Care of Business: Business and Technology Courts in the
21st Century (Baltimore, 2003)
American Bar Association, Litigation Section and Young Lawyers

Division, judicial panelist: Judge, Juror or Arbitrator - Finding
the Best Factfinder (ABA Annual Meeting, San Francisco,
2003)
American Bar Association, Torts and Insurance Practice Section,

judicial panelist: The Doctrine of Reasonable Expectations in
Contract Interpretation (ABA Annual Meeting, Atlanta, 1999)
American Bar Association, Litigation Section, co-chair of program:

"Confidentiality Agreements" (ABA Annual Meeting, Toronto,
1988)
National Conference of State Trial Judges / National Judicial College,

judicial panelist: Managing Complex Litigation Cases (ABA
Annual Meeting, San Francisco, 2003)
California Administrative Office of the Courts, judicial panelist:

Workshop on Civil Case Management (San Francisco and
Sacramento, 2002)
3
4
5
JUDGE ALBERT DIAZ
North Carolina Business Court
832 E. 4th St. Suite 9600
Charlotte, North Carolina 28202
(704) 686-0114 albert.diaz@aoc.nccourts.org
EXPERIENCE
SUPERIOR COURT JUDGE November 2001-Present

Charlotte, North Carolina
Serve on trial court of general jurisdiction. Presiding judge in over 100 civil/criminal jury and bench trials
throughout the state of North Carolina. Rule on pretrial motions and prepare written orders. Serve as one of three
North Carolina Business Court Judges. Present continuing judicial education courses at Conference of North
Carolina Superior Court Judges. Serve as faculty member for orientation of new superior court judges.
TRIAL ATTORNEY August 1995-October 2001

Hunton & Williams
Charlotte & Raleigh, North Carolina
Handled general commercial litigation--trial and appellate--for international law firm. Represented clients in cases
involving construction law, bankruptcy, international commercial law, labor law, professional malpractice,
insurance law, copyright and trademark law, lender liability, consumer finance, energy and telecommunications,
and environmental law. Appeared in state and federal trial and appellate courts, arbitration hearings, and
mediations. Supervised document discovery for complex business cases, including preparation of document
databases.
APPELLATE GOVERNMENT COUNSEL October 1991-July 1995

Office Of The Judge Advocate General
Washington, D.C.
Represented United States in criminal appeals before the U.S. Navy-Marine Corps Court of Criminal Appeals,
U.S. Court of Appeals for the Armed Forces, and U.S. Supreme Court. Drafted over 200 briefs and made 18 oral
arguments. Drafted briefs in opposition to certiorari petitions. Collaborated with Solicitor General in drafting
brief and preparing for oral argument in court-martial appeal heard by U.S. Supreme Court. Served as member of
capital litigation team responsible for briefing and arguing death penalty appeals. Rated top appellate advocate in
the division. Awarded two decorations for outstanding meritorious service.
TRIAL AND REVIEW ATTORNEY November 1988-September 1991

Marine Corps Base
Camp Lejeune, North Carolina
Prosecuted courts-martial and represented clients in over 80 felony and misdemeanor jury and bench trials.
Supervised three attorneys and 10 staff in the processing of a daily docket of over 100 criminal cases.
EDUCATION
NEW YORK UNIVERSITY SCHOOL OF LAW J.D. 1988

Senior Casebook Editor, Moot Court Board
Recipient: Funded Law Education Scholarship
Moot Court Advocacy Award
American Jurisprudence Award: Creditors' Rights and Debtors' Protection
Albert Diaz Page 2
BOSTON UNIVERSITY M.S. Business Administration, 1993
WHARTON SCHOOL, UNIVERSITY OF PENNSYLVANIA B.S. Economics, 1983

Recipient: Four year NROTC Scholarship
ARTICLES, PRESENTATIONS & ACTIVITIES
“The Least Among Us,” Mecklenburg County Bar Newsletter, March 2005
“Professionalism,” Mecklenburg County Bar Newsletter, July 2003
Speaker, “Forum Selection—Has the Business Court Changed the Equation,” North Carolina Association
of Defense Attorneys, June 2007
Speaker, “An Introduction to Business Courts,” ABA Business Law Section, March 2007
Speaker, “Minorities in the Law,” Charlotte School of Law, February 2007
Speaker, “Business Court Perspectives,” American College of Trial Lawyers, February 2007
Speaker, “Increasing Diversity in the Legal Profession,” Mecklenburg County Bar, February 2007
Speaker, “Diversity Matters,” Mecklenburg County Bar, February 2007
Speaker, “All-Star Trial Advocacy, Mecklenburg County Bar, January 2007
Speaker, “Orientation for New Superior Court Judges, UNC-Chapel Hill School of Government, Dec. 2006
Speaker, “North Carolina Unfair and Deceptive Trade Practices Act,” Conference of North Carolina
Superior Court Judges, June 2006
Speaker, “Beyond the Basics of Civil Litigation, North Carolina Bar Association, May 2006
Speaker, “Nuts and Bolts of Practice in the Business Court,” Sole Practitioner/Small Firm Section,
Mecklenburg County Bar, May 2006
Speaker, “Business Court Update,” Conference of North Carolina Superior Court Judges, October 2005
Speaker, “Deposition Evidence,” Joint session, Conference of North Carolina Superior Court Judges and
Litigation Section, North Carolina Bar Association, June 2005
Speaker, “Update on Civil Practice Basics,” Mecklenburg County Bar, February 2005
Speaker, “Findings of Fact and Conclusions of Law,” Conference of North Carolina Superior Court
Judges, November 2004
Speaker, “South Carolina Oath Affirmation Program,” North Carolina Bar Association, November 2004
Co-Course Planner, “All-Star Trial of a Business Case,” North Carolina Bar Association, May 2004
Secretary, Justice Bobbitt Inn of Court, Charlotte, North Carolina, 2004-Present
Member, American College of Business Court Judges, 2005-Present
Member, State Judicial Council, 2001-2002
Vice-President, North Carolina Bar Association, June 2007-Present
Member, Litigation Section Council, North Carolina Bar Association, 2003-2007
Member, Conference of State Trial Judges, American Bar Association, 2001-Present
Member, Business and Commercial Courts Committee, ABA Conference of State Trial Judges, 2004-Present
Member, Minorities in the Profession Committee, North Carolina Bar Association, 1998-Present
Member, Hispanic-Latino Lawyers Committee, North Carolina Bar Association, 1998-Present
Member, Special Committee on Diversity in the Legal Profession, Mecklenburg County Bar, 2005-Present
Member, Board Nominating Committee, Mecklenburg County Bar, 2006-Present
Member, Hispanic National Bar Association, 2004-Present
Presiding Judge, Charlotte Mecklenburg Schools Truancy Court (Aug 2005-Present)
Presiding Judge, National High School Mock Trial Championships, May 2005
Presiding Judge, Mecklenburg County Drug Treatment Court, 2002-Present
Adjunct Faculty, Central Piedmont Community College, 2006-Present
Albert Diaz Page 3

BAR MEMBERSHIPS
NEW YORK (1989), DISTRICT OF COLUMBIA (1990) and NORTH CAROLINA (1995)
OTHER LEGAL EXPERIENCE
LT. COLONEL 1995-2006

U.S. Marine Corps Reserve (Ret.)
March 2005-October 2006: Reserve Appellate Judge, U.S. Navy-Marine Corps Court of Criminal Appeals,
Washington Navy Yard, Washington, D.C. Presided over oral arguments and prepared opinions resolving
appeals of service members convicted of criminal offenses at courts-martial.
May 2000-February 2005: Reserve Military Judge, U.S. Navy-Marine Corps Trial Judiciary, Piedmont
Judicial Circuit, Camp Lejeune, North Carolina. Served as presiding judge in courts-martial cases.
October 1995-April 2000: Reserve appellate defense counsel, Office of the Judge Advocate General,
Washington, D.C. Represented over 200 clients in criminal appeals before the military appellate courts.
Rated top reserve appellate advocate in the division. Received Reserve Navy Judge Advocate General’s
“Award of Excellence” for outstanding meritorious service.
Andrew M. Federhar
Director Andrew M. Federhar

Fennemore Craig
Phoenix Mr. Federhar practices in the Phoenix
(602) 916-5301 and Tucson offices of the firm and chairs
(602) 916-5972-fax the firm's commercial litigation practice
group. He represents clients in
Practice Areas connection with professional liability,
government contracts, health care
issues, insurance coverage, legislation
Administrative Law and Government Procurement
Commercial Litigation and general commercial litigation.
Condemnation
Mr. Federhar can be reached at:
Construction Law
Government Relations Phoenix: (602) 916-5301
Health Care and Bioscience Tucson: (520) 879-6802
Indian Law
Professional Liability
Real Estate and Real Estate Litigation Articles and Presentations
Litigation
Proposed Changes to the Rules of Civil
Procedure for Complex Civil Litigation,
Presenter, Arizona State Bar
Convention (2002)
Land Use Planning, Lecturer,
Conservation Foundation and Lincoln
Land Institute (1989)
Arizona Courtroom Evidence Manual,
Contributing Author (1985)
Professional and Community
Activities
Member, State Bar of Arizona
Member, Pima County Bar Association
Member, American Bar Association
Member, Judicial Performance Review
Committee
Fellow, American Bar Association
Chair, Arizona State Bar Legislative
Committee
Co-Chair, Men's Anti-Violence Network
Chairman, Supreme Court's Committee
on Complex Civil Litigation
State Delegate, Ninth Circuit Judicial
Conference
Past Co-Chairman, Citizen's Air Quality
Committee of Pima County
Past Chairman, State Board of
Transportation
Past Member, State Board of
{00057899;v1}
Transportation
Past Member, Arizona Board of Regents
Former Special Assistant of the
Chairman of the President's Nuclear
Safety Oversight Committee
Admissions
U.S. Supreme Court, 1983
Arizona, 1980
Education and Honors
Best Lawyers in America®, Commercial
Litigation, 2007
Chambers USA, Leading Lawyers for
Business
J.D., University of Arizona, 1980
B.A., in Political Science, with honors
and distinctions, University of Arizona,
1977
© 2003 Fennemore Craig
{00057899;v1}
Merrick L. Gross
Shareholder
One Southeast Third Avenue
25th Floor
Miami, FL 33131-1714
Direct: 305.982.5638
Fax: 305.374.5095
merrick.gross@akerman.com
Practice Areas
Commercial Litigation
Banking and Lending, Litigation, Class Actions, Construction, Bankruptcy and Creditors' Rights, e-Discovery
Industry Experience
Banking and Financial Institutions, Insurance
Recognition
AV rated by Martindale-Hubbell
President, Dade County Bar Association, 2006-2007
Chair, Florida Bar Business Law Section, 2007-2008
Florida Bar Business Law Section, Section Member of the Year Award, 2002-2003
Dade County Bar Association, Committee Chair Exceptional Service Award, 1999-2000, 2001-2002,
2003-2004, 2004-2005
American Bar Association Section of Litigation Outstanding Subcommittee Chair Award, 2004-2005
Listed in Florida Trend's Legal Elite, 2006, 2007
Florida Super Lawyer, 2006, 2007
Fellow, The Florida Bar Foundation
Fellow, The American Bar Foundation
Appointed by Chief Justice R. Fred Lewis to the Florida Supreme Court Task Force on Management of
Cases Involving Complex Litigation
Notable Client Work

Ellipsis v. The Color Works, Inc. 2006 WL 1207589 (W.D. Tenn. 2006) (Successfully obtained summary
judgment in favor of client resulting in dismissal with prejudice of all of plaintiff's claims in case where
$54 million in damages sought).
Ellipsis v. The Color Works, Inc., 428 F. Supp 2d (W.D. Tenn. 2006) (Successfully had plaintiff's expert
witnesses stricken with prejudice based upon failure of plaintiff's proposed expert testimony to comply
with Federal Rule of Evidence 702 and Daubert).
Ellipsis, Inc. v. The Color Works, Inc., 227 F.R.D. 496 (W.D. Tenn. 2005) (Successfully obtained order
from court that defendant was entitled to dispose attorney from opposing law firm, who was not
plaintiff's trial counsel, and whose deposition would not expose plaintiff's trial strategy.)
Rodriguez v. Amstar Insurance Company, 888 So 3d 760(Fla. 3d DCA 2004) (Successfully obtained
dismissal with prejudice of claims against insurance company client in class action suit asserting that
process of taking betterment deductions when processing claims was improper.)
In re United Container LLC, E.S. Bankest, LLC v. United Beverage Florida, LLC et. al., 284 B.R. 162
(Bkrtcy. S.D. Fla 2002) (successfully obtained remand of case from Bankruptcy Court to State Court, a
more favorable forum for client to present defenses).
Information Technology & Engineering Corp. v. Reno et al, 813 So 2d 1053 (Fla 4th DCA 2002)
CFI Sales and Marketing, Ltd. v. Florida Marlins, Baseball, Ltd, 2002 WL 428247 (Fla 3d DCA 2002)
Temple et. al. v. Gorman et. al., 201 F. Supp 2d 1238 (S.D. Fla. 2002) (Successfully obtained dismissal
with prejudice of claims against individual client in multi-party suit asserting federal and state securities
law violation claims arising from investments in a start-up dot.com entity.)
Warner v. Wireless Broadcasting Systems of America, Inc., Case No 96-2214-CIV-T-25A (M.D. Fla.
2000), aff'd, F. 3d (11th Cir. 2001) (obtained a favorable summary judgment for client in a breach of
contract/Florida Securities Investors Protection Act case which was upheld by the 11th Circuit Court of
Appeals resulting in an award of attorneys' fees to defendant client).
Molenda v. Hoechst Celanese Corporation, 60 F. Supp. 2d 1294 (S.D. Fla. 1999), aff'd, F. 3d (11th Cir.,
March 27, 2000)(obtained a favorable summary judgment and directed verdict for client in a breach of
contract/defamation/ Florida Whistleblower Act/ ADEA case which was upheld by the 11th Circuit Court
of Appeals, resulting in an award of attorney's fees to defendant client).
Carolyn Properties I v. Mitsui Trust & Banking, Co., Ltd., 136 F. 3d 140 (11th Cir.), cert.den'd, 525 U.S.
825 (1998).
Vans R Us, Inc. v. First Union National Bank of Florida, 597 So. 2d 929 (Fla. 3d DCA 1992).
Aberbach v. Wekiva Associates, Ltd., 735 F. Supp. 1032 (S.D. Fla. 1990).
T.P.M. International, Inc. v. Banco Industrial de Venezuela, C.A., 534 So. 2d 815 (Fla. 3d DCA 1988).
Benner v. Layne, 518 So. 2d 445 (Fla. 3d DCA 1988).
Published Work and Lectures

Business Courts: Are They Working and Why" CLE Program, ABA Section of Business Law Annual Spring
Meeting, Chairman, Co-Arthur of Program Materials, Moderator, April, 2006
"2005 Review of Recent Developments in Business and Corporate Litigation" CLE Program, ABA Section
of Business Law Annual Spring Meeting, Speaker, April 2006
"Will the Court Allow My Damages Expert to Testify: How to Survive a Daubert Challenge - A Live
Demonstration", CLE Program, ABA Annual Meeting, Chairman/Co-Author of Program Materials/
Moderator, August, 2005
Co-Author, Chapter of Model Jury Instructions entitled "Confusion of Source," Chapter Four, Business
Torts Litigation Model Jury Instructions, American Bar Association (4th Edition 2005)
"Is My Expert Evidence Admissible: How to Prepare for and Succeed at a Daubert Hearing --- A Live
Demonstration" CLE Program, ABA Section of Litigation Annual Meeting, Chairman/Co-Author of
Program Materials/Moderator, April 2005
"Business Courts: Are They Working and Why" CLE Program, ABA Section of Litigation Committee on
Corporate Counsel CLE Meeting, Chairman/Co-Author of Program Materials/Moderator, February 2005
Co-Author, Article entitled "Fifty State Survey of the Standards Governing the Admissibility of Expert
Scientific Evidence," Commercial & Business Litigation Committee Newsletter, American Bar Association
(August 2003); Committee on Trial Evidence Newsletter, American Bar Association (Spring 2004)
"Pushing the Expert Testimony Envelope: The Intricacies of a Daubert Hearing --- A Live
Demonstration" CLE Program, ABA Section of Litigation Annual Meeting, Chairman/Co-Author of
Program Materials/Moderator, April 2003
"Advice from the Experts: Successful Strategies for Litigating Commercial Cases in Federal Courts" CLE
Program, The Florida Bar, Chairman/Co-Moderator, September 2002(Miami); October 2003(Orlando)
Regional Coordinating Editor, "ABA Survey of State Class Action Law" (2002-2007)
"Why Jury Research Works: From Mock Trial to Mach Trial" CLE Program, American Bar Association
Corporate Committee Annual Meeting, Speaker and Co-Chair, February 2002
"Creditors' Rights in Bankruptcy in Florida" Seminar, Sterling Education Services, LLC, Speaker/Author
on "Priorities among Creditors" and "Non Bankruptcy Rights of Secured Creditors Upon Default" topics,
February, 2002
Author: Case Note entitled "Florida Constitution Protects Homestead Property From Creditors Even if
Purchased With Non-Exempt Funds With Intent to Defraud Creditors," Business Torts Newsletter,
American Bar Association (January 2002)
"Business Litigation, Unlike Any Other Litigation" Seminar, The Florida Bar, Speaker/Author and Chair,
November 1997
Lectures on various electronic discovery issues and issues involving specialized business courts
Assisted in revising Local Rules of the United States District Court for the Southern District of Florida to
reflect and take into account new electronic discovery amendments to Federal Rules of Civil Procedure
Bar Admissions
1987, Florida
Court Admissions
U.S. Court of Appeals, Eleventh Circuit
U.S. District Court, Middle District of Florida
U.S. District Court, Southern District of Florida
Professional Memberships and Activities

Federal and American Bar Associations (Business Law Section, Business and Corporate Litigation
Committee, Business Courts Subcommittee, Chair 2005-present; Vice-Chair 2004-2005; and Litigation
Section, Commercial and Business Litigation Committee; Appellate Litigation Committee; Committee on
Class Actions and Derivative Suits; Committee on Corporate Counsel, Business Torts Committee, Books
Subcommittee, Co-Chairman 2005-2007; 11th Circuit Subcommittee, Chairman 1999-2002,
Programming Subcommittee, Co-Chairman 2001-2006; 2008 ABA Section of Litigation Committee on
Corporate Counsel CLE Meeting, Co-Chairperson 2007-2008)
The Florida Bar (Trial Lawyers and Business Law Section, Chair, 2007-2008, Chair-Elect, 2006-2007,
Treasurer/Secretary, 2005-2006; Member, Executive Council, 1997-present; Chairman, Business
Litigation Committee, 1998-1999; Co-Chairman, Business Courts Committee, 1999-2004; Chairman,
Legislative Committee, 2004-2005; Co-Chairman, Section Annual Retreat Committee, 2002-2005; Co-
Chairman, MJP Committee 2003-2005) The Florida Bar Standing Committee on Judicial Independence
(2007-present)
Dade County Bar Association (President, 2006-2007; President-Elect, 2005-2006; Vice President, 2004-
2005, Director, 2001-2004; Civil Litigation Committee, Chairman, 2000-2002; Banking and Corporate
Litigation Committee, Chairman, 1998-2000, 2002-2003; Federal Courts Committee, Chairman, 2003-
2005)
Ad Hoc Rules Committee of the United States District Court for the Southern District of Florida, 2003-
2007
The American Bar Foundation
Eleventh Circuit Historical Society
The Florida Bar Foundation
Prior Professional Experience

Stroock & Stroock & Lavan - 1990-1994
Education
1987: J.D., Boston University School of Law
1984: B.A., Emory University, summa cum laude
BEN F. TENNILLE
844 Glen Echo Trail 211 North Greene Street

Winston-Salem, NC 27106 Greensboro, NC 27401
Home Telephone [336] 721-2519 Office Telephone: [336] 334-5252
Email: btennille@ncbusinesscourt.net
PRESENT POS1TION
Chief Special Superior Court Judge for Complex Business Cases

State of North Carolina
In January of 1996 Judge Tennille was sworn in as the first Special Superior Court Judge for
Complex Business Cases in North Carolina and charged with creating the first state-wide
Business Court in the nation. He was the only judge until the fall of 2005 when, on
recommendation of the Chief Justice’s Commission on the Future of the Business Court, the
court’s jurisdiction was expanded and two new judges were added. At that time Judge
Tennille was appointed Chief Judge of the Business Court. The Business Court is similar to
a Federal District Court in that its judges try cases and write opinions designed to create a
body of case law involving issues of importance to business and industry in North Carolina.
In establishing the court Judge Tennille designed a model paperless court, which employs a
free electronic filing system using the Internet. It was one of the first successful efiling
systems in the country. The Court was one of the first to maintain a website where all the
opinions were accessible as soon as they were filed and all pleadings were accessible on the
website.
Judge Tennille currently maintains his chambers and his courtroom in the new Elon
University School of Law, the only trial court in the country to be housed in a law school.
ABA
Judge Tennille served as the only judge on an American Bar Association Corporate
Responsibility Task Force, a panel charged with examining the framework of laws and
regulations and ethical principles governing the roles of lawyers, executive officers and
directors. The goal of this Task Force on Corporate Responsibility was to design a system of
checks and balances to enhance public trust in corporate integrity and responsibility
following the Enron and Worldcom failures. The panel held hearings during Fall 2002 and
submitted a final report to the ABA in April 2003.
Judge Tennille serves as Judicial Division Liaison to the Business Law Section of the ABA.
He is also Co-Chair of the Judges Initiative Committee of the Business Law Section and
serves on the Business Courts Committee and the Business Law Section Institutes and
Seminars Board.
Judge Tennille serves as Chair of the Business and Commercial Courts Committee of the
National Conference of State Trial Judges, a newly formed committee which will provide a
forum for the exchange of information, best practices and technology developments among
ABA-member judges who are presently sitting on, planning to organize, or simply interested
in the concept of, courts or divisions of courts dedicated to the trial of business and
commercial cases. This committee will also coordinate with other ABA committees such as
the committee on Business Courts of the Business Law Section and the Judges Initiative
Committee.
North Carolina Bar Association
Judge Tennille is currently serving as Vice President of the North Carolina Bar Association.
He has served on the Technology Advisory Committee, the Dispute Resolution Council and
been active in the General Counsel Section. He is a certified mediator.
American College of Business Court Judges
Judge Tennille helped found the American College of Business Court Judges and served as
its president from 2005 to 2007.
Advisory Boards
Judge Tennille serves on the AEI-Brookings Judicial Education Advisory Board, the ALI-
ABA Advisory Board on Business Law and the American Scientific and Technological
Adjudication Resource Center Planning Committee.
Judge Tennille is a Master of the Joseph Branch Inn of the American Inns of Court.
Previous Experience
1971-1985 Associate and Partner, Smith Moore Smith Schell & Hunter
(now Smith Moore LLP), Greensboro, N.C.
1985-1993 Associate General Counsel, Assistant Secretary

Burlington Industries, Inc., Greensboro, N.C.
1993-1995 Division Manager, Human Resources and Communications

Burlington Industries, Inc., Denim Division
2001-2003 Adjunct Professor Wake Forest University School of Law
Educational Background
1994 University of North Carolina, Kenan-Flagler Business School

Executive Education/Leadership Development Program
1994 University of Michigan School of Business Administration

Human Resources Executive Program
1971 University of North Carolina School of Law (J.D. with Honors)

Member, North Carolina Law Review, Order of the Coif
1967 University of North Carolina (B. A. Political Science)
1964 Phillips Exeter Academy
PERSONAL BACKGROUND
Judge Tennille was born in Winston-Salem, North Carolina where he currently resides with his
wife Marty. They share six children and four grandchildren.
He received an Honorable Discharge from the United States Marine Corps Reserve in 1975.
Copyright 2004 by the American Bar Association. Reproduced from The Business
Lawyer, Vol. 60, No. 1 (Nov. 2004) with permission. All rights reserved. This
information or any portion thereof may not be copied or disseminated in any form
or by any means or stored in an electronic database or retrieval system without the
express written consent of the American Bar Association.
A History of the Creation and Jurisdiction of

Business Courts in the Last Decade
By Mitchell L. Bach and Lee Applebaum*
TABLE OF CONTENTS
I. INTRODUCTION .................................................................. 151
II. SUPREME COURT OF NEW YORK COMMERCIAL DIVISION ...... 152
A. Introduction .................................................................... 152
B. The Commercial Division’s Evolution .................................... 153
C. Commercial Division Jurisdiction ......................................... 156
D. The Commercial Division’s Effect and Influence ...................... 158
* Mitchell L. Bach is a Member of Eckert Seamans Cherin & Mellott, LLC, and a commercial litigator
in its Philadelphia office. He is Chair of the Committee on Business and Corporate Litigation of the
ABA Section of Business Law and is Chair of the Business Courts Subcommittee. Mr. Bach was among
those who worked towards the creation of Philadelphia’s Commerce Case Management Program.
Lee Applebaum is a Partner with Fineman, Krekstein & Harris, P.C. in Philadelphia. He is Vice
Chair of the ABA Section of Business Law’s Subcommittee on Business Courts, and the incoming Chair
of the Business Litigation Committee of the Philadelphia Bar Association’s Business Law Section.
The bulk of this Article was originally presented on November 7, 2003 at the Symposium “Taking
Care of Business: Business & Technology Courts in the Twenty-First Century,” sponsored by the
University of Maryland School of Law and the Business and Corporate Litigation Committee of the
ABA Section of Business Law.
The authors wish to give special thanks to Diane Akers, Esquire, who drafted the section on Michi-
gan, and to thank the following people for their time and assistance in providing information, insight,
and/or editorial comments that went into our preparing this Article, though any flaws herein solely
belong to us: The Honorable Brent Adams, R. Franklin Balotti, Esquire, The Honorable Elihu Berle,
Howard J. Berlin, Esquire, The Honorable Mark I. Bernstein, Edward G. Biester III, Esquire, Beth I. Z.
Boland, Esquire, Professor Richard Booth, George Burns, Esquire, Jane F. Castner, Esquire, The Hon-
orable William B. Chandler III, Henry Chatham, Esquire, Professor Kathleen Coles, Peter L. Costas,
Esquire, Ellen Davis, Tim Dibble of AEQUITAS, Inc., The Honorable Timothy C. Evans, Thomas
Feinberg, Esquire, The Honorable Peter Flynn, Raymond Fortin, Esquire, John P. Fowler, Esquire,
Allen C. Goolsby III, Esquire, Gary Grimmer, Esquire, Robert L. Haig, Esquire, Professor Lawrence
Hamermesh, Sarah Herlihy, Esquire, The Honorable John W. Herron, Michael J. Higer, Esquire, Julie
Holmes, Stephen Hope, Esquire, Jack S. Kennedy, Esquire, G. Marcus Knight, Esquire, Thomas F.
Kummer, Esquire, Alan Lefkowitz, Esquire, Warren Lupel, Esquire, The Honorable William D. Mad-
dux, Gael Mahony, Esquire, Harry D. Mercer, Esquire, Lawrence Okinaga, Esquire, Eric Orlinsky,
Esquire, Michelle Perone, Esquire, The Honorable Steven I. Platt, The Honorable Gene T. Porter, Jason
B. Schaeffer, Esquire, David G. Shuford, Esquire, The Honorable Albert W. Sheppard, The Honorable
Michael A. Silverstein, The Honorable Thomas Smith, The Honorable Ben C. Tennille, The Honorable
Allan Van Gestel, and Ms. Bonnie Venturo. We also wish to thank Richard Kraemer for his research
assistance, and Lisa Raudenbush, Ann Delaney, Elaine Null-Corrento, Tiffany S. Hubbard, and S.
Ahsiyah Applebaum for their clerical assistance.
147
148 The Business Lawyer; Vol. 60, November 2004
III. CIRCUIT COURT OF COOK COUNTY COMMERCIAL

CALENDAR .......................................................................... 160
A. History of the Commercial Calendar ..................................... 160
B. Case Loads in the Commercial Calendar ................................ 162
C. Commercial Calendar Jurisdiction ........................................ 164
D. Effects of the Commercial Calendar ...................................... 165
IV. NORTH CAROLINA’S BUSINESS COURT .................................. 166
A. Creation of North Carolina’s Business Court ........................... 166
B. Case Selection in North Carolina’s Business Court ................... 167
C. Other Developments in North Carolina’s Business Court ........... 168
V. THE NEW JERSEY SUPERIOR COURT LAW DIVISION’S
COMPLEX COMMERCIAL CASE MANAGEMENT ...................... 170
A. History of Commercial Case Management .............................. 171
B. New Jersey’s “Best Practices” ................................................ 172
VI. PHILADELPHIA’S COMMERCE CASE MANAGEMENT
PROGRAM ........................................................................... 176
A. History of the Commerce Case Management Program .............. 176
B. Commerce Case Management Program Jurisdiction ................. 178
VII. BUSINESS LITIGATION SESSION IN THE SUPERIOR COURT
OF MASSACHUSETTS ........................................................... 180
A. Cases Heard in the Business Litigation Session ........................ 181
B. Response to the Business Litigation Session ............................ 182
VIII. NEVADA BUSINESS COURTS IN THE SECOND AND EIGHTH
JUDICIAL DISTRICT COURTS ................................................. 184
A. Goals of Nevada’s Business Courts ........................................ 184
B. Creation of Nevada’s Business Courts .................................... 184
C. Cases in Nevada’s Business Courts ........................................ 185
IX. RHODE ISLAND SUPERIOR COURT BUSINESS CALENDAR ........ 188
X. MARYLAND’S CIRCUIT COURT BUSINESS AND TECHNOLOGY
CASE MANAGEMENT PROGRAM ............................................ 190
A. The Creation of Maryland’s Business and Technology Case
Management Program ........................................................ 190
B. Cases Heard in the Business and Technology Case Management
Program .......................................................................... 191
XI. BUSINESS COURT SUBDIVISION OF THE ORANGE COUNTY,
FLORIDA CIRCUIT COURT .................................................... 194
XII. OKLAHOMA BUSINESS COURT .............................................. 195
XIII. MICHIGAN BUSINESS AND TECHNOLOGY COURTS ................ 196
A. Michigan’s Cyber Court ...................................................... 197
B. Cyber Court Jurisdiction .................................................... 197
C. Michigan’s Effort at Creating a Business Court ........................ 198
XIV. COLORADO AND GEORGIA .................................................. 199
A. The Colorado Governor’s Task Force on Civil Justice Reform ..... 200
B. The Georgia Feasibility Study .............................................. 201
The Creation and Jurisdiction of Business Courts in the Last Decade 149
XV. SOME INTERNATIONAL COURTS ........................................... 202

XVI. COMPLEX LITIGATION PROGRAMS ........................................ 204
A. California’s Complex Civil Litigation Pilot Program .................. 206
B. Connecticut’s Complex Litigation Docket ............................... 211
C. Arizona’s Complex Litigation Pilot Program ............................ 213
D. Pittsburgh’s Complex Case Assignment .................................. 215
XVII. DELAWARE COURT OF CHANCERY AND SUPERIOR COURT ..... 216
A. Court History ................................................................... 216
B. Summary Proceedings in the Superior Court .......................... 218
C. Creation of Technology Court Jurisdiction Within the
Chancery Court ................................................................ 220
XVIII. JURISDICTIONAL COMPARISONS ........................................... 223
A. Broad Jurisdiction Business Courts ....................................... 223
B. Complex Jurisdiction Business Courts ................................... 225
C. Other Jurisdictional Management ......................................... 226
D. Jurisdictional Objectives ..................................................... 226
XIX. CONCLUSION ..................................................................... 228
APPENDIX A
WRITTEN PARAMETERS OF BUSINESS COURT JURISDICTION
Colorado .................................................................................... 229
Delaware .................................................................................... 229
Florida ....................................................................................... 231
Illinois ....................................................................................... 238
Maryland .................................................................................... 240
Massachusetts .............................................................................. 241
Michigan .................................................................................... 243
Nevada ...................................................................................... 245
New York ................................................................................... 248
New York County ..................................................................... 248
Albany County ......................................................................... 250
Erie County ............................................................................. 251
Kings County ........................................................................... 254
Monroe County ........................................................................ 256
Nassau County ......................................................................... 258
Suffolk County ......................................................................... 260
Westchester County .................................................................. 261
North Carolina ............................................................................ 264
Oklahoma .................................................................................. 268
Pennsylvania ............................................................................... 269
Rhode Island ............................................................................... 271
APPENDIX B
EXPERIENCES IN SOME OTHER JURISDICTIONS WITH EFFORTS TO
ESTABLISH BUSINESS COURTS
Hawaii ....................................................................................... 273
Maine ........................................................................................ 273
Minnesota .................................................................................. 273
Mississippi .................................................................................. 274
Ohio ......................................................................................... 274
Virginia ...................................................................................... 274
Wisconsin .................................................................................. 275
What follows is a history and description of business courts1 established or

contemplated throughout the United States.2 We have included some statistical
information,3 with our chief focus being on the various courts’ respective juris-
dictional parameters.4 We do not provide the detailed narrative necessary to do
full justice to the individual and group efforts and dynamics resulting in the
establishment of the business courts discussed herein. Though the nature of that
effort and dynamic bears its own unique mark in each jurisdiction, it was only
through the common trait of determination that the establishment of any business
court has become possible.
I. INTRODUCTION
The creation of specialized business courts in the United States has expanded
greatly in the last ten years. Business courts, or more accurately business programs
or divisions within existing trial level courts, have been established and are op-
erating in New York, Chicago, North Carolina, New Jersey, Philadelphia, Penn-
sylvania, Reno and Las Vegas, Nevada, Massachusetts, Rhode Island, Maryland,
and Orlando, Florida. In May 2004, Oklahoma’s Legislature created a state-wide
business court. In New York, Chicago, Philadelphia, Massachusetts, and New
Jersey, the original business programs have been expanded by adding additional
judges and/or by expanding into additional counties.
One new aspect of the “traditional” business court is the creation of specialized
courts that include technology disputes as part of their express jurisdiction.
Through legislative effort and court rule, effective January 1, 2003, Maryland
established a Business and Technology Case Management Program.5 In May 2003,
1. The phrase “business courts” is used as a generic term for the variety of courts and programs
that have been created which are not separate courts at all, but divisions or programs within an existing
court.
2. There are specialized business and commercial courts in other nations. We include a very brief
description of commercial courts in England and Ireland, as well as a “Commercial List” in the Superior
Court of Justice in Toronto, Ontario, Canada. See infra Section XV. We also note England’s specialized
Technology and Construction Court. See infra note 433. The express reasons for creating or refining
these specialized courts are similar to purposes behind the creation of American business courts.
3. The authors do not purport to have obtained or analyzed all available statistics; nor do we intend
to portray this piece as encompassing a comprehensive statistical review of business courts. That being
said, we believe that the information is valuable with regard to the numbers and types of cases being
heard and resolved in business courts, with the caveat that these numbers may have different meanings
depending on the jurisdiction of each business court, the practical meaning of the term “case,” and
each jurisdiction’s goals. By way of a single example, as will be discussed below, North Carolina has
established a respected and valued business court that by its nature may not involve a high volume
of cases in comparison to New York, Chicago, or Philadelphia.
4. This piece will not focus on procedural rules, technology used to enhance business court pro-
grams or the extensive application of Alternative Dispute Resolution (“ADR”). There is no question
that integrating ADR methods as adjuncts to the judges’ work in business court litigation is an essential
part of many business courts. Integrating computer and other technology into business court practice
also appears to be approaching a new standard, rather than a novelty. Although these elements are
important to a successful business court, our research is most clear that it is the judge that is the
single most important factor in creating a court that is successful in balancing the qualities of fairness,
attention, care, and expeditiousness that make for an exemplary court.
5. MD. R. 16-205.
Delaware expanded the Court of Chancery’s jurisdiction to include technology

disputes, and to permit the mediation of other kinds of business disputes.6 Michi-
gan has created a “Cyber Court,” which, however, remains unfunded.7
California, Connecticut, and more recently the Maricopa County Superior
Court in Phoenix, Arizona have created specialized courts for complex litigation
that would include some business disputes within a broader jurisdiction of com-
plex matters. Other states are in various stages of moving toward or away from
business courts,8 with Colorado and Georgia having conducted extensive studies
into the merits and potential parameters of creating a business court.9
A brief history and description of existing business courts follows, along with
an overview of complex litigation programs. Generally, we discuss the business
courts in the chronological order of their creation, followed by a summary of
complex litigation programs, and culminating with a discussion of Delaware’s
Court of Chancery and Superior Court. The final section of the Article compares
the jurisdictional parameters of the business courts.
II. SUPREME COURT OF NEW YORK COMMERCIAL DIVISION

A. INTRODUCTION
In 1993, a pilot commercial court program was initiated in New York County’s
(Manhattan) Supreme Court.10 This effort is a critical point of origin for the decade
long trend in creating business and commercial courts.11 The pilot program arose
at a time of failing confidence in the state trial courts’ ability to address business
litigation. Thus, given a choice, it was “unlikely that a business litigant . . . would
have elected to litigate in the state courts in New York. Most such litigants pre-
ferred the federal courts, the courts of other states like Delaware, and private
[alternative dispute resolution (ADR)].”12
The pilot program assigned business and commercial cases to a single judge
for all aspects of the case. This was aimed at alleviating back log, as well as
achieving other goals, which included expediting cases, reducing expense, cre-
6. DEL. CODE. ANN. tit. 10, § 346 (1999).

7. MICH. COMP. LAWS ANN. § 600.8001 (West Supp. 2004). North Carolina may create a defined
technology dispute jurisdiction as well. See supra note 184.
8. See Appendix B for a listing of the experience in some states, although the list is not exhaustive.
9. See infra Section XIV.
10. NYS Unified Court System’s Comprehensive Civil Justice Program at III.1 (Mar. 24, 1999) [here-
inafter NYS Unified Court System], available at http://www6.law.com/ny/links/civiljustice.html (last vis-
ited Nov. 15, 2004). This early effort at a business court program is often referred to as the “pilot
parts.”
11. Paula Hannaford et al., Civil Action: A Briefing on Civil Justice Reform Initiatives: Focus on Business
and Complex Litigation Courts, 1 NAT’L CENTER FOR ST. CTS. 1, 2–3 (Aug. 2000) [hereinafter Focus on
Business and Complex Courts]. This article was the result of a “Justice Roundtable” sponsored by the
National Center for State Courts on November 16, 1999, with representatives from Delaware (Chan-
cellor William B. Chandler III), New York ( Justice Stephen G. Crane), and California ( Justice Richard
D. Aldrich).
12. Legal Opinion Letter from Robert L. Haig, Esquire, to Washington Legal Foundation ( Jan. 9,
1998) [hereinafter Haig Opinion Letter]. See infra notes 72–73 and accompanying text on Mr. Haig’s
role in establishing business courts.
ating consistency in case management, and creating judicial expertise in business

and commercial matters.13 In addition to developing judicial expertise, this format
“promoted early and active judicial involvement and facilitated linkage to alter-
native dispute resolution programs and services.”14
New York’s Commercial Division, the heir to this pilot program, would reflect
these goals as well. As stated by New York’s Council on Judicial Administration
in 1997: “[t]he overall objective of the commercial division is to concentrate
expertise in commercial litigation, so that business disputes can be resolved better
and more efficiently.”15 New York County’s current Commercial Division operating
statement reiterates these same goals:
Absent vigorous case management, these cases tend to become protracted
and expensive, and, indeed, to become a drag upon the court’s inventory of
non-commercial matters. By concentrating most of the commercial cases filed
in New York County in the [Commercial] Division, before Justices familiar
with commercial jurisprudence and litigation and who are charged with the
task of active case management, court administrators hope that delay and
expense can be reduced for all parties in commercial cases, and derivatively
for litigants in non-commercial cases as well.16
B. THE COMMERCIAL DIVISION’S EVOLUTION

The pilot parts17 proffered signs of immediate success. A 35 percent increase
in the disposition of cases between 1992 and 1993 was attributed to the creation
of four specialized “commercial parts” in New York County.18 The efficiencies
attributed to judicial specialization permitted three specialized business judges to
handle the work of more than four generalist judges using the same resources.19
In November 1995, this experiment led to the creation, through the office of
Chief Judge Judith S. Kaye, of the Commercial Division of the Supreme Court of
New York.20 The Commercial Division was initially established in New York and
13. Focus on Business and Complex Courts, supra note 11, at 3.

14. NYS Unified Court System, supra note 10, at III.1.
15. The Council on Judicial Administration, Report on the Chief Judge’s Court Restructuring Plan, 52
RECORD 929, 948 (1997) [hereinafter Restructuring Plan].
16. The Commercial Division of the State of New York, Commercial Division Operating Statement:
Part I: Explanation of Filing and Other Procedures, at http://www.nycourts.gov/comdiv/CD%20Operating
%20Statement%202002%20-%20Part%20I.htm (last visited Oct. 30, 2004).
17. See NYS Unified Court System, supra note 10.
18. ABA Ad Hoc Committee on Business Courts, Business Courts: Towards a More Efficient Judiciary,
52 BUS. LAW. 947, 957 (1997).
19. Id. Originally, there were four judges, but this number was later reduced to three.
20. NYS Unified Court System, supra note 10, at III.1. In January 1995, a task force of the Com-
mercial and Federal Litigation Section of the New York State Bar Association had recommended the
commercial pilot parts expansion into a commercial division of the Supreme Court. Chief Judge Kaye
then created the Commercial Courts Task Force, led by the Honorable E. Leo Milonas and Robert L.
Haig, Esquire to study that report. The Task Force went on to recommend the commercial division’s
creation. The Commercial Division of the State of New York, A Brief History of the Commercial Division
( Jan. 2001), at http://www.nycourts.gov/comdiv/Brief_History_of_CD.htm. Robert L. Haig, Esquire,
among the handful of preeminent figures in the modern effort to establish business courts, described
Monroe Counties.21 Consistent with the pilot program’s creation, the new Com-
mercial Division’s goals included the intention to “expedite the processing of cases
and develop judicial expertise in doing so, and to return the New York courts to
a leadership role in adjudicating major commercial disputes.”22
Success in New York and Monroe Counties “led the bar and business com-
munity to call for Commercial Division expansion to other counties.”23 The Com-
mercial Division’s success had “helped to stem the flight of commercial litigants
from New York’s courts, and to maintain New York’s status as the premier state
for the conduct of business.”24 In December 1998, Chief Judge Kaye announced
the expansion of the Commercial Division to Nassau, Erie, and Westchester Coun-
ties.25 In 2002, the Commercial Division expanded to Albany, Suffolk, and Kings
Counties.26
By 1998, the New York County Commercial Division’s average disposition rate
in contract cases was 552 days, compared to an average of 648 days for contract
disputes in 1992.27 By the end of 2000, that disposition time had fallen to 412
days, a 36 percent improvement from the pre-pilot days.28 By 2002, the average
time for disposition in contract cases brought within the Commercial Division
was down to 364 days, a 44 percent decrease from ten years earlier.29
Although each Commercial Division judge has more than the approximately
300 cases on a comparable federal judge’s docket, cases reportedly do not get
caught in the mire as the judges “make it a priority to decide motions and other
issues quickly and efficiently.”30 Currently, seven justices sit in the Commercial
Chief Judge Kaye as the only truly indispensable person in creating the Commercial Division. The
Commercial Division of the State of New York, Commercial Division Law Report ( Jan. 2000), at http://
www.nycourts.gov/comdiv/law_report_-_january_2000.htm. In light of New York’s influence on cre-
ating business courts nationally, her efforts and decisions lay behind more than the creation of New
York’s Commercial Division.
22. Id.
23. Id.
24. Restructuring Plan, supra note 15, at 948.
25. State of New York, Twenty-First Annual Report of the Chief Administrator of the Courts for Calendar
Year 1998, at 40 (Dec. 1998) [hereinafter 1998 New York Report].
26. The Commercial Division of the State of New York, A Brief History of the Commercial Division,
at http://www.nycourts.gov/comdiv/Brief_History_of_CD.htm (last visited Sept. 12, 2004).
27. NYS Unified Court System, supra note 10, at III.1. Monroe County showed a similarly high
degree of judicial involvement and success in resolving cases. Id.
A comparison from 1992 through November 1996 in New York County showed that in the Com-
mercial Division’s first year, the average disposition time improved by 29 percent; the number of cases
settling before trial increased 85 percent; the total number of pending cases was reduced by 26 percent;
the number of dispositions a year increased by 6 percent; and a court annexed ADR program “resulted
in a 43 percent settlement rate.” State of New York, 1997–98 Executive Budget: Appendix I, Part III,
Appropriations Requested by the Judiciary and Legislature, The Judiciary, Judiciary 1997–98 Budget
Request, Executive Summary at 19 (on file with The Business Lawyer, University of Maryland School
of Law).
28. Sharon M. Porcellio, Innovation, Successes for Litigation, N.Y. L.J., Jan. 22, 2001, at 3.
29. Letter from Robert L. Haig, Esquire, to Mitchell L. Bach, Esquire ( July 3, 2003) [hereinafter
Haig Letter].
30. Tamara Loomis, Commercial Division: High-Profile Case Casts Spotlight on Well-Regarded Court,
N.Y. L.J., June 20, 2002, at 5.
Division in New York County,31 two in Nassau County,32 two in Kings County,33
and one justice each in Monroe,34 Erie,35 Suffolk,36 Albany,37 and Westchester38
Counties.
The Commercial Division’s design is for “hands-on” judicial involvement, oc-
curring early in the case and continuing through to disposition.39 This includes
the ability to refer cases to the Commercial Division’s own ADR program.40 The
New York County Commercial Division established an ADR process in early
1996.41 This program includes more than 250 volunteer neutrals who handle
mediation or other forms of ADR that the parties might seek.42 Through the use
of its ADR process in 1998, close to 60 percent of the Commercial Division’s cases
have settled at or near their commencement.43 The number was similar two years
later.44 In 2002, over 60 percent of cases referred to the Commercial Division’s
mediation program in New York County settled.45 In 1998, 87 percent of cases
filed in New York County’s Commercial Division were disposed of prior to action
being taken to put the cases on the court’s trial calendar, as compared to 75
percent for the rest of the court.46 Commercial Division ADR has expanded to
other counties as well.47
31. The Commercial Division of the State of New York, Justices of the Commercial Division, at http://
www.nycourts.gov/comdiv/cd%20justices.htm (last visited Sept.12, 2004). There are six full time jus-
tices, and one additional justice has a part time role as a judicial hearing officer. Michael Bobelian,
Commercial Part Experiments With Category, Caseload, N.Y. L.J., Apr. 6, 2004, at 4.
www.nycourts.gov/comdiv/nassaujustices.htm (last visited Sept. 12, 2004). Kevin Schlosser, Commer-
cial Division Judges Help Shape Procedure and Law, N.Y. L.J., Sept. 23, 2003, at 16.
www.nycourts.gov/comdiv/Kings_Justices.htm (last visited Sept. 12, 2004).
www.nycourts.gov/comdiv/biography_of_justice_stander.htm (last visited Sept. 12, 2004).
www.nycourts.gov/comdiv/Erie_County.htm (last visited Sept. 12, 2004).
www.nycourts.gov/comdiv/Suffolk_County.htm (last visited Sept. 12, 2004). The Suffolk Commercial
Division has attempted to adopt procedures consistent with the other Long Island Commercial Division
in Nassau County. Schlosser, supra note 32, at 16.
www.nycourts.gov/comdiv/Albany_County.htm (last visited Sept. 12, 2004).
www.nycourts.gov/comdiv/WestChester_presiding_judge.htm (last visited Sept. 12, 2004).
40. Id.
41. The Commercial Division of the State of New York, A Brief History of the Commercial Division,
at http://www.nycourts.gov/comdiv/Brief_History_of_CD.htm (last visited Sept. 12, 2004).
42. Id. A link to the roster of neutrals is available at http://www.courts.state.ny.us/comdiv/
alternative_dispute_resolution_program.htm (last visited Sept. 12, 2004).
43. 1998 NEW YORK REPORT, supra note 25, at 40. A March 1997 survey showed a high level of
satisfaction among the neutrals and attorneys involved in the Commercial Division’s ADR process.
Robert C. Meade, Jr., Outside Counsel, Commercial Division ADR: A Survey of Participants, N.Y. L.J., Oct.
3, 1997, at 1.
44. Porcellio, supra note 28, at 3.
45. Haig Letter, supra note 29.
47. See, e.g., The Honorable Joseph G. Makowski, Mediation Training for Commercial Division Com-
pleted, 41 BAR ASS’N OF ERIE COUNTY BULL. 14 ( July–Aug. 2001) (twenty-six “skilled and experienced
C. COMMERCIAL DIVISION JURISDICTION

Part I of New York County’s Commercial Division Operating Statement poses
the question: “What is a Commercial Case?” The answer: “[t]he focus of the Di-
vision is the complex commercial matter. Because of the complexity of the issues
and the sums at stake, such cases often involve significant discovery and generate
many motions.”48 As will be discussed in detail below, written guidelines exist
which set out the case types included in the Commercial Division’s jurisdiction;
however, the Commercial Division’s history includes jurisdictional refinements.
Most recently, this has included a three-month experiment suspending the mon-
etary damage minimum requirement and the guidelines providing judicial power
to transfer and preliminarily review cases.49 The study of this three-month pilot
project’s results will help the court refine its guidelines, including the threshold,
and weigh the effect of an additional full-time Commercial Division Judge.50 This
Article will discuss the guidelines as they were in effect on February 29, 2004
and again on June 1, 2004.
There are specific types of cases presumptively included within New York
County’s Commercial Division. In cases seeking monetary damages, however,
there are jurisdictional amounts which first must be met. The New York County
plaintiff must generally be seeking a minimum of $125,000 to bring a case in the
Commercial Division.51 Other Counties in New York State typically have lower
commercial practitioners” received twenty-five hours of mediation training to serve in matters assigned
to Commercial Division) (on file with The Business Lawyer, University of Maryland School of Law).
48. The Commercial Division of the State of New York, Commercial Division Operating Statement—
Part I, Explanation of Filing and Other Procedures ( June 2001), at http://www.courts.state.ny.us/comdiv/
CD%20Operating%20Statement%202002%20-%20Part%20I.htm.
49. See John F. Werner, Guidelines for the Assignment of Cases: Court Note (Feb. 23, 2004); John F.
Werner, Guidelines for the Assignment of Cases: Court Note (May 25, 2004), both available at http://
www.nycourts.gov/comdiv/Guidellines_for_Assignment_of_CasesNYC.htm. This experimental pro-
gram occurred from March 1, 2004 through May 28, 2004. The February 23, 2004 Court Note states:
Effective March 1, 2004, and until further notice, the Commercial Division of Supreme Court,
Civil Branch, New York County will suspend operation of the transfer and preliminary review
mechanisms set out in the Guidelines for Assignment of Cases to the Commercial Division. Cases
that have been designated “Commercial” on the Request for Judicial Intervention will not be
assigned to a General Part after preliminary review nor transferred out of the Division and reas-
signed for failure to meet a monetary threshold or because of the nature of the subjects at issue
(except for matters that are manifestly not commercial in character, such as a dispute over the
valuation of assets in a matrimonial proceeding). The Division will study the effects of this
suspension and will make such permanent adjustments to the Guidelines as may be advisable in
light of the results, notice of which will promptly be provided to the Bar.
Id.
50. Bobelian, supra note 31. The Commercial Division justices have transferred and regularly re-
jected cases. “The pilot program may lead to the development of more uniform guidelines among the
division’s judges. . . .” Id.
51. The guidelines, as now in effect, state:
In general, the Commercial Division entertains complex commercial and business disputes in
which a party seeks compensatory damages totaling $125,000 or more (exclusive of interest,
costs, and attorney’s fees). Due to caseload considerations, the Justices of the Division are em-
powered to transfer out of the Division cases which, in their judgment, do not fall within this
category notwithstanding that a party has described the case as “commercial” on the Request for
dollar thresholds, ranging from $25,000 to $100,000.52 Erie County’s rule re-
quiring a $25,000 minimum damage claim is footnoted, with the comment “[i]t
should be noted that the dollar amount at issue to qualify a case as Commercial
may be changed from time to time in order to adjust the workload of the Court.”53
Assuming that the jurisdictional amount is reached, the types of cases that are
listed as within New York County’s Commercial Division jurisdiction include
claims arising out of business dealings such as securities transactions, business
sales, business agreements, trade secrets and restrictive covenants, breach of
contract, breach of fiduciary duty, fraud, misrepresentation, business torts, and
statutory violations arising out of business dealings.54 Other claims within the
Commercial Division’s parameters include Uniform Commercial Code (U.C.C.)
transactions, complicated commercial real estate transactions, shareholder deriv-
ative suits, commercial class actions, commercial bank transactions, internal affairs
of business organizations or liability to third parties of officials thereof, accountant
or actuarial malpractice, and complicated environmental insurance coverage liti-
gation.55 Other Supreme Court Commercial Divisions in New York State pre-
sumptively include within their jurisdictions declaratory judgment actions and
third-party indemnification claims against insurers in cases where the underlying
dispute involves contract claims within the Commercial Division’s scope,56 and
breach of contract actions involving security interests in or leases for personal
property.57 In Kings and Westchester Counties, counsel must certify that the case
is appropriate for the Commercial Division.58
In New York County, if the case is filed under the court’s electronic filing
guidelines, case type jurisdiction expands and the minimum jurisdictional amount
falls to $25,000.59 Thus,
commercial cases in which compensatory damages of $ 25,000 or more are
sought will not be transferred out of the Division if filed in accordance with
Judicial Intervention. The principles set out below will guide the exercise of this authority. Parties
should adhere to these principles when designating a case type on the RJI.
Appendix A, infra p. 248.
The Commercial Division of the State of New York, Guidelines for Assignment of Cases to the Com-
mercial Division, Supreme Court, New York County ( July 3, 2001), available at http://www.courts.state.
ny.us/comdiv/Guidellines_for_Assignment_of_CasesNYC.htm (last visited Sept. 12, 2004).
52. Albany County ($25,000); Erie ($25,000); Kings County ($50,000); Monroe County ($25,000);
Nassau County ($75,000); Suffolk County ($25,000); Westchester County ($100,000). See Appendix
A, infra pp. 250, 252, 254, 256, 258, 260, 262.
53. Id. at 252 n.1.
54. Id. at 248–49.
55. Id.
56. Albany County, Kings County, Monroe County, and Westchester County all have jurisdictions
of this sort. Id. at 251, 255, 257, 263.
57. Albany County, Monroe County, and Westchester County have jurisdictions of this sort. See id.
at 250, 256, 262.
58. See id. at 254, 263–64.
59. The Commercial Division of the State of New York, The Commercial Division of the State of New
York, Electronic Filing Overview, at http://www.nycourts.gov/comdiv/electronic_filing_main%20page.
htm (last visited Sept. 18, 2004).
the procedures governing the Division’s Filing by Electronic Means program.

For this purpose, “commercial cases” include commercial real property dis-
putes and the types of matters identified in Paragraphs (A) 1-2 and 4-6 and
(B) 1-8. . . .60
This adds the following types of suits to the Commercial Division’s jurisdiction:
(1) Suits to collect professional fees; (2) Cases seeking a declaratory judgment
as to insurance coverage for a personal injury or property damage action;
. . . (4) Proceedings to enforce a judgment regardless of the nature of the
underlying case; (5) First-party insurance claims and actions by insurers to
collect premiums or rescind policies; and (6) Attorney malpractice actions.61
The jurisdictional guidelines also provide case types that are excluded from the
Commercial Division’s jurisdiction. In New York County, absent electronic filing,
these are collection actions for professional fees, declaratory judgment actions
against insurers based on personal injury or property damages, landlord tenant
matters, real estate disputes, proceedings to enforce judgments whatever the un-
derlying basis of the suit, first party insurance actions concerning premium col-
lection and policy rescission, and lawyer malpractice cases.62 Albany County’s
guidelines also expressly exclude real estate foreclosures, products liability claims,
Medicare or Medicaid actions, and discrimination cases.63 Kings County excludes
even commercial leases;64 however, its Commercial Division will hear discrimi-
nation claims if based on a contract, as will Monroe County.65
D. THE COMMERCIAL DIVISION’S EFFECT AND INFLUENCE

The Commercial Division has been described within New York as “a virtually
unqualified success.”66 Contrary to the state of affairs where business litigants
once seemed to avoid New York’s state trial courts,
[t]he Commercial Division is widely perceived as a viable and in many cases
a preferable alternative for resolving business cases. It is popular because it
has demonstrated that it can provide efficient, cost-effective, and timely pro-
cessing of commercial cases, and has improved the quality and predictability
of judicial decisions.67 These achievements have been brought about by the
60. The Commercial Division of the State of New York, Guidelines for the Assignment of Cases, at
http://www.nycourts.gov/comdiv/Guidellines_for_Assignment_of_CasesNYC.htm (last visited Sept. 12,
2004).
61. Id. See also Appendix A, infra p. 248.
62. Id.
63. Id. at 251.
64. Id. at 255–56.
65. Id. at 255, 258.
66. Loomis, supra note 30, at 5.
67. The Commercial Division makes many of its judicial opinions available on its website via “Law
Reports.” The Commercial Division of the State of New York, Commercial Division Law Report, at http://
www.nycourts.gov/comdiv/law_report.htm. These reports begin in March 1998. The New York Law
Journal has begun publishing columns looking at the decisions issued by the State’s Commercial
Division Judges on the same subject matter. See, e.g., Jeffery A. Miller, Admitting Expert Testimony, N.Y.
L.J., May 29, 2003, at 5.
experience and expertise of the Commercial Division judges and other court
personnel, their use of advanced case management techniques, the ADR
opportunities available in the Division, and its technological innovations.68
New York’s efforts also have had a powerful impact in other jurisdictions. New
York’s Commercial Division has been studied and/or emulated in greater or lesser
degrees in Philadelphia,69 Massachusetts,70 Maryland,71 and Florida.72 The partic-
ular role played by New York’s Robert L. Haig, Esquire, co-chair of the Commer-
cial Courts Task Force, in spreading knowledge about New York’s experience and
the potential offered through the creation of business and commercial courts must
also be recognized.73
This also brings up the distinct and important impact of the ABA Ad Hoc
Committee on Business Courts.74 This Committee, chaired by R. Franklin Bal-
otti, Esquire, and Roland E. Brandel, Esquire, which included Mr. Haig, and
other such national figures as Dennis J. Block, Esquire, Helen D. Chaitman,
Esquire, William H. Clark, Jr., Esquire, Gandolfo V. DiBlasi, Esquire, Campell
A. Griffin, Jr., Esquire, James J. Hanks, Jr., Esquire, Robert L. Nutt, Esquire, and
David R. Woodward, Esquire, jointly presented the 1997 Report, Business Courts:
68. Haig Opinion Letter, supra note 12.

69. See, e.g., Michael A. Riccardi, Start Small, New York Lawyers Tell Philadelphia Business Court
Advocates, LEGAL INTELLIGENCER, Dec. 3, 1997, at 1.
70. Business Litigation Session Resource Committee, The Business Litigation Session Massachusetts
Superior Court: A Status Report (Feb 2003), at 4–5 [hereinafter Massachusetts Status Report] (on file
with The Business Lawyer, University of Maryland School of Law).
71. Maryland Business and Technology Court, Maryland Business and Technology Court Task Force
Report, Appendix B at 24–25 [hereinafter Maryland Task Force Report], available at http://www.
courts.state.md.us/finalb&treport.pdf.
72. Telephone interview with Michael J. Higer, Esquire (Sept. 11, 2003) (on file with authors). See
also Elaine R. Friedman, New Business Courts Gain Acceptance, NAT’L L. J., Dec. 30, 1996–Jan. 6, 1997,
at B1. Colorado’s Report of the Committee on Business Courts similarly looked to New York’s results
in setting forth the rationale for creating a business court. Governor’s Task Force on Civil Justice
Reform, Committee on Business Courts, Final Report of Governor’s Task Force on Civil Justice Reform
14–15 (Sept. 6, 2000) [hereinafter Colorado Report], at http://www.state.co.us/cjrtf/report/download/
report1.doc.
73. Maryland Task Force Report, supra note 71, discusses the New York Commercial Division at
length, and states that Mr. Haig has acted as advisor to nine states and five countries concerning the
establishment of specialized business courts. Id. at 24. R. Franklin Balotti, Esquire, one of America’s
leading business lawyers and a prime mover in the creation of business courts nationally, said in 1997
that “Mr. Haig has written more on the subject and has been given more credit for establishing business
courts in New York than any other lawyer.” ABA Highlights Business Courts At Annual Meeting in San
Francisco, 5 METROPOLITAN CORP. COUNS. 28 (Sept. 1997). Among other efforts, Mr. Haig has con-
sulted or advised about business courts in: Florida (Telephone interview with Michael J. Higer, Esquire
(Sept. 11, 2003) (on file with authors)); Georgia (Telephone interview with Raymond Fortin, Esquire
(Oct. 1, 2003) (on file with authors)); Boston (E. Douglas Banks, Lawmaker, Corporate Executives Push
for Separate ‘Business Court’ Speed up Commercial Litigation, BOSTON BUS. J. ( Jan. 18, 1999)); Colorado
(Business Court Committee, Minutes of December 2, 1999 Meeting, Governor’s Task Force on Civil
Justice Reform Business Courts Committee, at http://www.state.co.us/cjrtf/min/bcmin120299.htm);
Michigan (Commercial Litigation Committee Reports, State Bar of Michigan Business Law Section
(Dec. 7, 2002), at http://www.michbar.org/business/commercial_reports.html); Connecticut (Susan
Etkind, A Connecticut Commercial Court?, CONN. L. TRIB., Jan. 13, 1997); and Philadelphia (Michael
A. Riccardi, Start Small, New York Lawyers Tell Philadelphia Business Court Advocates, LEGAL INTELLI-
GENCER, Dec. 3, 1997, at 1).
74. The ad hoc committee has evolved into the permanent Business Courts Subcommittee of the
Business and Corporate Litigation Committee of the ABA Section of Business Law.
Towards A More Efficient Judiciary,75 which was published in The Business Law-
yer.76 This Report, approved by the ABA’s Section of Business Law, recommended
“that courts which hear a substantial number of corporate and commercial dis-
putes establish specialized court divisions to provide the expertise needed to
improve substantially the quality of decision making and the efficiency of the
courts with respect to such business cases.”77 The words in the Ad Hoc Com-
mittee’s Report resonate through the later national dialogue on the creation of
business courts.78
III. CIRCUIT COURT OF COOK COUNTY COMMERCIAL

CALENDAR
A. HISTORY OF THE COMMERCIAL CALENDAR
On September 9, 1992, an administrative order was issued by Presiding Judge
Donald P. O’Connell of the Cook County Circuit Court’s Law Division, establish-
ing a pilot program for judges to handle entire cases individually.79 This pilot
program for “Individual Calendars” included an individual General Calendar Sec-
tion and a Commercial Calendar Section.80 Prior to the Individual Calendar pilot
programs, the Circuit Court had not used a system with one judge for one case,
but instead used a master calendar system where different judges would address
various pretrial matters, with yet another judge handling the trial. “The master
calendar system . . . faced criticism because a single judge was not accountable
for the case before it went to trial and because of the uncertainty of trial dates.”81
Thus, Individual Calendar judges were to hear cases at every phase, from the start
of the case to its finish.82
As stated above, the experimental program was “equally geared to provide
special expertise in the area of commercial litigation and also to provide sched-
uling priority for the disposition of commercial disputes to enhance the com-
mercial climate in Cook County. . . .”83 Although Presiding Judge O’Connell’s Or-
75. ABA Ad Hoc Committee on Business Courts, Business Courts: Towards A More Efficient Judiciary,
52 BUS. LAW. 947, 947 (1997).
76. This article was substantially the same as the Committee’s August 1, 1996 Report, which was
approved by the American Bar Association’s Section of Business Law. Id. at 947 n.1.
77. Id. at 947.
78. For example, the Committee report is cited in the Massachusetts Status Report, supra note 70,
at 5; the Colorado Report, supra note 72, at 14 n.2; and by Clifford E. Haines, It’s Time to Create a
Special Business Court, LEGAL INTELLIGENCER, May 5, 1997, at 4 (Philadelphia).
79. Individual Calendar Call, General Administrative Order 92-2, In the Circuit Court of Cook
County, Illinois, County Department—Law Division, Sept. 9, 2002 [hereinafter Cook County General
Order]. See Appendix A, infra pp. 238–39.
80. Id. at 238.
81. John Flynn Rooney, Individual Calendar Pilot Project to Start Next Month in Law Division, CHI.
DAILY L. BULL., Aug. 19, 1992, at 1.
82. David Bailey, Commercial Litigation Heads to New Calendar in Law Division, CHI. DAILY L. BULL.,
Aug. 27, 1993, at 1.
83. Id. (quoting the Law Division’s then Presiding Judge Donald P. O’Connell). The first Commercial
Calendar Judge, the Honorable Martin Ashman, stated the primary point of the Commercial Calendar
was not speed and efficiency, but “to give substantial individual justice to individual cases.” Jill Chanen,
der creating the Commercial Calendar was effective as of September 14, 1992,84
the Commercial Calendar component did not start up immediately on that date.
The Commercial Calendar was introduced in 1993, as the second phase of the
Individual Calendar pilot project, which began with individual calendar assign-
ment of tort cases in the first phase.85 At that point, the intention was to assign
hundreds of cases involving commercial litigation to three Commercial Calendar
judges.86 The Circuit Court brought in the initial three Commercial Calendar
judges seriatim in 1993–94.87
The next goal was to add three more individualized commercial calendars by
the end of 1995.88 In fact, two judges with Commercial Calendars were added in
April 1995,89 and no new positions were added until February of 1997.90 The
1997 addition was required by the increase in commercial calendar case filings.91
Then Presiding Judge Judith N. Cohen stated in 1997 that the “[individual
calendar] program has been tremendously well-received by the commercial liti-
gation attorneys. . . .”92 She described the case load as involving generally “difficult
cases that take a lot of time, and with the increase in commercial filings, the
caseloads that the judges have must remain manageable to achieve the efficiency
that we aim for.”93 A month earlier, Judge Cohen called the Commercial Calendar
a proven “‘success story and a favored forum’ in the business community,” with
most cases being filed without a jury demand.94 Thus, the Commercial Calendar
Judges were chosen to hear most of these cases in the Law Division.95
Judge Sees Justice, Not Speed, As Commercial Calendar Goal, 16 CHI. LAW. 19 (Nov. 1993). The Honorable
Donald O’Connell, Cook County Circuit Court presiding Judge, also described his goals:
I also am hoping to foster the commercial environment in Cook County and the metropolitan
Chicago area by providing the specialized courts for commercial disputes so that commercial
cases won’t have to wait in line behind medical malpractice, structural work act and product
liability cases, and the vast amount of time it takes to prepare those cases for trial. So, commercial
cases would be given some priority toward earlier disposition.
Id.
84. See Cook County General Order, supra note 79.
85. Rooney, supra note 81 (The first phase involved the assignment of tort cases). Today there are
currently four general individual calendar judges in Cook County. Among the variety of case types
heard are “medical malpractice, products liability and contract actions.” John Flynn Rooney, She Has
‘Greatest Assignment’ on Trial Court, CHI. DAILY L. BULL., Aug. 14, 2002, at 3.
86. Bailey, supra note 82, at 1.
87. Mike Austin, Law Division Adds Judge to Handle Commercial Cases, CHI. DAILY L. BULL., Feb. 10,
1997, at 1. See also David Bailey, 2d Individual Calendar Set for Law Division, CHI. DAILY L. BULL., Jan.
28, 1994, at 1.
89. David Bailey, [Chief Judge Donald P. O’Connell] Puts His Stamp on Circuit Court, CHI. DAILY L.
BULL., Apr. 22, 1995, at 17.
90. See Austin, supra note 87, at 1.
91. Id. Presiding Law Division Judge Judith N. Cohen stated that “[t]he new calendar was created
to alleviate the burdens on the already-operating commercial calendars and to make sure that the
division remains functioning as smoothly and efficiently as it has in the past.” Id.
92. Id.
93. Id.
94. David Bailey, Case Disposition Time Continues to Drop, CHI. DAILY L. BULL., Jan. 8, 1997, at 1.
95. Id.
A seventh judge was added in 2000, as the Commercial Calendar case load
continued to expand.96 Then Chief Judge O’Connell observed that “[t]he success
of the nearly seven-year-old Commercial Calendar Section is demonstrated by an
increased caseload, which necessitated adding another calendar. . . .”97 In Septem-
ber 2001, new Chief Judge Timothy C. Evans of the Circuit Court of Cook County
expanded the number of judges assigned to the Commercial Calendar to eight.98
His reasoning focused on the continued heavy workload, and the fact that judges
in two of the Commercial Calendar sections were overworked.99
B. CASE LOADS IN THE COMMERCIAL CALENDAR

Between January 1, 1991 and July 1, 1993, Cook County’s Law Division had
reduced its backlog from 62,000 to 36,000 cases as a result of mandatory arbi-
tration, firm trial dates, and voluntary mediation.100 As of July 1, 1993, the average
time for disposition by a jury verdict was 53.6 months, and non-jury case dis-
position by any means was 20.46 months.101 Approximately 30 percent of the
commercial cases included jury demands, compared to 70 percent for other ac-
tions brought in Cook County’s Law Division.102
In late August 1993, one month prior to the Honorable Martin Ashman taking
on the task of becoming the first Commercial Calendar judge, there were ap-
proximately “5,000 pending cases involving breach of contract, professional mal-
practice, fraud, consumer fraud, breach of warranty and statutory actions. . . .”103
Out of these 5,000 pending cases, 400 cases would be assigned immediately to
96. John Flynn Rooney, Popularity of Commercial Calendar Necessitates New Judge, CHI. DAILY L.
BULL., July 12, 2000, at 1.
97. Id.
98. Press Release, Office of the Chief Judge, Chief Judge Evans Announces New Assignments in the
Law Division (Sept. 21, 2001) (on file with authors).
99. Id. As stated above, Cook County also has an individual general calendar, in which complex
cases are identified early and assigned to an individual judge. In early 2002, the Law Division went
from a system of assigning complex cases, e.g., toxic torts, from two specific judges assigned to a
complex litigation section, to assigning such cases among thirty-five judges in the Law Division; with
one of those judges hearing the cases from beginning to end. John Flynn Rooney, Law Division Chief
Moves to Cut Disposition Rate, CHI. DAILY L. BULL., Mar. 8, 2002, at 1. There remain four individual
general calendar judges, who, according to the court’s website “hear cases of every variety pending
and filed within the Law Division in numbers as shall be from time to time designated by the Presiding
Judge of the Law Division.” Circuit Court of Cook County, General Calendars, at http://www.cook
countycourt.org/divisions/index.html (last visited Sept. 21, 2004). The general calendar judges do
sometimes receive a commercial case assignment in addition to cases assigned to the Commercial
Calendar judges. Telephone Interview with Warren Lupel, Esquire (Oct. 2, 2003) (on file with authors)
[hereinafter Lupel Interview]. Mr. Lupel is with Weinberg Richmond LLP in Chicago and was the first
chair of the Chicago Bar Association’s Commercial Litigation Committee, a Committee that includes
a number of Commercial Calendar Judges. Mr. Lupel has been a commercial litigator in Cook County
for thirty-five years and is familiar with practice before and after the establishment of the Commercial
Calendar.
101. Id.
102. Id.
103. Id. at 1.
Judge Ashman, and each month thereafter he would be assigned one-sixth of all
currently pending two-year-old cases and one-sixth of the new filings.104
The Commercial Calendar’s case load has grown dramatically since its 1993
beginning, and its eight judge contingent is larger than any single county business
court nationally. In 2000, before the appointment of a seventh judge, five of the
six Commercial Calendar judges had individual dockets “ranging between 782
and 1,021 cases.”105 Each of these judges was to transfer one hundred of their
cases to the new seventh judge. The sixth judge had 662 cases and would not be
transferring cases.106 At the time, there were 4,364 suits pending on the com-
mercial calendar.107
Its recent history demonstrates both the volume and movement of cases in the
Commercial Calendar.108 In 1998, 3,697 cases were assigned to the Commercial
Calendar.109 In that year, 3,532 cases assigned to the Commercial Calendar
reached disposition.110 The average disposition age of those cases was thirteen
months, with disposition of cases with jury demands averaging 18.8 months.111
Cases going to verdict averaged thirty-four months.112 In 1999, 3,632 new cases
were assigned; 3,672 reached disposition in an average of 15.8 months, with jury
demand cases averaging nineteen months and cases reaching a verdict averaging
thirty months for disposition.113
From 2000 to 2002, the numbers of cases assigned to the Commercial Calendar
were 3,642, 3,769, and 4,245 cases, respectively.114 During those same years, 2000
to 2002, the number of dispositions was 3,433, 3,765, and 4,278 cases; with
disposition averages of 16.8, 16.0, and 15.3 months, respectively, in 2000, 2001,
and 2002.115 In those years, the average disposition times where cases included
jury demands were 20.5 months, 20.0 months, and 21.4 months, respectively,
with cases actually reaching a verdict averaging forty-nine, forty-six, and forty-
104. Id. This was to reflect “the ratios of all commercial litigation in the division. . . .” Id. at 16. See
also Chanen, supra note 83, at 19 (when Judge Ashman became the first Commercial Calendar Judge
in 1993, he was assigned four hundred pending commercial cases, and would “receive one-sixth of
all new commercial cases filed and one-sixth of all commercial cases reaching their second anniversary
in the system.”).
105. Rooney, supra note 96, at 1.
106. Id.
107. Id.
108. As will be set forth below, this had not yet included a court centered mediation program
which has proven so effective elsewhere in resolving cases. See infra notes 133–134.
109. The statistics set out in the next two paragraphs in the text were provided to the authors by
the Honorable William D. Maddux, Presiding Judge of the Law Division of the Cook County Circuit
Court, for cases through July 3, 2003 [hereinafter Maddux] (on file with authors).
110. Id.
111. Id.
112. Id. The overall Law Division average in Cook County in 1998 was 43.4 months for 528
verdicts. Elizabeth Neff, Lake County Court Web Site Up and Running, CHI. DAILY L. BULL., Aug. 19,
1999, at 3.
113. Maddux, supra note 109.
114. Id.
115. Id.
three months to their conclusion from 2000 to 2002.116 In a little over half the
year in 2003, 2,364 cases were assigned to the Commercial Calendar and 2,409
reached disposition.117 The average time for disposition was 15.5 months, with
an average of 21.5 months in cases where a jury was requested—and an average
of fifty-four months for those cases that went to verdict.118
C. COMMERCIAL CALENDAR JURISDICTION

Even while moving toward 4,500 new cases a year, the Commercial Calendar
has a more limited jurisdiction than sister commercial courts in New York or
Philadelphia, when solely looking at case types and not jurisdictional amount.
This is because Cook County has a Chancery Division that hears business disputes
of a type that would be heard, e.g., in New York’s Commercial Division. Among
other actions, the Chancery Division hears injunctions, class actions, declaratory
judgments, contract matters, creditors’ rights disputes, trusteeships, receiverships,
and dissolutions of partnerships and corporations.119 Approximately 40 percent
of the cases heard in the Chancery Division are business cases.120 Cases in Cook
County’s Chancery Division number in the tens of thousands121 and the division
includes nineteen judges.122
The Law Division’s Civil Action Cover Sheet includes “Commercial Litigation”
as a case type heading and offers the filing party the following choices: Breach of
Contract, Professional Malpractice (other than legal or medical), Fraud, Consumer
Fraud, Breach of Warranty, Statutory Action, Other Commercial Litigation, and
Retaliatory Discharge.123 In giving more specific examples of what types of cases
116. Id. In early 2002, there were approximately 26,000 pending Law Division cases, taking an
approximate average of 18 months from filing to disposition for all cases, and an average from filing
to a jury rendering a verdict of 39.3 months. Rooney, supra note 99, at 1. To the extent commercial
cases going to trial may have taken more time, this would have necessarily provided relief to the Law
Division as a whole to address other cases.
117. Maddux, supra note 109.
118. Id.
119. See Clerk of the Circuit Court of Cook County, Chancery Division, [Chancery Court] Description
and Cases Held, at http://www.cookcountyclerkofcourt.org/General_Info/Divisions/Chancery/chancery.
htm (last accessed Oct. 8, 2004). Unlike Delaware, there is no separate chancery jurisdiction in Illinois’
court system, the chancery division thus being, in effect, a type of defined case track or division within
a single court. See, e.g., Meyer v. Murray, 387 N.E.2d 878, 885 (Ill. App. 1979) (holding that “[t]he
divisions of the circuit court of Cook County, law division vis-a-vis chancery division, are for admin-
istrative purposes only and no longer constitute jurisdictional barriers.”).
120. See Geoff Gallas and Tim Dibble, Best Practices In U.S. Business Courts (Draft), Feb. 2004 at 3,
5–6 [hereinafter AEQUITAS, Inc., Georgia Feasibility Study] (on file with authors subject to permission
of the Administrative Office of the Georgia Courts).
121. Even with a downtrend, in 1991 and 1992, the Chancery Division heard over 12,000 cases
each year. David Bailey, Law Division Case Filings Down Nearly 23 Percent in Last Year, CHI. DAILY L.
BULL., Jan. 4, 1993, at 1. There are now approximately 22,500 Chancery cases filed annually, with
approximately 9,000 being equity business cases. AEQUITAS, Inc. Georgia Feasibility Study, supra
note 120, at 5–6.
122. Sixteen judges are General Chancery Judges and three judges are designated Chancery, Me-
chanics’ Lien. AEQUITAS, Inc., Georgia Feasibility Study, supra note 120, at 5–6.
123. See Appendix A, infra p. 239.
come onto the Commercial Calendar, one judge posted a chart124 which included
the following types of actions: (i) breach of contract, including sale of goods
(U.C.C.), purchase of services, warranties and service contracts, sale of business,
franchise, employment, indemnification, sale of real estate, commercial leases,
construction, professional services; (ii) business torts and other tortious type
claims, including professional negligence (except medical malpractice), fraud and
misrepresentation, Consumer Fraud Act, tortious interference, breach of fiduciary
duty/oppression, retaliatory discharge, miscellaneous statutory, securities, corpo-
rate and business law, not for profit; and (iii) collections, including notes, guar-
anties, and other collections.125 One former Commercial Calendar Judge states
that the existence of a “consensual relationship—some sort of contractual or other
business or commercial dealing—is the key to the Commercial Calendars.”126
D. EFFECTS OF THE COMMERCIAL CALENDAR

The Commercial Calendar has led to an improvement in the case management
of commercial/business disputes and in dispositions being made with greater
speed and justice.127 This is because the judges on the Commercial Calendar have
learned and developed an expertise in commercial law over time, through regu-
larly handling commercial disputes.128 The focus provided by serving on the Com-
mercial Calendar leads to the development of such facility and knowledge, re-
sulting in more expeditious and fair results.129
The Chicago Bar has a great interest in this court program. A September 2003
symposium with Commercial Division judges speaking on litigation in the Com-
mercial Calendar was so well attended that a second room had to be opened to
accommodate all of the attendees.130 The Chicago Bar Association’s Commercial
Litigation Committee, as of June 8, 2004, had 202 members, which is well over
the average of most of the association’s other 120 committees and subcommit-
124. See id. at 239–40. That website, www.commercialcourt.net, is no longer operating.

125. Appendix A, infra pp. 239–40.
126. Interview with the Honorable Peter Flynn, Circuit Court of Cook County’s Chancery Division
( July 12, 2004) (on file with authors). The great majority of Commercial Calendar cases are “contract”
cases, which can range from simple collection suits to multi-party high rise construction actions. A
sizable number of simple collection disputes resolve by default or summary judgment; however, the
Commercial Calendar also includes a considerable body of more complex cases which can demand
the judges’ time and attention, from holding status conferences through motion practice and trial.
Facilitating that sort of individualized case management is one of the reasons the Commercial Cal-
endars were established. Among non-contract cases, the most numerous include consumer complaints
against car dealers under the Magnuson-Moss Warranty Act and/or the Illinois Consumer Fraud Act.
Id. This sort of individual consumer claim appears unique to Chicago’s Commercial Calendar juris-
diction, but it comports with the philosophy of addressing consensual business transactions. Moreover,
it is consistent with the general goals of improving decision making and predictability by having a
body of judges who repeatedly encounter and develop a specific area of the law.
127. Lupel Interview, supra note 99.
128. Id.
129. Id.
130. Id. (discussing symposium held on September 30, 2003, called Commercial Litigation Judges
Roundtable).
tees.131 It appears that through the Commercial Litigation Committee, a new effort
has started among the Bench and Bar in Cook County to facilitate practice before
the Commercial Calendar.132
Although there had been no mediation program connected to the Commercial
Calendar in the past, a new court rule was implemented on April 5, 2004, estab-
lishing a mediation program in the Circuit Court of Cook County’s Law Divi-
sion.133 In looking at the prominent role played by mediators in other business
and commercial programs, it is highly likely that court-sponsored mediation in
Chicago will significantly increase the overall disposition rate of cases in Cook
County by leading to more expeditious settlements in cases that can be settled.
“The judges who preside over the individual calendars . . . are going to take a
proactive position to encourage the lawyers in major cases to obtain the help of
a third-party mediator to help resolve the dispute without the need for court
trials. . . .”134
IV. NORTH CAROLINA’S BUSINESS COURT

A. CREATION OF NORTH CAROLINA’S BUSINESS COURT
North Carolina’s Supreme Court established the North Carolina Business Court
in 1995.135 In 1994, North Carolina’s Governor had established the North Caro-
lina Commission on Business Law and the Economy.136 One of the Commission’s
tasks included recommending changes to improve North Carolina’s business cli-
mate, including “[a]ny needed new statutes, rules and regulations designed to
assure that North Carolina offers a legal environment which provides the flexibility
and support to allow businesses to operate successfully in [North Carolina] and
which will attract [businesses] to locate and incorporate [in North Carolina].”137
The Commission recommended creation of a business court,138 which was
achieved through North Carolina’s Supreme Court amending existing state rules139
131. Telephone Interview with Karen Stanton of the Chicago Bar Association (“CBA”) (Oct. 8, 2003)
(on file with authors) (at that time there were 168 members); Telephone Interview with Awilda Reyes
of the CBA ( June 8, 2004) (on file with authors) (at which time there were 202 members.).
132. Lupel Interview, supra note 99. See also Adam W. Lasker, Bar Launching Committee on Com-
mercial Litigation, CHI. DAILY L. BULL., Jan. 8, 2003, at 1.
133. John Flynn Rooney, Mediation the New Pretrial, and Arbitration Subs for the Courtroom, CHI.
DAILY L. BULL., Mar. 23, 2004, at 1. “The new court-sponsored program aims to use mandatory
mediation for the more complex and high-stakes cases, like million-dollar personal injury lawsuits
that can take up months of court and jury time . . . .” Tom McCann, New Program Weaves Mediation
Deeper Into Legal Scene, CHI. LAW., Apr. 2004, at 12.
134. Rooney, supra note 133. Under Circuit Court of Cook County Court Rule 20.02(a), “The
Presiding Judge, individual calendar judge, or motion judge to whom a matter is assigned may order
any contested civil matter pending in the Law Division referred to mediation by entering an Order of
Referral.” CIR. CT. OF COOK COUNTY CT. R. 20.02(a), available at http://www.cookcountycourt.org/
rules/.
135. N.C. SUPER. CT. R. 2.1 (2004). See Appendix A, infra p. 268.
136. Carrie A. O’Brien, The North Carolina Business Court: North Carolina’s Special Superior Court
for Complex Business Cases, 6 N.C. BANKING INST. 367, 375 n.63 (2002).
137. Id. (quoting N.C. SUPER. & DIST. CT. R. 2.2 cmt.).
138. North Carolina Business Court, About the North Carolina Business Court: History of the Court,
at http://www.ncbusinesscourt.net/New/aboutcourt/ [hereinafter North Carolina History].
139. N.C. SUPER. CT. RULE 2.1. See Appendix A, infra p. 268.
governing North Carolina’s Superior and District Courts.140 The Supreme Court
intended that the business court be a court where cases involving complex busi-
ness litigation would be handled in their entirety by a single judge, to be known
as a Special Superior Court Judge for Complex Business Cases,141 and that the
new court generate a body of case law on corporate governance issues.142 To date,
this role has been filled by the Honorable Ben F. Tennille.143
B. CASE SELECTION IN NORTH CAROLINA’S BUSINESS COURT

Under North Carolina Superior Court Rule 2.1,144 the Chief Justice determines
which cases are designated for the Business Court,145 though the parties may seek
that designation and other judges may, and are even expected to, make recom-
mendations.146 There is not a dollar threshold, nor must any party surrender the
right to a jury trial.147 There is no fixed definition of what is or is not a complex
case, leaving flexibility in decision making.148
Complex cases suitable for the Business Court include statutory cases arising
under North Carolina’s Business Corporation, Professional Corporation, Limited
Liability Company, Uniform Limited Partnership, Securities, Tender Offer Disclo-
sure and Investment Adviser Acts, as well as antitrust disputes.149 Also included
are, “any cases involving removal of a director, dissent and appraisal, involuntary
dissolution of a corporation, or other corporate governance disputes[, and] Mei-
selman150 cases involving disputes in family held businesses [which] are ideal
candidates for assignment as complex business cases.”151 Further, “[p]artnership
140. O’Brien, supra note 136, at 376.

141. N.C. SUPER. CT. R. 2.2 states:
Rule 2.2. Designation of special superior court judge for complex business cases. The Chief Justice
shall designate one or more superior court judges as special judges to hear and decide complex
business cases as provided in Rule 2.1. Any judge so designated shall be known as a Special
Superior Court Judge for Complex Business Cases.
142. Memorandum from I. Beverly Lake, Jr., Chief Justice, Supreme Court of North Carolina, to
All Superior Court Judges (Mar. 7, 2001) [hereinafter Lake Memo]; see Appendix A, infra pp. 266–
68.
143. North Carolina History, supra note 138. “In January of 1996, Governor Hunt appointed Ben
F. Tennille as a Special Superior Court Judge and Chief Justice Mitchell designated him as North
Carolina’s first Special Superior Court Judge for Complex Business Cases. He was reappointed for a
five year term in October 2001.” Id. Among other things, Judge Tennille is part of the sixteen member
ABA Presidential Task Force on Corporate Responsibility and is Chairperson of the Business and
Commercial Courts Committee of the National Conference of State Trial Judges.
144. N.C. SUPER. CT. R. 2.1.
145. Id.
147. North Carolina Business Court, About the North Carolina Business Court: How a Case is Assigned
to The Business Court [hereinafter North Carolina Guidelines], at http://www.ncbusinesscourt.net/New/
aboutcourt/. See Appendix A, infra pp. 264–65.
148. North Carolina Business Court, About the North Carolina Business Court: Definition of a Complex
Business Case, at http://www.ncbusinesscourt.net/New/aboutcourt/ [hereinafter North Carolina Case
Definition].
149. Lake Memo, supra note 142, at 1.
150. Meiselman v. Meiselman, 307 S.E.2d 551 (N.C. 1983).
151. Lake Memo, supra note 142, at 2.
disputes, as well as shareholder derivative actions, are also usually assigned as

complex business cases.”152
The North Carolina Guidelines state that such cases must typically be recom-
mended to be heard by the Business Court to create a consistent body of case
law.153 This comports with the idea that one key factor in determining assignment
to the Business Court:
is whether the outcome will have implications for business and industry
beyond the conflicts of the parties to the litigation. If a written decision on
disposition of the case would provide predictability for others in the same
business or industry in making their business decisions, the case will more
likely be considered for designation.154
The Special Superior Court Judge is required to write an opinion on final dis-
position of the case.155
The Business Court also hears cases involving:
contractual disputes that are motion and paper intensive, involve protracted
trials, and require significant judicial management; antitrust and theft of
trade secret cases; and cases involving determination of legal issues that will
have an impact on industry or business practices beyond the confines of the
case itself. Some, but not all, class actions may be good candidates for as-
signment, and the decision on assignment should be made before the issue
of class certification is decided.156
Judge Tennille has described the three main types of cases as “corporate domestic
disputes,” class actions, and paper or motion intensive cases.157
C. OTHER DEVELOPMENTS IN NORTH CAROLINA’S

BUSINESS COURT
Business Court opinions are posted on the Business Court website,158 and reflect
additional types of cases that court has addressed. These include, among others,
an action brought by a former employer against its former employees and their
new employer,159 a dispute between an insurer and the repair shop used by its
152. Id.
153. Id. (“In order for our judicial system to build a consistent body of case law, these types of
cases must be assigned to the business court on a regular basis, and early identification and assignment
is preferable.”). At this point, however, the Business Court opinions do not have precedential value.
North Carolina Business Court, Report on Activities of the North Carolina Business Court 2002 to 2003,
at http://www.ncbusinesscourt.net/ref/2002%20General%20Assembly%20Report.htm.
154. North Carolina Case Definition, supra note 148.
155. North Carolina Guidelines, supra note 147.
156. Lake Memo, supra note 142, at 2–3.
158. North Carolina Business Court, Court Opinions, at http://www.ncbusinesscourt.net/New/
opinions/ (last visited Oct. 8, 2004).
159. Sunbelt Rentals, Inc. v. Head & Engquist Equip., L.L.C., No. 00 CVS 10358, 2002 WL
31002955, at *1 (N.C. Super. July 10, 2002).
insureds,160 a breach of contract action between a hospital and an insurer,161 a

dispute between secured creditors,162 obligations under a promissory note,163
breach of contract claims under the U.C.C.,164 and enforceability of a contractual
arbitration provision.165
Though created years earlier, the Business Court’s defining moment most prob-
ably occurred in 2001 with the Wachovia/First Union/SunTrust merger litiga-
tion.166 SunTrust’s $14.7 billion hostile takeover efforts directed at Wachovia,
while Wachovia sought a friendly merger with First Union,167 had spawned liti-
gation in various forums.168 In early June 2001, the three parties agreed to bring
their state and federal claims into North Carolina’s Business Court.169 Judge Ten-
nille rendered the key decision by August 2001.170 The litigation’s magnitude, the
parties’ recognition that the Business Court embodied a trustworthy and capable
forum to resolve all of their disputes, and the speed171 and thoroughness with
which the legal issues were addressed established a national identity for this
court.172
From its inception through its 2002 to 2003 report to state legislative com-
mittees, the Business Court had been involved in 179 cases from thirty-three
different North Carolina Counties.173 One hundred and sixteen cases were closed,
seventy-three by settlement.174 Twenty-four cases reached judgment, sixteen were
voluntarily dismissed, and three were removed to federal court.175 There were
160. Pack Bros. Body Shop, Inc. v. Nationwide Mut. Ins. Co., No. 01 CVS 805, 2003 WL 21017395,
at *1 (N.C. Super. Jan. 10, 2003).
161. Novant Health, Inc., et al. v. Aetna U.S. Healthcare of the Carolinas, Inc., No. 98 CVS 12661,
2001 WL 34054420, at *1 (N.C. Super. Mar. 8, 2001).
162. Reeve & Assocs. Inc. v. United Carolina Bank, No. 96 CVS 4695, 1997 WL 33446634, at *1
(N.C. Super. Oct. 6, 1997).
163. Bradley v. U.S. Packaging, Inc., No. 95 CVS 8986, 1998 WL 34032495, at *1 (N.C. Super.
Apr. 9, 1998).
164. Caraustar Indus., Inc. v Georgia Pac., Corp., No. 00 CVS 12302, 2001 WL 34000141, at *1
(N.C. Super. Jan. 26, 2001).
165. Polo Ralph Lauren Corp. v. Gulf Ins. Co., No. 00 CVS 5440, 2001 WL 34000140, at *1 (N.C.
Super. Jan. 31, 2001).
166. Mike Dayton, Specialty Commercial Courts on the Rise in Region, ATLANTIC COAST IN-HOUSE,
Apr. 2004, at 28.
167. Id.
168. Julia D. Gray, Wachovia War Calls Big Firms to Attention, FULTON CTY. DAILY REP., May 25,
2001.
169. Julia D. Gray, Bondurant Moves From First Union to Wachovia, FULTON CTY. DAILY REP., June
5, 2001.
170. First Union Corp. v. Suntrust Banks, Inc., No. 01-CVS-8036, slip op. at 1 (N.C. Super. Aug.
10, 2001); see generally Lijun K. Yang, First Union v. SunTrust Banks: The Fight for Wachovia and Its
Impact on North Carolina Corporate Law, 6 N.C. BANKING INST. 335, 337–38 (2002).
171. The Wachovia takeover case was also important “because it proved to be a quick disposition
to a difficult case.” O’Brien, supra note 136, at 386.
172. On the day that Judge Tennille issued his opinion on Sun Trust’s challenge to Wachovia Bank’s
merger with First Union, there were more than 30,000 hits on the website. Id. at 382.
173. Report on Activities of the North Carolina Business Court 2002 to 2003, supra note 153. The
exemplary use of technology as an integrated part of this court, including electronic filing, courtroom
technology, videoconferencing, and Internet access to a well-designed website with abundant practical
information, undoubtedly increases the court’s ability to conduct itself in this broad arena.
174. Id. at 2, 5.
175. Id. at 5.
sixty-three current cases of which fifty-three were active, five were on appeal,
three reached settlement, and two were stayed.176 Seventeen of the active cases
were class actions.177 The Business Court’s jurisdiction is limited by the nature
and magnitude of a single case and/or global importance of a case, which can
then be used as guidance in other cases. The court also has a single judge at this
time. Thus, although hearing only a limited number of cases, the program’s design
is more expansive in effect.
The court has enthusiastic support from the State Bar Association.178 It has
further proved a reference point in other jurisdictions seeking to create business
courts, such as Maryland179 and Georgia.180 Georgia’s Feasibility Study recognized
that lawyers are actively seeking assignment to the North Carolina Business Court,
including lawyers from adjacent states, motivated by the court’s understanding of
complex business matters, predictability, fairness, and impartiality.181 This sounds
like the oft-heard description of the qualities litigants find in Delaware’s Chancery
Court.
The Chief Justice of North Carolina’s Supreme Court has established a Com-
mission on the Future of the North Carolina Business Court.182 The thirty-seven
member commission, chaired by North Carolina Supreme Court Justice Mark
Martin, will consider recommendations concerning the court’s expansion.183 This
would involve both the Business Court’s size and scope.184
V. THE NEW JERSEY SUPERIOR COURT LAW DIVISION’S COMPLEX

COMMERCIAL CASE MANAGEMENT
There are individual judges specifically assigned to handle complex commercial
cases filed within the New Jersey Superior Court, Law Division, Civil Part in
176. Id. at 12.

177. Id. at 2.
178. Id. at 23.
179. Compare MD. R. 16-205(b), with N.C. SUPER. CT. R. 2.1(b).
180. See Debra Nesbit, State of the Judiciary Address, Jan. 31, 2003, available at http://www.
ciprg.com/ss/new_detail.asp?A15xi_IdKey_h⳱n10313141328&Client⳱aoc (last visited Nov. 29, 2004)
(the Georgia Supreme Court is “considering the feasibility of a pilot project to expedite business
litigation in our courts. The idea has been proposed by the Corporate Law Section of the State Bar
and would be modeled on a similar effort in North Carolina.”).
181. AEQUITAS, Inc., Georgia Feasibility Study, supra note 120, at 9.
182. Matthew Eisley, Business Court Role May Grow, NEWS OBSERVER, Nov. 13, 2003, at http://
www.newsobserver.com/politics/dome/story/1259442p-7373436c.html.
183. Mike Dayton, Judge Sees Bright Future For Business Courts, ATLANTIC COAST IN-HOUSE, Apr.
2004, at 28.
184. Mike Dayton, Specialty Commercial Courts on The Rise in Region, ATLANTIC COAST IN-HOUSE,
Apr. 2004, at 1 (“North Carolina’s chief justice, I. Beverly Lake Jr., is reportedly already considering
an expansion of the business court’s size and scope.”). The Commissions’ final report and recommen-
dations were issued on October 28, 2004. Chief Justice’s’ Commission on the Future of the North
Carolina Business Court, Final Report and Recommendation (Oct. 28, 2004), available at http://
www.ncbusinesscourt.net/Final%20Commission%20Report.htm. Among other things, the Commis-
sion recommends expansion of the business court, including the addition of two new business court
judges; mandatory jurisdiction over certain specified case types, including “legal issues concerning
the Internet, electronic commerce, and biotechnology;” giving internal precedential value to business
court opinions unless overturned legislatively or on appeal; and specially assigning appellate judges
to business court appeals. Id.
Bergen and Essex Counties.185 As will be discussed below, since 2000, all New
Jersey Counties now include a tracking designation for complex commercial cases
(Track IV), even where there is no specially designated judge to hear such cases.
A. HISTORY OF COMMERCIAL CASE MANAGEMENT

In 1993, complex commercial matters in Essex County were assigned to spe-
cially designated judges for case management through trial,186 along with some,
but not all, non-complex commercial cases. This designation involved sched-
uling an early case management conference, which was to include a discovery
schedule, a briefing schedule, a date for premarking of exhibits for trial, times
for hearings of any in limine motions, and a trial date.187 This program had been
inspired, at least in part, by “[i]ncreas[ed] competition from alternative dispute
resolution. . . .”188
Early reaction to this effort was favorable; the judges’ expertise in business
matters being a significant factor in that positive response.189 Such positive results,
and information communicated from lawyer and business groups, were brought
to then Chief Justice Robert Wilentz’s attention.190 He announced that a committee
would be created in the future to study the specialized handling of commercial
cases.191
In 1996, a pilot program was created in Bergen and Essex Counties’ Law Di-
visions. Judges with a business or commercial background were designated by
the assignment judges in those two counties to handle commercial matters from
a case’s inception until its conclusion.192 Those promoting creation of this com-
mercial program were concerned that absent a means of effectively adjudicating
commercial disputes, New Jersey would find itself at a disadvantage in relation
to other states that had commercial courts.193 Further, in a 1997 committee study
on commercial case management in New Jersey, the committee chair wrote:
The halcyon days of laissez-faire case management in complex commercial
cases are long gone . . . Unless a program is created to deal with these cases,
staffed by judges with commercial experience and appropriate technological
185. Bergen and Essex are New Jersey’s two largest counties, and the pilot program addressing
complex commercial cases was formally known as the “Complex Commercial Subtrack Program.”
Heather MacGregor, Bringing the Business Back In: Special Forums for Complex Business Cases Seek to
Stanch Commercial Bar’s Loss of Confidence in the Courts, N.J. L.J., Feb. 9, 1998, at 1.
186. Alvin Weiss, Legislation Isn’t Necessary to Create a Business Court, N.J. L.J., Oct. 15, 2001. The
Honorable Burrell Ives Humphreys was Essex County’s Assignment Judge in 1993, and was replaced
by then Judge Weiss in 1994, Judge Weiss having been Presiding Judge in 1993. Henry Gottlieb, Weiss
Takes Hot Seat, N.J. L.J., July 25, 1994, at 1.
187. Weiss, supra note 186.
188. Musical Benches, N.J. L.J., Mar. 17, 1997, at 26.
189. Id.
191. Chief Justice Wilentz passed away in July of 1996. Ronald J. Fleury et al., How Wilentz Changed
the Courts, N.J. L. J., July 29, 1996, at 1. As discussed below, the committee was established by his
successor, Chief Justice Deborah Poritz.
193. MacGregor, supra note 185.
support, such cases will languish and die a slow death on the already over-
burdened dockets of the Law Division.194
Originally, the pilot program in Essex County accepted complex commercial
cases and some non-complex commercial cases, and the Bergen County Court
only accepted complex commercial cases.195 After the 1997 report was issued by
the committee appointed by Chief Justice Deborah Poritz to study the handling
of commercial cases,196 both counties continued to hear complex commercial
cases, with Essex County continuing to handle some non-complex cases (though
not book account cases), and Bergen deciding to continue with only complex
cases.197
In Essex County, the judges relied upon attorney designations in the case in-
formation statements to determine what cases were heard in the pilot program,
including contract, other insurance, real property, and construction; however, at
that time there was still no designation for complex commercial cases. Initially in
Bergen County, Judge Jonathan Harris reviewed the cases to be included in the
pilot program. In Bergen County, cases considered to be complex could include
factors such as the number of parties, the presence of third party claims and
counterclaims, complexity of legal issues, and the nature of the dispute (such as
U.C.C. or class action).198
B. NEW JERSEY’S “BEST PRACTICES”

In 2000, New Jersey amended its rules governing civil practice, adding provi-
sions known as “Best Practices.”199 This involved a system of state-wide rules
governing case scheduling and management, including specific timelines and ju-
dicial involvement in case management.200 Best Practices established a four-tiered
tracking system, with the most complex cases falling within Track IV.201 Track IV
includes complex commercial cases.202 The key difference in Track IV cases is that
194. Id. (quoting United States District Court Judge Stephen Orlofsky who chaired that committee).
195. Telephone interview with Michelle Perone, Esquire, Chief of the Civil Court Program for the
State of New Jersey (Sept. 9, 2003) [hereinafter Perone Interview] (on file with authors). See also
MacGregor, supra note 185.
197. Perone Interview, supra note 195. These pilot programs did not affect business cases otherwise
heard in the Chancery Division which were getting individualized attention by the Chancery judge.
198. Id. As discussed below, the case information statement forms, filed with the complaint when
a case is initiated, were later amended to reflect whether a case was a complex commercial case. Since
that time, in Bergen and Essex Counties, the courts have relied upon counsel’s designation rather than
the courts’ selecting cases.
199. Id. The two chief goals of Best Practices include greater procedural consistency among the
counties and greater trial date certainty. Chief Judge Deborah T. Poritz, Report of the State of the
Judiciary of the State of New Jersey, May 22, 2002, N.J. L.J., May 27, 2002.
200. See, e.g., N.J. CT. R. 1:1-2; N.J. CT. R. 4:5-1(b); N.J. CT. R. 4:5A-1-3.
201. N.J. CT. R. 4:5A.
202. The Case Information Statement to be filed in all civil actions, found at Appendix XII of New
Jersey’s Civil Rules, has four tracks, per Rule 4:5A-1. Track I includes, among other things, book
account, actions on a negotiable instrument, contract, and commercial transactions. This track pro-
vides 150 days for discovery. Track II includes, among other claims, construction, personal injury and
“other torts” and provides 300 days for discovery. Track III includes, e.g., civil rights, medical mal-
a single judge, for the most part, hears the entire case.203 Cases that involve simpler
business or commercial matters such as book accounts, collections, negotiable
instruments, and contracts do not have a single judge for all matters through trial,
and are treated as Track I cases.204
Thus, there is a complex commercial designation for every New Jersey County,
not only Bergen and Essex Counties, in which cases will be heard by a single
judge (for the most part) throughout the case.205 The difference is that in Bergen
and Essex Counties, the same judge will hear all complex commercial cases;
whereas, in other counties, these cases will be assigned to judges within the civil
law division on a rotating basis.206 Thus, arguably, the judges in Bergen and Essex
Counties will become more experienced in the substantive law and in handling
complex cases.207 In Bergen County, the Honorable Jonathan Harris has been
hearing Complex Commercial Track cases since July of 1997.208
Under Best Practices, it is the lawyers bringing or defending a case in any New
Jersey County who designate cases as complex commercial cases. The judges do
not designate the cases.209 The only dollar limit on jurisdiction is that the case be
in excess of $15,000 to come within the Civil Part’s jurisdiction.210 Thus, even a
large monetary damages claim would not classify a case as complex if it were a
relatively straight-forward collection matter.
In New Jersey, corporate or business disputes of the type historically heard in
the Delaware Court of Chancery are similarly heard by the New Jersey Superior
Court’s Chancery Division.211 These include business or commercial matters that
would be heard in programs like New York’s Commercial Division or Philadel-
phia’s Commerce Case Management Program; e.g., unfair competition, non-
practice, professional negligence, and product liability claims and provides 450 days for discovery.
Track IV includes complex commercial disputes among seven types of cases, and also provides 450
days for discovery, but mandates more case management than Tracks I–III. Track IV also includes
mass torts, which are heard by three judges in the State. Perone Interview, supra note 195.
203. Under all four tracks, a single judge is designated to preside over pre-trial motions and
conferences and discovery, with applications made after that point going to the Civil Presiding Judge.
In track IV cases, however, the designated managing judge is also, “insofar as is practicable and absent
exceptional circumstances” to preside at trial. N.J. CT. R. 4:5B-1. Track IV cases also require case
management conferences. Such conferences are left to the judge’s discretion within the other tracks.
N.J. CT. R. 4:5B-2.
204. See Perone Interview, supra note 195.
205. Id.
206. Id.
207. The Complex Commercial Track judges in Essex and Bergen counties do not only hear com-
mercial cases. Id.
209. Perone Interview, supra note 195.
210. Id.
211. “New Jersey also has a long-standing Chancery Court that has developed special expertise
and abilities with regard to complex corporate law matters. It consists of one chancery judge in each
county.” ABA Ad Hoc Committee on Business Courts, Business Courts: Towards a More Efficient Judiciary,
52 BUS. LAW. 947, 956 (1997). “[S]tates, such as Delaware and New Jersey, have used courts of
chancery since colonial times to handle business cases for which there is no monetary remedy at law.”
Margaret M. Eckenbrecht, A Commercial Venture: Supporters Portray Business Courts as White Knights
Rescuing Overburdened Justice System, 82 A.B.A. J. 35 ( Jan. 1996). New Jersey’s Chancery Division
exists under N.J. CONST. art. VI § 3(3).
compete agreements, non-disclosure of trade secrets or confidential information,

protection of trade names or trademarks, shareholder derivative actions, rights of
minority shareholders, piercing the corporate veil, partnership and joint venture
dissolutions, and accounting actions.212 In all New Jersey counties, shareholder
suits or valuation claims are handled in the Chancery Division,213 even in Essex
County with a specifically designated complex commercial Law Division Judge.214
Legislative efforts to create a business court have yet to succeed in New Jersey;215
however,
The chief justice and the [New Jersey] Supreme Court have the power by
assignment and rule to direct the assignment of commercial business matters
in each vicinage to designated judges. Even without such action, the assign-
ment judge in each vicinage has the authority to assign specific types of cases
to designated judges for handling from inception of the case to conclusion,
whether by way of trial or settlement.216
“[T]he Administrative Office of the Courts’ plan[s] to establish complex com-
mercial court pilot programs in the Burlington, Mercer, Hudson and Ocean vic-
inages217 in September [2004].”218 “Under the plan, general equity judges [in those
counties] will be assigned to complex commercial cases involving monetary dam-
ages. . . .”219 As set forth above, these chancery judges traditionally have only
heard equity-based actions.
“[T]he judges’ respective management teams will handle the cases from start to
finish.”220
Complex commercial cases will be eligible for the pilot when all of the par-
ties: [1] request, within 30 days of joinder, management by a general equity
212. The Honorable William A. Dreir & Paul A. Rowe, Esquire, GUIDEBOOK TO CHANCERY PRACTICE
IN N.J. 106–32 (4th ed. 1997).
213. See, e.g., Strasenburgh v. Straubmuller, 683 A.2d 818 (N.J. 1996).
214. See, e.g., In re PSE&G S’holder Litig., 726 A.2d 994 (N.J. Super. Ct. Ch. Div. 1998).
215. Thomas A. Muccifori, Don’t Drop the Ball a Third Time In, N.J. L.J., Nov. 4, 2002.
216. Weiss, supra note 186. See also Report of the Conference of Civil Presiding Judges on Stan-
dardization and Best Practices, at 10–11 (March 1999).
217. These courts are located in Mount Holly, Trenton, Jersey City, and Toms River, New Jersey,
respectively.
218. John Covaleski, Lawyers Rally Behind Plans for Expansion of Business Courts, N.J. L.J., May 31,
2004, at 1. Chief Justice Poritz stated in her May 20, 2004 Report on the State of the Judiciary to the
New Jersey State Bar Association,
attorneys handling commercial litigation have asked for a court specializing in complex com-
mercial cases. We were able to launch a pilot focusing on such cases in Bergen and Essex some
years ago that has been well-received. Although we have only about 300 of these types of cases
a year statewide, we continue to hear that attorneys would like to see an expansion of specialized
case handling in this area. We are responding to those requests. . . . By September, we anticipate
implementing in 4 vicinages a second pilot based on a model that is somewhat different from
the Bergen/Essex pilot.
See Chief Judge Deborah T. Poritz, Report of the State of the Judiciary of the State of New Jersey, May
20, 2004, available at www.njcourtsonline.com [hereinafter Poritz 2004 Report].
219. Covaleski, supra note 218.
220. Id.
judge; [2] submit a waiver of jury trial; [3] agree to use complementary
dispute resolution techniques; and [4] agree to expedited discovery, with the
goal of ultimate resolution of the case within one year.221
The general equity judges are “typically well-experienced in [complex com-
mercial cases] and the new programs will provide them additional commercial
law training.”222 In return for choosing the program, the parties will get the con-
sistency that comes from a team of court professionals managing the case from
start to finish. “Over a two- or three-year period, the Judiciary and the Bar should
be able to evaluate” whether that consistency leads to more efficient and more
effective case management.223
Complex commercial cases are reviewed for possible assignment to mediation
early in the case, and if referred to mediation, the judge will place time limits on
when the mediation must be completed.224 The mediators are trained and matched
by experience to case type. Since September 2002, the Bergen and Essex County
programs have sent their cases to presumptive mediation, using mediators with
commercial expertise. Approximately 32 percent of cases in which mediation is
completed settle at the mediation, and more settle within a short time after that
mediation process.225 The mediation program has received extremely high ap-
proval ratings, including the expressed willingness to use the process again.226
Mediators are able to have the parties informally exchange information even before
discovery is due, something akin to federal self-executing disclosure in effect.227
Mediators serving in the New Jersey Civil Mediation Program include lawyers as
well as non-lawyers with specialized expertise in the particular area in dispute.228
From July 1, 2001 through June 30, 2002 (the 2002 Court Year), there were
276 complex commercial cases filed statewide, with 164 cases being disposed of
state-wide.229 Forty-eight complex commercial track cases were filed in Bergen
County.230 Twenty-six reached disposition that year, only one having gone to
trial.231 The median time for disposition was 218 days for those cases, compared
221. Poritz 2004 Report, supra note 218.

222. Covaleski, supra note 218. The Bergen and Essex County programs will remain with the law
division judges. Id.
223. Id.
224. Perone Interview, supra note 195.
225. Id.
226. Id.
227. Id. All but four New Jersey Counties have presumptive mediation and send these cases to
mediators with expertise in those types of cases; and even the counties without presumptive mediation
use mediation frequently as well. Non-complex commercial disputes, e.g., book accounts and actions
on negotiable instruments, are sent to non-binding arbitration before commercial arbitrators at the
close of discovery. This reflects New Jersey’s use of specialized procedures for a wide type of business
disputes. Telephone interview with Michelle Perone, Esquire (Oct. 23, 2003) (on file with authors).
228. Id.
229. Perone Interview, supra note 195; Civil Law Complex Commercial case statistics for Court
Year 2002 provided to the authors by Michelle Perone, Esquire (on file with authors).
230. Id.
231. Id.
to 24 months in other types of cases.232 Twenty-two complex cases were filed in

Essex County, with eleven reaching disposition, and a 190 day median time for
disposition.233 Overall, complex commercial filings were up during the year.234
The statistics for the 2003 Court Year show that 300 complex commercial cases
were filed state-wide, while 243 cases were disposed of state-wide.235 Thirty-eight
complex commercial cases were filed in Bergen County and thirty-nine cases were
disposed of during the year.236 The median disposition time in Bergen County
was 362 days.237 In Essex County, twenty-one complex commercial cases were
filed, with thirteen reaching disposition during that year, with a median dispo-
sition time of 197 days.238
VI. PHILADELPHIA’S COMMERCE CASE MANAGEMENT PROGRAM

A. HISTORY OF THE COMMERCE CASE MANAGEMENT
PROGRAM
By Order of its Administrative Judge, John W. Herron, Philadelphia’s Court of
Common Pleas initiated a Commerce Case Management Program, effective pro-
spectively for cases filed on or after January 1, 2000.239 The public announcement
of the Commerce Program included members of the bench and bar,240 a working
relationship that has been a hallmark of the Program’s creation, operation, and
success.241 In 1997, Philadelphia Bar Association Chancellor Clifford Haines de-
scribed the need to create a specialized business court as an element in combating
loss of jobs and business (by contrast to neighboring New Jersey and Delaware,
which were growing in these areas).242
The proposal also recognized the already existent reality of specialization in
other contexts and the need to take advantage of the efficiency and effectiveness
232. Id.
233. Id.
234. Id.
235. Civil Law Complex Commercial case statistics for Court Year 2003 provided to the authors
by Michelle Perone, Esquire (on file with authors).
236. Id.
237. Id.
238. Id.
239. In re: Commerce Case Management Program, Administrative Docket 01-2000, First Jud. Distr.
Pa. C.P. Civ. Trial Div. (Feb. 22, 2000) [hereinafter Commerce Case Order] (applicable to all cases
filed as of January 1, 2000). Thus, unlike New York or Cook County, the Commerce Program was to
begin with the assignment of new cases only. This Order was originally issued on November 9, 1999
and was slightly amended on the later date.
240. Lori Lichtman, A Court of Their Own: Purely Business Disputes to be Handled by New Philadelphia
C.P. Commerce Case Program, LEGAL INTELLIGENCER, Oct. 14, 1999, at 1. Also in attendance was
Governor Tom Ridge’s outgoing general counsel who thanked Administrative Judge John W. Herron
for his efforts in creating the Program.
241. The Honorable Albert W. Sheppard Jr., The Philadelphia Commerce Court—Dedicated to Find
the Best Solutions for Business Disputes, METROPOLITAN CORP. COUNS. (Dec. 2002).
242. Clifford E. Haines, It’s Time to Create a Special Business Court, LEGAL INTELLIGENCER, May 5,
1997, at 4.
that such a specialized case management system could offer.243 The proponents
argued that proper address of business cases would increase the rest of the court
system’s time and resources to address other matters.244 The organized bar in
Philadelphia had long championed the establishment of a state-wide business
court in Pennsylvania; and when several state-wide legislative efforts failed,245 bar
leaders worked closely with Judge Herron in designing Philadelphia’s new Com-
merce Case Program, established by Administrative Order, in late 1999.246
Patterned after New York’s Commercial Division, and partially inspired by Dela-
ware’s Chancery Court,247 the Commerce Case Management Program provides
that one judge follows each commerce case from beginning to end.248 The Com-
merce Program seeks to provide efficient and expeditious resolution to business
disputes and incorporates an active ADR complement to the Program.249 Tens of
highly qualified and experienced practicing lawyers have volunteered their time
to this end, and an effort is made to assign cases for settlement conferences or
mediations to these “Judges Pro Tempore” based on the type of case and area of
specialization.250 Removing burdensome and frequently complex business cases
from the general docket and assigning them to judges accustomed to such cases
works to unclog the system, and to more efficiently address other cases as well.251
The Commerce Program started with two judges,252 and a third was later
added.253 The Commerce Program case volume has numbered over five hundred
a year. The goal is not high volume or turnover, but in the words of one of its
judges, “to provide a quality product.”254 The idea, that quality through expertise
and focus is the primary goal, with increased efficiency and expeditious treat-
ment of cases a natural by-product, is a common theme in the creation of Busi-
ness courts.255 Although the Commerce Program has been subject to some dis-
243. Id.
244. Id.
245. Legislative efforts to create business courts in Pennsylvania were longstanding, but ultimately
no such legislation has been passed. Marilyn Wimp, Business Court Is, Once More, High on Bar’s Agenda,
PHILA. BUS. J., July 27, 1998, at http://philadelphia.bizjournals.com/philadelphia/stories/1998/07/27/
focus3.html. Pennsylvania had been the first state nationally to propose such legislation.
246. See supra note 239.
247. Lichtman, supra note 240.
248. Sheppard, supra note 241.
249. Lichtman, supra note 240.
250. Sheppard, supra note 241. These lawyers act at settlement conferences or as mediators. Parties
can locate them on the Court’s website, at http://courts.phila.gov/pdf/cpcvcomprg/judgesprotemlist.
pdf.
251. Sheppard, supra note 241.
252. Commerce Case Order, supra note 239.
253. Lori Lichtman, Herron Picks Three Judges as Supervisors, LEGAL INTELLIGENCER, Jan. 22, 2001,
at 1.
254. Danielle N. Rodier, Attorneys Impressed with Commerce Court, LEGAL INTELLIGENCER, Aug. 6,
2003, at 1 (quoting the Honorable Gene D. Cohen).
255. See, e.g., Massachusetts Status Report, supra note 70, at 5 stating:
[B]y matching judges with appropriate expertise to litigation requiring that expertise, judicial
resources may be appropriately targeted through the removal of otherwise time-consuming cases
from the regular docket: as the ABA Ad Hoc Committee observed [about the New York Supreme
sent,256 the court has retained its commitment to the Commerce Program.257 The
existence of “specialized courts” in Philadelphia, including a complex litigation
court,258 predates the Commerce Program, reflecting the fact that specialization in
Philadelphia’s Court of Common Pleas is beneficial and not a new phenomenon.
B. COMMERCE CASE MANAGEMENT PROGRAM JURISDICTION

Types of cases presumptively heard in the Commerce Program include, among
others: intra-corporate disputes; disputes between businesses including but not
limited to U.C.C. transactions, sales of businesses, sales of services to businesses,
non-consumer bank or brokerage accounts, surety bonds, purchases or sales or
leases of, or security interests in, commercial, real or personal property, and fran-
chise agreements; trade secrets; non-compete agreements; business torts; intellec-
tual property disputes; Pennsylvania Securities Act claims; derivative actions; class
actions based on claims otherwise falling within these ten types, and consumer
class actions other than personal injury and products liability claims; and corporate
Court’s Commercial Division], ‘the work of four generalist judges can be accomplished by three
specialty business judges.’
Chanen, supra note 83, at 19 (first judge in Chicago’s specialized commercial litigation docket “con-
templated naming the call the ‘rocket docket’ but then thought better. ‘This is not about speed and
efficiency. . . . It’s about justice. The point of the calendar is to give substantial individual justice to
individual cases.’”).
256. See, e.g., Board Applauds Efforts of C.P.’s Commerce Program, LEGAL INTELLIGENCER, Apr. 19,
2002, at 2; Productivity Doesn’t Match Resources, LEGAL INTELLIGENCER, Apr. 19, 2002, at 2. Such debate
is not unique to Pennsylvania. See, e.g., Chris Mahoney, The Jury is Still Out on Creating a Business
Court, BOSTON BUS J., May 19, 2000, available at http://boston.bizjournals.com/boston/stories/2000/
05/22/story8.html (on debated issues prior to creation of Business Litigation Session in the Suffolk
Superior Court, Massachusetts). As discussed below, not only was a pilot business program eventually
established in Boston, that program has now been made permanent and expanded to other counties.
See infra notes 273–310 and accompanying text.
257. Laurie Stewart, Jones Appointed to Commerce Court, LEGAL INTELLIGENCER, Sept. 16, 2002, at
1 (As stated by Supervising Judge William Manfredi, upon the appointment of Judge Darnell Jones to
the Commerce Program, “I think we have three of our most competent and most experienced judges
in commerce court, which reflects the commitment that [Administrative] Judge Fitzgerald and I have
to the success of the court.”) The National Center for State Courts recently issued its final report of a
study on all civil programs in Philadelphia’s Court of Common Pleas. The study, generally finding
Philadelphia’s civil trial division “one of the finest and most successful urban trial courts in the country,”
includes a discussion of developments in the Commerce Program, along with topics for the Program’s
further study and refinement. The overall tenor of the report reflects a fundamentally successful
program “operating very effectively,” with the desire to enhance it even further. See David C. Steelman
& Richard Van Duizend, National Center for State Courts, Civil Programs in the Philadelphia Court
of Common Pleas, at ii, xi–xiii, 51–55 (Sept. 30, 2003), available at http://fjd.phila.gov/pdf/report/
NSCS-Civil-Final-Report.pdf.
258. In Philadelphia, there are numerous specialized trial level court programs including a separate
docket for complex mass tort actions (including, e.g., asbestos, DES, latex glove, lead paint, breast
implant, carpal tunnel, pseudo-psychiatric, bone screw litigation, among other mass torts), a docket
created well before the Commerce Case Management Program. See The Honorable John W. Herron &
The Honorable Allan L. Tereshko, Complex Litigation Center Programs, Philadelphia Court of Common
Pleas, at http://courts.phila.gov/pdf/civil2001/clc.pdf. This is in addition to more typical specialization
into Family Court, Orphan’s Court, and Civil and Criminal trial divisions.
trust matters.259 All such cases must involve disputes which exceed $50,000; cases
below that amount being subject to mandatory arbitration in the Court of Com-
mon Pleas (which arbitrations are subject to de novo appeal in the Court of
Common Pleas, but not to the Commerce Program).260
The Commerce Program also hears declaratory judgment actions brought by
insurers, and coverage disputes and bad faith claims brought by insureds where
the dispute arises from a business or commercial insurance policy. In addition,
the Commerce Program hears third-party indemnification claims against insur-
ance companies where the subject insurance policy is a business or commercial
policy and where the underlying dispute would otherwise be assigned to the
Commerce Program, not including claims where the underlying dispute is prin-
cipally a personal injury claim.261 All of the above types of actions may involve
individuals as well as businesses, if the criteria are met and the essential nature
of the claim is a business dispute.262
The Commerce Program has case tracking criteria, which includes expedited,
standard, and complex tracks.263 Expedited matters are cases with four or less
litigants and the disputes at issue involve, e.g., enforcement of contracts for goods,
insurance declaratory judgment actions, other contract actions, and landlord ten-
ant actions.264 Standard track cases include matters with more than four litigants
in the previously described cases, as well as cases with any number of litigants
259. See Appendix A, infra pp. 269–70. Until January 2004, almost all class actions were coming
into the Commerce Program. Sheppard, supra note 241. Non-commercial class actions will now be
assigned to a new class action program, with the Honorable Mark I. Bernstein heading the program.
Melissa Nann, Class Action in Philadelphia Court to be Reassigned, LEGAL INTELLIGENCER, Dec. 18, 2003,
at 3 (“All class actions currently are assigned to the Commerce Case Management Program, but starting
next month, they will be handled by Judge Mark I. Bernstein, who will head a new class action team
in the regular civil program.”). Class actions that would otherwise come within the subject matter of
the Commerce Program will remain in that program. Interview by Lee Applebaum, Esquire, with the
Honorable Mark I. Bernstein ( June 8, 2004) (on file with authors). See also The Honorable James J.
Fitzgerald III et al., First Judicial District. Pa. Court of Common Pleas Trial Division—Civil, Supple-
mental Notice to Bar Re: Class Actions (Dec. 18, 2003), at http://courts.phila.gov/pdf/notices/2003/
notice-09clsup-O3.pdf (all class action cases filed after January 1, 2004 to be assigned to Class Action
Program, but “[a]ny cases which meet the criteria for inclusion in the Commerce Program shall be
assigned thereto.”). At the same time, notice was given that after January 5, 2004, all major non-jury
cases other than cases involving “Torts, Rent, Lease & Ejectment and Mortgage Foreclosure matters”
would “be assigned to the Commerce Program for case management and disposition.” The Honorable
James J. Fitzgerald III & The Honorable William J. Manfredi, First Judicial District Pa. Court of
Common Pleas Trial Division—Civil, Supplemental Notice to Bar Re: Non-Jury Program (Dec. 18, 2003),
at http://courts.phila.gov/pdf/notices/2003/notice-09mnsup-03.pdf.
261. Id. at 270.
262. Id.
263. See In re: Commerce Case Management Program, Administrative Docket 02 of 2003, C.P.,
First Judicial District Pa., Apr. 29, 2003, at Exhibit D, Commerce Program Tracking Formula [here-
inafter Tracking Formula], at http://courts.phila.gov/pdf/regs/2003/cptad02-03.pdf.
264. Id. at Exhibit F. The full list includes: contracts (goods) enforcement, insurance, declaratory
judgment, subrogation action, mechanics lien, negotiable instruments, other contracts, replevin, fore-
closure, garnishment (land), landlord/tenant actions, mechanics lien enforcement, real property
(other), title to real property, rent (lease or ejectment), equity (no real estate or real estate), franchise
disputes, confession of judgment, foreign judgment, petition to stay arbitration, and petition to vacate
or modify arbitration awards. Id.
that include a purchase/sale of business or of business assets, bad faith, construc-

tion contracts, shareholder suits, fraud, securities law claims, surety bond cases,
business torts, non-compete agreements, trade secrets, corporate trust affairs, and
partnership disputes.265 Complex cases include intellectual property claims, ac-
counting malpractice, legal malpractice, and other malpractice claims within the
Program’s parameters.266 Expedited cases are expected to be ready for trial in
thirteen months, standard cases in eighteen months and complex cases in twenty-
four months.267
The Commerce Program’s webpage, within the Court of Common Pleas’ web-
site, has much of the basic information about the Commerce Program, including
relevant forms and guidelines.268 In addition, there are readily accessible links to
written opinions issued by the Program’s judges, with summaries of each opinion
available through one link, and an index of each opinion with basic descriptions
on another.269 There is also a topic search function able to go through all of the
opinions by counsel inputting search terms.270
As of July 4, 2004, there were over 435 opinions online for the guidance of
the bar and their clients.271 These written opinions provide an opportunity to
evaluate potential claims and defenses. For example, in a court hearing a signifi-
cant number of injunctive actions, this readily available guidance can save pre-
cious time in formulating an argument. Further, it provides counsel and their
clients with pre-filing information about the likelihood of success, and whether
pursuing the action, defending the claims or seeking settlement is the soundest
course.272
VII. BUSINESS LITIGATION SESSION IN THE SUPERIOR COURT

OF MASSACHUSETTS
In October 2000, Superior Court Chief Justice Suzanne DelVecchio established
the Business Litigation Session of the Suffolk Superior Court as a two year pilot
program.273 Under this program, “a single judge, experienced in litigating complex
265. Id.
266. Id.
267. Id. at Exhibit D.
268. The Philadelphia Courts, First Judicial District Pa. Court of Common Pleas Trial Division—
Civil, Commerce Program, at http://courts.phila.gov/common-pleas/trial/civil/commerce-program.
html.
269. Id.
270. Id.
271. The Philadelphia Courts, Commerce Court Opinions, at http://courts.phila.gov/cgi-bin/
opinions/comcrtsearch.cgi?dropdown⳱cptcvcom.
272. On July 4, 2004 a search of the word “injunction” provided a response including seventeen
opinions with that word in their topic summary. See Commerce Court Opinions, at http://courts.
phila.gov/cgi-bin/opinions/topicsearch.cgi?topic⳱injunction.
273. The Honorable Allan Van Gestel, Why a Business Litigation Session at Suffolk Superior Court, 45
BOSTON BAR J. 14 (Nov.–Dec. 2001). This was the result of a five year process that began in the wake
of the New York Commercial Division’s creation. Massachusetts Status Report, supra note 70, at 4. At
the time the pilot program was put into effect, the Superior Court already had experience in estab-
lishing specialized sessions. Interview with Honorable Suzanne V. DelVecchio, Making A Business Court
A Reality, METROPOLITAN CORP. COUNS., N.E. ed., May 2003, at 47.
business cases” handles the case from beginning to end.274 The judge becomes
involved early in case management, which includes attempting to set a firm trial
date at the time of the Superior Court’s analogue to a federal Rule 16 conference.275
Jury trials are permitted, but are not normally selected by the parties.276
A. CASES HEARD IN THE BUSINESS LITIGATION SESSION

Inclusion of a case before the Business Litigation Session is discretionary,277
though some categories of cases are presumptively included.278 Cases that are
presumptively or otherwise included within the Business Litigation Session’s ju-
risdiction involve, among other claims, governance and internal affairs of corpo-
rations, partnerships and joint ventures; shareholder derivative suits; intellectual
property; trade secrets; non-compete agreements; banking; investment banking;
financial advisers; brokerage firm matters; mutual and money market funds; anti-
trust; trade regulation laws; unfair acts or practices involving businesses; lender-
borrower dealings; professional malpractice claims brought by businesses; and
businesses in dispute with government agencies.279 Also included are claims for
breach of contract, breach of fiduciary duty, fraud, misrepresentation, and busi-
ness torts.280 Violations involving businesses, such as unfair competition, are en-
compassed if they “have complex factual or legal issues oar [sic] are likely to
require complex case management . . .” as are U.C.C. claims involving complex
factual or legal issues and commercial claims involving insurance, construction,
real estate and consumer matters, that similarly have complex factual or legal
issues.281
From October 2, 2000 through mid-September 2001, the Business Litigation
Session’s first year, 309 cases were accepted.282 At least seventy-eight of these
cases were already in the system, meaning that approximately 230 new cases came
in during the first year.283 One hundred and thirty-nine of that first set of cases
were resolved in the first year, and nearly one hundred temporary restraining
orders and preliminary injunctions were considered.284
The total number of cases accepted into the Business Litigation Session reached
610 by January 28, 2003.285 Filing frequency increased over time with approxi-
mately five to seven cases filed each week.286 Three hundred and seventy-four
274. Van Gestel, supra note 273, at 29–30.

275. Id.
276. Id. at 30.
277. Id.
278. Notice to Bar, Business Litigation Session Suffolk Superior Court, 29 MASS. LAW. WKLY. 268 (Oct.
2, 2000) [hereinafter Massachusetts Order]. See Appendix A, infra pp. 241–42.
279. Van Gestel, supra note 273, at 30.
280. Massachusetts Order, supra note 278.
281. Id.
283. Id. See also Massachusetts Status Report, supra note 70, at 12.
285. Massachusetts Status Report, supra note 70, at 12.
286. Id.
cases reached disposition during that time; approximately half by settlement and
the remainder by trial, dispositive motion or removal.287 “The case load that other
[Superior Court] sessions would have had has been significantly reduced because
the cases that go to the Business Litigation Session do not go to the other regular
sessions of the court.”288
According to information collected by the Business Litigation Session Resource
Committee, 853 cases were accepted into the BLS from its inception through
November 2003.289 A search of the Social Law Library database290 reveals that
Judges Allan van Gestel and Margot Botsford have issued over 300 written deci-
sions since the Session’s inception in 2000.291 Judge van Gestel has been assigned
to the BLS full time since it began while Judge Botsford has been assigned part-
time to the BLS since late 2002.292
Cases in the Business Litigation Session “generally appear to be consistently
more complex” than in other Superior Court sessions.293 Approximately 30 per-
cent of the cases primarily involve contract disputes, 13 percent non-compete
agreements, 13 percent shareholder disputes, 11 percent commercial disputes, 11
percent business disputes, 10 percent partnership disputes, 9 percent employ-
ment disputes, 9 percent real estate or landlord tenant disputes, and 7 percent
construction contract actions.294
B. RESPONSE TO THE BUSINESS LITIGATION SESSION

In Boston’s early experience with the Business Litigation Session, the court has
received high marks for both “fairness and efficiency.”295 The same article cites
the satisfaction of a single business that both won and lost non-compete cases in
the Business Litigation Session.296 This positive attitude was borne out by a survey
conducted as part of a Status Report prepared by the Business Litigation Session
Status Resource Committee, which was issued in February of 2003.297
Among other things, the survey showed 88 percent of the lawyers responding
were extremely or very satisfied with the Business Litigation Session overall; 83
percent indicated that the session improved legal services to clients; 94 percent
were extremely or very satisfied with the judges;298 58 percent found their expe-
287. Id.
288. Focus On New England—Business Litigation Session; A Specially Suited Forum For Business Cases,
METROPOLITAN CORP. COUNS., N.E. ed., May 2003, at 50 (quoting Gael Mahony, Esquire, Co-Chair
of the Business Litigation Resource Committee).
289. Email from Sarah Herlihy, Esquire, to Beth I. Z. Boland, co-chair of BLS Resource Committee
(May 10, 2004) [hereinafter Herlihy-Boland email] (on file with authors).
290. This is a subscription service via www.sociallaw.com.
291. Herlihy-Boland email, supra note 289.
292. Id.
293. Massachusetts Status Report, supra note 70, at 12.
294. Id. at 15. As set forth in Appendix D, “[c]ases may be counted in more than one category.”
295. Verdict: Business Court has Made Strong Case for Itself, BOSTON BUS. J., Aug. 2, 2002, at 1.
296. Id.
297. Massachusetts Status Report, supra note 70, at 13–14 and Appendix E.
298. The Status Report cited the experience and wisdom of Presiding Justice Allan van Gestel,
Judge Margot Botsford, Judge Nonnie Burnes and Judge Gordon Doefer as meriting much of the credit
for the Session’s apparent success. Id. at 3.
rience more favorable than with private ADR, with 60 percent stating they would
recommend the Business Litigation Session over ADR to their clients; and 97
percent stating that they would recommend the business session to other col-
leagues and clients.299 The results were consistent regardless of firm size and
whether the attorneys represented individuals or corporations.300
Significantly, 95 percent of those responding to the Business Litigation Survey
stated that the Business Litigation Session should become permanent; and 89
percent recommended expansion to other Massachusetts counties.301 Shortly after
the Status Report, Chief Justice DelVecchio issued an Administrative Directive
making the Suffolk Business Litigation Session permanent and expanding the
session on a pilot basis to three other counties.302 Case selection in the Business
Litigation Session will remain discretionary and the presumptive category of cases
will remain unchanged, with “complexity and the need for case management” the
principal measure for acceptance.303 One of Chief Justice DelVecchio’s accom-
plishments is that the Business Litigation Session has not created additional bud-
getary expenses.304
The Status Report adduces some of the historical causes for creating the Busi-
ness Litigation Session.305 Among these was the creation and success of business
courts elsewhere, including the New York County Commercial Division’s suc-
cess,306 and the competition such courts presented. In addition, Massachusetts’
courts had received harsh rankings in a U.S. Chamber of Commerce Survey.307
The concern tied into the general perception in the late 1990s that businesses
were fleeing Massachusetts’ state courts because of a belief that generalized courts
could not handle specialized matters, e.g., derivative suits or trade secrets cases,
and because “the time required from filing to disposition was taking longer than
the parties needed to resolve their disputes.”308 Justice Allan Van Gestel, the Busi-
299. Id. at 13–14.

300. Id. at 14.
301. Id. at 13–14.
302. Super. Ct. Bus. Litig. Session Extension and Expanded Venue, Administrative Directive No. 03-
01, Feb. 12, 2003 (on file with The Business Lawyer, University of Maryland School of Law). Sheri
Qualters, Business Court to Expand to Other Counties, BOSTON BUS. J., Feb. 14, 2003, available at http://
boston.biz.journals.com/boston/stories/2003/02/17/story4.html?t⳱printable.
303. Id.
304. Focus On New England—Business Litigation Session; A Very Innovative Way To Handle Complex
Commercial Cases, METROPOLITAN CORP. COUNS., N.E. ed., May 2003, at 49 (quoting Beth I. Z. Boland,
Esquire, Co-Chair of the Business Litigation Session Resource Committee as follows on that point:
“The key point is that the business court did not cost a dime, it is a very innovative way to handle
complex, commercial cases and it has been and is a smashing success. The Chief Justice has set up
an independent committee to make sure the session is working well and trying to change it if it isn’t—
an example of the judiciary doing an outstanding job of being innovative, cost effective and conscious
of the good that can come from the judiciary taking responsibility for managing itself.”). Ms. Boland’s
co-chair, Gael Mahony, Esquire, has described it as “cost neutral.” Focus On New England—Business
Litigation Session; A Specially Suited Forum For Business Cases, METROPOLITAN CORP. COUNS., N.E. ed.,
May 2003, at 50.
305. Massachusetts Status Report, supra note 70, at 4–8.
306. Id.
307. Id.
308. Focus On New England—Business Litigation Session; Roundtable: Corporate Counsel Applaud Ses-
sion’s Success, THE METROPOLITAN CORP. COUNS., N.E. ed., May 2003, at 56 (quoting Andrew Grainger,
President of the New England Legal Foundation).
ness Litigation Session’s first full time, as well as presiding, judge addressed some
of these issues in a 2001 piece on the need for a business court.309 His article is
of particular interest because it combines a sense of history and present necessity
in describing the need for a business court as a matter of practical dignity.310
VIII. NEVADA BUSINESS COURTS IN THE SECOND AND EIGHTH

JUDICIAL DISTRICT COURTS
In late 2000, Nevada’s Supreme Court approved local rules creating business
courts in Nevada’s Second and Eighth Judicial Districts.311 Rules creating the busi-
ness court in the Second Judicial District, sitting in Reno, became effective as of
November 20, 2000.312 Rules creating the business court in the Eighth Judicial
District, sitting in Las Vegas, became effective January 1, 2001.313
A. GOALS OF NEVADA’S BUSINESS COURTS

The Business Court’s focus is on complex civil business cases.314 A clear goal
of the Business Court is expeditious resolution of cases, and minimizing the on-
going financial exposure that would otherwise occur through protracted litiga-
tion.315 The court provides the benefits of close case management beginning with
early case conferencing to address settlement, and accelerated discovery and mo-
tions. Again, the focus is on resolving disputes as early as possible and in helping
the litigants avoid business disruption.316 The Business Court thus provides an-
other vehicle for dispute resolution, where the parties might otherwise choose
private mediation or arbitration.317
B. CREATION OF NEVADA’S BUSINESS COURTS

The process leading to the Business Court’s implementation began with the
creation of a legislative subcommittee to encourage business development in Ne-
vada, and the creation of the Sub-subcommittee for the Examination of the Busi-
309. Van Gestel, supra note 273.

310. Id. at 14–15. “Should Massachusetts, a commercial and business leader since the 18th century,
when sailing ships, laden with spices and tea from Java and Sumatra and other treasures from the
Orient, first docked at Salem, and now a major player in high technology, sophisticated finance,
medical care, insurance, and the economic aspects of higher education, be left to bask in the faded
glories of its past in this emerging area of judicial activity? If so, to what end?” Id. at 14.
311. Letter from The Honorable Brent Adams, to Mitchell L. Bach, Esquire ( June 19, 2003) (on
file with authors) [hereinafter Judge Adams Letter]. Judge Adams is the presiding judge of the Business
Court in Nevada’s Second Judicial District in Reno, Washoe County.
312. NEV.W.D.C.R. 2.1. See Appendix A, infra pp. 246–47.
313. NEV. E.J.D.C.R. 1.61. See Appendix A, infra pp. 245–46.
314. Letter from The Honorable Gene T. Porter, to Mitchell L. Bach, Esquire (Sept. 19, 2003)
[hereinafter Judge Porter Letter] (on file with authors).
315. Id.
316. Judge Adams Letter, supra note 311.
317. Judge Porter Letter, supra note 314.
ness Court and Business Laws.318 As stated in the title, Nevada’s Legislature and
Judiciary perceived a business court’s creation as part of an effort to promote
business in the state by improving the justice system.
Nevada had a natural resource on the subject of business courts, Professor
Jeffrey W. Stempel, who addressed the first meeting of the Sub-subcommittee on
January 7, 2000.319 Among other things, Professor Stempel is reported as stating
that specialized courts “have become the fabric in the way business and modern
judicial systems are handled[; and that] [t]his is a natural consequence of the
division of labor generally seen in the practice of law and even government.”320
He stated that limited experience with business courts has been very positive,
mentioning the Delaware Court of Chancery, North Carolina’s Business Court,
and New York’s Commercial Division (though he had no study to empirically
support that conclusion at the time).321 On the issue of the court’s jurisdiction,
he indicated that the court should go beyond a solely equitable jurisdiction and
could include contract disputes, securities fraud and corporate governance mat-
ters.322 He added that a wider jurisdiction should be more attractive to business.323
Nevada’s Chief Justice Robert E. Rose similarly thought that the New York
model would be better within Nevada’s court system.324 Chief Justice Rose chaired
the Supreme Court’s Business Court Task Force, which suggested rules creating
business courts within the Second and Eighth Judicial District Courts.325 The
proposed types of cases setting the court’s jurisdiction were adopted virtually as
written; however, potential additions proposed by some of the judiciary did not
become part of the final rules.326
C. CASES IN NEVADA’S BUSINESS COURTS

The courts were created by amending the individual District Court rules.
Washoe County’s Rules 2.1(a–c), governing the Business Court in Reno, provide
318. Sub-Subcommittee for the Examination of the Business Court and Business Laws, Minutes of
the Meeting of the Legislative Commission Subcommittee to Study Methods to Encourage Corporations and
Other Business Entities to Organize and Conduct Business in This State ( Jan. 7, 2000) [hereinafter Nevada
January Minutes], at http://www.leg.state.nv.us/70th/Interim/Studies/Business/Minutes/IM-Business-
20000107-2204.html; see also John G. Edwards, Committee Aims to Lure Firms, LAS VEGAS REV. J.,
Nov. 28, 1999.
319. Professor Stempel teaches at the William S. Boyd School of Law at the University of Nevada
at Las Vegas and prior to January 2000 had written considerably on the topic and related areas. See
Jeffrey W. Stempel, Two Cheers for Specialization, 61 BROOK. L. REV. 67 (1995); Jeffrey W. Stempel, A
More Complete Look at Complexity, 40 ARIZ. L. REV. 781 (1998); Jeffrey W. Stempel, Contracting Access
to the Courts: Myth or Reality? Boon or Bane?, 40 ARIZ. L. REV. 965 (1998).
320. Nevada January Minutes, supra note 318.
321. Id.
322. Id.
323. Id.
324. Id.
325. Legislative Commission’s Subcommittee to Encourage Corporations and Other Business En-
tities to Organize and Conduct Business in this State, Overview of Business Court Proposal, Work Session
Document, June 30, 2000.
326. The language that did not make it into the final rule stated: “Complex civil cases that include
the following: complaints primarily alleging professional negligence, primarily alleging products lia-
bility, constructional defects, public service commission matters, and civil trials that will last five weeks
or more.” Id.
that cases come within the business docket if the matters at issue concern cor-
porate governance and shareholder derivative suits; trade marks or names; stat-
utory claims for trade secrets; securities actions; deceptive trade practices or in-
vestment securities; or “any dispute among business entities if the presiding judge
of the business court docket determines that the case would benefit from en-
hanced case management.”327 Rules 1.61(a)(1)–(3) in the Las Vegas Court are
virtually the same, though Rule 1.61(a)(2) expressly includes U.C.C. claims,
whereas Rule 2.1(b) does not.328
Like Washoe County Rule 2.1(b), the Eighth Judicial District’s Rule 1.61(a)(3)
includes within the Las Vegas Business Court’s jurisdiction: “Disputes between
two business entities where the court determines that the case would benefit from
enhanced case management.”329 Rules 2.1.1(c) and 1.61(a)(3) thus broaden the
range of potential case types. The practical result of this type of rule is to sub-
stantially enlarge the nature of cases that are prosecuted in the Business Court.330
As of June 7, 2003, a detail summarizing pending cases in the Reno court shows
the following types of cases: anti-trust, complex class action, building and con-
struction, construction defect, commercial instrument, contracts, defamation, em-
ployment contract, fraud, guarantee, liens, landlord/tenant, sale contract, specific
performance, stockholder suits (the largest number of cases by type), U.C.C., and
unfair competition.331 Las Vegas’ Business Court has heard such matters as trade-
mark actions, shareholder disputes and business to business litigation.332
Initially, the Business courts were not expected to have full calendars so the
business judges could also hear non-business cases.333 In 2001, Las Vegas’ Busi-
ness Court had 177 filings and thirty-three dispositions.334 In 2002, there were
155 filings and eighty-six dispositions; and through September 19, 2003 there
were 144 filings and ninety-eight dispositions.335 Through the first two years and
327. NEV. W.D.C.R. 2.1. See Appendix A, infra pp. 246–47. The Civil Cover sheet for cases filed
in Reno includes a separate section for requesting a Business Court designation, which includes cate-
gories for certain statutory harms involving, e.g., commodities, securities, investments, deceptive trade
practices, and trademarks. It also includes a category of enhanced case management for business
disputes and a general category “Other Business Court Matters.” A party requesting the Business Court
must not only check one of these designations, but must also separately check off one of the case
types found earlier in the form.
328. NEV. E.J. D.C.R. 1.61; see also Appendix A, infra pp. 245–46.
329. Appendix A, infra p. 246.
330. Judge Adams Letter, supra note 311. Thus, it is certainly arguable that even if Rule 1.61(a)(2)
does not expressly include reference to the U.C.C., a U.C.C. case could be designated under Rule
1.61(a)(3); and in fact U.C.C. cases have been heard in Reno’s business court, as described immediately
below.
331. Detailed Pending Case Report for Reopened Cases as of June 7, 2003, provided by the Hon-
orable Brent Adams (on file with authors) [hereinafter Detailed Case Report].
333. Sub-Subcommittee for the Examination of the Business Court and Business Laws, Presentation
Regarding the Supreme Court’s Task Force Examining the Business Court, Minutes of the Meeting of the
Legislative Commission’s Subcommittee to Encourage Corporations and Other Businesses to Organize
and Conduct Business in this State (May 30, 2000).
334. Eighth Judicial District Court, Business Court Summary, provided to the authors by the Hon-
orable Gene T. Porter (on file with authors).
335. Id.
almost nine months of the Las Vegas Business Court, there were 476 cases filed
and 217 cases reaching disposition; the rate of disposition increasing significantly
over time. As of June 7, 2003, there were fifty-seven open Business Court cases
in the Second Judicial District (Reno), with twelve of these being shareholder
derivative suits.336
The experience among attorneys appears positive. Reno’s Business Court Judge
is described as knowledgeable and prepared, and the general view is likely that
the results in Reno’s Business Court cases have been expeditious and handled
knowledgeably.337 Attorneys are using the program and not seeking to somehow
opt out.338 In his 2003 address to Nevada’s legislature, the Chief Justice observed
that the institution of the Business Court in Washoe County (Reno) has been one
factor in significant delay reduction.339
In Las Vegas, attorneys who often litigate business and commercial matters have
been very pleased with the new Business Court and find that the consistency
created in having a judge focused on business litigation provides them with a
comfortable alternative to federal court.340 This consistency arises from having a
judge who is continually developing in experience with commercial and business
cases, as well as developing in the practice of handling complex litigation.341 As
in Reno, the judge was described as thorough, prepared, bright, and respectful.342
Under Nevada’s Rules, counsel initially choose the business track,343 and that
choice typically stands.344 Either party can have the case assigned to the Business
Court.345 In determining whether to request that a case be heard by the Business
336. Detailed Case Report, supra note 331.

337. Telephone interview with John P. Fowler, Esquire (Sept. 4, 2003) (on file with authors). Mr.
Fowler is Chairperson of the Business Law Section of the Nevada Bar Association, practicing in Reno,
Nevada with Woodburn & Wedge. He was an Advisory Member of Subcommittee to Encourage
Corporations and Other Business Entities to Organize and Conduct Business in Nevada during the
period of the Legislative inquiry into whether establishing a business court should be part of that
Subcommittee’s mandate. See, e.g., Nevada January Minutes, supra note 318.
338. Id.
339. Chief Justice Agosti, Chief Justice Agosti Addresses Nevada Legislature, 11 NEV. LAW. 16 (Apr.
2003).
340. Telephone interview with Thomas F. Kummer, Esquire, Kummer Kaempfer Bonner & Renshaw
(Sept. 9, 2003) (on file with authors) [hereinafter Kummer Interview]. Mr. Kummer has been litigating
cases in Las Vegas for over thirty years; including business and commercial cases. He served for eight
years on the Ethics and Professional Responsibility Committee of the State Bar, three years as chair;
and he has been appointed by Nevada’s Supreme Court to act as a Supreme Court Settlement Con-
ference Judge.
341. Id.
342. Id.
343. EIGHTH JUD. DIST. R. 1.61(c) provides that “[e]ither party in a case may file a request in the
pleadings that a case be assigned as a business matter. If the request is made by the plaintiff, the case
will automatically be assigned to a full-time civil judge assigned to business matters.” Reno’s Rule
2.1.3 similarly provides “A party in an action assigned to another department of the court may request
that the action be transferred to the business court docket. Upon filing of such a request, the clerk
shall transfer the case file to the presiding judge of the business court docket who shall thereupon
determine whether to assume jurisdiction of the case.” SECOND. JUD. DIST. R. 2.1.3.
344. Kummer Interview, supra note 340.
Court, attorneys look to what sorts of matters are excluded by Rule 1.61 from
the Business Court’s jurisdiction, as much as to what the Rule includes.346
A plaintiff ’s request for a hearing is automatically assigned to a Business Court
judge, and a defendant’s suggestion that the case should be in the Business Court
results in the random assignment to a Business Court judge to make that deter-
mination.347 The final decision, however, does ultimately rest with the court.348
By including only appropriate Business Court cases, the court maintains its juris-
dictional objective; additionally permitting the judges to focus upon business law,
to apply it in the cases before them and to develop a more consistent body of
case law through their opinions in that focused substantive region of the law.349
IX. RHODE ISLAND SUPERIOR COURT BUSINESS CALENDAR

On April 17, 2001, through administrative order of the Presiding Justice of the
Rhode Island Superior Court, a Business Calendar was created for Providence and
Bristol Counties.350 Shortly thereafter, Rhode Island’s Chief Justice stated: “Thanks
to the leadership of Presiding Justice Joseph Rodgers, the Providence Superior
Court now conducts a Business Calendar under the direction of Judge Michael
Silverstein, which seeks to reinsure that such legal matters that have an effect on
jobs and the economy are dealt with quickly and efficiently.”351
Matters appropriate for Business Calendar assignment include breach of con-
tract, breach of fiduciary duty, fraud, misrepresentation, business tort, statutory
violations arising out of business dealings or transactions, U.C.C. transactions,
complicated commercial real property transactions, shareholder derivative ac-
tions, commercial class actions, commercial bank transactions, matters going to
the internal affairs or governance of businesses, business insolvencies and receiv-
346. Kummer Interview, supra note 340.

348. Id. See EIGHTH JUD. DIST. R 1.61(d)
The court shall decide whether a case is or is not a business matter and that decision shall not
be appealable by any appeal nor reviewable upon any writ; any matters not deemed a business
matter shall be randomly reassigned if it was originally assigned to the business court. If a case
was remanded to the business court for determination of whether it would be handled as a
business court matter and the business court deems it not to be a business court matter, that
case will be remanded back to the department to which it was originally assigned.
Appendix A, infra p. 246. See also SECOND JUD. DIST. R. 2.1.3.
A party in an action assigned to another department of the court may request that the action be
transferred to the business court docket. Upon filing of such a request, the clerk shall transfer
the case file to the presiding judge of the business court docket who shall thereupon determine
whether to assume jurisdiction of the case. The decision of the presiding judge of the business
court docket to accept or decline jurisdiction of the action is final, and is not appealable nor
reviewable upon any petition for extraordinary relief.
Appendix A, infra p. 247.
350. Administrative Order No. 2001-9, State of Rhode Island and Providence Plantations, Apr. 17,
2001 [hereinafter Rhode Island Order]. See Appendix A, infra pp. 271–72.
351. Remarks of Chief Justice Frank J. Williams Supreme Court of Rhode Island to the Rhode
Island Bar Association Annual Meeting June 8, 2001, 49 R.I. BAR J. 5 (2001).
erships.352 “Simple collection matters, declaratory judgment proceedings with re-

spect to insurance coverage, confirmation or vacation of arbitration awards, and
general landlord and tenant issues shall not be assigned to the Business Calendar.”353
No matter can be finally assigned without the agreement of the Business Cal-
endar Justice.354 There is no requirement that the case be complex, but the cases
on the Business Calendar tend to be more complicated.355 In the usual Superior
Court action, the same case could have a different judge for motions, special
causes such as TROs and for trial; whereas there is a single judge for all matters
on the Business Calendar.356
In line with the goal of expeditious treatment of cases, the Business Calendar
Justice can require that the parties utilize non-binding mediation.357 The Business
Calendar’s Case Opening Sheet includes questions as to whether the parties have
made efforts at mediation, arbitration or other dispute resolution mechanism.358
Justice Silverstein has referred cases to attorneys for mediation.359 He has also
referred mediation matters to accountants and retired business people who may
be particularly suited to helping the parties resolve their differences.360 He has
found some substantial success in using these non-lawyers in the proper case,
e.g., in a shareholder valuation dispute.361
As of July 3, 2003, there had been a total of 440 business calendar cases, of
which 261 remained pending, with 179 reaching disposition.362 Other than in-
352. Rhode Island Order, supra note 350. This last category reflects a unique aspect of Rhode
Island law concerning state court insolvency proceedings, all of which go on the Business Calendar.
Telephone interview with Judge Michael A. Silverstein ( June 26, 2003) (on file with authors) [here-
inafter Judge Silverstein Interview].
Rhode Island’s Superior Court receivership proceeding has experienced remarkable growth, and
more importantly, unquestioned success in the last few years. The receivership proceeding . . .
has evolved into a flexible, legal mechanism by which a stockholder and/or creditor may preserve
the assets of a troubled business, including the business’ going concern value, for the benefit of
all of the company’s creditors and equity holders.
Richard L. Gemma, Rhode Island Superior Court Receiverships—Opportunities & Recent Developments,
51 R.I. BAR J. 25 (2003).
As lawyers have recognized the utility of the receivership proceeding, the Superior Court has
recognized the need to expand its mentoring program for prospective receivers . . . . All receiv-
erships in Providence County fall under the auspices of the Providence Superior Court’s business
calendar. . . . Recently, the Honorable Superior Court Judge Michael A. Silverstein has reenergized
the receivership mentor program through the business calendar of the Providence Superior Court.
Id.
353. Rhode Island Order, supra note 350.
354. Id. This role has been served by the Honorable Michael A. Silverstein since the Business
Calendar’s inception. Judge Silverstein meets with counsel to determine placement on the Calendar.
Judge Silverstein Interview, supra note 352.
355. Judge Silverstein Interview, supra note 352.
356. Id.
357. Id.
358. State of Rhode Island Superior Court, Business Calendar Case Opening Sheet (on file with
The Business Lawyer, University of Maryland School of Law).
359. Judge Silverstein Interview, supra note 352.
360. Id.
361. Id.
362. State of Rhode Island and Providence Plantations, Rhode Island Judicial Systems and Sciences,
Business Cases by Case Type ( July 3, 2003), provided by the Honorable Michael A. Silverstein (on
file with authors).
solvency matters, there were sixty-five filings between June 1, 2001 and December
31, 2001; there were eighty-six new filings in 2002 and thirty-three new filings
between January 1, 2003 through July 3, 2003 during 2003.363
From the Business Calendar’s inception through July 3, 2003, there had been
160 business insolvencies and receiverships on the Business Calendar, of which
seventy-two were pending at the time the Calendar began operation, and seventy-
six of which have reached disposition.364 There were 176 breach of contract cases
during that time, forty-nine of which were pending and sixty-two of which have
reached disposition. There were fifteen business organizations matters, three of
which were pending and seven of which have reached disposition; seven com-
mercial bank transactions, three of which were pending; five commercial class
actions, three of which were pending and three of which have reached disposition;
twenty commercial real property cases, twelve of which were pending and five
having reached disposition; forty-two other business actions, twenty of which
were pending and twenty of which have reached disposition; three in the category
of other civil actions; two shareholder derivative actions, one of which has reached
disposition; and ten U.C.C. cases, four of which were pending at the time of the
Business Calendar’s inception, five having reached disposition.365
X. MARYLAND’S CIRCUIT COURT BUSINESS AND TECHNOLOGY

CASE MANAGEMENT PROGRAM
A. THE CREATION OF MARYLAND’S BUSINESS AND
TECHNOLOGY CASE MANAGEMENT PROGRAM
Through legislation, Maryland’s General Assembly created the Maryland Busi-
ness and Technology Task Force “to consider the feasibility of establishing a spe-
cialized court function within Maryland’s circuit courts to adjudicate business and
technology disputes.”366 The Task Force included members of the judiciary, state
house and senate, bar association, business community, and academic commu-
nity.367 In describing the background for its creation, the Task Force focused on
the rapid and intense growth of cutting edge technologies as making up a vital
part of Maryland’s economy. Creating a business and technology program was
part of an effort to overcome the perception that Maryland was anti-business, in
the hope of encouraging technology companies to locate in Maryland.368
363. Id.
364. Id.
365. Id.
366. Maryland Task Force Report, supra note 71, at 1. This Report was submitted to Chief Judge
Robert M. Bell of Maryland’s Court of Appeals on December 1, 2000. Final Report, Implementation
Committee, Conference of Circuit Judges, Maryland Business and Technology Case Management Program,
at 1 (Dec.1, 2000) [hereinafter Maryland Implementation Report]. The Court of Appeals is Maryland’s
highest court. Her trial courts of general jurisdiction are the circuit courts. There are eight circuit
courts covering Maryland’s twenty-three counties and Baltimore City. See Maryland Circuit Courts, at
http://www.mdarchives.state.md.us/msa/mdmanual/31cc/html/cc.html.
367. Maryland Task Force Report, supra note 71, at 1.
368. Id.; see also Maryland State Bar Association, Issue: Business and Technology Court, 2003 State
Legislative Program, at 92 (“A business court would make Maryland a more attractive state for resident
businesses to stay and for corporations in other states and countries to relocate.”) (on file with The
Business Lawyer, University of Maryland School of Law).
The Task Force’s objective was to consider the feasibility of not simply creating
a specialized court, but of establishing “a specialized court function to effectively
and efficiently administer business and technology disputes.”369 Maryland ob-
served a move towards specialized business courts in other states that improved
efficiency and helped overcome perceptions that business cases were unsatisfac-
torily handled; the Task Force recognized that the additional concept of a tech-
nology court “to specialize in the administration of disputes involving complex
technology issues” would be something new.370
Though the Task Force was a legislative creation, implementing the proposals
for this new court function was up to Maryland’s highest court, the Court of
Appeals.371 Thus, the Business and Technology Program within the circuit courts
was ultimately implemented via the promulgation of court rules. The Task Force
specifically recommended the creation of a state-wide Business and Technology
Case Management Program in the existing circuit courts, rather than the creation
of a separate Business and Technology Division in the circuit court.372 An Imple-
mentation Committee was formed consisting of one judge from each of Maryland’s
judicial circuits, which in turn established working groups to study and develop
the different aspects of creating the Business and Technology Program.373
The Implementation Committee developed what is now Maryland Rule 16-
205, establishing the Business and Technology Case Management Program, with
language uniform to each Circuit Court.374 In addition, there were detailed rec-
ommendations on case management, judicial education, ADR (including stan-
dards, education, training, and compensation), and the extensive use of technol-
ogy in the program’s operation.375
B. CASES HEARD IN THE BUSINESS AND TECHNOLOGY CASE

MANAGEMENT PROGRAM
Maryland Rule 16-205 does not provide a specific list of cases by type in de-
termining what cases come within the Business and Technology Court Manage-
ment Program purview.376 The assigning judge’s goal, per Rule 16-205(c), is to
determine whether the action presents “commercial or technological issues of such
a complex or novel nature that specialized treatment is likely to improve the
administration of justice.”377 This comports with the recommendation of the

370. Judge Steven I. Platt, Vice-Chairman, Business and Technology Task Force, Remarks on Business
and Technology Court Task Force, Nov. 16, 2000, at 5 [hereinafter Judge Platt Remarks].
371. Id. at 3; Maryland Implementation Report, supra note 366, at 1.
372. Judge Platt Remarks, supra note 370, at 7–8.
373. Maryland Implementation Report, supra note 362, at 1–2. This ultimately included over 150
people. Id.
374. Id. at 1–2.
375. See generally id.
376. Maryland’s Rule includes some language taken from North Carolina’s business court rules.
See Court of Appeals Standing Committee on Rules of Practice and Procedure, Minutes of Meeting of
Rules Committee, Oct. 2, 2001, at 16–17 [hereinafter October Minutes].
377. Id. at 14.
Maryland Task Force that the court be “flexible” in assigning cases.378 The language
of Rule 16-205(c) includes a seven factor list designed to measure the entire nature
of a case in determining suitability for inclusion in the Business and Technology
Program.379 The judges look to substantive legal issues (“whether business or
technology issues predominate over other issues presented in the action”), and
case management and complexity issues (“the anticipated nature and extent of
pretrial discovery and motions, . . . the degree of novelty and complexity of the
factual and legal issues presented, . . . and . . . the willingness of the parties to
participate in ADR procedures.”)380 The nature of the relief requested is also
considered.381
The Maryland Task Force Report had recommended that certain types of cases
be presumptively included or excluded from the new court.382 Cases principally
focusing on the following areas, among others, would have been presumptively
included under the Task Force Report: technology development; computer soft-
ware agreement disputes; Internet disputes; technology and biotechnology licens-
ing; internal business affairs; breach of contract and fraud in relation to business
dealings; shareholder derivative suits and commercial class actions; commercial
bank transactions; declaratory judgment actions involving insurers; trade secret
and non-compete clauses; business torts; violations of Maryland’s Trade Secret or
Unfair and Deceptive Trade Practices Act; commercial real property disputes; pro-
fessional malpractice claims; state law anti-trust violations; and securities law
claims.383
379. MD. R. 16-205(c) provides in part that a case may be assigned to the Program after a judicial
determination “that the action presents commercial or technological issues of such a complex or novel
nature that specialized treatment is likely to improve the administration of justice.” That Rule includes:
[f ]actors that the judge may consider in making the determination[,which] include: (1) the nature
of the relief sought, (2) the number and diverse interests of the parties, (3) the anticipated nature
and extent of pretrial discovery and motions, (4) whether the parties agree to waive venue for
the hearing of motions and other pretrial matters, (5) the degree of novelty and complexity of
the factual and legal issues presented, (6) whether business or technology issues predominate
over other issues presented in the action, and (7) the willingness of the parties to participate in
ADR procedures.
Id.
380. Id.
381. The Maryland Task Force Report states that the “Program should be reserved for cases where
there is a substantial amount in controversy.” Maryland Task Force Report, supra note 71, at 8. The
draft version of that Report stated that in cases seeking monetary relief only, the amount sought should
exceed $75,000, but the final report set the figure at $50,000. In the Rule as finally promulgated,
there is no dollar minimum. This “nature of relief ” factor apparently includes whether the plaintiff
has asked for a jury. October Minutes, supra note 376, at 19.
382. Maryland Task Force Report, supra note 71, at 8. The Implementation Committee ultimately
did not find this format workable. Telephone interview with the Honorable Steven I. Platt, Maryland
Seventh Circuit Court (Sept. 8, 2003) (on file with authors) [hereinafter Judge Platt Interview]. Judge
Platt was the Task Force vice-chair, Implementation Committee chair and is currently head of the
Designated Judges Committee which includes Program judges from across the state.
383. In total, the Task Force list included fifteen categories. During the early stages of the study
process, “[t]he list of what is and is not included was debated heavily and is fairly broad. . . . [T]he
Implementation committee felt that the more specific criteria in the plan should be uniform throughout
the State. Standards include what cases are and are not admitted, but administrative judges should
not be locked in.” October Minutes, supra note 376, at 22.
These presumptive and exclusive lists, however, were not included in the final
rule; and they are not officially part of the measure for accepting or rejecting cases
into the Business and Technology Program.384 As set forth above, Maryland’s new
rule requires continuing judicial education.385 The judicial education require-
ments provide a detailed list of specific areas for judicial study. While this list is
not set out as a jurisdictional statement, it does indicate at least some types of
cases that will likely be heard, since they are part of the subject matter of the
judicial education program.
The judicial education subject areas in the Implementation Report include,
among others: the forms of business organization; piercing the corporate veil;
funding and capitalization; shareholder distribution; director and officer liability;
derivative suits; shareholder and director inspection rights; special issues in
closely held corporations; mergers, buyouts, takeover, spin-outs; non-compete
agreements; non-solicitation and confidentiality agreements; business valuations;
rights of majority and minority business owners; taxation; antitrust; duties of
officers, directors, or managers; software design and manufacture; Internet; eco-
nomics of software networks and markets; biotechnology; telecommunications;
electric power; intellectual property law; the Maryland Computer Information
Transactions Act; the Maryland Electronic Transactions Act; and the Maryland
Commercial Code.386
The Business and Technology Program is a part of Maryland’s circuit courts
throughout the state, and the judges in that track meet quarterly.387 Among other
things, they discuss the criteria for accepting or rejecting cases from the Program
and seek consistency in application.388 Judge Steven I. Platt, Chair of Maryland’s
Designated Judges Committee, and Supervisory Judge for the Program in Prince
George’s County, had yet to hear any protest on a case being accepted or rejected
in the Program through the Program’s first nine months.389
Fulfilling one Task Force goal, the Business and Technology Case Management
Program has a website.390 The publication of informed and consistent opinions,
384. Judge Platt Interview, supra note 382. Speaking as a panelist during the November 7, 2003
Symposium, “Taking Care of Business: Business & Technology Courts in the Twenty-First Century,”
held at the University of Maryland School of Law, Judge Platt stated that judges would likely consider
these case types to have some relevance in determining whether a case should be heard in the new
Program. The authors were co-panel members.
385. The Implementation Report addressing the Maryland Task Force recommendations stated that
it was addressing “specialized judicial education in both substantive business law and technology
issues, as well as techniques for efficiently managing specialized business technology cases and dockets
[as] critical to an effective Business and Technology Case Management Program.” Maryland Imple-
mentation Report, supra note 366, at 14.
386. Id. at 14–17.
387. Judge Platt Interview, supra note 382. This comports with the Implementation Report that
encouraged judges to meet regularly to share experiences in the same way that physicians meet in
regular “morbidity and mortality” meetings to discuss their significant cases. Maryland Implementation
Report, supra note 366, at 17. This is in line with the Delaware Chancery Court practice. Maryland
Task Force, supra note 71, Appendix B, at 23.
388. Judge Platt Interview, supra note 382.
389. Id.
390. Maryland Business and Technology Case Management Program, at http://www.courts.state.
md.us/businesstech/index.html. Judge Platt Remarks, supra note 370, at 11.
which can establish a basis for planning action, was an important issue raised in
the Business and Technology Program’s creation.391 Program opinions can be
found on the website,392 and in Westlaw’s database.393 In addition, the publication
of opinions provides a form of communication between the various Program
judges.394 As stated on the website:
In order to provide lawyers and litigants with a growing body of predictive

information at the trial court level to advise clients on likely rulings and to
encourage collegiality and consistency among judges, [it was] recommended
that an opinion database of judicial opinions arising from cases in the pro-
gram be created.395
XI. BUSINESS COURT SUBDIVISION OF THE ORANGE COUNTY,

FLORIDA CIRCUIT COURT
By administrative order, the Presiding Judge of the Circuit Court in Orange
County, Florida, which includes Orlando, established a Business Court Subdivi-
sion within the Court’s Civil Division, effective January 2, 2004.396 This was pre-
ceded by the Ninth Judicial Circuit Business Court Committee’s study and rec-
ommendation that a business court be created.397
The Order’s prefatory language reflects certain principles behind the growth of
business courts. These include the premises, among others, that:
(i) “specialization within the legal profession has resulted in the more
efficient delivery of high quality legal services in complex matters;”398
(ii) within that Florida Circuit Court, there has been a “long recognized
. . . need for specialized courts to deal effectively with diverse matters
including criminal law, juvenile justice, domestic relations, probate and
drugs;”399
391. Judge Platt Remarks, supra note 370, at 10.

392. Maryland Business and Technology Case Management Program, Published Opinions, at http://
www.courts.state.md.us/businesstech/opinions.html.
393. See Westlaw Maryland Cases database, MD-CS.
394. Maryland Business and Technology Case Management Program, Submitting an Opinion for
Website Posting, at http://www.courts.state.md.us/businesstech/protocol.html#transform. Published
opinions should have factual and legal analysis and will encompass rulings on such matters as dis-
covery motions, dispositive motions, conclusions of fact and law in bench trials, and decisions on
injunctive actions. Id.
395. Maryland Business and Technology Case Management Program, Published Opinions, at http://
www.courts.state.md.us/businesstech/opinions.html. “Opinions published on this site will contain fac-
tual or legal analysis that is useful to other judges, lawyers, and litigants interested in the Program.”
Id.
396. Administrative Order No. 2003-17, In the Circuit Court of the Ninth Judicial Circuit in and
for Orange County, Florida, at 13, June 26, 2003. See Appendix A, infra pp. 231–38.
397. Id.
398. Id. at 231.
399. Id.
(iii) the “litigation and resolution of complex business, corporate and com-
mercial disputes has become an area of specialization within the legal
profession;”400
(iv) “a court that consistently hears business, corporate and other com-
mercial disputes can be expected to develop expertise, experience and
knowledge enabling it to perform its functions more proficiently, rap-
idly and confidently;”401
(v) “a business Court will provide consistency and predictability to liti-
gants and counsel;”402
(vi) “the more efficient handling of these cases will free judicial resources
to handle other important matters;”
(vii) “the decisions in these cases oftentimes impact not only the litigants
but numerous persons throughout our community including employ-
ees, shareholders, partners, creditors and suppliers;”403 and
(viii) “the establishment of a Business Court may become one more factor
in helping our community to attract new businesses that are looking
to re-locate.”404
The new Business Court Subdivision’s jurisdiction is most similar to that found
in New York and Philadelphia, and includes a broad range of disputes.405 While
there were earlier discussions of including complexity as an express part of the
new court’s jurisdiction,406 the Order does not include a separate finding of com-
plexity as a jurisdictional requirement.407
XII. OKLAHOMA BUSINESS COURT

In September 2003, Oklahoma state legislators conducted hearings on whether
to establish a business court in Oklahoma.408 Proponents believed that in estab-
lishing a business court, Oklahoma would “get on the leading edge” and would
be perceived as progressive.409 Further, in having experienced business judges
400. Id. at 232.

401. Id.
402. Id.
403. Id.
404. Id.
405. Id.
406. Becky Knapp, Business Court on the Docket: Orange County Will be First in Florida to Offer
Complex Litigation Court, ORLANDO BUS. J., Mar. 24, 2003.
407. There have been efforts to create similar programs in the Eleventh Judicial Circuit, which
includes Miami, and the Seventeenth Judicial Circuit, which includes Ft. Lauderdale. Telephone in-
terview with Michael J. Higer, Esquire, Mintz, Truppman, Clein & Higer, P.A. in Miami (Sept. 11,
2003) (on file with authors). Mr. Higer is co-chair of the Business Courts Committee of the Business
Law Section of the Florida State Bar, and his efforts contributed to the creation of the business court
in the Ninth Judicial District.
408. Marie Price, Lawmaker Touts Business-Only Court, TULSA WORLD, Sept. 19, 2003, at 16; Ray
Carter, Legislators Urged to Create “Business Courts,” J. RECORD, Sept. 19, 2003.
409. Chad Kile, Lawmaker Proposes Specialized Business Court; Creation Could Lure Companies, Nur-
ture Economic Growth, OKLAHOMAN, Oct. 4, 2003, at 1-B.
developing a reliable body of law, Oklahoma would become more competitive in

the global competition for business.410
In March 2004, Oklahoma’s House of Representatives approved The Business
Court Act, authored by Representative Lance Cargill.411 On May 27, 2004, a joint
Oklahoma House and Senate Conference Committee included the creation of a
business court in ongoing legislative efforts, after revising the original bill.412 On
May 28, 2004, after adoption by the Oklahoma House and Senate, the Governor
signed the new law.413 As enacted, the new law provides for the Oklahoma Su-
preme Court to create business court divisions in cities with populations greater
than 300,000; and to promulgate rules and jurisdictional requirements for such
court divisions within the state’s district (trial) courts.414
XIII. MICHIGAN BUSINESS AND TECHNOLOGY COURTS415

Michigan presently has two, somewhat different, approaches to business and
technology courts, although neither is operating at this time. The Michigan leg-
islature has passed a statute creating a technology court,416 called the Cyber Court,
and the Michigan Supreme Court has published proposed court rules governing
proceedings in the Cyber Court. The Cyber Court is awaiting a final decision on
funding.417
410. Id.
411. Oklahoma House of Representatives Media Division, House Approves Legislation to Create Busi-
ness Courts, Mar. 11, 2004, at http://www.lsb.state.ok.us/house/news6684.html.
412. Ryan McNeil, House Approves Lawsuit Reform, OKLAHOMAN, May 28, 2004.
413. The new law was adopted by the Oklahoma House on May 27, 2004, the Senate on May 28,
2004, and signed by the Governor on May 28, 2004. See 2003 OK H.B. 2661, First Session of the
49th Legislative Session, House Bill 2661, available at 2003 Bill Tracking OK H.B. 2661, http://
www.lexis.com.
414. The new law provides that:
A. The Oklahoma Legislature finds that, due to the complex nature of litigation involving
highly technical commercial issues, there is a need for a court in Oklahoma’s most populated
counties with specific jurisdiction over actions involving such commercial issues.
B. The Supreme Court is authorized to create a business court division within the district court
of any judicial district containing a municipality with a population in excess of three hundred
thousand (300,000), according to the latest Federal Decennial Census.
C. The Supreme Court shall promulgate rules for the establishment and jurisdiction of the
business court divisions.
2003 OK H.B. 2661, Oklahoma Second Session of the 49th Legislative Session, Sections 16 and 17,
enacted May 28, 2004, available at http://www.lexis.com.
415. This section on Michigan’s Cyber Court and efforts at creating a business court was chiefly
prepared by Diane L. Akers of Bodman, Longley & Dahling LLP in Detroit. Ms. Akers is the Chair of
the Business Court Ad Hoc and Business Court Executive Committees of the State Bar of Michigan’s
Business Law Section.
416. MICH. COMP. LAWS ANN. §§ 600.8011–.8029 (West 2004).
417. In late 2001, the Michigan House of Representatives and Senate passed a bill creating a Cyber
Court, which was to take effect as on January 9, 2002. Id. While there was initially funding for the
Cyber Court, that funding was placed on hold later in 2002 (an election year). Thereafter, the Michigan
Legislature passed an amended bill, modifying somewhat the provisions of the original Cyber Court
statute. For further history, see, e.g., Amy Lane Lansing, Lack of Funding Keeps Cyber-Court Offline,
CRAIN’S DETROIT BUS., July 15, 2002, at 12; What Other States Are Doing, DEL. L. WKLY., Feb. 5, 2003,
at 5; Kimberly Koscielniak and Brian Wassom, Practice Tips: Cyber Court, 82 MICH. BAR. J. 48 (2003).
The Business Law Section of the State Bar of Michigan has created a Business
Court Ad Hoc Committee, which has proposed that a pilot Business Court be
established in one or two circuit courts in Michigan. Three circuit courts have
expressed interest in exploring the issue. While there are differences between the
Cyber Court, as enacted, and a Business Court, as proposed, supporters of both
initiatives believe that the two are complementary and are working together to
achieve shared objectives.
A. MICHIGAN’S CYBER COURT

Under Michigan Compiled Laws section 600.8001(2), the Cyber Court has
several purposes, most of which relate to technology and Michigan’s economy:
(i) to establish judicial structures that help to revitalize Michigan’s economy; (ii) to
resolve business or commercial disputes with the expertise, technology, and effi-
ciency required in an information age economy; (iii) to assist the judiciary in
responding to technology; (iv) to establish a technology-rich system to serve the
judicial system in a global economy; (v) to maintain the integrity of the judicial
system while applying new technologies; (vi) to make Michigan attractive to
technology-driven businesses; (vii) to permit ADR to benefit from technology;
and (viii) to establish virtual courtrooms.418 All parties in Cyber Court case are
deemed to have waived the right to a jury trial.419
B. CYBER COURT JURISDICTION

The Cyber Court has concurrent jurisdiction with Michigan’s circuit courts over
“business or commercial disputes” in which the amount in controversy exceeds
$25,000.420 The Cyber Court also has jurisdiction over claims that are not com-
mercial or business disputes,421 as long as the case is “primarily” a commercial or
business dispute.422 Participation in the Cyber Court is entirely voluntary.423 Par-
ties, however, cannot by stipulation or agreement keep a case in Cyber Court if
the case does not belong there.424 If the case is not “primarily” a business or
commercial dispute, it may not be heard in the Cyber Court. The Cyber Court
418. MICH. COMP. LAWS ANN. § 600.8001(2) (2004).

419. Id. § 600.8013; see also § 600.8019, which provides, “An action in the cyber court shall be
heard by the judge without a jury.”
420. Id. § 600.8005(1). See Appendix A infra p. 244.
421. MICH. COMP. LAWS ANN. §§ 600.8005, 600.8011(3).
422. Id. § 600.8011(4).
423. Id. § 600.8007(1). A plaintiff may file an action in the Cyber Court Thereafter, any party,
including a defendant, a plaintiff against whom a counterclaim has been asserted, parties added by
motion and third party defendants may cause the case to be transferred from the Cyber Court to a
circuit court in which venue would be proper merely by filing a notice of transfer. Id. § 600.8011(1).
Procedurally, the proposed court rule is somewhat different in that it provides that a case “shall” be
removed or transferred to “the” (rather than “a”) circuit court in which venue is proper upon motion
filed by “the defendant.” MICH. COMP. LAWS ANN. § 2.712(A)(1) (proposed). A party having the right
to intervene in a matter pending in Cyber Court may also file a motion for removal to circuit court.
424. This is determined by the review called for by MICH. COMP. LAWS ANN. § 600.8011(2), (3).
judge’s determination is final and may not be reviewed by the circuit court.425
The requirement of judicial review continues throughout the case.426
When it passed the amended Cyber Court statute, the Michigan Legislature
revised the definition of “business or commercial dispute.” Under the current
version of the statute, “business or commercial dispute means any of the following
actions”: (i) actions in which all parties are business enterprises; (ii) actions be-
tween a business enterprise and its owners, managers, employees, etc.; (iii) ac-
tions in which a party is a non-profit entity and the dispute arises from the
organization’s structure, governance, finances, etc.; and (iv) actions arising from
the sale, merger, organizational structure, governance, finances, etc. of a business
enterprise.427
The Cyber Court statute provides that the following kinds of disputes are in-
cluded within the definition of a “business or commercial dispute”: (a) disputes
involving technology, websites, etc.; (b) disputes over the internal organization or
governance of business entities; (c) contract disputes; (d) disputes over commer-
cial transactions, including bank transactions; (e) disputes over business or com-
mercial insurance; and (f ) disputes over commercial real property.428
The Cyber Court statute also excludes certain kinds of actions, including:
(a) personal injury or wrongful death actions; (b) product liability matters with
individual claimant(s); (c) family division cases; (d) probate proceedings; (e) pro-
ceedings involving estates or protected persons; (f ) criminal matters; (g) con-
demnation matters; (h) appeals from lower courts or administrative tribunals;
(i) enforcement of judgments; and ( j) landlord-tenant matters involving residen-
tial property.429
C. MICHIGAN’S EFFORT AT CREATING A BUSINESS COURT

At about the same time the Michigan legislature passed the first version of the
Cyber Court statute, the Business Law Section of the State Bar of Michigan created
the Business Court Ad Hoc Committee (the “Committee”), which was charged
with the responsibility to study and make recommendations whether Michigan
should establish some form of business court.430
From the outset, the Committee was aware that the Cyber Court statute had
been passed and that a Cyber Court, if established, would focus on business or
commercial disputes. The Committee also made early contact with supporters of
425. Id. § 600.8011(4) (2004).

426. Whenever parties or claims are added or deleted, the Cyber Court judge is required to again
review the pleadings to determine whether the case is “primarily a business or commercial dispute,”
either notifying the plaintiff to transfer the case or affecting the transfer under the statute. Id.
§ 600.8011(3).
427. Id. § 600.8005(3)(b). See Appendix A, infra pp. 244–45.
428. MICH. COMP. LAWS ANN. § 600.8005(4).
429. Id. § 600.8005(5).
430. See also State Bar of Michigan, Business Law Section, Business Court Ad Hoc Committee
Meeting, Report of Business Court Executive Committee, at 1 (Apr. 22, 2002), at http://www.bodman
llp.com/publications/articles/pdfs/BusinessCourtExecutiveCommittee.pdf.
the Cyber Court initiative to determine what synergies might be achieved and to
ensure that efforts were not being duplicated.431
The Committee views the purposes for a Business Court in Michigan to be:
(i) to enhance the consistency, predictability, and accuracy of decisions in business
cases, and (ii) to enhance the efficiency with which business cases are resolved
through pro-active case management, technology, and early ADR.432 The Com-
mittee also concluded that neither a new statute nor amendment to the existing
Cyber Court statute was necessary to achieve its goals for commercial litigation.433
Rather, the Committee has focused on the concept of assigning a sitting circuit
court judge to serve as a Business Court judge through the assignment power of
the chief judge of each circuit.434
The Committee also considered what kinds of cases should be heard in a Busi-
ness Court and concluded that, at least initially, the definition of commercial or
business dispute contained in the Cyber Court statute should be used. A Business
Court would require that damages exceed $25,000, the general requirement for
all civil cases filed in circuit courts in Michigan. In May 2003, the Business Law
Section Council agreed to fund some further exploration of a pilot Business Court
and, in particular, a review of the quantity of business litigation filed in each
county.435 The Committee then prepared a proposal for a pilot business court,
which has been presented to representatives of one of the metropolitan Detroit
counties.436 The matter is still under discussion. The Committee intends to con-
tinue to pursue its efforts to establish a Business Court in Michigan, regardless of
whether the Cyber Court is funded.
XIV. COLORADO AND GEORGIA

An extensive study was made in Colorado, ultimately leading to a recommen-
dation for the creation of a business court. For reasons discussed below, neither
a separate court division nor court track have been created. More recently, efforts
to study the feasibility of a business court in Georgia have been pursued with
some vigor. This result has produced a unique kind of study created by a con-
sulting firm engaged to make best practices recommendations to the Administra-
tive Office of Georgia’s Courts and its Supreme Court.437
431. During 2002 and 2003, the Committee conducted a number of meetings and study sessions
designed to gather information and explore how litigation of business cases could be improved. The
Committee also sought the views of various legal and business organizations to determine what would
best meet the needs of commercial litigators and their clients.
432. Report of Business Court Executive Committee, supra note 430, at 1.
433. Id.
434. The Committee believes that, while technological advances should be utilized where appro-
priate, electronic filing and appearances should be available but not, at this stage, mandatory. The
Committee has also considered the advantages of a system that would be entirely voluntary, but is
concerned that few cases would remain in the Business Court if the litigants can “veto” use of the
Business Court.
436. Id.
437. A private consultant was used to study London’s existing commercial courts to determine
methods of improvement. See infra Section XV.
A. THE COLORADO GOVERNOR’S TASK FORCE ON CIVIL

JUSTICE REFORM
In 2000, the Governor’s Task Force on Civil Justice Reform issued its final
report, recommending the establishment of “a specialized business court system
within the existing Colorado courts to handle commercial cases more quickly, less
expensively, and with greater expertise.”438 The Task Force observed that there
was “rapid growth in Colorado’s commercial and professional services sectors,”
recognizing Colorado as a national leader in information technology with a con-
comitant growth in jobs in that sector.439 The recommended business court would
“be located within an existing District Court in the Denver metropolitan area.
Such a business court could develop the expertise and specialized procedures
needed to help Colorado attract and retain world-class employers and employees
alike.”440
The Final Report included a lengthier Report of the Committee on Business
Courts to the Governor’s Task Force.441 The Business Courts Committee stated
that “a well-functioning business community is dependent on an effective judi-
ciary equipped to handle the disputes of that community.”442 It stated that business
law expertise in judges would make them more adept at hearing commercial
cases.443 A specialized commercial court was particularly appropriate because such
cases are frequently complex and draw upon a body of law developed to address
the unique nature of commercial disputes; and that in the normal course of affairs
these cases can create judicial back log and run the risk on inconsistency in
result.444
It was ultimately determined that the number of expected business court cases
that could be generated in Denver could not justify the time and expense nec-
essary to establish a specialized business court; nor could the funding be obtained
for special tracking for business cases.445 Because of the depth and effort put into
the study, which those interested in business courts should read in full, its juris-
dictional criteria have been included for discussion in this paper even though
Colorado has not adopted a business court.
438. Governor’s Task Force on Civil Justice Reform, Executive Summary, Final Report of Governor’s
Task Force on Civil Justice Reform, at 2 (Sept. 6, 2000), at http://www.state.co.us/cjrtf/report/download/
executiv.doc.
439. Id.
440. Id. “More generally, and as detailed in the Report, Colorado should strengthen the ability of
all Colorado courts to resolve complex business disputes with less cost and reduced delay.” Id. Minutes
of the Business Court Committee’s meeting can be found at http://www.state.co.us/cjrtf/min/minutes.
htm.
441. Colorado Report, supra note 72.
442. Id.
443. Id.
444. Id.
445. Michael Becker, Businesses Praise Colorado Courts; Legal System Earns Recognition for Overall
Efficiency, J. ADVOC., Mar. 1, 2002; see also C.J. Mary J. Mullarkey, State of the Judiciary, Jan. 12, 2001,
Recent Selected “State of the Judiciary” Addresses Delivered by State Chief Justices, at http://www.abanet.org/
justice/pdf/speech01-02b.pdf.
The Colorado Business Court Committee recommended the following types of

cases for a business court track:
a. The rights, duties, or liabilities of equity owners, managers, or agents of any
form of business entity;
b. The formation, sale or purchase, or merger or conversion of any form of
business entity;
c. Conduct invoking antitrust laws or law governing unfair competition or
interference with business or contractual relations; or agreements or ar-
rangements among businesses, or between businesses and their agents or
employees restraining competition;
d. Commercial transactions not involving a consumer party; or
e. Intellectual property.446
B. THE GEORGIA FEASIBILITY STUDY

Funded by the Corporate Counsel, Business Law and Technology Sections of
the Georgia State Bar, a committee was formed to study the creation of a business
court in Georgia.447 This effort gained the support of the Administrative Office of
the State Courts of Georgia. Working with the consulting firm AEQUITAS, Inc.,
a Feasibility Study with specific recommendations has been created and presented
by the Administrative Office of the Courts to Georgia’s Supreme Court.448 The
study recommends the creation of a business court along the lines of North Caro-
lina’s Business Court.449 It also recommends that the court be sponsored state-
wide, but functionally be county-based; and that the effort begin with pilot pro-
gram(s) in a county or counties with sufficiently high business volume.450 The
Supreme Court is supportive of the effort, and the Georgia State Bar itself has
become increasingly interested in assisting in creating such a court program.451
The Georgia Study itself includes an analysis of other states’ business courts
and a recommendation for best practices for a business court in Georgia.452 The

447. The information in this paragraph was provided in an interview with Raymond Fortin, Esquire,
General Counsel of SunTrust Banks, Inc., on October 1, 2003 and later confirmed by Mr. Fortin to
the authors. Mr. Fortin is one of the driving forces behind developing a business court in Georgia,
and he was one of the attorneys in the Wachovia Bank takeover case in North Carolina’s Business
Court, which is one of that Court’s most nationally prominent cases to date.
448. AEQUITAS, Inc., Georgia Feasibility Study, supra note 120.
449. Id.
450. Id. at 8.
451. See Chief Justice Norman S. Fletcher, State of the Judiciary Address, Jan. 31, 2003, at http://
www.georgiacourts.org/aoc/statejudiciary.html (the court is “considering the feasibility of a pilot project
to expedite business litigation in our courts. The idea has been proposed by the Corporate Law Section
of the State Bar and would be modeled on a similar effort in North Carolina. Mindful of budgetary
constraints, we are looking for financial resources outside the state’s budget.”). Highlights from the
Executive Committee of the Technology Law Section, TECH. L. ST. B. GA., Winter 2002, at 5. Summary of
Executive Committee Meeting on February 6, 2003, TECH. L. ST. B. GA., Spring 2003, at 6. (Now com-
plete, that feasibility study proposes a three year pilot program based on North Carolina’s business
court).
452. AEQUITAS, Inc., Georgia Feasibility Study, supra note 120. The authors of AEQUITAS, Inc.
Georgia Feasibility Study have since published a more general paper on best practices for business
courts nationally. Tim Dibble and Geoff Gallas, Best Practices in U.S. Business Courts, COURT MANAGER,
Volume 19, Issue 2, 2004, at 25.
Study lists and analyzes twelve different “functional categories” in which recom-
mendations are made, including, e.g., objectives to be achieved, case types, and
judicial management.453 It provides a somewhat distinct perspective in that it was
created by professional court consultants.
The first category analyzed, “Core Business Court Objective,” is critical in de-
termining the shape of the remaining recommendations. The summary descrip-
tion set forth in the report, encapsulating the proposed objectives into a maxim
is, “[a]ssigns business cases to specialized judges in order to manage them more
effectively and expeditiously and to more efficiently use judicial resources both
within the business court and in the court system as a whole.”454 As to the case
types assigned, a complex North Carolina Business Court type jurisdiction is
recommended to achieve this goal for Georgia: “Only complex business cases and
business cases with novel legal precedents are assigned to a business court.”455
In his January 16, 2004 State of the Judiciary Address, Georgia Chief Justice
Fletcher stated that “[t]he proposed pilot project for a business court will soon
be on the table for consideration.”456
XV. SOME INTERNATIONAL COURTS457

England has numerous specialized courts, including the Commercial Court,
Admiralty Court, and the Technology and Construction Court in the Queens
Bench Division; and the Patents and Companies Court in Chancery. These courts
were the subject of a March 2001 Feasibility Study by Cap Gemini Ernst & Young
(“CGEY”) on modernizing London’s commercial courts.458 The purpose was “to
evaluate the business case for a new commercial court handling a wide range of
high value commercial litigation and housed in a separate building. Such a project
was seen as a means of further enhancing the position of London as a provider
453. Id. at 8.
454. Id. Each summary point is developed at length later in the Study.
455. Id. at 12. By contrast, Colorado’s Business Committee found that: “Defining what constitutes
a ‘commercial case’ is fundamental to the operation of a business court. While the court will be
particularly suitable for complex cases, commercial cases of all levels of complexity will benefit from
adjudication by experienced business jurists.” Colorado Report supra note 72, at 12.
456. Chief Justice Norman S. Fletcher, State of the Judiciary Address, Jan. 16, 2004, available at
http://www2.state.ga.us/Courts/Supreme/2004_judiciary_speach.htm; State of the Judiciary Address:
Georgia Courts at Work, GA. CTS. J., Feb. 2004, at 3, available at http://www.georgiacourts.org/aoc/
publications/CJ-Feb-2004.pdf. The business court proposal was to be presented to the State Bar’s
Board of Governors for consideration in early November 2004. Steven H. Pollak, Fulton Moves Forward
with Plans for New Business Court, FULTON COUNTY DAILY REPORT, Oct. 8, 2004, at 1.
457. We are not including a lengthy history of other nations’ commercial court programs. The
following discussion sets forth some details of business courts in England, Ireland and Toronto, Can-
ada. There are parallels with the creation of American business courts which adduce the presence of
similar causes and objectives. This reflects the global nature of conditions that have impelled the
creation of commercial courts.
458. See Modernisation of the Commercial Court—Consultation Paper, at 1.4 and Annex B (Dec. 10,
2001), available at http://www.courtservice.gov.uk/cms/media/consult_paper_commscrt(1).pdf [here-
inafter Consultation Paper].
of legal services to the international business community.”459 Shortly after the

CGEY Report was published, “the Lord Chancellor announced that he accepted
the consultants’ proposals and studies had already begun into the manner in
which they could be implemented; the objective of the decision to modernise
was to ‘make sure that London maintains its position as the premier centre for
settling commercial disputes in the future.’”460 The Commercial Court’s juris-
diction includes:
any claim arising out of the transaction of trade and commerce and includes
any claim relating to—(a) a business document or contract; (b) the export
or import of goods; (c) the carriage of goods by land, sea, air or pipeline;
(d) the exploitation of oil and gas reserves or other natural resources; (e)
insurance and re-insurance; (f ) banking and financial services; (g) the opera-
tion of markets and exchanges; (h) the purchase and sale of commodities;
(i) the construction of ships; ( j) business agency; and (k) arbitration.461
Ireland has recently created a Commercial Division of the High Court. Its ju-
risdiction includes proceedings of:
a commercial nature involving claims of at least €1m. The type of proceedings
covered by the definition include disputes over a business document or
contract, the purchase and sale of commodities, the import or export of
goods and the carriage of goods by land, sea, air or pipeline. In addition,
proceedings under the Arbitration Acts, Intellectual Property disputes and
Judicial Review cases involving a substantial commercial law dimension also
fall within the jurisdiction of the Court.462
The establishment of a Commercial Court had been recommended, “as a matter
of urgency” by the Committee on Court Practice and Procedure.463 Prior to the
commercial court’s creation there were growing complaints about delays, ineffi-
cient pre-trial practices, and a lack of specialist judges for complex commercial
matters; and the government recognized “the need to provide an infrastructure
which supports every aspect of doing business in Ireland; including the Courts.”464
459. The Commercial Court/The Admiralty Court 2001–02, Report on the Year Ending 30th Septem-
ber 2002 ¶ 53(a), available at http://www.courtservice.gov.uk/using_courts/guides_notices/notices/comm/
commreport_02.htm.
460. Id. ¶ 53(b).
461. THE ADMIRALTY & COMMERCIAL COURTS GUIDE, at B1.1 (6th ed. 2002), available at http://
www.courtservice.gov.uk/using_courts/guides_notices/notices/comm/guide/com_crt_guide.htm#cases.
462. See Minister for Justice Michael McDowell T.D., Equality & Law Reform Address; The Com-
mercial Court and Mediation Conference (Mar. 24, 2004), available at http://www.justice.ie/80256
E01003A02CF/vWeb/pcJUSQ5XLD4H-en.
463. Committee on Court Practice and Procedure, 27th Interim Report, A Commercial Court in
Ireland, Establishing Connections to Domestic and International Arbitration Centers, The Courts of e Gov-
ernment—Meeting the e Commerce Challenge (Feb. 27, 2002), available at http://www.courts.ie/press.
nsf / a3b752e69d6a613e802568350067c46e / 7755e7355444367480256b6d0055e1e0?OpenDocument
(“[t]he Committee recommends that a pilot project Commercial Court be developed in Dublin as a
matter of urgency.”). Id.
464. William Fry, Solicitors, A Commercial Court in Ireland, at http://www.williamfry.ie/files/
indexfile.asp?id⳱97.
Under the prior system, “any judge, regardless of his or her background and
experience, c[ould] be assigned a complex case involving corporate litigation. A
judge d[id] not know, until the last moment, what case he or she w[ould] be
assigned, which rule[d] out the possibility of pre-preparation.”465
In 1991, the Superior Court of Justice in Toronto, Ontario established a “Com-
mercial List” as an informal court division.466 Given the province’s business and
financial focus, the court wanted “to be able to deal in an effective manner with
complicated corporate, commercial and bankruptcy/insolvency related cases.”467
The Commercial List may include bankruptcy matters, various statutes, and “such
other commercial matters as a judge presiding over the Commercial List may
direct to be listed on the Commercial List. . . .”468 This last “basket clause” permits
such other commercial matters as the presiding judge may direct.469 In 2001,
there were five or six assigned judges, with a “solid cadre of them . . . experienced
as commercial judges.”470 The Commercial List is voluntary, except for bankruptcy
matters; and “[t]he special procedures adopted for the hearing of matters on the
Commercial List expedite the hearing and determination of these matters and
they have met with considerable approval.”471 It is considered a very successful
program.472
XVI. COMPLEX LITIGATION PROGRAMS473

A number of jurisdictions have established complex litigation programs. In
developing such programs, the debate among the bench, bar, legislature, and
465. Plans for a Specialist Commercial Division with the Circuit Court, IRISH EXAMINER (Aug. 4, 2003),
at http://archives.tcm.ie/irishexaminer/2003/08/04/story408999439.asp (“The proposal for the Com-
mercial Court arose out of a report . . . by the Committee on Court Practice and Procedure. . . .
According to the committee, ‘there is merit in establishing a more specialized approach to commercial
cases.’”).
466. The Honorable Robert A. Blair, The Commercial List—Handling Business Cases Effectively, THE
METRO. CORP. COUNS., NE ED., May 2001, at 36 [hereinafter Blair Interview].
467. Id.
468. Practicing Direction Concerning the Commercial List, Superior Court of Justice, Toronto Region
at http://www.ontariocourts.on.ca/superior_court_justice/notices/commercial.htm [hereinafterPractic-
ing Direction]. (These may include: “applications, motions and actions which in essence involve the
following: a) Bankruptcy and Insolvency Act; b) Bank Act, relating to realizations and priority disputes;
c) Business Corporations Act (Ontario) and Canada Business Corporations Act; d) Companies’ Cred-
itors Arrangement Act; e) Limited Partnerships Act; f ) Pension Benefits Act; g) Personal Property
Security Act; h) receivership applications and all interlocutory motions to appoint, or give directions
to, receivers and receiver/managers; i) Securities Act; j) Winding-Up and Restructuring Act; k) Credit
Unions and Caisses Populaires Act, relating to credit unions and caisses populaires under administra-
tion or that are being wound up or liquidated.”).
469. Blair Interview, supra note 466.
470. Id.
471. Practicing Direction, supra note 468. In describing its general procedures, Practicing Direction
5 states “Co-operation, communication and common sense shall continue to be the principles of
operation on the Commercial List.” Id.
472. Blair Interview, supra note 466.
473. Although the focus of this Article is on business and commercial courts, we have added this
general section on complex courts. We have not focused on a number of issues that an article on
complex litigation would normally provide; rather, we include the instant discussion in the context
of complex commercial and business cases. It is our view that the objectives in establishing a successful
public has often been framed as a choice between having a complex litigation
program or a commercial/business litigation program.
The authors, who practice primarily in the Philadelphia region, observe that
the Philadelphia Court of Common Pleas has separate and distinct programs for
complex tort cases,474 class actions,475 as well as commercial cases.476 Similarly, in
Chicago, the general calendar program began with the individual assignment of
tort cases, not commercial cases.477 In Las Vegas, which has a business court, there
is also a complex litigation program which now includes a special court to hear
construction defect cases.478
Thus, we raise the question as to whether the apparent “either/or” conflict
between complex litigation programs and commercial programs is a true conflict.
While there may arguably be competitive budgetary concerns in some instances,
this putative conflict may actually reflect a belief that is neither empirically sup-
ported nor necessary.479 We suggest that a single court system can address both
business court are not coextensive with the objectives of a court focused on handling all types of
complex cases; though there may be some overlap in the areas of competent and effective case man-
agement and limited specialization. As to the meaning of complexity, an issue not addressed herein,
see, e.g., R. George Wright, The Illusion of Simplicity: An Explanation of Why the Law Just Can’t Be Less
Complex, 27 FLA. ST. U. L. REV. 715 (2000); Jeffrey W. Stempel, A More Complete Look at Complexity,
40 ARIZ. L. REV. 781 (1998); Neil Vidmar, The Performance of the American Civil Jury: An Empirical
Perspective, 40 ARIZ. L. REV. 849, 855–61 (1992); Jay Tidmarsh, Unattainable Justice: The Form of
Complex Litigation and Limits of Judicial Power, 60 GEO. WASH. L. REV. 1683 (1992); Peter H. Schuck,
Legal Complexity: Some Causes, Consequences, and Cures, 42 DUKE L.J. 1 (1992); Stephen B. Burbank,
The Costs of Complexity, 85 MICH. L. REV. 1463 (1987).
476. See supra pages 176–78.
478. The Clark County District Court has a Complex Litigation Center. This facility was “converted
for use in extremely complicated multiple party cases, primarily the construction defect cases . . . [to]
accommodate up to 50 counsels, along with their clients, and has a public seating gallery of 100.”
Chief Justice Agosti Addresses Nevada Legislature, 11 NEV. LAW. 16 (Apr. 2003); Joe Wheeler, Packed
House Hears Judge Explain Construction Litigation Process, THE CONSTR. ZONE (Feb. 2004), available at
http://www.nvczone.com/NSA_Judges_On_CDLitigation_Feb_2004.htm (“The Complex Litigation
Program in Clark County created a special court to hear construction defect cases.”); Hubble Smith,
CONSTRUCTION DEFECT LAWSUITS: Falling Between the Cracks, LAS VEGAS REV. J., Feb. 2, 2003, at
http://www.reviewjournal.com/lvrj_home/2003/Feb-02-Sun-2003/news/20226050.html.
479. One challenge raised is that the best judges will go into business court programs. This prop-
osition is not axiomatic. Judges may go where their interest, experience or ability suits them. Thus,
there may be judges who excel in handling the dynamics of courtroom interactions, who want to be
trying cases as often as possible and who detest the long paperwork of motion intensive cases. Such
judges may be of the highest caliber, and yet would never want to participate in a commercial, or
complex, litigation program. Moreover, under the theory that the best judges will necessarily go into
the specialized court, those judges would similarly go into complex court program. This would like-
wise take the best judges from the average person’s case, e.g., in favor of the class action bar or the
construction defect bar; and would make it more likely that large businesses, whose cases would more
often be complex, would get more attention than cases involving small businesses.
Another doubt is raised via the argument that a business court will have an inherent pro-business
bias. On this issue, most commercial program cases involve businesses litigating against each other;
and, thus, the issue of consumer vs. business will not typically arise. Even where it has, however, the
cases have not been pre-determined for corporate victory. For example, in Zwiercan v. General Motors
Corp., No. 3235 (Phila. Ct. Com. Pl. Mar. 18, 2003), available at http://courts.phila.gov/cgi-bin/opin-
ions/comcrtsearch.cgi?dropdown⳱cptcvcom (Mar. 18, 2003), the court ruled that the consumers’
claims for reliance were sufficient under Pennsylvania’s Unfair Trade Practices and Consumer Protec-
needs as distinct, rather than as two objects seeking to occupy the same space.480
Apart from budgetary limitations, a court faced with significant commercial liti-
gation and other types of complex cases might very well want to consider spe-
cialized programs to address both sets of needs and requirements.
A. CALIFORNIA’S COMPLEX CIVIL LITIGATION PILOT PROGRAM

In 1990, California’s State Bar “appointed an ad hoc Business Court Committee
to study the question of whether specialized business tribunals should be estab-
lished in California trial courts.”481 After years of varied efforts and strong debate,
that inquiry ended in May of 1997 when the Business Court Study Task Force,
created by the Judicial Council of California482 in 1996, issued a lengthy report
recommending against the creation of a business court.483 The Task Force instead
concluded that California should take action “to improve the quality of decision-
making in complex cases, including [but not limited to] business and commercial
disputes.”484
The Task Force Report observed and concluded that “[t]he concept of a busi-
ness court or division is not supported by important constituencies whose support
would be necessary to make the concept viable.”485 By way of example, in June
1993, the State Bar’s Business Court Committee issued a status report proposing
tion Law, even though new appellate case law was argued to support a dismissal. In Tomlin v. Dylan
Mortgage, Inc., No. 99 CVS 3551 (N.C. Super. Ct. Feb. 1, 2002), available at http://www.ncbusiness
court.net/opinions/Tomlin%20v.%20Dylan%20Mortgage%20Inc.,%202002%20NCBC%201.htm,
Judge Tennille certified a class in a case involving allegedly improper real estate loans and refinancing
to high risk applicants. Again, if the business courts were inherently anti-consumer, one would not
expect such a result; but rather an effort to protect the business by any means. These cases are adduced
not to substitute for a body of exhaustive research, but to point out that allegation of bias must be
put to the test.
480. In addition to a specialized Commercial Court, England has a specialized Technology and
Construction Court. See supra Section XV. This Court’s jurisdiction includes, e.g.,
Building and other construction disputes, . . . ; Engineering disputes; Claims by and against
engineers, architects, surveyors, accountants and other specialised advisers relating to the services
they provide; . . . Claims relating to the design, supply and installation of computers, computer
software and related network systems; Claims relating to the quality of goods sold or hired, and
work done, materials supplied or services rendered; . . . Claims relating to the environment (for
example, pollution cases); . . . [and] Claims involving the taking of accounts where these are
complicated . . . .
The Technology and Construction Court Guide, ¶ 1.7, at 11–12, at http://www.courtservice.gov.uk/cms/
media/tcc_guide.doc. “In reality, the TCC is the specialist court of the High Court which deals with
all those complicated and technical civil disputes which are not the province of some other specialist
tribunal.” Id. at 7–8.
481. California Judicial Council Business Court Study Task Force, Final Report of the California
Judicial Council Business Court Study Task Force (May 16, 1997), at 2 [hereinafter 1997 Final Report]
(on file with The Business Lawyer, University of Maryland School of Law).
482. The Judicial Council “is the policymaking body of the California courts . . . .” Judicial Council
of California, News Release, State Courts Resolve Complex Cases More Efficiently National Report Finds
(Aug. 29, 2003) [hereinafter August 2003 News Release].
483. 1997 Final Report, supra note 481.
484. Id. at 7.
485. Id. at 3.
the creation of a business and commercial law division within the Superior Court
as a pilot project.486 Eight months later, “the State Bar Board of Governors passed
a resolution forbidding the Business Court Committee from pursuing or sup-
porting legislation to establish a specialized court for business cases.”487 The pri-
mary opposition was on the basis that a business court would be “elitist,” taking
the best judges and other resources, and would potentially favor business inter-
ests.488 The Task Force believed that its complex court recommendations could
assuage concerns about perceived inequality, lack of predictability, and the quality
of decision making in business and commercial litigation.489
After the Business Court Task Force Report, in 1997, California’s Chief Justice
Ronald M. George appointed the Complex Civil Litigation Task Force to “identify[]
ways for trial courts to manage complex cases more efficiently and effectively.”490
Complex litigation included cases requiring “exceptional management to avoid
placing unnecessary burdens on the court or the litigants and involve such areas
as antitrust, securities claims, mass torts, and class actions.”491 The Complex Lit-
igation Task Force included subcommittees focusing on pretrial practice; trial;
specialized areas (e.g., antitrust, construction, environmental, insurance, intellec-
tual property, mass torts, securities, and class actions); ADR; technology; and
judicial education.492 The Complex Litigation Task Force developed a judicial
deskbook for managing complex litigation.493
In January 2000, the Judicial Council established the complex case manage-
ment programs in six California Superior Courts.494 Known as the Complex Civil
Litigation Pilot Program, it was “designed to improve judicial management of
complex cases and to expedite case resolution, keeps costs reasonable, and pro-
mote effective decision making by the courts, parties, and counsel.”495 Los Angeles
began with six judges, Orange County had five judges and the Northern California
courts had one judge each.496
In June 2003, the National Center for State Courts (“NCSC”), which had con-
tracted with the California Administrative Office of the Courts to study the Com-
plex Civil Litigation Pilot Program, issued a lengthy study evaluating the pro-
486. Business Court Committee of the Business Law Section of the State Bar of California, Status
Report of the Business Court Committee of the Business Law Section of the State Bar of California, at 2
( June 30, 1993) (Draft) (on file with authors).
487. 1997 Final Report, supra note 481, at 2.
488. Id. at 5–6. But see supra note 479.
489. Final Report 1997, supra note 481, at 7.
490. Judicial Council of California, Complex Civil Litigation, Fact Sheet, at 2 (Sept. 2004) [hereinafter
September 2004 Fact Sheet], at http://www.courtinfo.ca.gov/reference/documents/comlit.pdf.
491. Id. at 2.
492. Id. at 1–3.
493. Id. at 2.
494. August 2003 News Release, supra note 482. These included the Alameda, Contra Costa,
Orange, Los Angeles, San Francisco, and Santa Clara Superior Courts. Id. The pilot program was
created and funded by the 1999 Budget Act. June 2004 Fact Sheet, supra note 490, at 3. The total
annual allocation for the pilot program is $2,885,000. Id. at 4.
495. August 2003 News Release, supra note 482.
496. September 2004 Fact Sheet, supra note 490, at 3.
gram.497 Before the pilot program, the chief complaints (as in other courts)
included the problems associated with case assignment to a master calendar, ac-
companied by a complaint of “over-reliance on referees.”498 The pilot program
uses individual calendar assignments, with a single responsible judge, from in-
ception to resolution of the case.499
The NCSC Evaluation identifies three basic types of complexity, any one or
more of which might exist in the same case. These include legal complexity,
involving difficult legal issues that will create numerous motions; evidentiary com-
plexity, both in terms of the specialized expertise required to understand the
evidence and the volume of evidence; and logistical complexity, involving large
numbers of parties and counsel, and large volumes of evidence.500
The NCSC Evaluation states that the pilot program includes purely commercial
cases501 that are deemed complex, but these constitute only about one-fourth of
the total caseload.502 Approximately one-third of the pilot cases are complex
torts503 and the remainder “could be classified in either category.”504 Half of the
pilot cases fall into the categories pre-designated by Court Rule as “provisionally
complex.”505 The single largest category of cases involves construction defects
(26.3 percent), followed by class actions (16.4 percent), and breach of contract/
warranty (10.8 percent). On the other end of the spectrum are antitrust/trade
cases (0.5 percent); asbestos mass torts (0.7 percent); medical malpractice (1.0
percent); mandamus (1.0 percent); professional negligence (1.1 percent); securi-
ties (1.2 percent); other personal injury/wrongful death (1.3 percent); other real
property (1.6 percent); fraud (1.7 percent); product liability (1.8 percent); insur-
ance claims from complex cases (2.2 percent); toxic tort/environmental (3.5 per-
cent); eminent domain (4.0 percent); insurance coverage (4.3 percent) and busi-
ness torts (5.7 percent).506
California Court Rule 1800 provides a general definition for complexity, and
then gives a list of factors to weigh in determining if a case is complex. Thus,
Rule 1800(a) states: “[a] ‘complex case’ is an action that requires exceptional
judicial management to avoid placing unnecessary burdens on the court or the
497. Paula L. Hannaford-Agor, Nicole L. Mott, & Timothy F. Fautsko, Evaluation of the Centers for
Complex Civil Litigation Pilot Program, National Center for State Courts and California Administrative
Office of the Courts, at v ( June 30, 2003) [hereinafter NCSC Evaluation], at http://www.ncsconline.
org/WC/Publications/Res_ComLit_ComplexCivilLitigationPub.pdf.
498. Id. In the master calendar system, multiple judges hear and address different stages of the
same case “resulting in the lack of a single point of judicial accountability for case supervision, insuf-
ficient judicial involvement in pretrial management of complex cases, and lack of judicial knowledge
about and experience in specific areas of substantive law.” Id. at vi.
499. Id.
500. Id. at 5–6.
501. The NCSC includes securities, antitrust, breach of contract/warranty, and business torts in
this category. Id. at 46.
502. Id. at vii.
503. Id. These are defined as construction defect, toxic torts, mass torts, products liability, fraud,
medical malpractice, professional negligence, and other personal injury type suits. Id. at 46 n.53.
504. Id. at vii.
505. Id. See CAL. CT. R. 1800(c)–(d) (West Supp. 2004).
506. NCSC Evaluation, supra note 497, at 46.
litigants and to expedite the case, keep costs reasonable, and promote effective
decision making by the court, the parties, and counsel.”507 Under Rule 1800(b),
the factors “the court shall consider, among other things” in making the com-
plexity determination, include:
(1) [the likelihood of ] Numerous pretrial motions raising difficult or novel
legal issues that will be time-consuming to resolve; (2) Management of a
large number of witnesses or a substantial amount of documentary evidence;
(3) Management of a large number of separately represented parties; (4) Co-
ordination with related actions pending in one or more courts in other coun-
ties, states, or countries, or in a federal court; or (5) Substantial postjudgment
judicial supervision.508
The Court Rules do recognize certain case types as “provisionally complex,”
meaning that the case will be found complex unless a judge determines otherwise,
after a review of the initial pleadings.509 Thus, by Rule, a case is provisionally
complex if it involves:
(1) Antitrust or trade regulation claims; (2) Construction defect claims in-
volving many parties or structures; (3) Securities claims or investment losses
involving many parties; (4) Environmental or toxic tort claims involving
many parties; (5) Claims involving mass torts; (6) Claims involving class
actions; or (7) Insurance coverage claims arising out of any of the [afore-
mentioned] claims . . .510
This rule, however, is subject to the caveat that no case is provisionally complex
“if the court has significant experience in resolving like claims involving similar
facts and the management of those claims has become routine.”511 Moreover, “[a]
court may declare by local rule that certain types of cases are or are not provi-
sionally complex pursuant to this subdivision.”512
507. CAL. CT. R. 1800(a).

508. Id. at 1800(b).
509. NCSC Evaluation, supra note 497, at vii; CAL. CT. R. 1800(c).
510. CAL. CT. R. 1800(c). Rule 1800(c)(2) is apparently the basis for considerable litigation in
Orange County. NCSC Evaluation, supra note 497, at 18. The California Deskbook on the Management
of Complex Civil Litigation defines complex construction defect litigation as follows:
Construction defect litigation typically involves plaintiff owners of various property interests
affected by alleged defects. Plaintiffs may include a large number of unit owners and a home-
owners association. Defendants commonly include the primary builder or developer of the pro-
ject, many or all of the subcontractors that performed work on the project, design professionals
such as architects and engineers, and the real estate agents or brokers who marketed the project.
Claims frequently include breach of contract, strict liability and tort, and negligence in general
terms without identifying the specific defects. Frequently there are numerous cross complaints
for indemnification. Identifying the specific defects, the parties related to these defects, the costs
of repair, and the specific damages for each plaintiff is frequently difficult. The number and
difficulty of factual issues create special problems for settlement.
Judicial Council of California, Deskbook on the Management of Complex Civil Litigation § 3.10
(2000).
511. CAL. CT. R. 1800(d).
512. Id.
In Contra Costa County, the clerk will automatically refer a case for review to
the presiding judge if there are more than seven parties and the cover sheet
designates the case as complex.513 In Santa Clara County, if one of the parties
designates a case as complex, the pilot judge determines if it is actually complex.514
San Francisco uses a similar method.515 In Oakland, Alameda County, after a party
designates a case as complex, there is a hearing to determine whether it will be
included in the program.516 In Orange County, if a case is designated as complex
by a party, it is randomly assigned to one of the program judges, but will be
reassigned upon a successful challenge.517 Cases not originally treated as complex
can later be reassigned to the program.518
Los Angeles County, with a population of over 9.8 million and a decentralized
Superior Court, has a dramatically different approach than the other counties.519
All class actions are filed in a single division and then immediately assigned to
the pilot program, with other cases designated as complex being assigned to a
civil court judge who reviews the case and has the discretion to keep it or send
it to the pilot program for case management.520 One third of the cases referred
have been sent back to the regular docket as they were determined not to be
complex.521 The supervising judges in Los Angeles and Orange County, and the
single judges in the other four pilot programs, review cases before accepting them
into the program, using objective procedures and criteria.522
The judges view themselves as pro-active case managers. They use a variety of
skills and techniques to move the parties toward identifying key areas of dispute
and investigation, so that they can make informed judgments to facilitate settle-
ment, and to make dispositive rulings, as necessary, to resolve cases.523 Only a
small number of cases went to trial.524
The large portion of construction defect cases raises a number of issues, such
as to what extent these cases might be treated as commercial cases in some in-
stances in other jurisdictions.525 A broader, and yet more pointed issue, is raised
513. NCSC Evaluation, supra note 497, at 13.

514. Id. at 14. Only an estimated 8 to 10 percent of the cases are returned. Id.
515. Id. at 15.
516. Id. at 17.
517. Id. at 18.
518. Id.
519. Id. at 19.
520. Id. at 19–20.
521. Id. at 20.
522. Id. at 10. In Los Angeles, however, a judge can opt to retain a complex case that might
otherwise go into the program. Id.
523. Id. at 12. One complaint the program judges had was that their effectiveness was hampered
by procedural rules limiting their ability to grant partial summary judgments. Id. at 21.
524. Id.
525. In Massachusetts, the Business Litigation Session will hear commercial claims including real
estate matters “which have complex factual or legal issues or are likely to require complex case
management.” See Appendix A, infra p. 242. If a homeowners association is the plaintiff, suing a
corporate builder, this section may be implicated. If the case is viewed as a body of residential home-
owners or a mass tort, then this may not be the case. In New York, similar ambiguity may be resolved
as part of the ongoing case guideline study; although at least some judges have been willing in the
past to hear construction defect cases in the Commercial Division. See Kerusa Co. LLC v. W10Z/515
by the potential for treating this huge swath of construction defect cases in a
specialized forum. These cases not only appear to take up a disproportionate
amount of the complex pilot case load,526 but construction defect cases have
unique characteristics which may permit such specialized treatment.527
Although some might argue that a construction defect litigation program would
cater to one segment of litigants and to the bar, and divert resources, etc., as was
argued against a business court in California, such an option certainly seems
rational. It is akin to court programs dedicated to asbestos litigation, and it is a
route taken in Clark County, Nevada.528 This reflects the fact that the needs and
objectives of substantively specialized courts can be different from, yet not in
conflict with, the objectives of a specialized complex litigation program.
B. CONNECTICUT’S COMPLEX LITIGATION DOCKET

In April 1997, The Corporate Bar issued a “rare” policy statement calling for
the creation of a business court in Connecticut.529 In January 1997, a bill had
been introduced before Connecticut’s House of Representatives to establish a busi-
ness court.530 The following winter, the Connecticut Trial Lawyers Association
voted to oppose a business court, and there was editorial opposition as well.531
During that same time period, there was advocacy for Connecticut to develop and
implement a complex litigation program for the twelve judicial districts of Con-
necticut’s Superior Court.532 Framing the debate as a choice between one court
program or the other, Connecticut did not adopt a business court, but launched
Real Estate Ltd. P’ship, No. 04 CIV.708-10(GEL), 2004 WL 1048239, at *4 (S.D.N.Y. May 7, 2004)
(in a construction defect case pending in bankruptcy court, the federal court observed that the cases
started in the commercial division and could be efficiently resolved there, rather than being transferred
to another bankruptcy court).
526. As things now stand, the resources of the complex litigation program provide an exceptional
and unique forum to this single segment of litigants and their lawyers, at least in some counties. NCSC
Evaluation, supra note 497, at 14 n.22, 17–18, 22 n.28 (Contra Costa and Orange Counties).
527. The NCSC Evaluation repeatedly observes that these cases reflect a unique use of referees,
the prevalence of the construction defect bar involved in the complex case program (37 percent of
surveyed lawyers with complex practices), and the need for less management because of counsel’s
familiarity with each other. NCSC Evaluation, supra note 497, at viii, 12, 14, 18, 25, 28.
529. Lynne J. Tomeny, The Corporate Bar Issues a Policy Statement Supporting Creation of A Connecticut
Business Court, METROPOLITAN CORP. COUNS., Apr. 1997, at 53. Lynne Tomeny was the Corporate
Bar’s President at the time and issued a letter setting forth reasons for creating business court.
530. Create a Complex Business Docket—Not a Business Court, CONN. L. TRIB., May 25, 1998 [here-
inafter Law Tribune Editorial].
531. Susan D. Etkind, Attorneys Debate Simplifying Complex Litigation, CONN. L. TRIB., Feb. 9, 1998;
see also Law Tribune Editorial, supra note 530 (advocating that a complex litigation program would
provide a flexibility that more accurately met the needs of Connecticut’s court system and huge jury
backlog). The complex docket was also advocated by the Citizens’ Conference on the Connecticut
Courts in November 1997. Peter L. Costas, Complex Litigation Docket A First Step Toward Better Civil
Litigation Management, CONN. LAW. Dec. 1999–Jan. 2000, at 14. The debate in Connecticut clearly
reflected (i) a belief that there had to be a choice between these two types of courts; and (ii) strong
passions on which choice should be made.
532. Etkind, supra note 531.
its complex litigation program on June 1, 1998.533 This program is known as the
Complex Litigation Docket or CLD.
The complex litigation program’s hallmark is to assign one judge to each case.534
The judge becomes involved upon assignment, and develops a case plan at an
early case management conference.535 Either the parties or the court can request
a complex litigation designation.536 The bench urges the bar to use the Complex
Litigation Docket “in any type of case that has intricate issues or unique concerns
which would benefit from the specialized attention available in this program.”537
The Chief Administrative Judge of the Civil Division is the ultimate gatekeeper
on whether or not a case is accepted in the CLD.538
Currently there are eight complex litigation judges,539 with each judge respon-
sible for an average of 143 cases.540 ADR is an important component of the pro-
gram, with the judges acting as mediators in each other’s cases, giving at least a
full day to the mediation process.541 In an important case for the CLD, Connecti-
cut’s Supreme Court reversed a lower appellate court decision, and found that
“as a matter of law, no case is too complex for summary judgment.”542
The original categories of case types were broad, including class actions, se-
curities fraud, mass torts, medical malpractice, products liability, construction
contracts, intellectual property, and a catch-all category provision,543 and matters
“where the multiplicity of parties or issues suggests special procedures.”544 Case
types had been expanded to fifteen categories, from a more narrow original pro-
posal of class actions, product liability, construction contracts, and claims under
Connecticut’s Unfair Trade Practices Act.545 Cases can be designated complex
533. Scott Brede, Streamlining the Backlog of Knotty Cases, CONN. L. TRIB., Apr. 19, 1999. Those
advocating the complex court program believed that some goals sought in a business court could be
achieved, such as developing case law, but business court advocates expressed concern that the com-
plex court would not meet such objectives, as achieved in New York’s Commercial Division, and
asserted that concerns over a business court being “elitist” or taking assets away from the handling of
other litigation were not accurate. Etkind, supra note 531.
534. Law Tribune Editorial, supra note 530. This is not the typical judicial assignment pattern in
Connecticut. Brede, supra note 533.
535. Peter L. Costas, The Complex Litigation Docket, Try It, You’ll Like It, CONN. LAW., Feb. 2000,
at 18.
536. Sheila Anne Denton, Resolving Complex Cases: The One-Judge Solution, CONN. LAW., Mar. 2004,
at 16 (“Currently, approximately forty CLD applications are received each month . . . 43 percent are
from the presiding judge, 32 percent are from the defendant, and 25 percent are from the plaintiff.”).
537. Id.
538. Notice to Attorneys re: Complex Litigation Docket, Superior Court, Civil Division ( June 3,
2002), available at http://www.jud.state.ct.us/external/super/ComplexLitigationNotice.pdf.
539. Denton, supra note 536, at 17. State budget concerns have limited reaching the goal of twelve
judges.
540. Id. These are not permanent assignments, as judges can be transferred to the normal docket.
Id. The CLD is available in five court locations. Notice to Attorneys re: Complex Litigation Docket,
Superior Court, Civil Division ( June 3, 2002), available at http://www.jud.state.ct.us/external/super/
ComplexLitigationNotice.pdf.
541. Denton, supra note 536, at 17.
542. Gould v. Mellick & Sexton, 819 A.2d 216, 220 (Conn. 2003).
544. Brede, supra note 531.
545. Id.
based on various factors, including the number of parties, the size of the claim
and the length of the trial.546
During its first year of operation, the assigned cases were “evenly divided be-
tween business and tort cases.”547 Between June 1998 and November 2003, 2,585
cases had been designated to the complex litigation docket.548 As of March 2004,
46 percent of the cases involved non-vehicular torts such as medical malpractice,
wrongful termination, and product liability.549 Twenty-one percent are contract
cases, while vehicle cases are 7 percent and property damage cases 6 percent of
the caseload.550 There are small percentages of housing matters, administrative
appeals, and probate appeals, with the remaining 13 percent including other
miscellaneous matters.551 The program is considered by most to be a success.552
C. ARIZONA’S COMPLEX LITIGATION PILOT PROGRAM

On November 22, 2002, Arizona Supreme Court Chief Justice Charles E. Jones
issued an order establishing a Complex Litigation Program in the Superior Court
of Maricopa County on an experimental basis.553 The Supreme Court had previ-
ously created the Committee to Study Complex Litigation in Arizona courts, and
that body produced a report which the Arizona Judicial Council unanimously
approved in October 2002.554 Originally, the pilot program was to operate in
Maricopa for a period that is no longer than January 1, 2003 to December 31,
2004.555 The program is monitored by the simultaneously created Complex Civil
Litigation Court Evaluation Committee.556
The new rules defining cases that are appropriate for complex designation focus
on case management issues, and not the subject matter of cases.557 These include
such factors as: the number of pre-trial motions expected; the number of wit-
nesses; the amount of evidence; the numbers of separately represented parties;
coordination with related cases in other forums; the need for post-judgment ju-
dicial supervision; whether the case would benefit from a single judge having
knowledge of the specific area of law at issue; inherently complex legal issues;
546. Id.
547. Costas, supra note 531, at 14 (as reported by Chief Administrative Judge Joseph H. Pelligrino).
549. Id.
550. Id.
551. Id.
552. Id. at 17.
553. In the Matter of Authorizing a Complex Litigation Program Applicable in Maricopa County,
Administrative Order No. 2002-107 (Ariz. Nov. 22, 2002) [hereinafter Arizona Order]. Phoenix is
located in Maricopa County.
554. Id.
555. Id. As discussed herein, this date was extended.
556. Id. The Court Evaluation Committee has its own website, at http://www.supreme.state.az.us/
courtserv/ComplexLit/default.htm.
557. ARIZ. R. CIV. P. 8(i)(1) (2004) (rule made applicable under the Arizona Order), supra note
553, at Appendix A. The text of ARIZ. R. CIV. P. 8(i)(1) currently provides: “[A] ‘complex case’ is a
civil action that requires continuous judicial management to avoid placing unnecessary burdens on
the court or the litigants and to expedite the case, keep costs reasonable, and promote an effective
decision making process by the court, the parties, and counsel.”
and the need for expeditious resolution of a complex matter and designation when
the interests of justice would be served.558
The Committee to Study Complex Litigation reviewed materials on complex
and commercial case programs nationally, and concluded that Arizona should
follow California’s model, rather than a commercial case program.559 The Com-
mittee recognized the California pilot program as targeting substantively and pro-
cedurally complex cases, and that the Arizona program would include not only
traditional commercial cases, but cases such as mass and toxic torts.560 Unlike
California, Arizona courts would not get new funding but would rely on a real-
location of existing court resources, or fees generated by that court.561 Continuing
judicial education is an important part of the program.562
One judge handles the entire case, and is to take a hands-on approach, with
case management “aimed at encouraging early resolution of cases or parts of
cases.”563 There are to be court-annexed mediators and arbitrators, and program
judges will be able to handle discovery disputes on short notice.564 The parties
may move and seek to certify cases for complex designation, but it is the presiding
judge of the court, or that judge’s designee, who makes the decision.565 The ap-
plication process is serious as it requires certification under the strictures of Ari-
zona Rule 11;566 and the gatekeeper function is not to merely be a rubber stamp
to anyone asking for inclusion in the program.567
558. ARIZ. R. CIV. P. 8(i)(2), supra note 553, at Appendix A. Factors considered in determining
complexity are whether:
(A) Numerous pretrial motions raising difficult or novel legal issues that will be time-consuming
to resolve; (B) Management of a large number of witnesses or a substantial amount of documen-
tary evidence; (C) Management of a large number of separately represented parties; (D) Coor-
dination with related actions pending in one or more courts in other counties, states or countries,
or in a federal court; (E) Substantial post judgment judicial supervision; (F) The case would
benefit from permanent assignment to a judge who would have acquired a substantial body of
knowledge in a specific area of the law; (G) Inherently complex legal issues; (H) Factors justifying
the expeditious resolution of an otherwise complex dispute; (I) Any other factor which in the
interests of justice warrants a complex designation or as otherwise required to serve the interests
of justice.
Id.
559. Committee to Study Complex Litigation, Final Report of the Committee to Study Complex Liti-
gation (Sep. 2002), available at www.supreme.state.az.us/courtserv/complexlit/final.pdf at 3–4 [here-
inafter Arizona Final Report]. The Court Evaluation Committee’s minutes for March 18, 2004 indicate
that the issue of a New York style business court was raised, but the consensus was not to include
non-complex business cases, though the Committee would investigate if there were complex business
cases that were not being placed into the program. Complex Civil Litigation Court Evaluation Com-
mittee Minutes, Mar. 18, 2004 (Draft) [hereinafter March 2004 Minutes], available at http://www.
supreme.state.az.us/courtserv/ComplexLit/Min-04-03.pdf.
560. Arizona Final Report, supra note 559, at 4.
561. Id.
562. March 2004 Minutes, supra note 559, at 2.
563. Arizona Final Report, supra note 559, at 4.
564. Id.
565. Arizona Order, supra note 553 (appending new Rule 8(i)(3, 6)). See ARIZ. R. CIV. P. 8(i)(3)–
(7).
566. Id. at 8(i)(3).
567. The Evaluation Committee’s August 2003 minutes indicate that while fourteen cases had been
assigned to the program, twelve applications were denied, with some concern expressed over forum
As of March 18, 2004, there were twenty-six cases in the program, with three
designations pending.568 The complex litigation pilot program judges have had to
maintain a full civil caseload, and there have been budget constraints affecting
the pilot program.569 In light of the slow start up of the program, the Evaluation
Committee anticipated asking for an extension of the pilot program beyond De-
cember 2004 so that the program’s impact can be better measured.570 Similar to
concerns expressed by those favoring complex courts over business courts, one
judge expressed a concern that the complex litigation program might be viewed
as “elitist.”571 The purpose of the program is to relieve congested calendars for the
judges hearing more routine cases, thus removing the time consuming complex
cases from their dockets and re-assigning the complex cases “to a dedicated panel
of judges specially trained in complex case management;” ideally cutting down
on litigation time and saving costs and resources of both the court and the
litigants.572
D. PITTSBURGH’S COMPLEX CASE ASSIGNMENT

Through local rules, the Court of Common Pleas of Allegheny County, Penn-
sylvania (Pittsburgh) has a format for assigning complex cases to a single judge.573
The rule provides that application for complex designation be made to the “Com-
plex Case Judge.”574 Cases may be considered complex if the case cannot be tried
within ten days, involves complex questions of law and fact, “or when the orderly
administration of justice requires that the case be assigned to a single judge.”575
The parties must file a motion with the complex case judge to obtain that
assignment.576
Judge R. Stanton Wettick, Jr. has been the complex case judge since 1990.577
He has described most complex cases as being in the areas of medical malpractice,
products liability, and commercial litigation.578 Cases coming to him as complex
case judge include “large cases involving the kinds of complex issues that char-
shopping. Complex Civil Litigation Court Evaluation Committee Minutes, Aug. 26, 2003 (Draft),
available at http://www.supreme.state.az.us/courtserv/ComplexLit/Min-03-08.pdf.
568. March 2004 Minutes, supra note 559, at 1. More recent figures are set out in Complex Civil
Litigation Court Evaluation Committee Minutes, Aug. 23, 2004 (Draft) [hereinafter August 2004
Minutes], available at http://www.supreme.state.az.us/courtserv/ComplexLit/Min-04-08.pdf.
569. Complex Civil Litigation Court Evaluation Committee Minutes, Dec. 17, 2003 (Draft), at 1–
2, available at http://www.supreme.state.az.us/courtserv/ComplexLit/Min-03-12.pdf.
570. Id. at 2. Arizona’s Chief Justice has since “approved a two-year extension of the pilot program
and the [Evaluation] Committee’s term.” August 2004 Minutes, supra note 568, at 1.
571. March 2004 Minutes, supra note 559, at 3.
572. News Release, Arizona Supreme Court Administrative Office of the Courts, New Complex
Litigation Program Promises to Reduce Time and Cost of Going to Court ( Jan. 7, 2003) (on file with The
573. ALLEGHENY CO. PA. CIV. AND FAM. R. 249 IV (1999).
574. Id. at IV(A).
575. Id. at IV(B).
576. Allegheny County Civil Practice Manual § 9-1.0, at 91.
577. A Conversation With Judge Stanton Wettick, Allegheny County Common Pleas Court, PENN. LAW
WKLY., Apr. 17, 1995, at 7 [hereinafter Wettick 1995 Interview]; Conversation With Judge John L.
Musmanno, Allegheny County Common Pleas Court, PENN. L. WKLY., July 25, 1994, at 7.
578. Wettick 1995 Interview, supra note 577.
acterize corporate governance, complicated commercial transactions and insur-

ance coverage issues . . . .”579 From seeing so many of these cases he has developed
an expertise in handling them.580 When responding to a question about Pitts-
burgh’s hospitality to high-tech business, one federal judge said of Judge Wettick:
“Judge Wettick of the Common Pleas Court does an outstanding job of handling
discovery motions and complex business litigation. The results compare favorably
with those in the new commercial or business courts that are being set up else-
where.”581 Approximately ninety percent of the cases are settled or otherwise reach
disposition before trial.582
XVII. DELAWARE COURT OF CHANCERY AND SUPERIOR COURT583

A. COURT HISTORY
The most well known of the courts that are considered business courts is the
Delaware Court of Chancery, which historically is an equity court.584 It hears
numerous kinds of corporate disputes,585 as well as other equitable matters wholly
unrelated to corporations.586 The Delaware Superior Court is Delaware’s trial level
court of general jurisdiction for non-equity cases.587 That court hears cases in-
volving money disputes between businesses that could fall in the jurisdiction of
579. The Hon. R. Stanton Wettick: Effectively Handling Business And Other Complex Disputes, MET-
ROPOLITAN. CORP. COUNS., N.E. ed., May 2001, at 48 [hereinafter Wettick 2001 Interview].
580. Id.
581. The Hon. Robert Cindrich, A Quality Court Attracts Business To Pittsburgh, METROPOLITAN CORP.
COUNS., N.E. ed., July 2001, at 50. He is “involved in cases involving complex issues that businesses
care about in which only one party may be a business.” Wettick 2001 Interview, supra note 579.
582. Id.
583. Delaware’s Supreme Court is not addressed herein as a “business court,” but the frequency
with which it renders important rulings on the matters of corporate law that were first before the
Chancery Court mark its place as a pre-eminent “business court” in its own right. See, e.g., Smith v.
Van Gorkom, 488 A.2d 858 (Del. 1985). While only five percent of the Supreme Court’s cases are
business cases on appeal from Chancery, the precedential importance of many of those cases may
result in commanding twenty percent of the Supreme Court’s time. E. Norman Veasey, The Drama of
Judicial Branch Change in this Century, 17 DEL. LAW. 4, 5 (Winter 1999–2000), available at 17-WTR
DELAW 4, http://www.westlaw.com.
584. DEL. CODE ANN. tit. 10, § 341 (2002). Under section 342, “The Court of Chancery shall not
have jurisdiction to determine any matter wherein sufficient remedy may be had by common law, or
statute, before any other court or jurisdiction of this State.” Id. § 342. As discussed infra, the inclusion
of a new technology jurisdiction permits the Chancery Court to decide or mediate purely monetary
matters in some cases.
585. The Chancery Court’s five judges (one Chancellor and four Vice-Chancellors) handle approx-
imately 500 business cases a year, including “typical corporate cases—derivative, class actions, in-
junctions, internal corporate affairs, and the like.” The Drama of Judicial Branch Change in this Century,
supra note 583, at 5. These often complex and important cases constitute approximately 75 percent
of the Chancery Court’s case load. Id.
586. For example, in Anolick v. Holy Trinity Greek Orthodox Church, Inc., 787 A.2d 732 (Del. Ch.
2001), the court was faced with the issue of whether the plaintiff had an easement in an alley way.
While this case does not implicate, in the slightest, the issues popularly associated with the Delaware
Court of Chancery, the thoroughness and detail with which the case was considered, and the opinion
rendered, demonstrate a quality in decision making that is esteemed when considering the Chancery
Court as the premier business court.
587. O. Francis Biondi et al., The Commission on Delaware Courts 2000: A Work in Progress, 13 DEL.
LAW. 28 (Winter 1995), available at 13-WTR DELAW 28, http://www.westlaw.com.
developing business courts in other states.588 The Superior Court handles a sig-
nificant volume of commercial cases, is a national forum for commercial insurance
coverage disputes, spends significant time on complex civil litigation, and finds
major corporations as parties on its docket.589
The prestige of Delaware’s Chancery Court, i.e., the esteem in which it is widely
held, is an integral part of that court. The Chief Justice of the U.S. Supreme Court
celebrated the Chancery Court as “an important contributor to our national sys-
tem of justice.”590 He identified some of the sources for the Chancery Court’s
preeminence as the opportunity to obtain quick and effective action,591 expertise,
economies of scale that have lent themselves for efficiency, and “[p]erhaps most
importantly,” a refined body of law allowing businesses the prescience to avoid
suits.592
Lawyers have “praised the depth and precision of the written opinions gener-
ated by the Delaware Court of Chancery as that court’s greatest strength.”593 In
testifying before the Maryland Task Force studying implementation of a business
and technology court, Chancellor William Chandler left the Task Force with the
understanding that the Chancery Court’s “effectiveness” and “national reputation”
is “brought on by a thorough understanding of corporate issues.”594 This thor-
oughness includes mutual respect, collaborative effort and cooperation, Chancel-
lor Chandler also having testified that: “Members of the Court of Chancery also
discuss complex issues among themselves, and review opinions prior to release
to the parties and the public to insure consistency.”595
The Chancery Court is also a model because it represents high institutional
aspirations. The attention to detail, cooperation, and care in seeking a proper and
thoroughgoing result reflect a judicial body that commands respect because the
court and its judges demand that they give respect to the cases before them.
Although the rich history of an over 200 year old court cannot be duplicated, its
588. See, e.g., Edge of the Woods, L.P. v. Wilmington Sav. Fund Soc’y, 2001 Del. Super. LEXIS 304,
at *1 (Del. Super. Ct. Aug. 16, 2001) (“This case involves alleged breaches of loan agreements arising
out of years of commercial loan transactions and dealings between the Plaintiffs and the Defendant.”);
see also Outdoor Techs. v. Allfirst Fin., Inc., 2000 Del. Super. LEXIS 16 (Del. Super. Ct. Jan. 24, 2000);
Pfizer Inc. v. Advanced Monobloc Corp., 1999 Del. Super. LEXIS 330 (Del. Super. Sept. 2, 1999);
S&R Assocs., L.P., v. Shell Oil Co., 725 A.2d 431 (Del. Super. Ct. 1998).
589. Henry duPont Ridgely: The Superior Court, Offering an Ideal Forum for Resolution of Business
Disputes, METROPOLITAN CORP. COUNS., N.E. ed., Mar. 2001, at 45.
590. William H. Rehnquist, The Prominence of the Delaware Court of Chancery in the State-Federal
Joint Venture of Providing Justice, 48 BUS. LAW. 351, 354 (1992) [hereinafter Rehnquist].
591. Id. Chief Justice Veasey describes Chancery’s adjudicating a large stakes dispute, involving an
issue of New York contract law, in a matter of weeks; culminating in a fifty-five page opinion by
Chancellor Chandler issued five days after the 4 day plenary trial ended. The Hon. E. Norman Veasey—
An Efficient Court System: A Factor to Consider in Selecting a Business Location, METROPOLITAN CORP.
COUNS., N.E. ed., Mar. 2001, at 1. The losing trial counsel commended the expeditious and close
attention received in the Chancery Court. Id.
592. Rehnquist, supra note 590, at 354.
593. Focus on Business and Complex Courts, supra note 11.
594. Maryland Task Force, supra note 71, Appendix B, at 24.
595. Id.
ethic and sense of responsibility can be emulated.596 One of the court’s greatest
Chancellors, Collin J. Seitz, Jr., made this essential point when asked about the
nationwide prominence of some of his Chancery decisions: “I don’t want to be
modest, but all cases are transitory. I would rather be remembered for fair treat-
ment in handling the cases rather than any particular case.”597
B. SUMMARY PROCEEDINGS IN THE SUPERIOR COURT

In 1993, Delaware’s Governor established a Commission on Major Commercial
Litigation Reform.598 The Commission recommended creating procedures for ex-
pediting resolution of business disputes.599 The recommendation was endorsed
by the Governor and General Assembly in 1994.600 The Joint Resolution of the
General Assembly observed the large number of corporations and financial insti-
tutions in the state, which came to the state in part because of the quality of
Delaware’s courts and their reputation for “swift and predictable judicial action.”601
The new procedures were recommended, and endorsed, in light of concerns over
the high costs and delays associated with litigation, including business and com-
596. One reads of the extraordinary groupings of judges like Cardozo’s New York Court of Appeals
or Hands’ and Thomas Swan’s Second Circuit, as kinds of golden ages; but it is not necessary for a
court to be extraordinary to be hardworking, fair, capable and effective.
It is further interesting to observe that these judges served on pre-eminent commercial courts. Judge
Posner observes that in the late 19th and for decades into the 20th Centuries, “[t]he New York Court
of Appeals was the nation’s premier commercial court.” RICHARD A. POSNER, CARDOZO: A STUDY IN
REPUTATION 129 (1993). The Second Circuit has been described as “the country’s leading commercial
court during the 1940s and 1950s . . . .” Margaret V. Sachs, Judge Friendly and the Law of Securities
Regulation: The Creation of a Judicial Reputation, 50 SMU L. REV. 777, 791 (1997). Judge Posner’s own
court has been studied as a commercial or corporate law court. Richard A. Booth, The Seventh Circuit
as a Commercial Court, 65 CHI.-KENT L. REV. 667, 672 (1989) (“There can be little doubt that the
Seventh Circuit has been a leader in the development of corporation and securities law. Some of the
very biggest names in the pantheon of Supreme Court cases have been reversals of Seventh Circuit
decisions. While some might regard that as embarrassing, it also indicates that the court has been
innovative. And this tendency predates the advent of Judges Posner and Easterbrook on the court by
several years.”).
597. Edmund N. Carpenter II, A Conversation with Judge Collins J. Seitz, Jr., 16 DEL. LAW. 24, 28
(Fall 1998) available at 16-FALL DELAW 24, http://www.westlaw.com (wherein one of Delaware’s
great lawyers interviewed one of its great judges). Justice Rehnquist’s piece on the Chancery Court
includes what “in the eyes of many . . . is the Court of Chancery’s ‘proudest accomplishment.’” Rehn-
quist, supra note 590, at 353. That accomplishment was “Chancellor Collins Seitz’ 1952 decision in
Belton v. Gebhart . . . . [where] Chancellor Seitz courageously held that black schoolchildren suffered
from state-imposed segregation.” Id. (footnote omitted). In the group of cases decided by the United
States Supreme Court three years later in Brown v. Board of Education, 349 U.S. 294 (1955), only Belton
was an affirmed decision. Id. at 301. The Delaware Supreme Court affirmed Chancellor Seitz’ decision,
though carrying out its own exhaustive analysis about whether the racially segregated schools were
equal or not. Belton v. Gebhart, 91 A.2d 137 (Del. 1952), aff ’d sub. nom., Brown v. Board of Educ.,
349 U.S. 294 (1955).
598. Supreme Court of Delaware, Administrative Directive No. 96, Feb. 28, 1994 (on file with The
599. Id.
600. Id.
601. Id.
mercial litigation.602 An expedited summary procedure in the Superior Court603 was

suggested for business and commercial cases in excess of $1,000,000.604 The ju-
diciary put these recommendations into effect in 1994.605
The new rules for summary proceedings were little used, and the jurisdictional
amount was subsequently changed from $1,000,000 to $100,000.606 Both the
Superior and Chancery Courts were encouraged to increase efforts at creating
mediation programs.607 Superior Court Rule 124 now provides for summary pro-
ceedings for cases within the Superior Court’s jurisdiction exceeding $100,000,
excluding personal, physical, or mental injury, where at least one party is a Dela-
ware citizen, corporation, or other business entity.608 In choosing the summary
proceeding process, parties surrender the ability to seek punitive damages or jury
trials.609 Since July 1997, there have only been four filings as summary proceed-
ings in the Superior Court.610
This effort nevertheless reflects Delaware’s active awareness of the importance
of specialized court programs to address unique business dispute needs, and the
nature of that need as part of an ongoing process. In 2001, Delaware Supreme
Court Chief Justice E. Norman Veasey observed that “Corporate decisionmakers
are very interested in, and carefully consider, the quality of the courts (and now
their technology) when choosing where to incorporate and to litigate.”611
[T]he conventional wisdom around the nation is that the expertise, stable
body of judicial decisions, prompt service and modern techniques of the
Court of Chancery, Supreme Court and Superior Court are largely credited
with maintaining Delaware’s preeminence as the corporate domicile of choice
602. Id.
603. Less widely known than Chancery, the Delaware Superior Court is the State’s trial court of
general, non-equity, jurisdiction. There has been increased national attention on the Superior Court
as Delaware’s “commercial litigation center for claims involving money damages.” Chief Justice E.
Norman Veasey, Problem Solving in Judicial Management, The State of the Delaware Judiciary, First
Session of the 141st General Assembly, May 1, 2001, at 6 [hereinafter 2001 State of the Judiciary] (on
file with The Business Lawyer, University of Maryland School of Law). Civil filings in Superior Court
went from 5,644 in 1990 to 9,523 in 2000. Id.
604. Id.
605. Administrative Directive No. 96, supra note 598.
606. See DEL. CT. R. 124–31 (2004).
607. Supreme Court of Delaware, Administrative Directive 117, April 1, 1998. Delaware Superior
Court Rule 16.1 addresses mediation and other ADR. DEL. CT. R. 16.1.
608. Summary Proceedings for Commercial Disputes, at http://courts.state.de.us/Courts/Superior
%20Court/ADR/ADR/summary_proc.htm (“The Superior Court has adopted rules and procedures
specifically designed to allow major commercial litigation to be resolved expeditiously and cost-
effectively.”).
609. Id.
610. Telephone interview with Ellen Davis, Civil Deputy in the Prothonotary’s Office of the Superior
Court of Delaware (Sept. 11, 2003). Summary Proceedings were initiated in July 1997, October 2000,
January 2001, and June 2001. These matters were resolved without trial. The limited number of
summary proceeding cases is reminiscent of the Milwaukee County Circuit Court’s efforts at estab-
lishing a voluntary summary proceeding process for business disputes, which did not attract sufficient
cases. See Appendix B, infra p. 275. The authors have not studied either phenomenon in detail;
however, one possibility is that if parties are seeking resolution in a business court, rather than, for
example, through private commercial arbitration or mediation, they may expect, or want, the full
panoply of court powers and jurisdiction to be available.
611. 2001 State of the Judiciary, supra note 603, at 6.
for over 300,000 corporations, including a substantial majority of the For-

tune 500 companies. We cannot be smug, or take for granted this enormous
economic benefit. Other states are taking aggressive steps to compete with
Delaware by improving their business courts with the goal of attracting in-
corporations, businesses, and business litigation to their states. We need to
maintain our competitive national position as well to continue to enhance
the trust and confidence of our residents.612
C. CREATION OF TECHNOLOGY COURT JURISDICTION WITHIN

THE CHANCERY COURT
On May 29, 2003, Delaware expanded the Court of Chancery’s jurisdiction to
include technology disputes613 of greater than one million dollars.614 Delaware’s
Governor Ruth Ann Minner actively sought a technology court in Delaware.615
This was in line with one of the top recommendations of her Strategic Economic
Council as a means to promote economic growth.616 The Governor perceived the
new technology court as joining “two of the mainstays of Delaware’s economy—
technology development and the expert and efficient dispute resolution provided
by Delaware’s courts . . .”617 Delaware Senate Bill 58 creating such jurisdiction
within the Chancery Court was introduced on April 1, 2003, passed the Senate
on April 3, 2003 and the House on May 14, 2003; in both instances without any
negative votes. It was signed into law by Governor Minner in late May 2003.618
Under Delaware Code, title 10, section 346(a), the Chancery Court has been
given the power “to hear and determine technology disputes” if, among other
criteria, the parties agree to that jurisdiction.619 This is a significant change in
612. Id. at 11. There is considerable debate as to whether business courts are being developed to
attract incorporations as such, rather than to simply keep or attract business operations. See, e.g.,
Marcel Kahan & Ehud Kamar, The Myth of State Competition in Corporate Law, 55 STAN. L. REV. 679
(2002).
613. Under DEL. CODE ANN. tit. 10, § 346(c)(1) (Supp. 2004), technology dispute includes,
the purchase or lease of computer hardware; the development, use, licensing or transfer of com-
puter software; information, biological, pharmaceutical, agricultural or other technology of a
complex or scientific nature that has commercial value, or the intellectual property rights per-
taining thereto; the creation or operation of Internet web sites; rights or electronic access to
electronic, digital or similar information; or support or maintenance of the above.
Under section 346(c)(3), the nature of a “technology dispute” is to be interpreted liberally. See Ap-
pendix. A, infra pp. 229–30 for full statutory text.
614. DEL. CODE ANN. tit. 10, § 346(a)(5). See Appendix A, infra p. 230.
615. Darrel W. Cole, Technology Court Could Place Delaware Courts at Top, DEL. L. WKLY., Feb. 5,
2003, at D1.
616. New Law Expands Del. Chancery Court Jurisdiction to Technology Cases, DEL. CORP. LITIG. REP.,
June 9, 2003, at 11.
617. Id.
618. Sean O’Sullivan, Chancery Court Expands: New Rules Designed to Attract More Business to State,
NEWS J., May 30, 2003, available at http://www.delawareonline.com/newsjournal/local/2003/05/30
chancerycourtex.html.
619. DEL. CODE ANN. tit. 10, § 346(a). Neither punitive damages nor a jury trial are available for
parties choosing to litigate a technology dispute in the Court of Chancery. Id. See Appendix A, infra
pp. 229–30.
Chancery Court jurisdiction because it includes jurisdiction to hear and decide

solely monetary disputes that fall into the technology category, which includes
matters involving computer hardware and software, Internet disputes, and “in-
formation, biological, pharmaceutical, agricultural or other technology of a com-
plex or scientific nature that has commercial value, or the intellectual property
rights pertaining thereto . . . .”620 The term technology dispute is to be given a
liberal interpretation.621
As set forth above, the 1998 administrative directive from the Supreme Court
directed the Superior and Chancery Courts to vigorously pursue mediation pro-
grams, and the Chancery Court drafted an elaborate rule to that affect, Chancery
Court Rule 174.622 In creating the Chancery Court’s new technology jurisdiction,
further provision for mediation was created,623 including the mediation of solely
monetary business disputes with at least $1,000,000 at issue.624 Again, this is by
the parties’ choice, so the parties could elect mediation options that do not
include adjudication.625 Unlike section 346, which expands the Chancery’s abil-
ity to adjudicate non-equity matters in technology cases, section 347 empowers
the Chancery to mediate business disputes, without the limitation that they be
technology business disputes.626 “This mediation option will provide a new type
of service to Delaware businesses, at a time when businesses are more interested
than ever in cost-effective and confidential methods to resolve litigable contro-
versies consensually.”627
Section 347 does not limit the Superior Court’s jurisdiction, but it gives the
parties defined options to choose the Chancery Court, which is “expert in han-
dling business matters.”628 Technology disputes may often center on commercial
relationships that require rapid decision on issues of great complexity; and many
will involve injunctions or specific performance which fall into Chancery’s tra-
ditional function.629
Senator Adams’ legislative synopsis to sections 346 and 347 explains the new
Act’s goal: “The State of Delaware wishes to remain preeminent in its ability to
meet the needs of its business community, including the needs of all business
entities domiciled in Delaware.”630 The new Act is intended to:
permit businesses to have the certainty that any future technology disputes
that arise between them may be heard in the Court of Chancery. Thus, the
620. DEL. CODE ANN. tit. 10, § 346(c).

621. Id. § 346(c)(3).
622. Administrative Directive 117, supra note 607; DEL. CT. R. 174 (2004).
623. DEL. CODE ANN. tit. 10, § 346(a).
624. See id. § 347; Appendix A, infra p. 231.
625. DEL. CODE ANN. tit. 10, § 346(d).
626. Id. § 347. The Synopsis to the Act states: “Consistent with the overall objectives of the Act,
the Act also enables the Court of Chancery, by rule, to permit parties to request mediation in order
to resolve high-stakes, complex business disputes.” S. 58, 142nd Gen. Assem. (Del. 2003).
627. Id.
628. Id.
629. Id.
630. Id.
Act enables businesses, at least one of which is domiciled in Delaware, to

contract to have any future technology disputes between them to be adju-
dicated in the Court of Chancery.631
This puts expression to the Court of Chancery’s well-recognized preeminence for
legal stability and expertise in business matters that brings businesses to incor-
porate, and litigate, in Delaware.632
Delaware’s Legislature has the authority to enact statutes expanding the Court
of Chancery’s jurisdiction beyond equity’s traditional bounds.633 This has pro-
vided the means to expand Chancery’s availability to resolve corporate governance
disputes, and the option to center more of these disputes in Chancery.634 The
jurisdictional breadth created by title 10, sections 346 and 347, reflects an ex-
pansion into broader business and commercial disputes, not merely in traditional
equity cases or in equity matters where the court has ancillary jurisdiction over
legal matters that may arise therein.635 Delaware’s Legislature has taken steps to
create a qualitatively broader jurisdiction in the Chancery Court by including
commercial court type legal claims solely based upon money damages. This pro-
vides a new specialized jurisdiction for a court that already has the most respected
level of specialization and expertise in equity based business disputes.636
631. Id.
632. “In sum, the Act provides additional benefits for businesses choosing to domicile in Delaware.
It seeks to keep Delaware ahead-of-the curve in meeting the evolving needs of businesses, thus
strengthening the ability of the State to convince such businesses to incorporate and locate operations
here.” Id.; see also July 2003 Archives, Legislation Aims to Bring More Tech Cases to State, BUS. LEDGER
( July 2003), available at http://www.ncbl.com/archive/07-03law.html (“The legislation, part of Min-
ner’s legislative agenda for 2003, strengthens the Delaware Court of Chancery’s place as a venue for
corporate litigation and will likely have an economic impact on Delaware due to additional corporate
litigation taking place in Wilmington.”).
633. See Clark v. Teeven Holding Co., 625 A.2d 869 (Del. Ch. 1992), observing that the Court of
Chancery has the same jurisdiction that the English High Court of Chancery had in 1776, but that
such jurisdiction could be expanded by recognition of new rights, recognition of injunctive powers,
and by the passage of statutes, e.g., DEL. CODE ANN. tit. 8, § 225 (Repl. Vol. 1999) “granting authority
to Court of Chancery to adjudicate results of corporate elections.” Clark, 625 A.2d at 875–76. Other
examples of the Legislature expanding jurisdiction through statute are section 111, providing that
“[a]ny action to interpret, apply or enforce the provisions of the certificate of incorporation or the
bylaws of a corporation may be brought in the Court of Chancery,” and section 220 regarding stock-
holders rights to compel inspection of corporate books and records. DEL. CODE ANN. tit. 8, §§ 111,
220. Under section 145, the Court of Chancery has exclusive jurisdiction to make a fairness deter-
mination as to whether a corporation can indemnify officers and directors who are found liable to
that corporation. Id. § 145.
634. Email from Professor Lawrence Hamermesh to Lee Applebaum, Esquire (Oct. 2, 2003) (on
file with authors).
635. The Court of Chancery can exercise jurisdiction over claims for money damages or declaratory
relief, where there are also claims for equitable relief over which it has jurisdiction, for example, an
injunction. See, e.g., Kerns v. Dukes, 707 A.2d 363, 368 (Del. 1998).
636. During the first six months after the statute’s enactment, the technology based jurisdiction
had not been used to bring new litigation, but at least one matter had gone to mediation. Josy W.
Ingersoll & Matthew P. Denn, Delaware Debuts Technology Court, Mediation State Remains on Cutting
Edge in Handling Business Disputes, DEL. L. WKLY., Feb. 25, 2004, at D5. As of June 18, 2004, three
cases had gone to mediation under section 347. Email from Chancellor William B. Chandler III of the
Delaware Court of Chancery to Lee Applebaum, Esquire ( June 18, 2004) (on file with authors). In
light of the jurisdictional amount at issue, and the specific nature of the type of claims permitted
under section 346, it will likely take some time to take measure of that statute’s use.
XVIII. JURISDICTIONAL COMPARISONS

Generally, two basic jurisdictional patterns emerge in existing or proposed busi-
ness courts: (i) inclusion of all cases that fall within explicitly defined case types;
or (ii) inclusion only of complex cases or cases with novel legal issues (the reso-
lution of which will have a broadly instructive effect), with the virtually automatic
inclusion of a very limited number of case types, such as shareholder derivative
suits.637 This second approach typically involves more judicial involvement and
scrutiny as to what cases will and will not be heard in the business court.638
A. BROAD JURISDICTION BUSINESS COURTS

Although New York County’s Commercial Division currently has a $125,000
jurisdictional minimum,639 some provisions requiring that a matter be compli-
cated,640 and provision that cases may be culled based upon the court’s case
load,641 it is the model for the first type of jurisdiction. Thus, thousands of cases
are filed in the Commercial Division annually. Cook County’s Commercial Cal-
endar, which itself is approaching 4,500 annual filings, Philadelphia’s Commerce
Program, and now Orlando’s Business Court, have a similar design.642 Colorado’s
Business Committee would likewise have adopted an approach of presumptively
637. The Delaware Court of Chancery certainly provides another model, but it does not appear
that other jurisdictions are looking to establish an equity court model for their business courts; at
least where a Chancery Division does not already exist. (As set forth supra, New Jersey is experimenting
in four Counties by assigning all complex business cases to Chancery judges.) On a more fundamental
level, however, the Delaware Court of Chancery sets forth the basic concept that a business court
should address a large number of business disputes via a highly capable set of judges hearing individual
cases from beginning to end.
638. The AEQUITAS, Inc., Georgia Feasibility Study refers to this as the “Gatekeeper” function and
recommends it for Georgia. AEQUITAS, Inc., Georgia Feasibility Study, supra note 120, at 15. Courts
with lists of specific case types can include judicial review of whether cases do or do not come within
the specified criteria, and this can include judicial intervention to determine what falls within the
specified criteria. This appears to be a much more black-and-white process, however, than determining
whether a case, even a dispute between two businesses, is sufficiently complex or important. Further,
there are some complex type courts where the lawyer first designates the case, subject to judicial
review.
639. Jurisdictional amounts perform a filtering function, reflecting a pre-made generalized judg-
ment about case volume management, rather than the case by case measure of complexity factors. In
Philadelphia’s Court of Common Pleas all matters below $50,000 must go to arbitration. In Cook
County, there is only a $30,000 limit, but the fact that business disputes sounding in equity go to the
Chancery Division limits the Commercial Calendar’s sizable case volume. Erie County, New York
provides a $25,000 minimum with the express qualification that the amount may be changed de-
pending on the case load. New York County itself encourages electronic filing by reducing the juris-
dictional amount to $25,000, and expanding cases types. See supra notes 60–61.
640. E.g., in commercial real property transactions and environmental insurance coverage litigation.
641. See Appendix A, infra p. 248 (“Due to caseload considerations, the Justices of the Division
are empowered to transfer out of the Division cases which, in their judgment, do not fall within this
category notwithstanding that a party has described the case as ‘commercial’ on the Request for Judicial
Intervention.”).
642. Cook County’s Chancery Division, like New Jersey’s Chancery Division or Delaware’s Chan-
cery Court, must hear cases that fall within its jurisdiction; putting aside the issue of mixed questions
of law and equity for present purposes. The new Delaware Court of Chancery jurisdiction in tech-
nology cases is discussed above.
including all cases within defined categories, without a complexity or other se-
lection component beyond type.643
As reflected in the descriptions above, and in more detail in Appendix A, courts
listing jurisdiction by case type vary in the length of the list, and in specificity.
Although Florida’s Ninth Judicial Circuit’s recent order establishing a business
court subdivision expressly includes U.C.C. transactions between businesses within
the new court’s jurisdiction,644 Colorado’s proposed list states more broadly, “Com-
mercial transactions not involving a consumer party.”645 Colorado’s broad language
encompasses a U.C.C. dispute between businesses, but also encompasses a broader
array of specific disputes, that would also be in the Florida court’s list. Thus, it
is not fully possible to do a one-to-one mapping of what types of claims are or
are not in comparable business court programs because there is no uniform no-
menclature; however, a close look at each shows a virtual identity in the significant
majority of case types.
In courts without a complexity requirement (including those courts such as
Massachusetts Superior Court that include some case types without an additional
express complexity requirement), the following subject areas are common or
almost always common among the business courts:646 intracorporate type gover-
nance disputes (whether for corporations, non-profits, partnerships, joint ventures,
etc.); corporate sales/purchases; securities transactions; shareholder derivative ac-
tions; corporate officer and director liability; U.C.C.; non-compete/restrictive cov-
enant agreements; unfair competition and antitrust; trade secrets; interference
with contractual or business relationships; fraud/misrepresentation in business
contract context; sales of goods or services between businesses; non-consumer
bank transactions; and insurance or indemnification disputes where the under-
lying action involves a business dispute and the insurance policy at issue is com-
mercial. Most, if not all, of these courts will also expressly hear intellectual prop-
erty matters, business matters involving sales of good or services, and commercial
class actions.
Some of these courts will also hear malpractice actions brought by businesses,
but the professionals included within the scope of those claims differ. For ex-
ample, New York County and Nassau County expressly include malpractice ac-
tions against accountants and actuaries and exclude lawyer malpractice; Monroe
County will not hear medical, legal, or accounting malpractice; Erie County will
hear professional malpractice claims other than legal or medical; and Albany
County is silent as to both including or excluding malpractice claims.647 Florida
includes “[m]alpractice claims involving business enterprises and attorneys, ac-
countants, actuaries, architects, or other professionals in connection with the ren-
643. Colorado Report, supra note 72, at 12.

644. Administrative Order No.: 2003-17, In the Circuit Court of the Ninth Judicial Circuit in and
for Orange County, Florida, June 26, 2003 at II.B.1. See Appendix A, infra p. 233.
645. See Appendix A, infra p. 229 (Colorado Report excerpt).
646. This is also said with the understanding that the Cook County Commercial Calendar does
not hear business disputes seeking equitable relief, e.g., enforcement of non-compete agreements,
internal corporate governance disputes, etc.
647. See Appendix A, infra pp. 248–60.
dering of professional services to the business enterprise,” and Massachusetts sim-

ilarly has a presumptive category for “malpractice claims brought by business
enterprises and not-for-profit institutions against professionals relating to render-
ing of professional service.”648 In light of the New York Commercial Division’s
long history before expansion into new counties, and in light of the available
information on business courts possessed by the Massachusetts and Florida
courts, these differences demonstrate the different needs and/or different opinions
held as to what should be included in a business court’s jurisdiction and not some
haphazard array.
Other categories that are found in more than one court include surety bonds
(Florida and Philadelphia); franchise disputes (Florida, Illinois, Albany County,
Kings County, Westchester County, Philadelphia); some types of employment dis-
putes (Cook County, Albany County, Erie County, Kings County, Monroe County,
Westchester County); and business disputes involving commercial leases or pur-
chase/sale/lease/security interests in real or personal property (Florida, Philadel-
phia, Cook County, Albany County, Nassau County, Westchester County, Michi-
gan Cyber Court; and New York County, Suffolk Counties, Massachusetts, and
Rhode Island, if complicated or complex).
B. COMPLEX JURISDICTION BUSINESS COURTS

North Carolina’s Business Court is a model for the second type of jurisdiction,
focusing on the business or commercial case’s complexity. Cases must be rec-
ommended and then meet with the Chief Justice of the Supreme Court’s approval
to become Business Court cases.649 Inclusion is based upon complexity; the pres-
ence of a novel legal issue, the resolution of which has broader implications; and/
or whether the cases fall within certain statutory areas of North Carolina business
law where decisions will provide guidance to North Carolina businesses on cor-
porate governance issues.650 In the typical commercial case under the U.C.C. or
for a business tort, however, the case will not come before the Business Court,
absent complexity or a cutting edge legal issue.
A complexity component is also included in New Jersey’s Complex Commercial
tracking designation (in both the more specialized Bergen and Essex County pro-
grams, as well as state-wide), and in the Maryland Business and Technology Case
Program, though the lawyers first designate the case as complex in New Jersey.
Massachusetts’ Business Litigation Session has a presumptive list of case types,
but also includes a complexity component within that presumptive list. Thus,
although shareholder derivative claims are presumptively included, breach of con-
tract or business tort cases are included only “if they have complex factual or legal
issues or are likely to require complex case management . . . .”651 The Georgia
648. Id at 233, 242.

649. Id. at 264.
650. Id. at 264–65. In light of new recommendations, North Carolina may increase the number of
presumptive categories for business court cases. See supra note 184.
651. Massachusetts Order, supra note 278.
Feasibility Study recommends a model assigning only complex business cases and
selected cases dealing with novel legal theories to the business court as well.652
C. OTHER JURISDICTIONAL MANAGEMENT

Rhode Island does not have a complexity requirement, but Judge Silverstein
must approve any case coming onto the Business Calendar. The Nevada Rules list
some presumptive case types and permit the Judges to hear a wider range of cases
within their discretion, if they believe those cases would benefit from enhanced
case management, indicating an emphasis on complex litigation. In Nevada, it is
counsel that seeks a business court assignment in the first instance, subject to
judicial review.
Delaware has created a voluntary jurisdiction in Chancery if one party is from
Delaware, a technology dispute is at issue, and over one million dollars is at stake.
Michigan’s Cyber Court jurisdiction is likewise voluntary, but provides a general
description within that jurisdiction by case types, where the dispute exceeds
$25,000.653 In both instances, if the criteria are met, and the parties choose that
jurisdiction, then there is no further judicial filtering analysis required as to the
complexity of the case or novelty of the legal issue.
As set forth in section XVI above, California, Connecticut, and Arizona have
chosen to pursue the development of courts for “complex civil litigation” and not
to create business or commercial courts.654 These complex civil courts will hear
complex business disputes, but exclude “business and commercial litigation that
is managerially uncomplicated.”655
D. JURISDICTIONAL OBJECTIVES
A court’s jurisdictional parameters depend upon the objectives to be achieved
in creating a business court, and available resources. As stated above, Colorado’s
Business Court Committee recommended the broader type of jurisdiction on the
basis that: “Defining what constitutes a ‘commercial case’ is fundamental to the
operation of a business court. While the court will be particularly suitable for
652. AEQUITAS, Inc. Georgia Feasibility Study, supra note 120, at 12–13. (“Best practice for a new
business court is tight focus on only complex business cases and selected business cases with novel
legal issues.”).
653. MICH. COMP. LAWS ANN. § 600.8005 (West Supp. 2004).
654. The California Standards of Judicial Administration for Complex Litigation define complex
litigation as “those cases that require specialized management to avoid placing unnecessary
burdens on the court or the litigants.” The scope of this definition is immediately qualified,
in that the Standards go on to state that complex litigation “is not capable of precise definition”
and that it “may involve multiple . . . related cases, extensive pretrial activity, extended trial
times, [and] difficult or novel issues.” The Standards state further that “no particular criterion
is controlling and each situation must be examined separately.”
Scott A. Steiner, The Case Management Order: Use and Efficacy in Complex Litigation and the Toxic Tort,
6 HASTINGS W.-N.W. J. ENVT’L L. & POL’Y 71, 74 (1999) (footnotes omitted). A complex litigation
format is also followed in Pittsburgh and a majority of New Jersey’s counties.
655. Focus on Business and Complex Courts, supra note 11.
complex cases, commercial cases of all levels of complexity will benefit from
adjudication by experienced business jurists.”656
This analysis reflects an objective that all business/commercial disputes be
heard, at every step of the process, by judges who specialize in hearing business
and commercial cases. Judges hearing these cases will continuously develop ex-
perience and knowledge in the substantive law; and in the process of writing
opinions, they may develop a body of law for broad guidance in the community.
They will also develop a variety of case management skills to address the cases
before them. For example, business courts include a significant number of plain-
tiffs seeking temporary restraining orders and preliminary injunctions that call for
the rapid address of often difficult matters, as well as cases posing long-term
complex legal and procedural matters. In between these temporal extremes, these
judges will presumably develop a greater facility in managing and resolving stan-
dard commercial disputes, as well.
The complex business court provides litigants with both judges that have ex-
pertise in business and commercial law, and judges and courts that are constantly
developing their skill and resources in complex case management. It provides
added focus to give full address to the most complex cases, while removing those
cases as impediments to the expeditious resolution of other cases on a court’s
overall docket. The complex business court can also establish a body of law by
rendering opinions that give guidance beyond its courtroom. Thus, with this
guidance, future business cases may be resolved more simply and expeditiously
without the need for specialized complex address. In such circumstances, the
complex court has already wrestled with and determined the issue, and reduced
it from a complex to a manageable form.
A common factor in both business court models is the principle that judges be
knowledgeable in resolving business and commercial disputes (with the addition
of technology disputes arising more recently). This distinguishes both models
from the pure complex litigation court model, where the focus is more upon the
judge’s and court’s ability to capably manage a complex case in terms of efficiency
and procedure, with less emphasis on the subject matter. Although it is likely that
certain types of cases will repeat in the more generalized complex litigation courts,
the functional ability to manage cases properly will not necessarily increase the
ability to address substantive issues more fully. As stated in Georgia’s Feasibility
Study on establishing a business court, the idea of a mixed complex litigation
court dilutes the primary purpose of addressing business law issues.657 Under this
656. Colorado Report, supra note 72, at 12.

657. AEQUITAS, Inc., Georgia Feasibility Study, supra note 120, at 10 (“The long-term assignment
of judges to [complex civil litigation divisions] fosters judicial commercial expertise, except that both
[California and Connecticut] divisions have burgeoning mass torts and class actions, which dilute the
commercial case law experience.”); id. at 12–13 (“Dilution of focus by expanding jurisdiction to equity
or other complex civil cases undermines the court’s primary purpose.”). The NCSC Evaluation uses
statistics showing that commercial cases only amount to approximately 25 percent of the complex
case load, to support the proposition that the complex court pilot program had not become a “bou-
tique” court for business. NCSC Evaluation, supra note 497, at 47. The perception reflected in this use
theory, even if the disposition time of cases or case management efficiencies were
similar between a complex court and a business court, a jurisdiction with an
objective of maximizing the development of judicial business expertise would not
achieve that goal by adopting a mixed complex litigation model.658
XIX. CONCLUSION
Ultimately, a successful business court depends in each instance on the actual
judge hearing business court cases. Judges presented daily with a field of law in
which to cultivate their understanding, knowledge, and ability are more likely to
come to deeper understandings about the inner workings of the legal principles
they face; the patterns that may reveal themselves in the conduct of business
cases; and the patterns of thinking and behavior that may appear in parties and
counsel. The judge without that experience, faced with business disputes, typi-
cally may have to rely upon a less developed understanding of these factors in
rendering decisions.659
of language, not limited to California, is a source of debate which has not ultimately prevented some
jurisdictions from finding that developing judicial specialization in business/commercial courts has a
benefit that serves a broad community of interests worth addressing.
658. As set forth above, New Jersey has a complex commercial track in every one of its counties,
but in only two counties, Essex and Bergen, is there a single judge hearing all complex commercial
cases. See supra notes 205–206 and accompanying text. Court statistics show that, in the Court Year
for 2002, Middlesex County had thirty-nine complex commercial track cases filed, twenty-three re-
solved with a median disposition time of 187 days. During the 2003 court year, forty-nine complex
commercial track cases were filed—more than in any other New Jersey County—twenty-two were
resolved, with a median disposition time of 308 days. See supra notes 229, 235. These numbers are
comparable in many ways to the same categories and figures for Essex and Bergen Counties. Having
practiced in New Jersey’s Superior Court, the authors are also aware of the fine quality of judges on
that court. Still, for the jurisdiction seeking to create a business court, the presence of quality judges
who can manage difficult cases capably does not necessarily provide the continually growing and
evolving level of experience and knowledge concerning substantive business and commercial matters
which is a key component in creating such programs.
659. The fact that same judge or set of judges is deciding cases within a specialized jurisdiction
does not, in our view, inexorably lead to a false stability and predictability in the form of biased
opinion followed by cookie cutter application of precedent. The specialized court is an opportunity
for the opposite phenomenon; an enriched understanding and a cultivated application of precedent
and growth of the law.
APPENDIX A
WRITTEN PARAMETERS OF
BUSINESS COURT JURISDICTION
COLORADO (Proposal of Business Committee, not Implemented)

Colorado’s Business Committee reported its recommendations as follows:
After extensive consideration of these issues, and a review of the experience in
other states, the Committee defined categories of cases it believes are suitable for
filing in the business court. Those categories include disputes involving:
a. The rights, duties, or liabilities of equity owners, managers, or agents of any
form of business entity;
b. The formation, sale or purchase, or merger or conversion of any form of
business entity;
c. Conduct invoking antitrust laws or law governing unfair competition or
interference with business or contractual relations; or agreements or ar-
rangements among businesses, or between businesses and their agents or
employees restraining competition;
d. Commercial transactions not involving a consumer party; or
e. Intellectual property.
While some of these disputes involve the application of statutory rights, the
majority require analysis of consensual relationships and the application of con-
tractual and fiduciary principles or of concepts of property.
Cases involving the rights and duties of employers and employees under State
or Federal statutes are not proposed for inclusion as “commercial cases” in the
pilot project stage. Although closely debated, the Committee believes the number
of such cases is likely to overwhelm the business court, thereby depriving it of
the opportunity to prove its worth in handling of the types of cases listed above.
Furthermore, such statutorily based cases do not necessarily draw on the same
learning and expertise in judges and lawyers as the proposed categories of cases.
Report of the Committee on Business Courts to Governor’s Task Force on Civil
Justice Reform, at 12-13, available at http://www.state.co.us/cjrtf/report/report.
htm (last visited on Oct. 7, 2004).
DELAWARE
Delaware Code title 10, section 346.
Technology Disputes.
(a) Notwithstanding any other provision in this Code, and without limiting the
jurisdiction vested in any court in this State, the Court of Chancery shall have
power to mediate and jurisdiction to hear and determine technology disputes
as defined herein when:
(1) The parties have consented to the jurisdiction of or mediation by the

Court of Chancery by agreement or by stipulation;
(2) At least one party is a “business entity” as defined herein;
(3) At least one party is a business entity formed or organized under the laws
of this State or having its principal place of business in this State;
(4) No party is a “consumer,” as that term is defined in § 2731 of Title 6,
with respect to the technology dispute; and
(5) In the case of technology disputes involving solely a claim for monetary
damages, the amount in controversy is no less than $1,000,000 or such
greater amount as the Court of Chancery determines by rule.
Neither punitive damages nor a jury trial shall be available for a technology
dispute heard and determined by the Court of Chancery pursuant to this
section. Mediation proceedings shall be considered confidential and not of
public record.
(b) A “business entity” means a corporation, statutory trust, business trust or
association, a real estate investment trust, a common-law trust, or any other
unincorporated business, including a partnership (whether general (including
a limited liability partnership) or limited (including a limited liability limited
partnership)) or a limited liability company.
(c) (1) A “technology dispute” means a dispute arising out of an agreement and
relating primarily to: the purchase or lease of computer hardware; the
development, use, licensing or transfer of computer software; informa-
tion, biological, pharmaceutical, agricultural or other technology of a
complex or scientific nature that has commercial value, or the intellectual
property rights pertaining thereto; the creation or operation of Internet
web sites; rights or electronic access to electronic, digital or similar in-
formation; or support or maintenance of the above.
(2) The term “technology dispute” does not include a dispute arising out of
an agreement:
a. That is primarily a financing transaction; or
b. Merely because the parties’ agreement is formed by, or contemplates
that communications about the transaction will be by, the transmission
of electronic, digital or similar information.
(3) The Court shall interpret the term “technology dispute” liberally so as to
effectuate the intent of this section to provide an expeditious and expert
forum for the handling of technology disputes involving parties who have
agreed to resolve their disputes in the Court of Chancery, whether the
parties are seeking to have the Court of Chancery:
a. Mediate the dispute only;
b. Mediate the dispute initially, and if that fails, adjudicate the dispute;
or
c. Adjudicate the dispute.
The court shall adopt rules to facilitate the efficient processing of tech-
nology disputes, including rules to govern the filing of mediation only
technology disputes, and to set filing fees and other cost schedules for
the processing of technology disputes.
Delaware Code title 10, section 347.

Mediation Proceedings for Business Disputes.
(a) Without limiting the jurisdiction of any court of this State, the Court of Chan-
cery shall have the power to mediate business disputes when:
(1) The parties have consented to the mediation by the Court of Chancery
by agreement or by stipulation;
(2) At least one party is a business entity as defined in § 346 of this title;
(3) At least one party is a business entity formed or organized under the laws
of this State or having its principal place of business in this State;
(4) No party is a consumer, as that term is defined in § 2731 of Title 6, with
respect to the business dispute; and
(5) In the case of disputes involving solely a claim for monetary damages,
the amount in controversy is no less than one million dollars or such
greater amount as the Court of Chancery determines by rule.
A mediation pursuant to this section shall involve a request by parties to have
a member of the Court of Chancery, or such other person as may be author-
ized under rules of the Court, act as a mediator to assist the parties in reaching
a mutually satisfactory resolution of their dispute. Mediation proceedings
shall be considered confidential and not of public record.
(b) By rule, the Court of Chancery may define those types of cases that are eligible
for submission as a business dispute mediation. This section is intended to
encourage the Court of Chancery to include complex corporate and com-
mercial disputes, including technology disputes, within the ambit of the busi-
ness dispute mediation rules. The Court of Chancery should interpret its rule-
making authority broadly to effectuate that intention.
FLORIDA
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
ADMINISTRATIVE ORDER
NO.: 2003-17-1
AMENDED ORDER CREATING SPECIALIZED BUSINESS COURT

SUB-DIVISION OF THE CIVIL DIVISION OF THE CIRCUIT COURT
WHEREAS, specialization is common in almost every profession including the

law and it is increasingly common for lawyers to narrow and focus their practices
and increase their mastery of distinct substantive areas of the law; and
WHEREAS, specialization within the legal profession has resulted in the more
efficient delivery of high quality legal services in complex matters; and
WHEREAS, this Circuit has long recognized the need for specialized courts to
deal effectively with diverse matters including criminal law, juvenile justice, do-
mestic relations, probate and drugs; and
WHEREAS, the litigation and resolution of complex business, corporate and

commercial disputes has become an area of specialization within the legal pro-
fession; and
WHEREAS, a court that consistently hears business, corporate and other com-
mercial disputes can be expected to develop expertise, experience and knowledge
enabling it to perform its functions more proficiently, rapidly and confidently;
and
WHEREAS, a business Court will provide consistency and predictability to
litigants and counsel;
WHEREAS, these cases often require a high degree of case management in-
cluding the handling of discovery disputes and motion practice wherein the ser-
vices of a Special Master would be beneficial; and
WHEREAS, the more efficient handling of these cases will free judicial resources
to handle other important matters; and
WHEREAS, the decisions in these cases oftentimes impact not only the litigants
but numerous persons throughout our community including employees, share-
holders, partners, creditors and suppliers; and
WHEREAS, the establishment of a Business Court may become one more factor
in helping our community to attract new businesses that are looking to re-locate;
and
WHEREAS, the need for a Business Court has been studied by the Ninth Ju-
dicial Circuit Business Court Committee and it has passed its resolution urging
the establishment of a Business Court; and
WHEREAS, a review of the current case load in the Civil Division of the Circuit
Court in Orange County, Florida indicates that there are more than 3,000 cases
currently pending that are suited for referral to a Business Court;
NOW, THEREFORE, I, Belvin Perry, Jr., pursuant to the authority vested in me
as Chief Judge of the Ninth Judicial Circuit of Florida under Florida Rule of
Judicial Administration 2.050, Order that:
I. Business Court Established. Effective January 2, 2004, the Business Court

Sub-Division of the Civil Division of the Circuit Court of the Ninth Judicial
Circuit of Florida is hereby established to hear complex business cases, as
hereinafter defined.
II. Cases Subject to Business Court. The principles set out below shall guide
the parties and the Court in the designation of cases for the Business Court.
Notwithstanding anything to the contrary in any prior general Administra-
tive Order or Court procedure, all jury, non-jury, injunction and class action
cases filed on or after December 1, 2003 shall be assigned to the Business
Court if they are among the following types of actions:
A. Actions relating to the internal affairs or governance, dissolution or li-
quidation rights or obligations between or among owners (shareholders,
partners, members), or liability or indemnity of managers (officers, di-
rectors, managers, trustees, or members or partners functioning as man-
agers) of corporations, partnerships, limited partnerships, limited lia-
bility companies or partnerships, professional associations, business

trusts, joint ventures or other business enterprises;
B. Disputes between or among two or more business enterprises relating
to transactions, business relationships or contracts between or among
the business enterprises, including the following examples:
1. Uniform Commercial Code transactions;
2. Purchases or sales of businesses or the assets of businesses;
3. Sales of goods or services by or to business enterprises;
4. Non-consumer bank or brokerage accounts, including loan, deposit,
cash management and investment accounts;
5. Surety bonds;
6. Purchases or sales or leases of, or security interests in, commercial,
real or personal property; and
7. Franchisor/franchisee relationships;
C. Actions relating to trade secret or non-compete agreements;
D. “Business torts,” such as claims of unfair competition, or interference
with contractual relations or prospective contractual relations;
E. Actions relating to intellectual property disputes;
F. Actions relating to securities, or relating to or arising under the state
securities laws or antitrust;
G. Shareholder derivative actions and class actions based on claims other-
wise falling within these types, and consumer class actions other than
personal injury and products liability claims;
H. Actions relating to corporate trust affairs;
I. Malpractice claims involving business enterprises and attorneys, ac-
countants, actuaries, architects, or other professionals in connection
with the rendering of professional services to the business enterprise;
J. Declaratory judgment actions brought by insurers, and coverage dis-
putes and bad faith claims brought by insureds, where the dispute arises
from a business or commercial insurance policy, such as a commercial
general liability policy;
K. Third-party indemnification claims against insurance companies where
the subject insurance policy is a business or commercial policy and
where the underlying dispute would otherwise be assigned to the Busi-
ness Court, not including claims where the underlying dispute is prin-
cipally a personal injury claim; and
L. Such other cases where the primary issue(s) are commercial in nature.
All of the above types of actions may involve individuals named as parties,
in addition to business enterprises, so long as all other criteria are met and
the essential nature of the litigation is a business dispute. For example, a
dispute over a commercial loan may include individual guarantors as either
plaintiffs or defendants, as the case may be, but such a lawsuit would still
be a commercial dispute.
III. Cases Not Subject to the Business Court. The following types of matters are
not ordinarily to be assigned to the Business Court:
A. Appeals from the County Court;

B. Personal injury, survivor or wrongful death matters;
C. Individual (non-class) consumer claims against businesses or insurers,
including products liability and personal injury cases;
D. Matters involving occupational health or safety;
E. Environmental claims not involved in the sale or disposition of a busi-
ness and other than those addressed in Business Court types II ( J) or
(K) above;
F. Matters in eminent domain;
G. Malpractice claims, other than those brought by business enterprises
against attorneys, or accountants, architects or other professionals in
connection with the rendering of professional services to the business
enterprise;
H. Employment law cases, other than those referenced in Business Court
type II (C) above;
I. Administrative agency, tax, zoning and other appeals;
J. Petition actions in the nature of change of name, mental health act,
guardianship, or government election matters;
K. Individual residential real estate and non-commercial landlord-tenant
disputes;
L. Suits to collect professional fees:
M. Cases seeking a declaratory judgment as to insurance coverage for a
personal injury or property damage action;
N. Proceedings to enforce a judgment regardless of the nature of the un-
derlying case;
O. Actions by insurers to collect premiums or rescind policies;
P. Domestic relations matters, and actions relating to distribution of marital
property, custody or support;
Q. Any matter required by statute or other law to be heard in some other
Court or Division;
R. Any criminal matter other than criminal contempt in connection with a
Business Court action;
S. Such other cases which are appropriately transferred out of the Business
Court pursuant to Section V of this Order.
IV. Assignment of Cases to Business Court.
A. Effective August 1, 2003, the Civil Cover Sheet shall include an addi-
tional line and box with which the party or attorney signing the Civil
Cover Sheet must certify whether the action is appropriate for assign-
ment to the Business Court. A “Business Court Addendum to Civil Cover
Sheet,” a sample of which is attached as Exhibit “A,” is hereby required
to be filed with all initial filings which meet the Business Court criteria
and which are filed on or after August 1, 2003. The filing party or
attorney shall indicate on the Business Court Addendum the applicable
type or types of action which make the case appropriate for assignment
to the Business Court. A party’s or an attorney’s signature on the Civil
Cover Sheet shall constitute certification that the matter is or is not

subject to the Business Court, as indicated on the Civil Cover Sheet and
Addendum. A copy of the Civil Cover Sheet and Business Court Ad-
dendum shall be served with the original process served on all parties.
All actions designated into the Business Court pursuant to the Busi-
ness Court Addendum shall be assigned to the Business Court and to
the individual calendar of the Business Court Judge effective December
1, 2003.
B. Cases meeting the criteria to qualify as Business Court cases pursuant
to this Administrative Order shall be assigned to Subdivision 32 in the
Circuit Civil Division in Orange County.
C. Effective October 1, 2003, the Clerk of Court shall cease assigning any
newly filed cases to Subdivision 32 and instead, the Clerk of Court shall
begin randomly and equally assigning all newly filed cases to the other
Subdivisions 33, 34, 35, 37, 39, and 40 in the Circuit Civil Division.
D. The pending cases currently assigned to Subdivision 32 which were filed
prior to October 1, 2003 shall remain assigned to Subdivision 32 and
the Business Court Judge will continue to handle these cases.
E. Effective December 1, 2003, the Clerk of Court shall begin assigning all
newly filed cases which meet the criteria as Business Court cases to
Subdivision 32.
F. The Judges assigned to the other Subdivisions in the Circuit Civil Di-
vision and/or litigants may initiate and submit a request to the Admin-
istrative Judge of the Circuit Civil Division that a pending case which
meets the criteria of the Business Court be re-assigned/transferred to
Subdivision 32 per the Administrative Judge’s discretion.
G. Controversies which may arise concerning the re-assignment/transfer of
any cases in the Circuit Civil Division, including, but not limited to,
Business Court cases, shall be resolved by the Administrative Judge of
the Circuit Civil Division.
V. Disputes Arising From the Civil Cover Sheet Designation. If any party dis-
agrees with the designation or lack of designation of a case into the Business
Court, that party shall file with the initially-assigned Judge a “Motion to
Transfer Divisions” and the motion will be resolved by the Administrative
Judge of the Circuit Civil Division in accordance with the Ninth Judicial
Circuit Administrative Procedures for case re-assignment.
VI. Case Management Procedures. Unless otherwise ordered by the Business
Court Judge these procedures will apply to all cases which are assigned to
the Business Court. Those existing cases which are transferred to the Busi-
ness Court will be subject to these procedures at the discretion of the Busi-
ness Court Judge.
A. The Case Management Conference. Typically, notice of a Case Manage-
ment Conference (“CMC”) will be sent to counsel and unrepresented
parties sixty days after filing of the Complaint, scheduling the CMC for
approximately ninety days after filing. In certain circumstances, the
CMC may be scheduled through the Business Court Judge. Prior to the
CMC, it shall be the obligation of the parties to confer concerning all of
the following matters, for the purposes of reaching agreements. The
following subjects, along with other appropriate topics including those
set forth in Fla R. Civ. P. 1.200 (a), will be discussed at the CMC:
1. Pleadings issues, including service of process, venue, joinder of ad-
ditional parties, theories of liability, damages claimed and applicable
defenses;
2. Timing and potential forms of Alternative Dispute Resolution (ADR);
3. Scheduling dispositive motions and scheduling limited-issue discov-
ery in aid of early dispositive motions;
4. The possibility of settlement;
5. Preparation and issuance of a Case Management Order (“CMO”),
which will set forth a target trial date, deemed the earliest trial date;
6. A discovery plan and schedule based on the CMO date for the com-
pletion of discovery; and
7. Anticipated areas of expert testimony, timing for identification of ex-
perts, responses to expert discovery, exchange of expert reports (ref-
erence to the CMO).
The Business Court Judge, in his/her discretion, may, upon appli-
cation of any party or upon his/her own initiative, modify these pro-
cedures. The Business Court Judge may establish any informal pro-
cedures to achieve expeditious resolution of discovery disputes and
other non-dispositive issues.
B. Case Management Order. After the CMC, the Business Court Judge shall
issue a Case Management Order (“CMO”) setting forth dates for medi-
ation and for a pretrial conference (with pretrial statements typically to
be filed in advance), and for trial. The CMO will also address the other
matters discussed or developed at the CMC, including cut-off dates for
completion of discovery, for the service of expert reports and for the
filing of motions.
Based upon the nature and complexity of the case, the Business Court
Judge, with input from the parties at the CMC, shall assign the case to
a track. The Business Court shall typically employ the following man-
agement tracks: Business Expedited (Target Trial Date within 13 months
of Complaint) and Business Standard (Target Trial Date within 18
months of Complaint). Only exceptionally complicated cases should be
designated Business Complex (Target Trial Date within Two Years of
Complaint). In the latter instance, the Business Court Judge may sched-
ule status conferences at six month intervals or at any other times upon
application of the parties, if appropriate.
The Business Expedited Track shall consist of matters in which min-
imal discovery is needed and legal issues are anticipated to be routine.
Examples of such actions, in the absence of complicating factors, are
actions relating to commercial loans, and contract, UCC and foreclosure
matters. Other matters should presumptively be designated Business

Standard. Actions in which preliminary injunctive relief is sought may
be appropriate for any of the tracks depending upon the circumstances.
C. Pretrial Conference. A Pretrial Conference shall be held in all Business
Court actions pursuant to this Order and Fla R. Civ. P. 1.200 (b). The
pretrial conference will typically be set approximately sixty (60) days
prior to the target trial date. The Business Court shall exercise its best
efforts to try the matter as soon after the target trial date as practicable.
Typically, the CMO will require the filing of pretrial statements in
advance of the pretrial conference. Prior to the pretrial conference, prin-
cipal trial counsel shall confer on the matters set forth in Fla R. Civ. P.
1.200 (b), and attempt to reach agreement on such matters.
Following the pretrial conference, the Business Court Judge shall enter
a Pretrial Order pursuant to Fla R. Civ. P. 1.200 (b), identifying the date
by which the matter should be prepared for trial and otherwise con-
trolling the conduct of trial. The Pretrial Order may further provide
specific dates for such matters as:
1. Exchange of proposed stipulations and filing of stipulations to facts
and issues of law about which there can be no reasonable dispute;
2. Pre-marking and exchanging copies of all documents or other exhib-
its to be offered in evidence at trial;
3. Service and filing of written objections to any documents or other
exhibits as to which a party intends to object at trial, together with
the legal basis for such objections;
4. Identification in writing of all deposition testimony, by page and line
number, intended to be read into the record at trial, followed by
counter-designations and objections to deposition designations;
5. Exchange of trial briefs and proposed findings of fact and conclusions
of law (nonjury) or proposed jury instructions; and
6. Such other matters as the Court deems appropriate.
At such time prior to trial as may be fixed by the Court, it shall
rule on all matters placed in issue under this procedure. In addition,
the Court may establish procedures consistent with the requirements
of each case to ensure close interaction with the parties in order to
minimize trial time.
VII. Appointments.
A. The Honorable Renee A. Roche currently assigned to Subdivision 32 in
the Circuit Civil Division shall remain assigned to Subdivision 32 and
is designated the Business Court Judge until further notice.
B. The Chief Judge may appoint a Business Court Special Master to hear
all matters referred to him or her by the Judge of the Business Court
Sub-Division pursuant to Fla. R. Civ. P. 1.490, and to make recommen-
dations and proposed findings of fact and conclusions of law for the
Judge’s consideration. The Special Master’s compensation and source of
funding shall be addressed in future Orders of the Chief Judge.
VIII. Administrative Order No. 2003-17 dated June 26, 2003 and Administrative
Order No. 2003-25 dated September 25, 2003 are vacated and set aside.
DONE AND ORDERED at Orlando, Orange County, Florida this 26th day of
November, 2003. Nunc pro tunc to August 1, 2003.
/s/ Belvin Perry, Jr.

Belvin Perry, Jr.
Chief Judge
Amended Order Creating Specialized Business Court Sub-Division of the Civil

Division of the Circuit Court, No. 2003-17-1, available at http://www.ninja9.org/
adminorders/orders/2003-17-1.pdf (last visited Oct. 25, 2004).
ILLINOIS
Circuit Court of Cook County, Law Division, Commercial Calendar
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT—LAW DIVISION
GENERAL ADMINISTRATIVE ORDER 92-2

Individual Calendar Call
Effective September 14, 1992, and Individual Calendar Call pilot program shall
be instituted in the Law Division and designated cases now pending and hereafter
filed therein shall be randomly assigned by electronic process to the Individual
Calendars.
A. STRUCTURE
1. The number of Individual Calendars and the judges assigned thereto shall
be as the Presiding Judge of the Law Division shall from time to time
designate.
2. There shall be two sections of Individual Calendars, namely: General Cal-
endar Section and Commercial Calendar Section.
a) General Calendars shall have assigned to them cases of every variety
pending and filed within the Law Division in numbers as shall be from
time to time designated by the Presiding Judge of the Law Division.
b) Commercial Calendars shall have assigned to them cases, whether based
upon theories of tort, contract or otherwise, that involve a commercial
relationship between the parties. The number of cases assigned to each
Commercial Calendar shall be as the Presiding Judge of the Law Division
may from time to time designate.
B. PROCEDURE
1. Once a case has been assigned to an individual Calendar, all proceedings
subsequently initiated and the ultimate trial of the case shall be heard by
the judge presiding over the Individual Calendar to which the case has
been assigned.
..........
IT IS HEREBY ORDERED that this Order is effective September 14, 1992 and
will be spread upon the records of this court.
Dated at Chicago, Illinois this 9th day of September, 1992
ENTER:
Donald P. O’Connell
Presiding Judge
Law Division
The Civil Action Cover Sheet for Law Division Cases in the Circuit Court of Cook
County provides the following choices for the filing party to mark off under the
heading “COMMERCIAL LITIGATION”:
002 Breach of Contract
070 Professional Malpractice (other than legal or medical)
071 Fraud
072 Consumer Fraud
073 Breach of Warranty
074 Statutory Action
075 Other Commercial Litigation
076 Retaliatory Discharge
During the research for this paper, a website posted at www.commercialcourts.net
by one of the Commercial Calendar Judges, included a webpage, no longer active,
stating as follows, concerning matters heard on the Commercial Calendar:
Cases assigned to the Commercial Section Judges include commercial claims in
excess of $30,000.00, including, but not limited to, the following:
Breach of Contract Business Torts & Other Collections
Sale of Goods (Uniform Professional Negligence Notes
Commercial Code) (Except Medical
Malpractice)
Purchase of Services Fraud & Misrepresentation Guaranties
Warranties & Service Contracts Consumer Fraud Act Other Collection
Sale of Business Tortious Interference
Franchise Breach of Fiduciary Duty/
Oppression
Employment Retaliatory Discharge
Indemnification Miscellaneous Statutory
Sale of Real Estate Securities

Commercial Leases Corporate & Business Law
Construction Non-for-Profit
Professional Services Other
MARYLAND
Maryland Rule 16-205 provides:
Rule 16-205. Business and technology case management program.
(a) Definitions. The following definitions apply in this Rule:
(1) ADR. “ADR” means “alternative dispute resolution” as defined in Rule 17-
102.
(2) Program. “Program” means the business and technology case manage-
ment program established pursuant to this Rule.
(3) Program judge. “Program judge” means a judge of a circuit court who is
assigned to the program.
(b) Program established. Subject to the availability of fiscal and human resources,
a program approved by the Chief Judge of the Court of Appeals shall be
established to enable each circuit court to handle business and technology
matters in a coordinated, efficient, and responsive manner and to afford con-
venient access to lawyers and litigants in business and technology matters.
The program shall include:
(1) a program track within the differentiated case management system estab-
lished under Rule 16-202;
(2) the procedure by which an action is assigned to the program;
(3) program judges who are specially trained in business and technology;
and
(4) ADR proceedings conducted by persons qualified under Title 17 of these
Rules and specially trained in business and technology.
Cross References.—See Rules 16-101 a and 16-103 a concerning the assignment
of a judge of the circuit court for a county to sit as a program judge in the circuit
court for another county.
(c) Assignment of actions to the program. On written request of a party or on
the court’s own initiative, the Circuit Administrative Judge of the circuit in
which an action is filed or the Administrative Judge’s designee may assign the
action to the program if the judge determines that the action presents com-
mercial or technological issues of such a complex or novel nature that spe-
cialized treatment is likely to improve the administration of justice. Factors
that the judge may consider in making the determination include: (1) the
nature of the relief sought, (2) the number and diverse interests of the parties,
(3) the anticipated nature and extent of pretrial discovery and motions,
(4) whether the parties agree to waive venue for the hearing of motions and
other pretrial matters, (5) the degree of novelty and complexity of the factual
and legal issues presented, (6) whether business or technology issues pre-
dominate over other issues presented in the action, and (7) the willingness
of the parties to participate in ADR procedures.
(d) Assignment to program judge. Each action assigned to the program shall be
assigned to a specific program judge. The program judge to whom the action
is assigned shall hear all proceedings until the matter is concluded, except
that, if necessary to prevent undue delay, prejudice, or injustice, the Circuit
Administrative Judge or the Circuit Administrative Judge’s designee may des-
ignate another judge to hear a particular pretrial matter. That judge shall be
a program judge, if practicable.
(e) Scheduling conference; Order. Promptly after an action is assigned, the pro-
gram judge shall (1) hold a scheduling conference under Rule 2-504.1 at
which the program judge and the parties discuss the scheduling of discovery,
ADR, and a trial date and (2) enter a scheduling order under Rule 2-504 that
includes case management decisions made by the court at or as a result of
the scheduling conference. (Added Oct. 31, 2002, effective Jan. 1, 2003.)
MASSACHUSETTS
Cases would presumptively qualify as complex commercial cases for the BLS,
whether the litigants are individuals or entities, when issues come within, or meet
the qualifications for inclusion in, one or more of the following categories:
a. claims relating to the governance and conduct of internal affairs of all business
enterprises and not-for-profit institutions, however organized, including,
without limitation, employment agreement disputes, liability of officers, di-
rectors, partners, managers and trustees under statutes and common laws
arising out of the governance and conduct of affairs of the enterprise or
institution;
b. shareholder derivative claims and claims relating or arising out of securities
transactions;
c. claims involving mergers, consolidations, sales of assets, issuance of debt,
equity and other like interests of business enterprise and not-for-profit
institutions;
d. claims to determine the use or status of or claims involving, intellectual prop-
erty, confidential, proprietary or trade secret information; claims involving
restrictive covenants;
e. claims involving alleged breaches of contract or fiduciary duties, fraud, mis-
representation, business torts or other violations involving business relation-
ships (e.g. unfair competition), if they have complex factual or legal issues or
are likely to require complex case management;
f. claims under the uniform Commercial Code, if the claims involve complex
factual or legal issues or are likely to require complex case management;
g. claims arising from transactions with banks, investment bankers, financial
advisers, brokerage firms, mutual and money funds of all kinds, if the claims
involve complex factual or legal issues or are likely to require complex case
management;
h. claims for alleged violations of antitrust and other restraint of trade laws;
claims of unfair trade practices if the claims involve complex factual or legal
issue or are likely to require complex case management;
i. malpractice claims brought by business enterprises and not-for-profit insti-
tutions against professionals relating to rendering of professional service;
j. claims to which a governmental entity or authority is a party if the claims are
described by any of the above categories and are no excluded from the Busi-
ness Litigation Session as set out in the next section; and
k. Other commercial claims, including those involving insurance, construction,
real estate and consumer matters, which have complex factual or legal issues
or are likely to require complex case management.
Cases involving the following would not be eligible for assignment to the BLS
unless (except for cases within clause (a) below) there were issues in a case where
one or more of the other issues qualifies for the BLS:
(a) matters subject to compulsory arbitration or to the exclusive jurisdiction of
the Probation Land and Housing Courts, the District Courts or the Boston
Municipal Court;
(b) personal injury survival or wrongful death matters;
(c) individual (non-class) consumer claims against businesses or insurers, in-
cluding product liability and personal injury cases;
(d) environmental claims not involved in the sale or disposition of a business;
(e) eminent domain matters;
(f ) malpractice claims other than those designated above for the BLS;
(g) employment disputes not involving written contracts and employment dis-
crimination cases;
(h) administrative agency review under G.L. c. 30A, ∼14.zoning and other ap-
peals from administrative agency order;
(i) residential real estate and non-commercial landlord-tenant disputes; and
( j) occupational health or safety matters.
1) As to cases filed on and after October 2, 2000:
A plaintiff who claims that the case fits one or more of the criteria listed
above should use a special cover sheet which is available at the office of
the Clerk of Civil Business and indicate thereon which criteria apply. The
case shall be thereupon initially assigned to the BLS for review by the
presiding justice.
At any time thereafter any party who claims that the case fits one or
more criteria should serve and file a motion under rule 9A in the BLS
requesting assignment to the BLS and state with particularity why the case
meets one or more of the criteria.
The presiding Justice of the BLS will review all cases initially assigned
thereto and all motions requesting such assignment thereafter and deter-
mine in his or her discretion which cases shall continue in the BLS. Any
case assigned or referred to the BLS may, in the discretion of the presiding
justice of the BLS be referred out of the BLS at any time if, in his or her
judgment, it is not suitable of the BLS. Those cases will be then assigned
by the clerk’s office to one of the regular time standards sessions.
....
3) As to all cases:
No party shall have a right of referral of a pending case to the BLS. A
case will not be assigned to or retained in the BLS unless it meets one or
more of the criteria listed above. Case on the excluded list will not be
assigned to or retained in the BLS. All decisions to refer or retain a case
in the BLS shall be at the discretion of the presiding justice of the BLS.
As a case progresses, the presiding justice of the BLS may determine
that the case does not involve complex factual or legal issues, or does not
require complex case management, even though the subject matter of the
controversy otherwise qualifies as a business litigation case. In such case
the presiding justice of the BLS may return the case to the clerk’s office
for assignment to a regular time standards session.
September, 2000
Signed: Chief Justice Suzanne V. DelVecchio
Superior Court Establishes Business Court Procedure, Notice to Bar, Business
Litigation Session, Suffolk Superior Court, Massachusetts Lawyers Weekly, Oc-
tober 2, 2000
MICHIGAN
Michigan Compiled Laws Annotated § 600.8001 (West Supp. 2004).
600.8001. Creation; court of record; purpose; location; electronic communica-
tions; session; staff and support services; funding
Sec. 8001. (1) The cyber court is created and is a court of record.
(2) The purpose of the cyber court is to do all of the following:
(a) Establish judicial structures that will help to strengthen and revitalize the
economy of this state.
(b) Allow business or commercial disputes to be resolved with the expertise,
technology, and efficiency required by the information age economy.
(c) Assist the judiciary in responding to the rapid expansion of information
technology in this state.
(d) Establish a technology-rich system to serve the needs of a judicial system
operating in a global economy.
(e) Maintain the integrity of the judicial system while applying new tech-
nologies to judicial proceedings.
(f ) Supplement other state programs designed to make the state attractive to
technology-driven companies.
(g) Permit alternative dispute resolution mechanisms to benefit from the

technology changes.
(h) Establish virtual courtroom facilities, and allow the conducting of court
proceedings electronically and the electronic filing of documents.
(3) The cyber court shall be located in 1 or more counties as determined by the
supreme court. The cyber court shall sit in facilities designed to allow all
hearings and proceedings to be conducted by means of electronic commu-
nications, including, but not limited to, video and audio conferencing and
internet conferencing.
(4) The cyber court shall hold session and shall schedule hearings or other pro-
ceedings to accommodate parties or witnesses who are located outside of this
state. A cyber court facility is open to the public to the same extent as a circuit
court facility. When technologically feasible, and at the discretion of the judge,
pursuant to the court rules, all proceedings of the cyber court shall be broad-
cast on the internet.
(5) The cyber court shall maintain its staff and support services at the seat of
government.
(6) The cyber court shall be funded from annual appropriations to the supreme
court.
Michigan Compiled Laws Annotated § 600.8005 (West Supp. 2004).
600.8005. Jurisdiction
Sec. 8005. (1) The cyber court has concurrent jurisdiction over business or com-
mercial disputes in which the amount in controversy exceeds $25,000.00.
(2) An action that involves a business or commercial dispute may be maintained
in the cyber court although it also involves claims that are not business or
commercial disputes.
(3) For purposes of this section:
(a) “Business enterprise” means a sole proprietorship, partnership, limited
partnership, joint venture, limited liability company, limited liability part-
nership, for-profit or not-for-profit corporation or professional corpora-
tion, business trust, real estate investment trust, or any other entity in
which a business may lawfully be conducted in the jurisdiction in which
the business is being conducted. Business enterprise does not include an
ecclesiastical or religious organization.
(b) “Business or commercial dispute” means any of the following actions:
(i) An action in which all of the parties are business enterprises.
(ii) An action in which 1 or more of the parties is a business enterprise
and the other parties are its or their present or former owners, man-
agers, shareholders, members, directors, officers, agents, employees,
suppliers, customers, or competitors, and the claims arise out of
those relationships.
(iii) An action in which 1 of the parties is a nonprofit organization, and
the claims arise out of that party’s organizational structure, gover-
nance, or finances.
(iv) An action involving the sale, merger, purchase, combination, dis-

solution, liquidation, organizational structure, governance, or fi-
nances of a business enterprise.
(4) Business or commercial disputes include, but are not limited to, the following
types of actions:
(a) Those involving information technology, software, or website develop-
ment, maintenance, or hosting.
(b) Those involving the internal organization of business entities and the
rights or obligations of shareholders, partners, members, owners, officers,
directors, or managers.
(c) Those arising out of contractual agreements or other business dealings,
including licensing, trade secret, noncompete, nonsolicitation, and con-
fidentiality agreements.
(d) Those arising out of commercial transactions, including commercial bank
transactions.
(e) Those arising out of business or commercial insurance policies.
(f ) Those involving commercial real property.
(5) Notwithstanding subsections (3) and (4), business or commercial disputes
expressly exclude the following types of actions:
(a) Personal injury actions involving only physical injuries to 1 or more in-
dividuals, including wrongful death and malpractice actions against any
health care provider.
(b) Product liability actions in which any of the claimants are individuals.
(c) Matters within the jurisdiction of the family division of circuit court.
(d) Proceedings under the probate code of 1939, 1939 PA 288, MCL 710.21
to 712A.32.
(e) Proceedings under the estates and protected individuals code, 1998 PA
386, MCL 700.1101 to 700.8102.
(f ) Criminal matters.
(g) Condemnation matters.
(h) Appeals from lower courts or any administrative agency.
(i) Proceedings to enforce judgments of any kind.
( j) Landlord-tenant matters involving only residential property.
NEVADA
RULES OF PRACTICE FOR THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA
PART I. ORGANIZATION OF THE COURT AND ADMINISTRATION
Rule 1.61. Assignment of business matters.
Unless otherwise provided in these rules, business matters must be divided evenly
among those full-time civil judges deemed necessary to handle all business matters.
(a) “Business Matters” shall be deemed as follows:
(1) Disputes concerning the validity, control, operation, or governance of

entities created under NRS Chapters 78-88, including shareholder deriv-
ative suits;
(2) Disputes concerning trademarks asserted under Nevada law, causes of
action asserted pursuant to the Nevada Trade Secrets Acts, the Nevada
Securities Act, involving investment securities described in Article 8 of
the Nevada Uniform Commercial Code; or commodities described in
NRS Chapter 90;
(3) Disputes between two business entities where the court determines that
the case would benefit from enhanced case management.
(b) The following shall not be deemed business matters:
(1) Matters where the primary claim is an action for personal injury;
(2) An action based on products liability;
(3) An action brought by a consumer against a business;
(4) An action for wrongful termination of employment; or
(5) Landlord-tenant disputes shall not be deemed a business matter.
(c) Either party in a case may file a request in the pleadings that a case be assigned
as a business matter. If the request is made by the plaintiff, the case will
automatically be assigned to a full-time civil judge assigned to business mat-
ters. If the request is not made by the plaintiff, but is made by a defendant
in its answer, the case shall be randomly reassigned to a business court judge
for determination whether the case should be handled as a business court
matter.
(d) The court shall decide whether a case is or is not a business matter and that
decision shall not be appealable by any appeal nor reviewable upon any writ;
any matters not deemed a business matter shall be randomly reassigned if it
was originally assigned to the business court. If a case was remanded to the
business court for determination of whether it would be handled as a business
court matter and the business court deems it not to be a business court matter,
that case will be remanded back to the department to which it was originally
assigned.
Rules of Practice for the Eighth Judicial District Court of the State of Nevada, Rule
1.61, available at http://www.co.clark.nv.us/district_court/EDCR.pdf (last visited
Oct. 7, 2004).
RULES OF PRACTICE FOR THE SECOND JUDICIAL DISTRICT COURT OF

THE STATE OF NEVADA
Rule 2.1. Business court docket
1. A civil action shall be assigned to the business court docket if, regardless of
the nature of relief sought, the primary subject matter of the action is:
(a) A dispute concerning the validity, control, operation or governance of
entities created under NRS Chapters 78-88, including shareholder deriv-
ative actions;
(b) A dispute concerning a trade-mark or trade name; a claim asserted pur-

suant to the Nevada Trade Secrets Act, NRS 600A.010, et seq.; a claim
asserted pursuant to the Nevada Securities Act, NRS 90.211, et seq.; a
claim asserted pursuant to the Nevada Deceptive Trade Practices Act, NRS
598.0903, et seq.; a claim involving investment securities governed by
NRS 104.8101, et seq.; or,
(c) Any dispute among business entities if the presiding judge of the business
court docket determines that the case would benefit from enhanced case
management.
2. Actions in which the primary claim alleges personal injury or products liability,
damage of a consumer by a business, wrongful termination of employment,
or actions arising from a landlord-tenant relationship shall not be included in
the business court docket.
3. A party in an action assigned to another department of the court may request
that the action be transferred to the business court docket. Upon filing of such
a request, the clerk shall transfer the case file to the presiding judge of the
business court docket who shall thereupon determine whether to assume ju-
risdiction of the case. The decision of the presiding judge of the business court
docket to accept or decline jurisdiction of the action is final, and is not ap-
pealable nor reviewable upon any petition for extraordinary relief.
4. The presiding judge of the business court docket may hear and decide all other
civil and criminal actions assigned to such judge as any other general juris-
diction district court judge.
5. The presiding judge of the business court docket shall be appointed by the
chief judge. The judge so selected shall serve for a term of two years unless
reappointed. Management of the business court docket shall be the highest
case management priority of the presiding judge of the business court docket,
who may request reassignment by the chief judge of civil or criminal cases, as
necessary, consistent with this case management priority.
6. Subject to approval by the presiding judge of the business court docket and
the chief judge, an action filed in any other judicial district may be transferred
to the business court docket of this district if all parties and the district judge
assigned to the case consent.
7. The presiding judge of the business court docket may transfer a business action
to another judge of this district for any and all proceedings, subject to the
consent of the judge to whom the action is transferred.
8. If the presiding judge of the business court docket is the subject of a peremp-
tory challenge pursuant to S.C.R. 48.1, the clerk shall randomly reassign the
case to another department of the court. [Added; effective November 20,
2000.]
Rules of Practice for the Second Judicial District Court of the State of Nevada,
Rule 2.1, available at http://www.leg.state.nv.us/courtrules/SecondDCR.html (last
visited on Oct. 7, 2004).
NEW YORK
The Commercial Division handles complicated commercial cases. In the various
counties the Division has issued guidelines or rules defining the cases that are
accepted for filing in the Division. These guidelines and rules can be found at
http://www.courts.state.ny.us/comdiv/general_information.htm under the listing
for each county.
NEW YORK COUNTY

In general, the Commercial Division entertains complex commercial and busi-
ness disputes in which a party seeks compensatory damages totaling $125,000
or more (exclusive of interest, costs, and attorney’s fees). Due to caseload consid-
erations, the Justices of the Division are empowered to transfer out of the Division
cases which, in their judgment, do not fall within this category notwithstanding
that a party has described the case as “commercial” on the Request for Judicial
Intervention. The principles set out below will guide the exercise of this authority.
Parties should adhere to these principles when designating a case type on the RJI.
(A) The following will presumptively be transferred out of the Division even if
the monetary threshold is met:
(1) Suits to collect professional fees;
(2) Cases seeking a declaratory judgment as to insurance coverage for a
(3) Landlord-tenant matters, uncomplicated Yellowstone applications and
other real estate disputes;
(4) Proceedings to enforce a judgment regardless of the nature of the un-
derlying case;
(5) First-party insurance claims and actions by insurers to collect premiums
or rescind policies; and
(6) Attorney malpractice actions.
(B) Actions in which the principal claims involve the following will presump-
tively be retained in the Division provided that the monetary threshold is
met:
(1) Breach of contract or fiduciary duty, fraud, misrepresentation, business
tort (e.g., unfair competition), or statutory violation arising out of busi-
ness dealings (e.g., sales of assets or securities, corporate structurings,
partnership, shareholder, joint venture, and other business agreements,
trade secrets and restrictive covenants);
(2) Transactions governed by the Uniform Commercial Code (exclusive of
those concerning individual coop units);
(3) Complicated transactions involving commercial real property;
(4) Shareholder derivative actions and commercial class actions;
(5) Commercial bank transactions;
(6) Internal affairs of business organizations or liability to third parties of
officials thereof;
(7) Malpractice by accountants or actuaries; and

(8) Complicated environmental insurance coverage litigation.
(C) (i) Attorneys who wish to file an RJI seeking assignment to the Commercial
Division must, prior to purchase of the Request for Judicial Intervention
and filing with any back office, present the RJI and initial papers to the
appropriate back office for preliminary review, as follows. The papers to
be filed with the RJI, including a request for a preliminary conference,
must include or be accompanied by a copy of the pleadings (the com-
plaint and other pleadings, if any, that have been served and filed as of
that point). If attorneys do not submit a copy of the pleadings, processing
will be delayed until the pleadings are submitted. If the RJI is accom-
panied by a motion on notice, the RJI and motion papers shall be sub-
mitted to the Motion Support Office (Room 119) for a preliminary review.
In other instances, the RJI and accompanying papers shall be submitted
to the Commercial Division Support Office for preliminary review. The
appropriate Support Office will review the pleadings to determine the
amount of damages claimed to be at issue in the case. If the case is alleged
to involve compensatory damages of less than $125,000 (exclusive of
interest, costs, and attorney’s fees), the Support Office will make a no-
tation that the matter shall be assigned at random to a non-Commercial
Justice. If the case is alleged to involve compensatory damages of
$125,000 or more (exclusive of interest, costs, and attorney’s fees), a
notation will be made that the case shall be assigned at random to a
Division Justice. The attorney shall then pay for the RJI and file the papers
with the appropriate office, which will assign the case in accordance with
the aforesaid notation. Cases in which equitable relief only is sought or
the amount of damages is not specified in the pleadings will be assigned
to the Division if the RJI so requests subject to screening by the assigned
Justice. If a party believes that the Support Office mistakenly directed
assignment of a matter to a non-Division Justice, a request shall be made
of that Justice for a transfer into the Division.
(ii) Notwithstanding that a case is assigned to a Commercial Division Justice
after the preliminary review, the Justice may thereafter determine that
the matter is, in fact, not appropriate for treatment in the Division, pur-
suant to the principles set forth in Paragraphs A and B above, and may
direct that the case be transferred out of the Division. The determination
by a Commercial Justice as to whether a case should be retained in the
Division will be made as soon as a matter is assigned to that Justice.
Retained cases will remain in the Division thereafter.
(D) Notwithstanding the foregoing, commercial cases in which compensatory
damages of $ 25,000 or more are sought will not be transferred out of the
Division if filed in accordance with the procedures governing the Division’s
Filing by Electronic Means program. For this purpose, “commercial cases”
include commercial real property disputes and the types of matters identified
in Paragraphs (A) 1-2 and 4-6 and (B) 1-8 (without regard to the monetary
threshold referred to in the second line of these Guidelines).
Guidelines for Assignment of Cases to the Commercial Division, Supreme Court,

New York County, available at http://www.nycourts.gov/comdiv/Guidelines_for_
Assignment_of_CasesNYC.htm (last visited Oct. 7, 2004).
ALBANY COUNTY
As determined by the Commercial Division of Supreme Court, Commercial
Cases are defined as:
All business and commercial disputes in which the amount at issue generally
involves damage claims in a minimum amount of $25,000.
- or -
Claims for unspecified amounts where the value of the commercial asset(s)
in dispute exceeds $25,000.
....
One or more of the following criteria must be satisfied for the assignment of a
case to the Commercial Court:
1) CONTRACT:
Breach of contract, fraud or misrepresentation actions involving:
(a) Purchase or sale of securities
(b) Uniform Commercial Code transactions
(c) Purchase or sale of the assets of a business or merger, consolidation or
recapitalization of a business
(d) Providing of goods or services by or to a business entity
(e) Purchase or sale or lease of, or security interest in, commercial real prop-
erty or personal property
(f ) Partnership, shareholder o/r [sic] joint venture agreements
(g) Franchise, distribution or licensing agreements
2) BUSINESS CORPORATION LAW:
(a) Shareholder derivative actions
(b) Actions involving Judicial Dissolution
(c) Actions involving liability and indemnity of corporate directors and
officers
(d) Actions involving the internal affairs of corporations, such as voting and
inspection rights of shareholders or directors, authorization of corporate
acts or interpretations of articles or bylaws
(e) Actions involving foreign corporations authorized to do business in
the State of New York
(f ) Actions involving appointment of a Receiver of property of domestic or
qualified Foreign corporations.
3) PARTNERSHIP LAW:
(a) Actions involving property rights of general and limited partners and
partnerships.
(b) Actions involving partnership, general business operation, dissolution and
creditor’s rights.
4) UNIFORM COMMERCIAL CODE:

(a) Commercial loans (including failures to make commercial loans), nego-
tiable instruments, letters of credit and bank transactions
(b) Actions involving allegations of business torts, including unfair competi-
tion, interference with business advantage or contractual relations.
5) OTHER COMMERCIAL MATTERS:
(a) Actions involving employment agreements or employee incentive or re-
tirement plans (not including qualified retirement plans) in which the
business or commercial issues predominate and discharge, modification
or foreclosure of mechanics’ liens.
(b) Declaratory judgment actions and third-party indemnification claims ver-
sus insurance companies where the underlying cause of action is contract
in nature or would otherwise fall within the guidelines set forth herein.
(Specifically not included are Declaratory Judgment Actions and third-
party claims relating to fire loss, motor vehicle actions and Tort claims).
(c) Commercial Class actions
(d) Opening of default judgments where the underlying cause of action is
commercial in nature and would otherwise fall within the monetary and
jurisdictional guidelines set forth herein
(e) Actions may involve individuals, as well as business entities, as long as all
other criteria are satisfied.
MATTERS SPECIFICALLY EXCLUDED FROM COMMERCIAL DIVISION
• Real estate foreclosure actions.
• Proceedings to enforce a judgment.
• Products liability claims, including claims based upon warranty of mer-
chantability and/or fitness for a particular use.
• Declaratory judgment actions involving indemnification claims under in-
surance policies relating to underlying actions which are not commercial
in nature, including, but not limited to, underlying claims for fire loss,
motor vehicle actions and tort claims.
• Actions by or against Medicare, Medicaid, or the Department of Social
Services.
• Discrimination cases.
• Collection matters involving legal, medical, accounting, architectural fees
or other professional fees.
Guidelines for Cases Assigned to the Commercial Division, available at http://
www.courts.state.ny.us/comdiv/Albany_guidelines_for_cases_assigned.htm (last
visited on Oct. 7, 2004).
ERIE COUNTY
II. CRITERIA FOR COMMERCIAL COURT
The definition of a “commercial case,” as determined by the Commercial Division
of Supreme Court, is as follows:
All business and commercial disputes in which the amount at issue exceeds
$25,000,1 exclusive of punitive damages, costs, and attorney fees; and exclusive
of any non-commercial claims, non-commercial cross-claims, or non-commercial
counterclaims.
If a commercial case does not meet the monetary threshold but may be espe-
cially suited to resolution in the Commercial Division, a motion may be made to
the presiding Judge of the Division, on notice to opposing counsel, to waive said
monetary threshold.
Such business and commercial disputes shall include the following types of
cases:
CONTRACT
1. Breach of contract, fraud or misrepresentation actions involving:
(a) Purchase or sale of securities.
(b) Uniform Commercial Code transactions.
(c) Purchase or sale of the assets of a business, or merger, consolidation or
recapitalization of a business.
(d) Providing of goods or services by or to a business entity.
(e) Purchase or sale or lease of, or security interest in, commercial real prop-
erty or personal property.
(f ) Partnership, shareholder or joint venture agreements.
(g) Franchise, distribution or licensing agreements.
BUSINESS CORPORATION LAW
2. Shareholder derivative actions.
3. Dissolution or liquidation of corporations.
4. Actions involving liability and indemnity of corporate directors and officers.
5. Actions involving the internal affairs of corporations, such as voting and
inspection rights of shareholders or directors, authorization of corporate acts
or interpretations of articles or by-laws.
PARTNERSHIP LAW
6. Actions involving general and limited partners and partnerships.
UNIFORM COMMERCIAL CODE
7. Commercial loans (including failures to make commercial loans), negotiable
instruments, letters of credit and bank transactions.
8. Actions involving allegations of business torts, including unfair competition
and interference with business advantage or contractual relations.
OTHER COMMERCIAL MATTERS
9. Actions involving employment agreements or employee incentive or retire-
ment plans (not including qualified retirement plans) in which the business
or commercial issues predominate.
1. It should be noted that the dollar amount at issue to qualify a case as Commercial may be
changed from time to time in order to adjust the workload of the Court.
10. Declaratory judgment actions and third party indemnification claims against
insurance companies where the underlying cause of action is contract in
nature or would otherwise fall within the guidelines set forth herein. (Spe-
cifically not included are Declaratory Judgment Actions and third party claims
relating to fire loss, motor vehicle actions and tort claims.)
11. Commercial class actions.
12. Opening of default judgments where the underlying cause of action is com-
mercial in nature and would otherwise fall within the monetary and juris-
dictional guidelines set forth herein.
13. Professional malpractice other than legal or medical.
14. Upon application and with prior approval of the Court, commercial foreclo-
sure actions involving commercial buildings where the amount in controversy
exceeds Five Hundred Thousand Dollars ($500,000.00).
15. Actions under New York Debtor and Creditor Law for fraudulent conveyance.
16. Actions may involve individuals, corporations, partnerships, trusts, joint ven-
tures or other forms of legal entities as long as all other criteria are met.
MATTERS NOT INCLUDED AS COMMERCIAL COURT CASES:
• Non-commercial landlord/tenant disputes.

• Matrimonial disputes.
• Consumer credit transactions involving individuals who are not part of
corporate, partnership, etc. entity.
• Residential foreclosure actions.
• Commercial foreclosure actions which do not meet the criteria set forth
in Item 14.
• Matters falling under the provisions of the Real Property Actions and Pro-
ceedings Law.
• Proceedings to enforce a judgment, including applications for information
subpoenas and contempt, without regard as to whether or not the under-
lying action is commercial in nature.
• Products liability claims, including merchantability and fitness for some
particular purpose claims.
• Discharge, modification or foreclosure of mechanics’ or other liens.
• Opening/vacating or modifying default judgments on actions which are
not commercial in nature, including all matters which do not fall within
the monetary and jurisdictional guidelines set forth under these criteria.
Services or enforcement of legal rights under law.
• Discrimination cases (age, sex etc.) except when part of or under the terms
of a contract.
• Collection matters involving the collection of legal, medical, accounting,

or architectural fees.
Rules and Practices for Cases Assigned to the Commercial Division, Supreme
Court, Erie County, The Honorable Joseph G. Makowski, J.S.C. Presiding, March
1, 2001, Commercial Litigation in New York State Courts, Vol. 4, Appendix E-1
at 368–370, (Robert L. Haig Editor in Chief, 2002 Cumulative Supplement).
KINGS COUNTY
These guidelines apply to RJIs filed on commercial cases on or after December
2, 2002.
In general, the Commercial Division of the Kings County Supreme Court will
entertain commercial and business disputes in which a party seeks compensatory
damages totaling $50,000 or more (exclusive of punitive damages, interests, costs
and attorney fees).
A Request for Judicial Intervention which is marked “Commercial” and is ac-
companied by a “Commercial Division Certification” identifying the nature of the
lawsuit and the reason for the assignment to the Commercial Division will initially
be assigned to a Commercial Division Part. The Certification requires verification
by counsel that the case meets the eligibility requirements set forth in these Rules.
A complete set of pleadings must accompany such certification and be annexed
to the RJI.
Justices of the Commercial Division are empowered to transfer cases out of the
Commercial Division which in their judgment do not fall within the eligibility
requirements set forth in these Rules. A Commercial Division Judge may order a
transfer notwithstanding that a party has described the case as commercial. An
Order will be issued stating the reason for such transfer. A party claiming to be
aggrieved by such transfer may seek review by letter application to the Admin-
istrative Judge (two pages maximum including a copy of the Commercial Division
Justice’s Order with a copy to all parties). If such application to the Administrative
Judge is not made within ten days of notification of the transfer order or the denial
of transfer, the decision of the Commercial Division Judge becomes final. The
order of the Administrative Judge is final and subject to no further review or
appeal.
A case already pending in a non-commercial IAS part may be transferred into
the Commercial Division upon application to the assigned IAS Judge and with
the consent of a Commercial Division Judge within three months of the initial
RJI. Any objections to such transfer must be raised before the IAS Judge who will
rule thereon in consultation with a Commercial Division Justice or the Admin-
istrative Judge. Review of the IAS Judge’s decision may be obtained by application
to the Administrative Judge in writing on notice to all parties within ten days of
entry. Thereafter, the decision of the IAS Judge becomes final.
Business and Commercial actions in which the principal claims involve the
following matters will be presumptively retained in the Commercial Division pro-
vided that the monetary threshold has been met:
Business Corporation Law

1. Shareholder derivative actions.
2. Dissolution or liquidation of corporations, professional corporations and lim-
ited liability corporations.
3. Actions involving liability and indemnity of corporate directors and officers.
inspection rights of shareholders or directors, authorization of corporate acts
or interpretations of articles or by-laws.
5. Actions involving appointment of a receiver of property of domestic or qual-
ified foreign corporations.
Contract
(b) Purchase or sale of the assets of a business or merger, consolidation or
(c) Providing of goods or services by or to a business entity.
(d) Partnership, shareholder or joint venture agreements.
(e) Franchise, distribution or licensing agreements.
Partnership Law
1. Actions involving general and limited partnerships.
Uniform Commercial Code
Transactions governed by the Uniform Commercial Code (exclusive of those
concerning individual co-op units).
Other Commercial Matters
1. Actions involving employment agreements, trade secrets, restrictive cove-
nants or employee incentive or retirement plans in which business or com-
mercial issues predominate.
2. Declaratory judgment actions and third party indemnification claims by or
against insurance companies where the underlying cause of action is contract
in nature or would otherwise fall within these guidelines.
4. Professional malpractice involving commercial or business matters.
5. Complicated environmental insurance litigation.
6. Commercial bank transactions.
The following will presumptively be transferred out of the Division even if the
monetary threshold is met:
1. Suits to set professional fees.
2. Attorney or medical malpractice actions.
3. Real estate foreclosures even if they involve commercial buildings and com-
mercial parties.
4. Discharge, modification, or foreclosure of mechanics’ or other liens.
5. Discrimination cases except when part of or under the terms of a contract.
6. Consumer collection matters.

7. Products liability claims including claims based upon warranty of merchant-
ability and/or fitness for a particular use.
8. Proceedings to enforce a judgment regardless of the nature of the underlying
dispute.
9. Cases seeking a declaratory judgment as to insurance coverage for a personal
injury or property damage action.
10. Landlord tenant matters, Yellowstone Injunctions, purchase, sale or lease of,
or security interest in commercial real property or personal property, and
other real estate disputes.
11. First party insurance claims and actions by insurers to collect premiums or
rescind policies.
[Revised April 1, 2004, by replacement of previous third through sixth (unnum-
bered) paragraphs with current third through fifth paragraphs.]
Guidelines for Assignment for Cases to Kings County, Supreme Court Commercial
Division, available at http://www.courts.state.ny.us/comdiv/Kings_Guidelines.htm
(last visited Oct. 7, 2004).
MONROE COUNTY
GUIDELINES FOR ASSIGNMENT OF CASES TO THE COMMERCIAL DIVISION
In general, the Commercial Division, Monroe County, entertains complex com-
mercial and business disputes in which a party seeks compensatory damages
totaling $25,000 or more, exclusive of punitive damages, costs, and attorney fees;
and exclusive of any non-commercial claims, non-commercial cross-claims, or
non-commercial counterclaims.
A) Such business and commercial disputes shall include the following types of
cases:
CONTRACT
(b) Uniform Commercial Code transactions.
(c) Purchase or sale of the assets of a business, or merger, consolidation
or recapitalization of a business.
(d) Providing of goods or services by or to a business entity.
(e) Purchase or sale or lease of, or security interest in, commercial real
property or personal property.
(f ) Partnership, shareholder or joint venture agreements.
(g) Franchise, distribution or licensing agreements.
2. Shareholder derivative actions
3. Dissolution or liquidation of corporations.
4. Actions involving liability and indemnity of corporate directors and

officers.
acts or interpretations of articles or by-laws.
PARTNERSHIP LAW
6. Actions involving general and limited partners and partnerships
7. Commercial loans (including failures to make commercial loans), ne-
gotiable instruments, letters of credit and bank transactions.
8. Actions involving allegations of business torts, including unfair compe-
tition, interference with business advantage or contractual relations.
9. Actions involving employment agreements or employee incentive or re-
tirement plans (not including qualified retirement plans) in which the
business or commercial issues predominate.
10. Declaratory judgment actions and third party indemnification claims ver-
sus insurance companies where the underlying cause of action is contract
in nature or would otherwise fall within the guidelines set forth herein.
(Specifically not included are Declaratory Judgment Actions and third
party claims relating to fire loss, motor vehicle actions and tort claims.)
12. Opening of default judgments where the underlying cause of action is
commercial in nature and would otherwise fall within the monetary and
jurisdictional guidelines set forth herein.
13. Actions may involve individuals, and business entities, as long as all
other criteria are met.
(B) Matters Not Included as Commercial Court Cases Include the Following:
• Non-commercial landlord/tenant disputes
• Matrimonial disputes; including the enforcement of Separation Agree-
ments or Divorce Decrees
• Foreclosures, even if they involve commercial buildings and commercial
parties
• Matters falling under the provisions of the real property actions and pro-
ceedings law
• Proceedings to enforce a judgment, including applications for information
subpoenas and contempt, without regard as to whether or not the under-
lying action is commercial in nature.
• Products liability claims, including merchantability and fitness for some
particular purpose claims
• Discharge, modification or foreclosure of mechanics’ or other liens
surance policies relating to underlying actions which are NOT commercial
• Opening/vacating or modifying default judgments on actions which are
NOT commercial in nature, including all matters which do not fall within
the monetary and jurisdictional guidelines set forth under Criteria.
Services or enforcement of legal rights under law.
• Discrimination cases (age, sex etc.) except when part of or under the terms
of a contract.
• Collection matters involving the collection for legal, medical, accounting,
or architectural fees.
• Legal, medical, or accounting malpractice actions even where a contract
cause of action is also stated.
(C) The determination as to whether a case should be assigned to the Commercial
Division is made by the Clerk of the Supreme Court, based upon the criteria
for commercial cases established by the Court. For this purpose, counsel
must annex a copy of the summons and complaint to any submission of an
RJI seeking assignment to the Commercial Division.
(D) Any special proceedings under the CPLR which are clearly commercial in
nature (including dissolution proceedings and applications relating to CPLR
Article 75 in a commercial setting) should be marked as a special proceeding
but should also indicate (on the form or by separate cover) that the matter
is commercial in nature.
(E) The Commercial Division Justice or an assigned IAS Justice may request that
an assignment of a matter be reconsidered by the Clerk. Since the assignment
of any case in the Supreme Court is based on various criteria, including the
balancing of case loads among the civil Supreme Court Justices, there is no
appeal by litigants or attorneys of the case assignment. The decision of the
Supreme Court Clerk/Administrative Judge regarding assignment of a case is
final and is not subject to review or appeal.
Guidelines for Assignment of Cases to the Commercial Division, available at
http: // www.courts.state.ny.us / comdiv / guidelines _ for _ assignment _ of _ casesMC.
htm (last visited Oct. 7, 2004).
NASSAU COUNTY
GUIDELINES FOR ASSIGNMENT OF CASES TO THE COMMERCIAL PARTS
In general, the Commercial Parts of the Supreme Court, Nassau County, entertain
complex commercial and business disputes in which a party seeks compensatory
damages totaling $75,000 or more. Due to caseload considerations, the Justices
are empowered to transfer out of the Division cases which, in their judgment, do
not fall within this category notwithstanding that a party has described the case
as “commercial” on the RJI. The principles set out below will guide the exercise
of this authority. Parties should adhere to these principles when designating a
case type on the RJI. (See Paragraph (c) for documentation which should accom-
pany the RJI).
(a) The following will presumptively be transferred out of the Division even if
(2) Cases seeking a declaratory judgment as to insurance coverage for a per-
sonal injury or non-commercial property damage action;
(3) Residential real estate disputes, including landlord-tenant matters;
(4) Proceedings to enforce a judgment regardless of the nature of the under-
lying case;
(b) Actions in which the principal claims involve the following will presumptively
be retained in the Division provided that the money threshold is met:
(3) Transactions involving commercial real property;
officials thereof;
(7) Malpractice by accountants or actuaries;
(8) Environmental insurance coverage litigation; and
(9) Corporation or Partnership dissolutions.
(c) The determination as to whether a case should be retained in a Commercial
Part will be made as soon as a matter is assigned to a Justice. For this purpose,
counsel must annex a brief sworn statement justifying the Commercial des-
ignation, and a copy of the summons and complaint or summons with notice,
if any, to any submission accompanying an RJI. Retained cases will remain in
the Commercial Part.
(d) Special proceedings (including applications pursuant to CPLR 3102(c) and
(e) relating to CPLR Article 75) and foreclosures are randomly assigned among
all Justices in the Supreme Court, Nassau County. Even when parties believe
that a special proceeding or foreclosure has a “commercial” character, the
“special proceedings” or “foreclosure” portion of the RJI should be completed
by the filing party, not the “commercial” section. However, prior to the actual
assignment of the matter to a Justice, a party to a commercial special pro-
ceeding may apply to the Administrative Judge to override the computer and
designate the matter as “commercial” for treatment if it raises issues of ex-

traordinary complexity.
(e) An order of transfer issued by a Justice of a Commercial Part is an adminis-
trative matter. A party claiming to have been aggrieved by such an order may
seek review by letter application (two pages maximum, with a copy to all
parties) to the Administrative Judge. Any such application that is not made
promptly after the issuance of the transfer order will be denied as untimely
irrespective of its merits. The order of the Administrative Judge is final and
subject to no further review or appeal.
Guidelines for Assignment of Cases to the Commercial Parts, available at http://
www.courts.state.ny.us/comdiv/nassauguidelines.htm (last visited Oct. 7, 2004).
SUFFOLK COUNTY
GUIDELINES FOR ASSIGNMENT OF CASES TO THE COMMERCIAL PART
In general, the Commercial Part of the Supreme Court, Suffolk County, entertains
complex commercial and business disputes in which a party seeks compensatory
damages totaling $25,000 or more. The Justice assigned is authorized to transfer
out of the Division cases which, in his or her judgment, do not fall within this
category notwithstanding that a party has described the case as “commercial” on
the RJI. The principles set out below will guide the exercise of this authority.
Parties should adhere to these principles when designating a case type on the RJI
(See Paragraph (C) for documentation which should accompany the RJI).
(A) The following will presumptively be transferred out of the Division even if
(2) Cases seeking a declaratory judgment as to insurance coverage for per-
sonal injury or property damage action;
(3) Landlord-tenant matters, Yellowstone applications and other real estate
disputes;
(4) Proceedings to enforce a judgment regardless of the nature of the un-
derlying case;
(B) Actions in which the principal claims involve the following will presump-
tively be retained in the Division, provided that the money threshold is met:
(3) Complicated transactions involving commercial real property;

officials thereof;
(7) Malpractice by accountants or actuaries;
(8) Complicated environmental insurance coverage litigation; and
(9) Corporate or Partnership dissolutions.
(C) The determination as to whether a case should be retained in the Commercial
Part will be made as soon as possible. For this purpose, counsel must annex
an affirmation form . . . justifying the Commercial designation, and a copy
of the summons and complaint or summons with notice, if any, to any sub-
mission accompanying an RJI. Retained cases will remain in the Commercial
Part.
(D) Special proceedings (including applications pursuant to CPLR 3102(c) and
(e) relating to CPLR Article 75) and foreclosures are randomly assigned
among all Justices in the Supreme Court, Suffolk County. Even when parties
believe that a special proceeding or foreclosure has a “commercial” character,
the “special proceedings” or “foreclosure” portion of the RJI should be com-
pleted by the filing party, not the “commercial” section. However, prior to
the actual assignment of the matter to a Justice, a party to a commercial
special proceeding may apply to the Administrative Judge to override the
computer and designate the matter as “commercial” for treatment if it raises
issue [sic] of extraordinary complexity.
(E) An order of transfer issued by the Justice of the Commercial Part is an ad-
ministrative matter. A party claiming to have been aggrieved by such an order
may seek review by letter application (two pages maximum, with a copy to
all parties) to the Administrative Judge. Any such application that is not made
promptly after the issuance of the transfer order will be denied as untimely
irrespective of its merits. The order of the Administrative Judge is final and
subject to no further review or appeal.
Guidelines for Assignment of Cases to the Commercial Part, available at http://
www.courts.state.ny.us/comdiv/Suffolk_guidelines_for_assignment.htm (last vis-
ited Oct. 7, 2004).
WESTCHESTER COUNTY
COMMERCIAL DIVISION PART RULES
January, 2002
[COMMERCIAL COURT ASSIGNMENT PROCEDURES MODIFIED, AND RULE
21 AND APPENDIX A ADDED, EFFECTIVE MAY 1, 2004.]
The following are the procedures and rules governing practice in the Com-
mercial Division-Westchester County.
COMMERCIAL COURT ASSIGNMENT PROCEDURES

The Clerk of the Supreme Court shall review and determine assignments of
actions to the Commercial Division, based upon the designation contained in the
Request for Judicial Intervention, and upon the facts and circumstances of each
case as stated in the summons and complaint. A request for Judicial Intervention
which is marked “Commercial” must be accompanied by a “Commercial Division
certification” (Rule 21) identifying the nature of the lawsuit and the reason for
the assignment to the Commercial Division. A complete set of pleadings must
accompany such certification and be annexed to the RJI. Since the assignment of
any case in the Supreme Court is based on various criteria, including the balancing
of case loads among Supreme Court Justices, there is no appeal of the case as-
signment by litigants or attorneys.
CRITERIA FOR COMMERCIAL COURT

The definition of a “commercial case”, as determined by the Commercial Di-
vision of Supreme Court, is as follows:
All business and commercial disputes in which the amount at issue generally
involves damage claims in a minimum amount of $100,000.00, or claims
for unspecified amounts where the value of the commercial asset in dispute
exceeds $100,000.00.
Such business and commercial disputes shall include, without limitation, the fol-
lowing types of cases:
CONTRACT
(b) Purchase or sale of the assets of a business, or merger, consolidation or
(c) Purchase or sale or lease of, or security interest in, commercial real prop-
erty or personal property.
(d) Partnership, shareholder or joint venture agreements.
(e) Franchise, distribution or licensing agreements.

2. (a) Shareholder derivative actions.
(b) Actions involving Judicial Dissolution.
(c) Actions involving liability and indemnity of corporate directors and
officers.
(d) Actions involving the internal affairs of corporations, such as voting and
acts or interpretations of articles or by-laws.
(e) Actions involving foreign corporations authorized to do business in the
State of New York.
(f ) Actions involving appointment of a Receiver of property of domestic or

qualified foreign corporations.
PARTNERSHIP LAW
3. Actions involving property rights of general and limited partners.
4. Actions involving partnership, general business operation, dissolution and
creditors’ rights.
5. Actions involving the provisions of the Uniform Commercial Code.
6. Actions involving employment agreements or employee incentive or retirement
plans (not including qualified retirement plans) in which business or com-
mercial issues predominate.
7. Declaratory judgment actions and third party indemnification claims against
insurance companies where the underlying cause of action is contract in
nature.
MATTERS EXCLUDED FROM THE COMMERCIAL DIVISION
• Real Estate foreclosure actions.
• Proceedings to enforce a judgment.
• Products liability claims, including claims based upon warranty of mer-
chantability and/or fitness for a particular use.
• Discharge, modification or foreclosure of mechanics’ liens.
Services.
• Discrimination cases.
• Collection matters involving legal, medical, accounting, architectural fees
or other professional fees.
....
Rule 21 Commercial Division Attorney’s Certification. The certification requires
verification by counsel that the case meets the eligibility requirements set forth in
these Rules. (See Appendix A).
APPENDIX A
FORM OF COMMERCIAL DIVISION ATTORNEY’S CERTIFICATION
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
--------------------------------------------------------------X
Plaintiff(s)
COMMERCIAL DIVISION ATTORNEY’S
CERTIFICATION
- against -
Index No.
Defendant(s).
--------------------------------------------------------------X
, an attorney duly admitted to practice law before the

Courts of the State of New York, hereby affirms the following statements to be
true under the penalties of perjury:
1. I am the attorney for the and submit this affirmation

in support of assignment of this action to the Commercial Division.
2. This case involves .
3. I am fully familiar with the facts and pleadings in this action and have
reviewed the Rules of the Commercial Division, Westchester County, including
the Guidelines for the Assignment of Cases to a Commercial Part.
4. I believe that this case complies with the Guidelines for the Assignment of
Cases to a Commercial Part and should be assigned to the Commercial Division.
Dated:
Commercial Division Part Rules, available at http://www.nycourts.gov/comdiv/

WestChester_guidelines_for_cases.htm (last visited Oct. 7, 2004).
NORTH CAROLINA
All cases are assigned to the Business Court by the Chief Justice of the North
Carolina Supreme Court. . . . [T]he Memorandum to Senior Resident Superior
Court Judges from Chief Justice Lake . . . containing his “Guidelines for Assign-
ment of Cases to the North Carolina Business Court” [is included below]. It is a
useful document which explains the policies the Chief Justice follows. You are
not required to waive a jury trial in order to have a case assigned and the case
will be tried in the county in which it is filed.
Under Rule 2.1, the Chief Justice may designate any case [or group of cases]
as complex business. The Rule provides that a senior resident superior court
judge, chief district court judge, or presiding superior court judge may ex mero
motu, or on motion of a party, recommend to the Chief Justice that a case or cases
be designated as complex business. Thus, the procedure for initial designation as
complex business does not differ from the procedure for having cases designated
as exceptional. Cases may be assigned over the objection of one or all of the
parties. However, once a case is designated as complex business, it is automatically
assigned to a Special Superior Court Judge for Complex Business Cases. In this
respect the procedure differs from previous practice for exceptional cases in that
heretofore the parties had generally agreed upon a superior court judge to hear
the case as exceptional and secured his or her prior agreement to handle the case.
That flexibility is not available with the complex business designation. Also, the
Special Superior Court Judge for Complex Business Cases must write an opinion
on final disposition of the case. Once a case is designated as complex business,
it stays with the business court for all purposes, including trial.
The process for appeals from a decision of the Special Superior Court Judge
for Complex Business Cases does not differ from appeals from other superior
court orders and judgments.
Definition of a Complex Business Case
The Supreme Court purposefully chose not to define the term “complex busi-
ness case” in Rule 2.1. It believed the absence of a definition would allow litigants
to seek designation with respect to any business issue that they believed required
special judicial expertise in business matters. It also provided the court with the
flexibility to respond to requests that might not have been anticipated when the
rule was amended.
Both the Commission and the Supreme Court contemplated that cases involv-
ing significant issues under certain chapters of the North Carolina General Statutes
would be designated as complex business. Those chapters include:
Chapter 55 Business Corporation Act

Chapter 55B Professional Corporations
Chapter 57C Limited Liability Companies
Chapter 59 Partnerships
Chapter 78A Securities Act
Chapter 78B Tender Offer Disclosure Act
Chapter 78C Investment Advisors Act
One of the key factors in assessing whether or not a case should be designated
as complex business is whether the outcome will have implications for business
and industry beyond the conflicts of the parties to the litigation. If a written
decision on disposition of the case would provide predictability for others in the
same business or industry in making their business decisions, the case will more
likely be considered for designation.
There are also other procedural indicators of complex business cases. Such
cases may be time sensitive, paper intensive or laden with discovery disputes.
They may have complex legal and evidentiary issues, multiple parties and juris-
dictions, and have a significant impact on the parties’ business, whether it be from
a monetary or a corporate governance standpoint.
How a Case is Assigned to the Business Court, available at http://www.ncbusiness

court.net/New/aboutcourt/ (last visited Oct. 7, 2004).
MEMORANDUM
TO: All Superior Court Judges
FROM: I. Beverly Lake, Jr.
Chief Justice
Supreme Court of North Carolina
David F. Hoke
Assistant Director
Administrative Office of the Courts
DATE: March 7, 2001
RE: Guidelines for Assignment of Cases to the North Carolina Business
Court
When the North Carolina Business Court was established by amending Rule 2
of the General Rules of Practice for the Superior and District Courts, the Supreme
Court had two goals in mind. The first was the establishment of a court where
complex business litigation could be handled by one judge from beginning to
end, thus reducing the problems of discontinuity created by the normal rotation
system. Secondly, the business court was established to generate a body of case
law in our State on corporate governance issues. The Supreme Court envisioned
that cases arising under Chapter 55 (North Carolina Business Corporation Act),
Chapter 55B (Professional Corporation Act), Chapter 57C (North Carolina Lim-
ited Liability Company Act.), Chapter 59 (Uniform Limited Partnership Act),
Chapter 78A (North Carolina Securities Act), Chapter 78B (Tender Offer Disclo-
sure Act), and Chapter 78C (Investment Advisers) would be assigned to the busi-
ness court so that opinions could be written which would provide uniform guid-
ance on corporate governance issues for North Carolina companies. Antitrust was
another area in which the Supreme Court believed a business court would prove
beneficial.
This memorandum will explain the policies that the Chief Justice will follow
in assigning cases to the business court under Rule 2. In addition, the questions
of how cases are assigned to the business court and what criteria should be used
in deciding which cases to recommend for assignment to the business court as a
complex business case or as a regular Rule 2.1 case will be addressed.
At the outset, some common misconceptions about the business court may
need to be dispelled. First, cases assigned to the business court are tried in the
county in which they are filed. They are not moved unless the parties request it.
Second, there is no dollar threshold that must be alleged in order to support
assignment. Third, right to a jury trial is not eliminated by assignment to the
business court. And fourth, although the business court has advanced technology
and e-filing capability, attorneys are not required to use the technology.
Rule 2 affords you discretion in recommending cases be assigned as either
complex business cases or exceptional cases under Rule 2.1. You may recommend
assignment on your own motion or motion of a party; consent is not required.
Your recommendation may be made over the objection of one or more parties.
Judge Ben Tennille is currently the only Special Superior Court Judge desig-
nated for assignment to complex business cases. With respect to regular Rule 2.1
exceptional case designations, the policy remains the same: In order to obtain
exceptional case designation, the parties should secure the prior agreement of a
Superior Court Judge to handle the case as exceptional before requesting such
designation. Judge Tennille is assigned regular Rule 2.1 exceptional cases in ad-
dition to complex business cases.
Based upon current records of complex business case assignments, the Chief
Justice holds the opinion that the business court can be more accurately utilized
for complex business cases. If there is any uncertainty about the proper classifi-
cation of a case, the case assignment recommendation may be either complex
business or exceptional, and the Chief Justice will determine which classification
is appropriate. Normally, cases arising under the chapters of the General Statutes
referenced above will be assigned as complex business cases. Additionally, please
recommend assignment of any cases involving removal of a director, dissent and
appraisal, involuntary dissolution of a corporation, or other corporate governance
disputes. Also, Meiselman cases involving disputes in family held businesses are
ideal candidates for assignment as complex business cases. Partnership disputes,
as well as shareholder derivative actions, are also usually assigned as complex
business cases. In order for our judicial system to build a consistent body of case
law, these types of cases must be assigned to the business court on a regular basis,
and early identification and assignment is preferable.
Other examples of cases that are good candidates for assignment to the business
court include: contractual disputes that are motion and paper intensive, involve
protracted trials, and require significant judicial management; antitrust and theft
of trade secret cases; and cases involving determination of legal issues that will
have an impact on industry or business practices beyond the confines of the case
itself. Some, but not all, class actions may be good candidates for assignment,
and the decision on assignment should be made before the issue of class certifi-
cation is decided.
Requests for assignment of cases to the business court should be addressed to
the Chief Justice, but sent to the attention of David F. Hoke, Assistant Director,
Administrative Office of the Courts, at Post Office Box 2448, Raleigh, NC 27602.
The request should include a statement of the nature of the case, the reasons why
it should be assigned, whether the parties have consented to assignment, and the
names and addresses of counsel for the parties. In lieu of a detailed statement of
the reasons for assignment, any pleadings or motions setting forth those reasons
may be attached to the request. Any objections to assignment should also be
included. To help expedite the process, please send a copy of the recommendation
of assignment simultaneously to Judge Tennille at Suite 200, 200 S. Elm Street,
Greensboro, NC 27401.
If you have any questions, please do not hesitate to contact Judge Tennille at
(336) 334-5252 or Mr. Hoke at (919) 733-7107.
Memorandum from the Chief Justice of the Supreme Court of North Carolina, to
North Carolina Superior Court Judges (March 7, 2001), available at http://www.
ncbusinesscourt.net/New/aboutcourt/ (last visited Oct. 7, 2004).
North Carolina Superior Court Rule 2.1 states:

Rule 2.1. Designation of exceptional civil cases and complex business cases.
(a) The Chief Justice may designate any case or group of cases as (a) “exceptional”
or (b) “complex business.” A senior resident superior court judge, chief dis-
trict court judge, or presiding superior court judge may ex mero motu, or on
motion of any party, recommend to the Chief Justice that a case or cases be
designated as exceptional or complex business.
(b) Such recommendation for exceptional cases may include special areas of ex-
pertise needed by the judge to be assigned and may include a list of recom-
mended judges. Every complex business case shall be assigned to a special
superior court judge for complex business cases, designated by the Chief
Justice under Rule 2.2, who shall issue a written opinion upon final dispo-
sition of the case.
(c) Such recommendation shall be communicated to the Chief Justice through
the Administrative Office of the Courts.
(d) Factors which may be considered in determining whether to make such des-
ignations include: the number and diverse interest of the parties; the amount
and nature of anticipated pretrial discovery and motions; whether the parties
voluntarily agree to waive venue for hearing pretrial motions; the complexity
of the evidentiary matters and legal issues involved; whether it will promote
the efficient administration of justice; and such other matters as the Chief
Justice shall deem appropriate.
(e) The Chief Justice may enter such orders as are appropriate for the pretrial,
trial, and other disposition of such designated case or cases. (Adopted January
5, 1988; amended August 28, 1995.)
OKLAHOMA
SECTION 16. AMENDATORY 20 O.S. 2001, Section 91.2, is amended to read
as follows:
Section 91.2 A. To facilitate the trial and disposition of cases, actions filed in
the district court shall be assigned to various dockets by the clerk of the court
pursuant to the direction and supervision of the presiding judge of the district.
Until changed by order of the Supreme Court, only the following dockets are
established: . . . and a business docket for business court divisions of the court
created pursuant to Section 17 of this act.
....
SECTION 17. NEW LAW A new section of law to be codified in the Oklahoma
Statutes as Section 91.7 of Title 20, unless there is created a duplication in num-
bering, reads as follows:
A. The Oklahoma Legislature finds that, due to the complex nature of litigation
involving highly technical commercial issues, there is a need for a court in
Oklahoma’s most populated counties with specific jurisdiction over actions
involving such commercial issues.
B. The Supreme Court is authorized to create a business court division within
the district court of any judicial district containing a municipality with a popu-
lation in excess of three hundred thousand (300,000), according to the latest
Federal Decennial Census.
C. The Supreme Court shall promulgate rules for the establishment and jurisdic-
tion of the business court divisions.
2003 Okla. H.B. 2661, Oklahoma Second Session of the 49th Legislative Session,
Sections 16 and 17, enacted May 28, 2004, available at http://www2.lsb.state.
ok.us/2003-04hb/hb2661_enr.rtf (last visited Oct. 7, 2004).
PENNSYLVANIA
PHILADELPHIA COUNTY
ASSIGNMENT OF CASES SUBJECT TO COMMERCE PROGRAM
1. Cases Subject to Commerce Program. Notwithstanding anything to the contrary
in General Court Regulation 95-2 (Day Forward Program) or any other General
Court Regulation, Jury, Non-Jury & Equity, and Class Action cases filed on or
after January 1, 2000, but not Arbitration cases, shall be assigned to the Commerce
Program if they are among the following types of actions:
1. Actions relating to the internal affairs or governance, dissolution or liquida-
tion, rights or obligations between or among owners (shareholders, partners,
members), or liability or indemnity of managers (officers, directors, managers,
trustees, or members or partners functioning as managers) of business cor-
porations, partnerships, limited partnerships, limited liability companies or
partnerships, professional associations, business trusts, joint ventures or other
business enterprises, including but not limited to any actions involving in-
terpretation of the rights or obligations under the organic law (e.g., Pa. Busi-
ness Corporation Law), articles of incorporation, by-laws or agreements gov-
erning such enterprises;
2. Disputes between or among two or more business enterprises relating to
transactions, business relationships or contracts between or among the busi-
ness enterprises. Examples of such transactions, relationships and contracts
include:
a. Uniform Commercial Code transactions;
b. Purchases or sales of businesses or the assets of businesses;
c. Sales of goods or services by or to business enterprises;
d. Non-consumer bank or brokerage accounts, including loan, deposit cash
managements and investment accounts;
e. Surety bonds;
f. Purchases or sales or leases of, or security interests in, commercial, real

or personal property; and
g. Franchisor/franchisee relationships.
3. Actions relating to trade secret or non-compete agreements;
4. “Business torts,” such as claims of unfair competition, or interference with
contractual relations or prospective contractual relations;
5. Actions relating to intellectual property disputes;
6. Actions relating to securities, or relating to or arising under the Pennsylvania
Securities Act;
7. Derivative actions and class actions based on claims otherwise falling within
these ten types, and consumer class actions other than personal injury and
products liability claims;
8. Actions relating to corporate trust affairs;
9. Declaratory judgment actions brought by insurers, and coverage disputes and
bad faith claims brought by insureds, where the dispute arises from a business
or commercial insurance policy, such as a Comprehensive General Liability
policy, and;
10. Third-party indemnification claims against insurance companies where the
subject insurance policy is a business or commercial policy and where the
underlying dispute would otherwise be assigned to the Commerce Program,
not including claims where the underlying dispute is principally a personal
injury claim.
All of the above types of actions may involve individuals named as parties, in
addition to business enterprises, so long as all other criteria are met and the
essential nature of the litigation is a business dispute. For example, a dispute over
a commercial loan may include individual guarantors as either plaintiffs or defen-
dants, as the case may be, but such a lawsuit would still be a commercial dispute.
2. Cases Not Subject to the Commerce Program. The following types of matters
are not to be included in the Commerce Program:
1. Matters subject to Compulsory Arbitration in this Court or to the jurisdiction
of the Municipal Court, including any appeals.
2. Personal injury, survival or wrongful death matters.
3. Individual (non-class) consumer claims against businesses or insurers, in-
cluding products liability and personal injury cases.
4. Matters involving occupational health or safety.
5. Environmental claims not involved in the sale or disposition of a business
and other than those addressed in Commerce Program types 9 or 10 above.
6. Matters in eminent domain.
7. Malpractice claims, other than those brought by business enterprises against
attorneys, or accountants, architects or other professionals in connection with
the rendering of professional services to the business enterprise.
8. Employment law cases, other than those referenced in Commerce Program
type 3 above.
9. Administrative agency, tax, zoning and other appeals.
10. Petition Actions in the nature of Change of Name, Mental Health Act Peti-
tions, Petitions to appoint an Arbitrator, Government Election Matters, Leave
to Issue Subpoena, Compel Medical Examination.
11. Individual residential real estate and non-commercial landlord-tenant disputes.
12. Domestic relations matters, and actions relating to distribution of marital
property, custody or support.
13. Any matter required by statute, including 20 Pa.C.S. Chapter 7, §§ 711 &
713, to be heard in the Orphans’ Court or Family Court Division of the
Philadelphia Court of Common Pleas, or other matter which has heretofore
been within the jurisdiction of the Orphans’ Court of Family Court Division
of this Court.
14. Any criminal matter other than criminal contempt in connection with a Com-
merce Program action.
15. Such other matters as the Court shall determine.
Administrative Docket No. 01-2000, 30 Pa.B. 1362, available at http://www.
aopc.org/judicial-council/local-rules/philadelphia/philadel_chg_010100a.pdf
(last visited Oct. 7, 2004).
RHODE ISLAND
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC.
SUPERIOR COURT
ADMINISTRATIVE ORDER NO. 2001-9
RE: BUSINESS CALENDAR
There is hereby established for the Counties of Providence and Bristol, a “Business
Calendar.”
I. Civil actions in which the principal claim or claims involve the following
are appropriate matters to be assigned to the Business Calendar for all pur-
poses, including motion practice, discovery disputes, injunctive relief and
hearing on the merits (with or without a jury);
(a) Breach of contract or fiduciary duties, fraud, misrepresentation, busi-
ness tort or statutory violations arising out of business dealings and/or
transactions;
(b) Transactions governed by the provisions of the Uniform Commercial
Code;
(c) Complicated transactions involving commercial real property;
(d) Shareholder derivative actions;
(e) Commercial class actions;
(f ) Commercial Bank transactions;
(g) Matters affecting the internal affairs or governance of business organi-
zations or entities;
(h) Business insolvencies and receiverships.
II. Simple collection matters, declaratory judgment proceedings with respect

to insurance coverage, confirmation or vacation of arbitration awards, and
general landlord and tenant issues shall not be assigned to the Business
Calendar.
III. New matters shall be assigned to the Business Calendar at the request of
the plaintiff upon the filing of the Complaint, or of the defendant, not later
than ten days following the filing of defendant’s entry of appearance, but
only with the assent of the Justice designated to be in charge of the Business
Calendar. In this connection, the party moving shall set up, as soon as
practicable, a chambers conference with said Justice.
IV. In connection with cases presently pending, but not yet assigned to a trial
date, either party may request assignment to the Business Calendar with the
assent of such Justice procured at a conference to be set up as aforesaid.
V. It is the intent of the Superior Court to process matters on the Business
Calendar in as expeditious a manner as possible. To that end, the Justice in
charge of the Calendar is vested with the power to require mandatory sub-
mission of the dispute to non-binding mediation. Failure to comply with
an Order to that effect may be sanctionable.
VI. The Justice in charge of the Business Calendar may establish generally, or
in a particular case, informal procedures not inconsistent with law which
he/she believes will be helpful in achieving prompt resolution of discovery
disputes or other preliminary matters.
VII. In the event of the absence of the Justice in charge of the Business Calendar,
any application or motions with respect to matters on the Business Calendar
should be taken up with the Justice in charge of the Formal and Special
Cause Calendar.
VIII. The Business Calendar to commence operation on Monday, June 4, 2001,
in Courtroom No. 17. Justice Michael Silverstein will be in charge of said
Calendar from June 4, 2001, through Tuesday, December 18, 2001.
BY ORDER OF:
JOSEPH F. RODGERS, JR.

PRESIDING JUSTICE
DATED: April 17, 2001
R.I. Super Ct. Admin. Order No. 2001-9, available at http://www.courts.state.ri.us/
superior/pdfadministrativeorders/2001-9.pdf (last visited Oct. 7, 2004).
APPENDIX B
EXPERIENCES IN SOME OTHER JURISDICTIONS WITH

EFFORTS TO ESTABLISH BUSINESS COURTS
HAWAII
Hawaii’s Chapter of the American Judicature Society, has assembled a fifteen
member “Special Committee on Business Courts” to make an inquiry into “whether
Hawaii should or should not have a business court.” Erika Engle, New Hawaii
Business Court Gets Gaveled Into Possibility, HONOLULU STARBULLETIN, Apr. 11,
2003, available at http://starbulletin.com/2003/04/11/business/engle.html (last vis-
ited Oct. 7, 2004).
MAINE
After her appointment, Maine’s current Chief Justice, the Honorable Leigh Sau-
fley, made the following comments in response to an interviewer’s question con-
cerning the idea of a separate business court or docket:
Another thing Chief Justice Wathen talked about was the creation of a busi-
ness court. Is that a proposal likely to survive during your leadership?
We’ve already undertaken a number of things that will help us to address
issues of businesses in the courts. I think what [former Chief Justice Wathen]
was talking about is a docketing system as opposed to a separate court.
Several states have done pilot projects with special docketing for certain
kinds of complex business cases. In Maine, we’ve undertaken the single
justice project in those areas most likely to get complex business litigation.
And then we have focused on complex litigation; in fact, we have one judge
who’s headed off for more training at one of the national conferences on
complex litigation. All those things will come together in a more cohesive
docketing system which essentially responds to what [former Chief Justice
Wathen] was concerned about: that business cases may tend to get lost in
the rush of everything else the courts are trying to do.
Meet Maine’s New Chief Justice, 17 ME. B. J. 14, 16 (2002). More recently, the
Chief Justice indicated that a business court in Maine is probably three to five
years away. Email from George F. Burns, Esquire, Bernstein, Shur, Sawyer & Nel-
son, P.A., to Lee Applebaum, Esquire, Fineman, Krekstein & Harris, P.C. (Oct. 2,
2003, 08:39 EST) (on file with authors) (Mr. Burns is an attorney with Bernstein,
Shur, Sawyer & Nelson, P.A. in Portland, Maine and has been involved in working
towards the creation of a business court in Maine).
MINNESOTA
Efforts at creating a business court have not proved successful. Docketing
changes have been made in court procedures in some of the larger Minnesota
counties with a view to handling complex litigation matters of various sorts. Letter
from Thomas D. Feinberg, Esquire, to Lee Applebaum, Esquire, Fineman, Krek-
stein & Harris, P.C. (Sept. 15, 2003) (on file with authors).
MISSISSIPPI
“The Mississippi Secretary of State’s Business Law Advisory Group has discussed
the issue of business courts on several occasions and continues to explore the
feasibility of a business court. At the most recent meeting of the Business Law
Advisory Group the procedures in other states were discussed, as well as issues
unique to Mississippi.” Email from Henry Chatham, Esquire, Wise Carter Law
Firm, to Lee Applebaum, Esquire, Fineman, Krekstein & Harris, P.C. (Sept. 11,
2003, 11:16 EST) (on file with authors) (Mr. Chatham is with the Wise Carter
Law Firm in Jackson, Mississippi and is Mississippi’s State Bar Liaison to ABA
Committee on Corporate Laws).
OHIO
The Ohio State Bar Association approved proposed legislation to establish a
business court in Ohio in 1998; however, the legislation was not introduced
in the legislature. In January 2003, the Corporation Law Committee of the
OSBA established a subcommittee to review again the issue of establishing
a business court in Ohio. The Business Court subcommittee, chaired by
Harry Mercer, has been meeting and made an interim report to the Corpo-
ration Law Committee in September detailing the status of business courts
in a number of states. The subcommittee is expected to make recommen-
dations in a more detailed report to the Corporation Law Committee in
January 2004.
Email from Harry D. Mercer, Esquire, to Lee Applebaum, Esquire, Fineman, Krek-
stein & Harris, P.C. (Sept. 11, 2003, 09:48 EST) (on file with authors); see also
Dan Crawford, Ohio Bar Considers Push for Separate Business Court, BUS. FIRST OF
COLUMBUS, January 6, 1997, available at http://columbus.bizjounals.com/columbus/
stories/1997/01/06/story2.html (last visited Oct. 7, 2004) (reflecting efforts to-
ward establishing a business court as early as 1996); Cliff Peale, Business Courts
Proposed, CINCINNATI POST, Apr. 10, 1998, available at http://www.cincypost.com/
news/1998/court041098.html (last visited Oct. 7, 2004) (indicating Ohio Bar As-
sociation committee recommended a form of state-wide business court for the
purpose of seeking more expeditious case resolution, efficiency, consistency in
decisions, and decreasing backlog in the trial courts of general jurisdiction).
VIRGINIA
Although there were some efforts within the Virginia Bar Association suggesting
that inquiry be made into the creation of a business court in Virginia, it was
decided in October 2003 not to pursue such an effort. Email from David G.
Shuford, Esquire, to Lee Applebaum, Esquire, Fineman, Krekstein & Harris, P.C.
( June 3, 2004, 16:10 EST) (on file with authors).
WISCONSIN
In April of 1996, on recommendations made by a Special Task Force appointed
by then Governor Thompson, Chief Judge Patrick Sheedy of the Milwaukee
County Circuit Court implemented a business court pilot project and designated
two judges to the Special Business Court in Milwaukee. The court implemented
a set of summary proceeding rules limiting pleadings and calling for expedited
discovery. A party had to petition to be placed within the business court and a
decision was issued by a judge, whose decision could not be appealed. Milwaukee
County had revised its rules in 1998, eliminating monetary limitations and adding
the right to join third parties, pursue summary judgments and request a jury. The
process was voluntary, and still aimed at a highly expeditious resolution, though
not as streamlined as the original rules for summary proceedings. Due to the lack
of use, however, the Milwaukee Circuit Court business track is no longer active.
See generally Jane C. Schlict, Milwaukee’s New Business Court Rules, MBA MESSEN-
GER, Vol. 6, No. 5, May 1998; Pete Millard, Reworking the Business Courts, THE
BUS. J. OF MILWAUKEE, March 31, 1997; Maryland Business and Technology Court
Task Force Report, at appendix B, available at http://www.courts.state.md.us/
finalb&treport.pdf (last visited Oct. 7, 2004).
The Milwaukee Circuit Court’s Rules for Summary Proceedings for Business
Disputes, Milwaukee County Circuit Court Rules 330-338, however, can still be
located on the court’s web site: http://www.wisbar.org/rules/mil/mil3.html. Under
Milwaukee County Circuit Court Rule 330.D., business disputes are generally
defined as “any claim arising out of a commercial relationship, excluding claims
for personal, physical or mental injuries.” MILWAUKEE COUNTY CIR. CT. R. 330D,
available at http://www.wisbar.org/rules/mil/mil3.html (last visited Oct. 7, 2004).
Examples include securities disputes, asset sales, commercial leases, partnership
agreements, construction contracts, shareholder disputes, letters of credit, unfair
competition, and interference with business relations. See The Business Court Rules,
New and Speedy Options for Business Litigation, April 14, 1998, (provided for a
seminar presented by the Milwaukee Bar Association’s Civil Litigation Section on
Revised Business Court Rules on April 14, 1998 in Milwaukee).
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
NO.: 2003-17-03
ORDER DESIGNATING “BUSINESS COURT” AS “COMPLEX BUSINESS

LITIGATION COURT” AND MODIFYING CRITERIA GOVERNING CASES FILED
THEREIN
WHEREAS, the Ninth Judicial Circuit established and operated a specialized
subdivision known as “Business Court” since January, 2004; and
WHEREAS, consideration has been given to a more proper and fitting designation of
such Court; and
WHEREAS, the number of complex commercial cases currently pending before the
Judge presiding over such cases is such that the Judge cannot devote the proper amount of time
and attention to the cases to effectuate appropriate case management and analysis of complex
issues, and
WHEREAS, the Business Section of the Orange County Bar Association has, after
careful study and consideration, proposed certain amendments to the criteria governing the cases
filed in Business Court,
NOW, THEREFORE, I, Belvin Perry, Jr., pursuant to the authority vested in me as
Chief Judge of the Ninth Judicial Circuit of Florida under Florida Rule of Judicial
Administration 2.050, order that:
I. Change of Designation of Business Court.
Effective immediately, the “Business Court” shall be designated as the “Complex
Business Litigation Court.” Criteria governing the assignment of cases to the Complex Business
Litigation Court are amended as outlined herein.
1
II. Cases Subject to the Complex Business Litigation Court.
The principles set out below shall guide the parties and the Court in the assignment of cases to the
Complex Business Litigation Court. Notwithstanding anything to the contrary in any prior general
Administrative Order or Court procedure, all jury, non-jury, injunction and class action cases shall be
assigned to the Complex Business Litigation Court, if they are among the following types of actions:
A. Any of the following where the amount in controversy is in excess of
$75,000.00:
1. Claims arising from U.C.C. related transactions;
2. Claims arising from the purchases and sales of businesses or the assets of a
business, including contract disputes, commercial landlord-tenant claims, and business torts;
3. Claims involving the sale of goods or services by or to business
enterprises;
4. Claims involving non-consumer bank or brokerage accounts, including
loan, deposit, cash management, and investment accounts;
5. Claims arising from the purchase, sale, lease of commercial real or
personal property or security interests therein;
6. Claims related to surety bonds;
7. Franchisee/franchisor relationships and liabilities;
8. Malpractice claims of non-medical professionals in connection with
rendering services to a business enterprise;
9. Insurance coverage disputes, bad faith suits, and third party indemnity
actions against insurers arising under policies issued to businesses, such as claims arising under a
commercial general liability policy or commercial property policy; and
2
10. Other complex disputes of a commercial nature, excluding those listed
in Section III, below. Cases eligible under this category will normally have four or more parties,
multiple claims and defenses, third party, cross or counterclaims, complex factual or legal issues, or
other unusual features warranting assignment to the Complex Business Litigation Court.
B. Any of the following without regard to the amount in controversy:
1. Actions relating to the internal affairs or governance, dissolution or
liquidation rights obligations between or among owners (shareholders, partners, members), or liability or
indemnity of managers (officers, directors, managers, trustees, or members or partners functioning as
managers) of corporations, partnerships, limited partnerships, limited liability companies or partnerships,
professional associations, business trusts, joint ventures or other business enterprises;
2. Actions relating to trade secrets and non-compete agreements;
3. Intellectual property claims;
4. Actions relating to securities or relating to or arising under the state
securities laws or antitrust statutes;
5. Shareholder derivative actions and class actions involving claims that are
subject to the Complex Business Litigation Court, pursuant to this Order; and
6. Actions relating to corporate trust affairs or director and officer liability.
III. Cases Not Subject to the Complex Business Litigation Court.
The following types of matters are not ordinarily to be assigned to the Complex Business Litigation
Court:
A. Appeals from the County Court;
B. Personal injury, survivor, or wrongful death matters;
C. All individual and class action consumer claims;
3
D. Matters involving occupational health or safety;
E. Environmental claims which do not involve the sale or disposition of a business or
the claims addressed in Section I, paragraphs 8 and 9, above;
F. Matters in eminent domain;
G. Malpractice claims, other than those brought by business enterprises against
attorneys, accountants, architects or other professionals in connection with the rendering of professional
services to the business enterprise;
H. Employment law cases, other than those addressed in Section II, paragraph B. 2.,
above;
I. Administrative agency, tax, zoning and other appeals;
J. Petition actions in the nature of change of name, mental health act, guardianship, or
government election matters;
K. Individual residential real estate and non-commercial landlord-tenant disputes;
L. Suits to collect professional fees;
M. Cases seeking a declaratory judgment as to insurance coverage for a
N. Proceedings to enforce a judgment regardless of the nature of the
underlying case;
O. Actions by insurers to collect premiums or rescind policies;
P. Domestic relations matters, and actions relating to distribution of marital property,
custody, or support;
Q. Any matter required by statute or other law to be heard in some other court or court
4
division;
R. Any criminal matter, except criminal contempt in connection with a Complex
Business Litigation Court action;
S. Such other cases which are appropriately transferred out of the Complex Business Litigation
Court, pursuant to Section V of this Order.
IV. Assignment of Cases to the Complex Business Litigation Court.
A. Effective immediately, the Civil Cover Sheet shall include an additional line and
box where the party or attorney signing the Civil Cover Sheet must certify whether the action is appropriate
for assignment to the Complex Business Litigation Court. A "Complex Business Litigation Court
Addendum to Civil Cover Sheet" (“Addendum”), a sample of which is attached hereto as Exhibit “A,” is
hereby required to be filed with all initial filings that meet the Complex Business Litigation Court criteria
and which are filed on or after the date of this Order. The filing party or attorney shall indicate on the
Addendum the applicable type or types of action that qualify the case for assignment to the Complex
Business Litigation Court. A party’s or an attorney's signature on the Civil Cover Sheet shall constitute
certification that the matter is appropriate for the Complex Business Litigation Court. A copy of the Civil
Cover Sheet and Addendum shall be served on all parties.
B. Cases meeting the criteria to qualify for Complex Business Litigation Court,
pursuant to this Administrative Order, shall be assigned to Subdivision 32 in the Circuit Civil Division,
Orange County, by the Clerk of the Court.
C. Judges assigned to other Subdivisions in the Circuit Civil Division and/or
litigants may submit a request to the Administrative Judge of the Circuit Civil Division to assign/transfer a
pending case that meets the criteria of the Complex Business Litigation Court to Subdivision 32.
5
D. Controversies which may arise concerning the assignment/transfer of any case in
the Circuit Civil Division, including Complex Business Litigation Court cases, shall be resolved by the
Administrative Judge of the Circuit Civil Division.
V. Disputes Arising From the Civil Cover Sheet Designation.
If any party disagrees with the assignment or lack of assignment of a case to the Complex Business
Litigation Court, that party may file a “Motion to Transfer Divisions” with the Judge in the assigned
subdivision, and the motion will be resolved by the Administrative Judge of the Circuit Civil Division in
accordance with the Ninth Judicial Circuit Administrative Procedures for case re-assignment.
DONE AND ORDERED at Orlando, Orange County, Florida this 3rd day of November,
2005.
/s/ Belvin Perry, Jr.

Belvin Perry, Jr.
Chief Judge
Copies to:
Clerk of Courts, Orange County
Clerk of Courts, Osceola County
General E-Mail Distribution List
http://www.ninja9.org/adminorders/query.asp
6
EXHIBIT “A”
[CIVIL COVER SHEET COMPLEX BUSINESS LITIGATION COURT ADDENDUM]
7
CIVIL COVER SHEET COMPLEX BUSINESS LITIGATION COURT ADDENDUM
PARTY OR ATTORNEY FILING ACTION MUST SELECT WHICH APPLIES
Cases Subject to Complex Business Litigation Court. The principles set out below shall guide the parties and the Court
in the assignment of cases to the Complex Business Litigation Court. All jury, non-jury, injunction and class action cases
shall be assigned to the Complex Business Litigation Court if they are among the following types of actions:
A. Any of the following where the amount in controversy is in excess of $75,000.00:
1. Claims arising from U.C.C. related transactions;
2. Claims arising from the purchases and sales of business or the assets of a business
including contract disputes, commercial landlord-tenant claims and business torts;
3. Claims involving the sale of goods or services by or to business enterprises;
4. Claims involving non-consumer bank or brokerage accounts, including loan,

deposit, cash management, and investment accounts;
5. Claims arising from the purchase, sale, lease of real or personal property or
security interests therein;
6. Claims related to surety bonds;
7. Franchisee/franchisor relationships and liabilities;
8. Malpractice claims of non-medical professionals in connection with rendering

services to a business enterprise;
9. Insurance coverage disputes, bad faith suits, and third party indemnity actions
against insurers arising under policies issued to businesses, such as those claims arising under a commercial
general liability policy or commercial property policy; and
10. Other complex disputes of a commercial nature, excluding those listed in

Section III of Administrative Order Number 2003-17-2. Cases eligible under this category will normally have four
or more parties, multiple claims and defenses, third party, cross or counterclaims, complex factual or legal issues,
or other unusual features warranting assignment to the Complex Business Litigation Court.
B. Any of the following without regard to the amount in controversy:
1. Actions relating to the internal affairs or governance, dissolution or liquidation

rights or obligations between or among owners (shareholders, partners, members), or liability or indemnity of
managers (officers, directors, managers, trustees, or members or partners functioning as managers) of corporations,
partnerships, limited partnerships, limited liability companies or partnerships, professional associations, business
trusts, joint ventures or other business enterprises;
2. Actions relating to trade secrets and non-compete agreements;
3. Intellectual property claims;
8
4. Actions relating to securities or relating to or arising under the state securities
laws or antitrust statutes;
5. Shareholder derivative suits and class actions involving claims that are subject
to Complex Business Litigation Court , pursuant to Administrative Order Number 2003-17-2 ; and
6. Actions relating to corporate trust affairs or director and officer liability.
NOTE: A copy of the Civil Cover Sheet and this Addendum must be served with the Complaint for all Complex Business
Litigation Court cases. See Administrative Order Number 2003-17-2 for further Complex Business Litigation Court
requirements.
9
BUSINESS COURT PROCEDURES FOR THE NINTH JUDICIAL CIRCUIT COURT,
SECTION 1 – PHILOSOPHY, SCOPE AND GOALS

1.1 - Citation to Procedures
1.2 - Purpose and Scope
1.3 - Goals
1.4 - Integration with Other Rules
SECTION 2 - CASE FILING, ASSIGNMENT, TRACKING AND IDENTIFICATION
2.1 - Cases Subject to Business Court
2.2 - Case Identification Numbers
SECTION 3 - VIDEOCONFERENCING
3.1 - By Agreement
3.2 - Responsibility for Videoconferencing Facilities
3.3 - Allocation of Videoconferencing Costs
3.4 - Court Reporter
3.5 - Exchange of Exhibits and Evidence to be Used in Videoconference Hearing
SECTION 4 - CALENDARING, APPEARANCES AND SETTLEMENT
4.1 - Preparation of Calendar
4.2 - Appearances
4.3 - Notification of Settlement
SECTION 5 - MOTION PRACTICE
5.1 - Form
5.2 - Content of Motions
5.3 - Certificate of Good Faith Conference
5.4 - Motions Decided on Papers and Memoranda
5.5 - Response to Motion and Memorandum
5.6 - Extension of Time for Filing Supporting Documents and Memoranda
5.7 - Reply Memoranda
5.8 - Font and Spacing Requirements
5.9 - Suggestion of Subsequently Decided Authority
5.10 - Motions Not Requiring Memoranda
5.11 - Failure to File and Serve Motion Materials
5.12 - Preparation of Orders
5.13 - Ex Parte
5.14 - Determination of Motions Through Oral Argument Without Briefs
5.15 - Motions to Compel and for Protective Order
5.16 - Motions to File Under Seal
5.17 - Emergency Motions
SECTION 6 - CASE MANAGEMENT NOTICE, MEETING, REPORT,
CONFERENCE AND ORDER
6.1 - Notice of Hearing and Order on Case Management Conference
6.2 - Case Management Meeting
6.3 - Joint Case Management Report
6.4 - Case Management Conference
6.5 - Case Management Order
SECTION 7 - DISCOVERY
7.1 - Presumptive Limits on Discovery Procedures
7.2 - Depositions
7.3 - Special Masters
7.4 - No Filing of Discovery Materials
7.5 - Discovery with Respect to Expert Witnesses
7.6 - Completion of Discovery
7.7 - Extension of the Discovery Period or Request for Additional Discovery
7.8 - Trial Preparation After the Close of Discovery
7.9 - Confidentiality Agreements
SECTION 8 - ALTERNATIVE DISPUTE RESOLUTION
8.1 – Alternative Dispute Resolution Mandatory in All Cases
8.2 - Non-Binding Arbitration
8.3 - Mediation
SECTION 9 - JOINT FINAL PRETRIAL STATEMENT
9.1 - Meeting and Preparation of Joint Final Pretrial Statement
9.2 - Contents of Joint Final Pretrial Statement
9.3 - Coordination of Joint Final Pretrial Statement
SECTION 10 - TRIAL MEMORANDA AND OTHER MATERIALS
10.1 - Trial Memoranda
SECTION 11 - FINAL PRETRIAL CONFERENCE
11.1 - Mandatory Attendance
11.2 - Substance of Final Pretrial Conference
SECTION 12 - SANCTIONS
12.1 - Grounds
SECTION 13 - TRIAL
13.1 - Examination of Witnesses
13.2 - Objections
SECTION 14 - COURTROOM DECORUM
14.1 - Communications and Position
14.2 - Professional Demeanor
SECTION 15 - JURIES
15.1 - Jury Instruction Conference
15.2 - Objections to Instructions
SECTION 16 - TRIAL DATES AND FINAL PRETRIAL PREPARATION
16.1 - Trial Date
SECTION 17 - WEB SITE AND PUBLICATION
17.1 - Web Site
SECTION 1 - PHILOSOPHY, SCOPE AND GOALS
1.1 - Citation to Procedures. These Procedures shall be known and cited as the Business
Court Procedures. They may also be referred to in abbreviated form as “BCP” or “Business Court
Procedures,” e.g., this section may be cited as “BCP 1.1.”
1.2 - Purpose and Scope. The Business Court Procedures are designed to facilitate the
proceedings of cases by the Ninth Judicial Circuit Business Court. The Business Court Procedures
shall apply to all actions in the Business Court Subdivision of the Civil Division of the Ninth Judicial
Circuit Court of Florida.
1.3 - Goals. The Business Court Procedures are intended to provide better access to Court
information for litigants, counsel and the public; increase the efficiency and understanding of Court
personnel, counsel and witnesses; decrease costs for litigants and others involved in the court system;
and facilitate the efficient and effective presentation of evidence in the courtroom. These Procedures
shall be construed and enforced to avoid technical delay, encourage civility, permit just and prompt
determination of all proceedings and promote the efficient administration of justice.
1.4 - Integration with Other Rules. These Procedures are intended to supplement, not
supplant, the rules adopted by the Supreme Court of Florida. Should any conflict be deemed to exist
between the Business Court Procedures and the rules, then the rules shall control.
SECTION 2 - CASE FILING, ASSIGNMENT, TRACKING AND IDENTIFICATION
2.1 - Cases Subject to Business Court. The principles set out in Amended Administrative
Order 2003-17-1, which is located on the Business Court Web Site at
http://www.ninja9.org/court/business/index-BC.htm, shall govern the assignment of cases to Business
Court.
2.2 - Case Identification Numbers. On assignment of any matter to the Business Court, the
matter shall retain the civil action number assigned to it by the Clerk of Courts.
SECTION 3 – VIDEOCONFERENCING
3.1 - By Agreement. By mutual agreement, counsel may arrange for any proceeding or
conference to be held by videoconference by coordinating a schedule for such meeting that is
convenient with the Business Court. All counsel and other participants shall be subject to the same
rules of procedure and decorum as if all participants were present in the courtroom.
3.2 - Responsibility for Videoconferencing Facilities. The parties are responsible for
obtaining all communications facilities and arranging all details as may be required to connect and
interface with the videoconferencing equipment available to the Business Court. The Business
Court will endeavor to make reasonable technical assistance available to the parties, but all
responsibility for planning and executing all technical considerations required to successfully hold
a videoconference shall remain solely with the parties.
3.3 - Allocation of Videoconferencing Costs. In the absence of a contrary agreement
among the parties, the parties participating by videoconference shall bear their own costs of
participating via this method.
3.4 - Court Reporter. Where any proceeding is held by videoconference, the court
reporter transcribing such proceeding will be present in the same room as the judge presiding over
the proceeding.
3.5 - Exchange of Exhibits and Evidence to be Used in Videoconference Hearing.
Any exhibits or evidence to be used in a videoconference hearing must be provided to opposing
counsel and to the Court five business days prior to the hearing. All exhibits or evidence so
provided shall bear exhibit tags marked with the case name, case number, identity of the
propounding party and an identification number. Any objections to any exhibit or evidence must
be provided to the Court in writing at least five days in advance of the hearing and reference the
appropriate exhibit tags.
SECTION 4 - CALENDARING, APPEARANCES AND SETTLEMENT
4.1 - Preparation of Calendar. The calendar for the Business Court shall be prepared under
the supervision of the Business Court Judge and published on the Business Court web site.
4.2 - Appearances. An attorney who is notified to appear for any proceeding before the
Business Court, must, consistent with ethical requirements, appear or have a partner, associate or
another attorney familiar with the case present.
4.3 - Notification of Settlement. When any cause pending in the Business Court is settled,
all attorneys or unrepresented parties of record must notify the Business Court Judge or the Judge’s
designee within twenty-four (24) hours of the settlement and must advise the Court of the party who
will prepare and present the judgment, dismissal or stipulation of dismissal and when such filings will
be presented.
SECTION 5 - MOTION PRACTICE
5.1 - Form. All motions, unless made orally during a hearing or a trial, shall be accompanied
by a memorandum of law, except as provided in BCP 5.10. Any memorandum of law shall be filed in
support of one motion only and shall not exceed twenty-five (25) pages in length. Separate motions
shall be filed separately and a memorandum of law filed in support of each. Motions that are
inextricably intertwined and either substantively related or in the alternative may be filed together.
5.2 - Content of motions. All motions shall state with particularity the grounds therefor,
shall cite any statute or rule of procedure relied upon and shall set forth the relief sought. Factual
statements in a motion for summary judgment shall be supported by specific citations to the
supporting documents. The parties shall not raise issues at the hearing on the motion that were not
addressed in the motion and memoranda in support of and in opposition to the motion. The practice
of offering previously undisclosed cases to the Court at the hearing is specifically discouraged.
5.3 - Certificate of Good Faith Conference. Before filing any motion in a civil case, the
moving party shall confer with counsel for the opposing party in a good faith effort to resolve the
issues raised by the motion and shall file with the motion a statement certifying that the moving party
has conferred with opposing counsel and that counsel have been unable to agree on the resolution of
the motion (the “Certificate”).
a. The term “confer,” as used herein, requires a substantive conversation in person or
by telephone in a good faith effort to resolve the motion without court action and
does not envision an exchange of ultimatums by fax or letter. Counsel who merely
attempt to confer have not conferred. Counsel must respond promptly to inquiries
and communications from opposing counsel. The Court will sua sponte deny
motions that fail to include an appropriate and complete Certificate under this
section.
b. The Certificate shall set forth the date of the conference, the names of the
participating attorneys, and the specific results achieved. It shall be the
responsibility of counsel for the movant to arrange for the conference.
c. No conference, and therefore no Certificate, is required in motions for injunctive
relief without notice, for judgment on the pleadings, summary judgment, or to
permit maintenance of a class action.
d. A party alleging that a pleading fails to state a cause of action will confer with
counsel for the opposing party before moving to dismiss, and, upon request of the
other party, will stipulate to an order permitting the filing of a curative amended
pleading in lieu of filing a motion to dismiss.
5.4 - Motions Decided on Papers and Memoranda. Motions shall be considered and
decided by the Court on the pleadings, admissible evidence, the court file, and memoranda, without
hearing or oral argument, unless otherwise ordered by the Court. Any party seeking oral argument
shall file a separate motion setting forth the reasons oral argument should be granted. If the Court
grants oral argument on any motion, it shall give the parties at least five (5) business days’ notice of
the date and place of oral argument. The Court, for good cause shown, may shorten the five (5) day
notice period. All papers relating to the issues to be argued at the hearing shall be delivered to
opposing counsel and the Court at least five (5) business days before the hearing. Service and receipt
of the papers less than five days before the hearing is presumptively unreasonable.
5.5 - Response to Motion and Memoranda. The respondent, if opposing a motion, shall file
a memorandum in opposition within twenty (20) days after service of the motion or within thirty (30)
days of service if the motion is for summary judgment. Memoranda in opposition shall not exceed
twenty-five (25) pages in length. If supporting documents are not then available, the respondent may
move for an extension of time. For good cause appearing therefore, a respondent may be required by
the Court to file any response and supporting documents, including a memorandum, within such
shorter period of time as the Court may specify.
5.6 - Extension of Time for Filing Supporting Documents and Memoranda. Upon proper
motion accompanied by a proposed order, the Court may enter an ex parte order, specifying the time
within which supporting documents and memoranda may be filed, if it is shown that such documents
are not available or cannot be filed contemporaneously with the motion or response. The time
allowed to an opposing party for filing a response shall not run during any such extension.
5.7- Reply Memorandum. The movant may file a reply memorandum within ten (10) days
of service of the memorandum in opposition to the motion. A reply memorandum is limited to
discussion of matters raised in the memorandum in opposition and shall not exceed ten (10) pages in
length.
5.8- Font and Spacing Requirements. All motions and memoranda shall be double-spaced
and in Times New Roman 14-point font or Courier New 12-point font.
5.9 - Suggestion of Subsequently Decided Authority. A suggestion of controlling or
persuasive authority that was decided after the filing of the last memorandum may be filed at any time
prior to the Court’s ruling and shall contain only the citation to the authority relied upon, if published,
or a copy of the authority if it is unpublished, and shall not contain argument.
5.10 - Motions Not Requiring Memoranda. Memoranda are not required by either the
movant or the opposing party, unless otherwise directed by the Court, with respect to the following
motions:
a. discovery motions;
b. extensions of time for the performance of an act required or allowed to be done, provided
that the request is made before the expiration of the period originally prescribed or
extended by previous orders;
c. to continue a pre-trial conference, hearing, or the trial of an action;
d. to add or substitute parties;
e. to amend the pleadings;
f. to file supplemental pleadings;
g. to appoint a next friend or guardian ad litem;
h. to stay proceedings to enforce judgment;
i. for pro hac vice admission of counsel who are not members of The Florida Bar;
j. relief from the page limitations imposed by these Procedures; and
k. request for oral argument.
The above motions must state good cause therefor and cite any applicable rule, statute or
other authority justifying the relief sought. These motions must be accompanied by proposed orders.
5.11 - Failure to File and Serve Motion Materials. The failure to file a memorandum
within the time specified in this section shall constitute a waiver of the right thereafter to file such
memorandum, except upon a showing of excusable neglect. A motion unaccompanied by a required
memorandum may, in the discretion of the Court, be summarily denied. Failure to timely file a
memorandum in opposition to a motion will result in the pending motion being considered and
decided as an uncontested motion.
5.12 - Preparation of Orders. In matters in which the Court does not prepare its own
orders, the Court will direct the prevailing party to prepare an order in accordance with its ruling. In
cases in which a party submits an order to the Court, multiple copies and addressed stamped
envelopes sufficient for all parties shall be submitted therewith. No order will be entered unless the
party proffering such an order represents that he or she has provided copies to the opposing parties in
advance, and they have no objection to the form of the order. In proposing an order entering a final
judgment of default, the party must contemporaneously provide the Court with sufficient information
establishing that the motion for entry of a final judgment by default should be granted. If an
agreement among the parties cannot be reached on a proposed order, the parties must convene an ex
parte hearing to address any objections to the proposed order.
5.13 - Ex Parte. The Court will convene ex parte on a schedule to be published on the
Business Court web site at http://www.ninja9.org/court/business/index-BC.htm. Ex Parte is reserved
for uncontested matters with the exception of disputes over the form of proposed orders as discussed
in BCP 5.12 above. The use of court reporters is not permitted at ex parte.
5.14 - Determination of Motions Through Oral Argument Without Briefs. The parties
may present motions and the Court may resolve disputes regarding the matters described in BCP 5.10
through the use of an expedited oral argument procedure. Applicable motions are those that are
limited to matters which can be argued and determined in twenty minutes or less, and may be heard
on the Court’s Short Matters docket, which requires coordination with counsel, but not the
reservation of a specific time through the judicial assistant. The dates and times of Short Matters
hearings will be posted on the Business Court web site at http://www.ninja9.org/court/business/index-
BC.htm.
5.15 - Motions to Compel and for Protective Order. Any party seeking to compel
discovery or to obtain a protective order with respect to discovery must identify the specific portion
of the material that is directly relevant and ensure that it is filed as an attachment to the application for
relief.
5.16 - Motions to File Under Seal. Whether documents filed in a case may be filed under
seal is a separate issue from whether the parties may agree that produced documents are confidential.
Motions to file under seal are disfavored. The court will permit the parties to file documents under
seal only upon a finding of extraordinary circumstances and particularized need. A party seeking to
file a document under seal must file a motion to file under seal requesting such Court action. The
motion, whether granted or denied, will remain in the public record.
5.17 - Emergency Motions. The Court may consider and determine emergency motions at
any time. Counsel should be aware that the designation “emergency” may cause a judge to abandon
other pending matters in order to immediately address the emergency. The Court will sanction any
counsel or party who designates a motion as an emergency under circumstances that are not true
emergencies. It is not an emergency when counsel has delayed discovery until the end of the
discovery period.
SECTION 6 - CASE MANAGEMENT NOTICE, MEETING, REPORT,

CONFERENCE AND ORDER
6.1 - Notice of Hearing and Order on Case Management Conference. Within 30 days of
filing or transfer of a case to Business Court, the Court will issue and serve on Plaintiff’s counsel a
Notice of Hearing and Order on Case Management Conference (the “Notice”). Plaintiff’s counsel
shall immediately thereafter serve a copy of the Notice on all Defendants. Defendants shall
immediately serve a copy of the Notice on all Third Party Defendants.
6.2 - Case Management Meeting. Regardless of the pendency of any undecided motions,
Lead Trial Counsel shall meet no less than 30 days in advance of the Case Management Conference
(“CMC”) and address the following subjects, along with other appropriate topics, including those set
forth in Florida Rule of Civil Procedure 1.200(a), some of which subjects and topics will be
incorporated into a Case Management Order prepared by the Court:
a. Pleadings issues, service of process, venue, joinder of additional parties, theories
of liability, damages claimed and applicable defenses;
b. The identity and number of any motions to dismiss or other preliminary or pre-
discovery motions that have been filed and the time period in which they shall be
filed, briefed and argued;
c. A discovery plan and schedule including the length of the discovery period, the
number of fact and expert depositions to be permitted and, as appropriate, the
length and sequence of such depositions;
d. Anticipated areas of expert testimony, timing for identification of experts,
responses to expert discovery and exchange of expert reports;
e. An estimate of the volume of documents and computerized information likely to be
the subject of discovery from parties and nonparties and whether there are
technological means that may render document discovery more manageable at an
acceptable cost;
f. The advisability of using special master(s) for fact finding, mediation, discovery
disputes or such other matters as the parties may agree upon;
g. The time period after the close of discovery within which post-discovery
dispositive motions shall be filed, briefed and argued and a tentative schedule for
such activities;
h. The possibility of settlement and the timing of Alternative Dispute Resolution,
including the selection of a mediator or arbitrator(s);
i. Whether or not a party desires to use technologically advanced methods of
presentation or court-reporting and, to the extent this is the case, a determination
of the following:
i. Fairness issues, including but not necessarily limited to use of such
capabilities by some but not all parties and by parties whose
resources permit or require variations in the use of such capabilities;
ii. Issues related to compatibility of Court and party facilities and
equipment;
iii. Issues related to the use of demonstrative exhibits and any
balancing of relevance and potential prejudice that may need to
occur in connection with such exhibits;
iv. The feasibility of sharing the technology resources or platforms
amongst all parties so as to minimize disruption at trial; and
v. Such other issues related to the use of the Court’s and parties’
special technological facilities as may be raised by any party, the
Court or the Court’s technological advisor, given the nature of the
case and the resources of the parties.
j. A good faith estimate by each party based upon consultation among the parties of
the costs each party is likely to incur in pursuing the litigation through trial court
adjudication;
k. A preliminary listing of the principal disputed legal and factual issues;
l. A preliminary listing of any legal principle and facts that are not in dispute;
m. A good faith estimate by each party of the length of time to try the case;
n. Whether a demand for jury trial has been made;
o. The track to which the case will be assigned. The Business Court typically
employs the following management tracks: Business Expedited (Target Trial Date
within 13 months of filing of complaint); Business Standard (Target Trial Date
within 18 months of filing of complaint); and Business Complex (Target Trial Date
within two years of filing of complaint).
p. Such other matters as the Court may assign to the parties for their consideration.
6.3 - Joint Case Management Report. No less than ten (10) days in advance of the CMC,
the Parties shall file the Joint Case Management Report addressing the matters described above and
shall provide the Court, but not file with the clerk, a diskette, CD or e-mail attachment containing the
Joint Case Management Report. All counsel and parties are responsible for filing a Joint Case
Management Report in full compliance with these Procedures. Plaintiff’s counsel shall have the
primary responsibility to coordinate the meeting between the parties and the filing of the Joint Case
Management Report. If a non-lawyer plaintiff is proceeding pro se, defense counsel shall coordinate
compliance. If counsel is unable to coordinate such compliance, counsel shall timely notify the Court
by written motion or request for a status conference.
6.4 - Case Management Conference. The attendance by Lead Trial Counsel for all parties is
mandatory. The court will hear the views of counsel on such issues listed in BCP 6.2 above as are
pertinent to the case or on which there are material differences of opinion.
6.5 - Case Management Order. Following the CMC, the Court will issue a Case
Management Order. The provisions of the Case Management Order may not be deviated from
without notice, an opportunity to be heard, a showing of good cause and entry of an order by the
Court.
The Case Management Order may also specify a schedule of status conferences, when
necessary, to assess the functioning of the Case Management Order, assess the progress of the case,
and enter such further revisions to the Case Management Order as the Court may deem necessary or
appropriate.
SECTION 7 – DISCOVERY
7.1 - Presumptive Limits On Discovery Procedures. Presumptively, subject to stipulation

of the parties and order of the Court for good cause shown, each party is limited to propounding fifty
(50) interrogatories (including sub-parts) and fifty (50) requests for admission on each opposing
party. Depositions are presumptively limited to twelve (12) depositions (not including depositions of
testifying experts) taken by the plaintiffs, twelve (12) depositions taken by the defendants, and twelve
(12) depositions taken by the third-party defendants, regardless of the number of separate parties
designated as plaintiffs, defendants, and third-party defendants. The parties may agree by stipulation
on other limits on discovery within the context of the limits and deadlines established by these
Procedures and the Court’s Case Management Order, but the parties may not alter the limitations
provided by these Procedures without leave of Court.
7.2 - Depositions. The Court expects counsel to conduct discovery in good faith and to
cooperate and be courteous in all phases of the discovery process. Depositions shall be conducted in
accordance with the following guidelines:
a. All parties or employees will be made available for deposition on five days notice to
counsel.
b. Counsel shall not direct or request that a witness not answer a question, unless
counsel has objected to the question on the ground that the answer is protected by privilege
or a limitation on evidence directed by the Court.
c. Counsel shall not make objections or statements that might suggest an answer to a
witness. Counsel’s statements when making objections should be succinct, stating the basis of
the objection and nothing more.
d. Counsel and their clients shall not engage in private, off-the-record conferences
during the client’s deposition, except for the purpose of deciding whether to assert a privilege.
e. Deposing counsel shall provide to the witness’s counsel a copy of all documents
shown to the witness during the deposition. The copies shall be provided either before the
deposition begins or contemporaneously with the showing of each document to the witness.
The witness and the witness’s counsel do not have the right to discuss documents privately
before the witness answers questions about the documents.
f. When the deponent or any party demands that the deposition be read and signed,
the failure of the deponent to read and sign the deposition within thirty days from the date the
transcript becomes available to the deponent shall be deemed to ratify the entire deposition.
g. The Court will entertain telephonic hearings regarding issues raised during
depositions then in progress.
7.3 - Special Masters. The Court may, at any time, on its own motion or on the motion of
any party, appoint a special master in any given case pending in Business Court in accordance with
Florida Rule of Civil Procedure 1.490. Unless otherwise ordered, the parties shall bear equally the
cost of proceeding before a special master, and such fees may be taxed as costs.
7.4 - No Filing of Discovery Materials. Depositions and deposition notices, notices of
serving interrogatories, interrogatories, requests for documents, requests for admission, and answers
and responses thereto shall not be filed unless the Court so orders or unless the parties will rely on
such documents in a pretrial proceeding. All discovery materials must be served on other counsel or
parties. The party taking a deposition or obtaining any material through discovery (including through
third party discovery) is responsible for the preservation and delivery of such material to the Court
when needed or ordered in the form specified by the Court.
7.5 - Discovery with Respect to Expert Witnesses. Discovery with respect to experts must
be conducted within the discovery period established by the Case Management Order. In complying
with the obligation to exchange reports relating to experts, the parties shall disclose all opinions to be
expressed and the basis and reasons therefor; the data or other information considered by the witness
in forming the opinions, any exhibits to be used as a summary of or support for the opinions; the
qualifications of the witness, including a list of publications authored by the witness within the
preceding ten years; the compensation to be paid for the study and testimony; and a listing of any
other cases in which the witness has testified as an expert at trial or by deposition or affidavit within
the preceding four years. Each party offering an expert witness shall provide three alternative dates
for the deposition of the expert.
7.6 - Completion of Discovery. The requirement that discovery be completed within a
specified time mandates that adequate provisions must be made for interrogatories and requests for
admission to be answered, for documents to be produced, and for depositions to be held within the
discovery period. The Court does not anticipate entertaining motions relating to discovery conducted
after the close of the discovery period as set forth in the Court’s Case Management Order.
7.7 - Extension of the Discovery Period or Request for Additional Discovery. Motions
seeking an extension of the discovery period or permission to take more discovery than is permitted
under the Case Management Order must be presented prior to the expiration of the time within which
discovery is required to be completed. Such motions must set forth good cause justifying the
additional time or additional discovery and will only be granted upon such a showing of good cause
and that the parties have diligently pursued discovery. The Court will usually only permit additional
depositions upon a showing of exceptionally good cause.
7.8 - Trial Preparation After the Close of Discovery. Ordinarily, the deposition of a
material witness not subject to subpoena should be taken during discovery. However, the deposition
of a material witness who agrees to appear for trial, but later becomes unavailable or refuses to
attend, may be taken at any time prior to or during trial.
7.9 - Confidentiality Agreements. The parties may reach their own agreement regarding the
designation of materials as confidential. There is no need for the Court to endorse the confidentiality
agreement. The Court discourages unnecessary stipulated motions for protective orders. The Court
will enforce signed confidentiality agreements. Each confidentiality agreement shall provide or shall
be deemed to provide that no party shall file documents under seal without having first obtained an
order granting leave of Court to file documents under seal based upon a showing of particularized
need.
SECTION 8 - ALTERNATIVE DISPUTE RESOLUTION

8.1 - Alternative Dispute Resolution Mandatory in All Cases. Alternative Dispute
Resolution (“ADR”) is a valued tool in the resolution of litigated matters. An appropriate mechanism
for ADR shall be discussed by the Court and counsel at the Case Management Conference. The Case
Management Order shall order the parties to a specific ADR process, to be conducted either by a
Court-assigned or an agreed-upon facilitator and shall establish a deadline for its completion.
8.2 - Non-Binding Arbitration. The parties may agree to submit to non-binding arbitration
or it may be ordered upon motion of any party. The rules governing arbitration shall be selected by
the parties or failing agreement, the Court will order use of all or a part of the arbitration rules
common to the Ninth Judicial Circuit, the American Arbitration Association or other available rules.
8.3 - Mediation.
a. Case Summaries - Not less than five business days prior to the mediation
conference, each party shall deliver to the mediator a written summary of the facts and issues
of the case.
b. Identification of Business Representative - As part of the written summary, counsel
for each corporate party shall state the name and general job description of the employee or
agent who will attend and participate with full authority to settle on behalf of the business
entity.
c. Attendance Requirements and Sanctions - Lead Trial Counsel and each party
(including, in the case of a business party, a business representative, and in the case of an
insurance company, the insurance company representative as set forth in Florida Rule of Civil
Procedure 1.720(b)(3)) with full authority to settle shall attend and participate in the
mediation conference. In the case of an insurance company, the term “full authority to settle”
means authority to settle up to the amount of the party’s last demand or the policy limits,
whichever is less, without further consultation. The court will impose sanctions upon Lead
Trial Counsel and parties who do not attend and participate in good faith in the mediation
conference.
d. Authority to Declare Impasse - Participants shall be prepared to spend as much
time as may be necessary to settle the case. No participant may force the early conclusion of
mediation because of travel plans or other engagements. Only the mediator may declare an
impasse or end the mediation.
e. Rate of Compensation - The mediator shall be compensated at an hourly rate
stipulated by the parties in advance of mediation. Upon motion of the prevailing party, the
party’s share may be taxed as costs in this action.
f. Settlement and Report of Mediator - A settlement agreement reached between the
parties shall be reduced to writing and signed by the parties and their attorneys in the presence
of the mediator. Within five business days of the conclusion of the mediation conference, the
mediator shall file and serve a written mediation report stating whether all required parties
were present, whether the case settled, and whether the mediator was forced to declare an
impasse.
SECTION 9 - JOINT FINAL PRETRIAL STATEMENT
9.1 - Meeting and Preparation of Joint Final Pretrial Statement. On or before the date
established in the Case Management Order, Lead Trial Counsel for all parties and any unrepresented
parties shall meet together in person for the purpose of preparing a Joint Final Pretrial Statement that
strictly conforms to the requirements of this section. The case must be fully ready for trial when the
Joint Final Pretrial Statement is filed. Lead Trial Counsel for all parties, or the parties themselves if
unrepresented, shall sign the Joint Final Pretrial Statement. The Court will strike pretrial statements
that are unilateral, incompletely executed, or otherwise incomplete. Inadequate stipulations of fact
and law will be stricken. Sanctions may be imposed for failure to comply with this section, including
the striking of pleadings. At the conclusion of the final pretrial conference, all pleadings are deemed
to merge into the Joint Final Pretrial Statement, which will control the course of the trial.
9.2 - Contents of Joint Final Pretrial Statement.
a. Stipulated Facts. The Parties shall stipulate to as many facts and issues as
possible. To assist the Court, the parties shall make an active and substantial effort to
stipulate at length and in detail as to agreed facts and law, and to limit, narrow and simplify
the issues of fact and law that remain contested.
b. Exhibit List. An exhibit list containing a description of all exhibits to be introduced
at trial and in compliance with the approved form located on the Business Court web site at
http://www.ninja9.org/court/business/index-BC.htm, must be filed with the Joint Final Pretrial
Statement. Each party shall maintain a list of exhibits on disk or CD to allow a final list of
exhibits to be provided to the Clerk of Court at the close of the evidence. Unlisted exhibits
will not be received into evidence at trial, except by order of the Court in the furtherance of
justice. The Joint Final Pretrial Statement must attach each party’s exhibit list on the
approved form listing each specific objection (“all objections reserved” does not suffice) to
each numbered exhibit that remains after full discussion and stipulation. Objections not made
– or not made with specificity – are waived.
c. Witness List. The parties and counsel shall prepare a witness list designating in
good faith which witnesses will likely be called and which witnesses may be called if
necessary. Absent good cause, the Court will not permit testimony from unlisted witnesses at
trial over objection. This restriction does not apply to rebuttal witnesses. Records custodians
may be listed, but will not likely be called at trial, except in the event that authenticity or
foundation is contested. Notwithstanding the Business Court Procedures regarding
videoconferencing, for good cause shown in compelling circumstances the Court may permit
presentation of testimony in open court by contemporaneous transmission from a different
location.
d. Depositions. The Court encourages stipulations of fact to avoid calling
unnecessary witnesses. Where a stipulation will not suffice, the Court permits the use of
videotaped depositions at trial. At the required meeting, counsel and unrepresented parties
shall agree upon and specify in writing in the Joint Final Pretrial Statement the pages and lines
of each deposition (except where used solely for impeachment) to be published to the trier of
fact. The parties shall include in the Joint Final Pretrial Statement a page-and-line description
of any testimony that remains in dispute after an active and substantial effort at resolution,
together with argument and authority for each party’s position. The parties shall prepare for
submission and consideration at the final pretrial conference or trial edited and marked copies
of any depositions or deposition excerpts which are to be offered into evidence, including
edited videotaped depositions. Designation of an entire deposition will not be permitted
except on a showing of necessity.
e. Joint Jury Instructions, Verdict Form. In cases to be tried before a jury, counsel
shall attach to the Joint Final Pretrial Statement a copy and an original set of jointly-proposed
jury instructions, together with a single jointly-proposed jury verdict form. The parties
should be considerate of their juries, and therefore should submit short, concise verdict forms.
The court prefers pattern jury instructions approved by the Supreme Court of Florida. A
party may include at the appropriate place in the single set of jointly-proposed jury
instructions a contested charge, so designated with the name of the requesting party and
bearing at the bottom a citation of authority for its inclusion, together with a summary of the
opposing party’s objection. The parties shall submit a computer diskette or CD containing
the single set of jury instructions and verdict form with the Joint Final Pretrial Statement.
9.3 Coordination of Joint Final Pretrial Statement. All counsel and parties are
responsible for filing a Joint Final Pretrial Statement in full compliance with these Procedures.
Plaintiff’s counsel shall have the primary responsibility to coordinate the meeting of Lead Trial
Counsel and unrepresented parties and the filing of a Joint Final Pretrial Statement and related
material. If a non-lawyer plaintiff is proceeding pro se, then defense counsel shall coordinate
compliance. If counsel is unable to coordinate such compliance, counsel shall timely notify the Court
by written motion or request for a status conference.
SECTION 10 - TRIAL MEMORANDA AND OTHER MATERIALS
10.1 - Trial Memoranda. In the case of a non-jury trial, no later than ten days before the
first day of the trial period for which the trial is scheduled, the parties shall file and serve Trial
Memoranda with proposed findings of fact and conclusions of law, together with a computer diskette
or CD. In the case of a jury trial, no later than ten days before the first day of the trial period for
which the trial is scheduled, the parties may file and serve Trial Memoranda, together with a computer
diskette or CD.
SECTION 11 - FINAL PRETRIAL CONFERENCE
11.1 - Mandatory Attendance. Lead Trial Counsel and local counsel for each party,
together with any unrepresented party, must attend the final pretrial conference in person unless
previously excused by the Court.
11.2 - Substance of Final Pretrial Conference. At the final pretrial conference, all counsel
and parties must be prepared and authorized to address the following matters: the formulation and
simplification of the issues; the elimination of frivolous claims or defenses; admitting facts and
documents to avoid unnecessary proof; stipulating to the authenticity of documents; obtaining
advance rulings from the Court on the admissibility of evidence; settlement and the use of special
procedures to assist in resolving the dispute; disposing of pending motions; establishing a reasonable
limit on the time allowed for presenting evidence and argument; and such other matters as may
facilitate the just, speedy, and inexpensive disposition of the actions.
SECTION 12 - SANCTIONS
12.1 - Grounds. The Court will impose sanctions on any party or attorney: 1) who fails to
attend and to actively participate in the meeting to prepare the Joint Final Pretrial Statement or
refuses to sign or file the Joint Final Pretrial Statement; 2) who fails to attend the final pretrial
conference, or who is substantially unprepared to participate; 3) who fails to attend the mediation and
actively participate in good faith, or who attends the mediation without full authority to negotiate a
settlement, or who is substantially unprepared to participate in the mediation; or 4) who otherwise
fails to comply with the Business Court Procedures. Sanctions may include, without limitation, any,
some or all of the following: an award of reasonable attorneys’ fees and costs, the striking of
pleadings, the entry of default, the dismissal of the case, or a finding of contempt of court.
SECTION 13 – TRIAL
13.1 - Examination of Witnesses. When several attorneys are employed by the same party,
the examination or cross-examination of each witness for such party shall be conducted by one
attorney, but the examining attorney may change with each successive witness or, with leave of the
Court, during a prolonged examination of a single witness. The examination of witnesses is limited to
direct, cross and re-direct. Parties seeking further examination shall request a bench conference to
discuss the reasons therefor, and, upon the articulation of good cause, may be allowed further
examination.
13.2 - Objections. Speaking objections are not permitted. A party interposing an objection
shall state the legal basis for the objection only. No response from the interrogating party will be
permitted unless requested by the Court.
SECTION 14 - COURTROOM DECORUM
14.1 - Communications and Position. Counsel are at all times to conduct themselves with
dignity and propriety. All statements and communications to the Court shall be clearly and audibly
made from a standing position behind the counsel table or the podium. Counsel shall not approach
the bench except upon the permission or request of the Court.
Abusive language, offensive personal references, colloquies between opposing counsel and
disrespectful references to opposing counsel are all strictly prohibited. Witnesses and parties must be
treated with fairness and due consideration.
The examination of witnesses and jurors shall be conducted from behind the podium, except
as otherwise permitted by the Court. Counsel may only approach a witness with the Court’s
permission and for the purpose of presenting, inquiring about, or examining that witness with respect
to an exhibit, document, or diagram.
Except in extraordinary circumstances, and then only with leave of Court and permission of
the witness, all witnesses shall be addressed by honorific and surname (e.g., Mrs. Smith, Reverend
Jones, Dr. Adams), rather than by first names.
14.2 - Professional Demeanor. The conduct of the lawyers before the Court and with other
lawyers should be characterized by consideration, candor and fairness. Counsel shall not knowingly
misrepresent the contents of documents or other exhibits, the testimony of a witness, the language or
argument of opposing counsel or the language of a decision or other authority; nor shall counsel offer
evidence known to be inadmissible. In an argument addressed to the Court, remarks or statements
may not be interjected to improperly influence or mislead the jury.
SECTION 15 – JURIES
15.1 - Jury Instruction Conference. At the close of the evidence (or at such earlier time as
the judge may direct) in every jury trial, the judge shall conduct a conference on instructions with the
parties. Such conference shall be out of the presence of the jury and shall be held for the purpose of
discussing the proposed instructions.
15.2 - Objections to Instructions. The parties shall have an opportunity to request any
additional instructions or to object to any of those instructions proposed by the judge. Any such
requests, objections and rulings of the Court thereon shall be placed on the record.
At the conclusion of the charge and before the jury begins its deliberations (and out of the
hearing, or upon request, out of the presence of the jury), the parties shall be given an opportunity to
object on the record to any portion of the charge as given, or omission therefrom, stating with
particularity the objection and grounds therefor.
SECTION 16 - TRIAL DATES AND FINAL PRETRIAL PREPARATION
16.1 - Trial Date. Trial shall commence on the date established by the Court, normally
through the Case Management Order or amendments thereto, or in such other manner as the Court
shall deem appropriate. The Court will consider a request to continue a trial date only if the request is
signed by both the party and counsel for the party.
SECTION 17 - WEB SITE AND PUBLICATION
17.1 - Web Site. The Business Court shall maintain a site on the World Wide Web for ready
access to members of the bar and public. The web site shall be located at the uniform resource
locator http://www.ninja9.org/court/business/index-BC.htm. The web site will store for ready
retrieval basic information about the Business Court, including but not limited to these Procedures
and the procedure for Complex Business Case designation. In addition, the web site will store, in the
sole discretion of the Business Court Judge:
a. the Court’s docket;
b. papers filed with the Court;
c. motions filed with the Court;
d. briefs filed with the Court; and
e. the opinions of the Court.
Attachment to Administrative Order No. 2004-03

February 2004
HE ELEVENTH JUDICIAL CIRCUIT
MIAMI-DADE COUNTY, FLORIDA
CASE NO. 06-1

(Court Administration)
NO. 06-40
IN RE: CREATION OF SECTION 40

(“COMPLEX BUSINESS LITIGATION
SECTION”) IN THE GENERAL
JURISDICTION DIVISION OF THE
ELEVENTH JUDICIAL CIRCUIT OF
FLORIDA
_______________________________
WHEREAS, the Circuit and County Courts in Miami-Dade County are organized
into divisions for more efficient case and records management; and
WHEREAS, caseloads in each division are identified by numbered sections to

facilitate the exchange of caseloads when changes of division assignment occur; and
WHEREAS, the Court has carefully studied and considered the creation of a
complex business litigation section, including analyzing the business litigation section
operating in the Ninth Judicial Circuit and similar courts in other jurisdictions throughout
the country and the reports and evaluations of those divisions by legal commentators
and experts and has received input from a cross section of the legal community; and
WHEREAS, the nature and volume of business litigation cases filed in the
General Jurisdiction Division of this Court warrant the creation of another section
designated to handle complex business litigation cases;
NOW, THEREFORE, pursuant to the authority vested in me as Chief Judge of

the Eleventh Judicial Circuit of Florida under Rule 2.050, Florida Rules of Judicial
Administration, it is hereby ORDERED that Section 40 is hereby created and dedicated
as the Complex Business Litigation Section, within the General Jurisdiction Division of
this Court.
It is further ORDERED that the following procedures shall be followed as to the

assignment and reassignment of cases with respect to Section 40:
Section 1. The Clerk of the Court shall assign to Section 40 all newly filed
cases that appear to meet the criteria established in this Administrative Order as
designated on the Civil Cover Sheet by the filing attorney or party; and all cases
−1−
reassigned to the Complex Business Litigation Section by the Administrative Judge (or
designee).
Section 2. Cases Subject to the Complex Business Litigation Section.
The principles set forth below shall guide the parties and the Court in the
assignment and reassignment of cases to the Complex Business Litigation Section.
Notwithstanding anything to the contrary in any prior general Administrative Order of
Court procedure, all jury, non-jury, injunction and class action cases shall be assigned
to the Complex Business Litigation Section, if they are among the following types of
actions:
a) Any of the following where the matter in controversy exceeds the amount
of Seventy-five Thousand Dollars ($75,000.00), exclusive of interest, costs
and attorney’s fees:
i. A breach of contract action, including a claim involving an

employment agreement (except a claim primarily based upon
allegations of discrimination) or a partnership, shareholder, joint
venture or other business arrangement;
ii. An action asserting a business tort, such as a claim for breach of

fiduciary duty, fraud, misrepresentation, unfair competition and the
like;
iii. An action based on a statutory or common law violation where the

breach or violation is alleged to arise out of a business dealing;
iv. An action asserting a claim arising under the U.C.C., including a

claim involving the sale of goods or services by or to a business
enterprise;
v. An action involving the purchase, sale or restructuring of a business

or the purchase or sale of the stock, assets or liabilities of a
business;
vi. An action relating to a surety bond;
vii. An action arising from a franchisee/franchisor relationship and

associated liabilities;
viii. An insurance coverage dispute, bad faith suit, or third party

indemnity action against an insurer arising under a policy issued to
a business, such as a claim arising under a commercial general
liability policy or commercial property policy;
−2−
ix. An action under the Uniform Fraudulent Transfer Act (except
proceedings supplementary in a case assigned to another
Division).
x. An action under the Florida Deceptive and Unfair Trade Practices

Act;
xi. A construction defect case not primarily based upon a claim of

personal injury;
xii. A case that is appropriately transferred to the Complex Business

Litigation Section pursuant to Section 4 below; and
b) Any of the following without regard to the amount in controversy:
i. An action relating to trade secrets or a non-compete agreements;
ii. An action involving the dissolution of a business entity or an

assignment for the benefit of creditors;
iii. An action asserting an intellectual property claim;
iv. An actions involving securities or asserting a claim under a state or

other securities law;
v. An action under a state or other antitrust law;
vi. A shareholder derivative action or other action relating to director

and officer liability or a corporate governance issue.
Section 3. Cases Not Subject to the Complex Business Litigation Section.
The following types of matters shall not be assigned to the Complex Business
Litigation Section absent special circumstances:
a) A matter involving occupational health or safety;
b) An environmental claim which does not involve the sale or disposition of a

business or coverage dispute addressed in paragraph 2(a)(viii) above;
c) A matter in eminent domain;
d) An employment law case, other than the type described in paragraphs

2(a)(i) and 2(b)(i) above;
e) An administrative agency, tax, zoning, or other appeal;
−3−
f) A matter required by statute or other law to be heard in some other Court
or Court Division;
g) A case that is appropriately transferred out of the Complex Business

Litigation Section pursuant to section 4 below.
Section 4. Assignment of Cases in and out of the Business Litigation

Section.
a) Cases filed on or after January 1, 2007 that otherwise meet the criteria for
transfer to the Complex Business Litigation Section shall not be
transferred if a trial date has been set within three months from the date of
this Order.
b) Judges assigned to the General Jurisdiction Division and/or litigants who

have cases filed in the General Jurisdiction Division may submit a request
to the Administrative Judge (or designee) of the General Jurisdiction
Division to assign/transfer a pending case that meets the criteria of the
Complex Business Litigation Section to Section 40.
c). If any party disagrees with the assignment or lack of assignment of a case
to the Complex Business Litigation Section, then that party may submit a
request to the Administrative Judge (or designee) of the General
Jurisdiction Division for re-evaluation and/or case re-assignment.
d). The Administrative Judge of the General Jurisdiction Division (or

designee) shall resolve controversies which may arise concerning the
assignment/transfer of any case to or from the Complex Business
Litigation Section.
This Order shall take effect on January 8, 2007.
DONE AND ORDERED in Chambers at Miami-Dade, Florida this _____ day of

November, 2006.
Joseph P. Farina, Chief Judge

Eleventh Judicial Circuit of Florida
−4−
SUPREME COURT OF GEORGIA
Atlanta June 6, 2007
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
It is ordered that the attached revisions to Atlanta Judicial Circuit Rule 1004
governing the Fulton County Superior Court Business Case Division, are hereby
approved:
RULE 1004-AMENDED
BUSINESS CASE DIVISION
1.
The Judges of the Fulton Superior Court hereby create a “Business Case Division” (hereinafter referred
to as the “Division”).
2.
The purpose of the Division is to provide judicial attention and expertise to certain complex Business
Cases.
3.
(a) For purpose of this rule, Business Cases include actions in which the amount in controversy (or, in a
case of injunction relief the value of the relief sought or the cost of not getting the relief) exceeds $1,000,000
and which are brought pursuant to the following:
(i) Georgia Securities Act of 1973, as amended, O.C.G.A. § 10-5-1, et seq.;
(ii) Uniform Commercial Code, O.C.G.A. § 11-1-101, et seq.;

(iii) Georgia Business Corporation Code, O.C.G.A. § 14-2-101, et seq.;
(iv) Uniform Partnership Act, O.C.G.A. § 14-8-1, et seq.;
(v) Uniform Limited Partnership Act, O.C.G.A. § 14-9A-1, et seq.;
(vi) Georgia Revised Uniform Limited Partnership Act, O.C.G.A. § 14-9-100, et seq.;
(vii) Georgia Limited Liability Company Act, O.C.G.A. § 14-11-100, et seq.; and
(viii) any other action that the parties to the action and the Court believes warrants the attention
of the Division, including large contractual and business tort cases as well as other complex
commercial litigation.
(b) Notwithstanding anything contained herein to the contrary, cases that include the following claims
shall not be classified as a Business Case without the consent of all parties:
(i) Personal injury;
(ii) Wrongful death;
(iii) Employment discrimination; and
(iv) Consumer claims in which each individual plaintiff’s claims are in the aggregate less than
$1,000,000.
4.
The Division is to be comprised of up to three Senior Judges who manage, administer, and try the cases
assigned to this Division, or such other number of Senior Judges as the Chief Judge shall designate.
5.
A Business Case filed in the Fulton County Superior Court shall be eligible for assignment to the
Division based upon: (1) the parties' joint request; (2) the motion of a party; or (3) a request submitted by the
Superior Court Judge currently assigned that case, with notice to the parties. The motion or request shall be
directed to the Chief Judge of the Fulton County Superior Court and the Business Case Division Committee to
determine, after allowing the parties twenty (20) days for briefing of the issue, whether the case is a Business
Case Division case and whether it should be accepted for assignment into the Business Case Division. If so
accepted, the Court Administrator shall reassign the case to a Senior Judge within the Business Case Division.
6.
Upon a motion or request, if the Chief Judge, a member of the Business Court Committee and a Senior
Judge to whom the case may be assigned deem the case appropriate for assignment to the Division, the Court
Administrator shall assign the case to the Division. Within the Division, the Court Administrator shall assign
the Division’s cases in rotation, taking into account, reasonably estimated discovery, dispositive motions,
availability of the Senior Judge, the Senior Judge’s current case load, and trial time, as far as practicable. The
Court Administrator shall make every effort to fairly assign the case load within the Division.
7.
When an active Judge’s case has been reassigned to a Division Judge as a Business Case, the Court
Administrator shall make such additional assignments to the active Judge as are necessary to comply with these
rules.
8.
The Chief Judge/District Administrative Judge shall select or re-select all Division Judges from those
Senior Judges, considering their experience, training, and other relevant factors, who volunteer for such
assignment for a period of two years. At the end of each two year term, the Chief Judge/District Administrative
Judge shall decide the continuation of such assignment if the Division Judge volunteers for continued service.
The Chief Judge/District Administrative Judge may reassign such Division Judge at any time in the best
interests of the Court and the Division.
9.
The Business Cases assigned to the Division shall be governed by applicable law, including the Georgia
Civil Practice Act, O.C.G.A. § 9-11-1, et seq., and the Uniform Superior Court Rules.
10.
The Division Judges, in consultation with all parties and pursuant to applicable law, shall have the
ability to modify the schedule for the administration of Business Cases, including the schedule for conducting
discovery, filing dispositive motions, conducting pre-trial procedures, and conducting jury and non-jury trials.
11.
In particular, the Division Judges, pursuant to O.C.G.A § 9-11-5(e) may modify the procedure for filing
papers with the Court, including allowing such filings to be made by facsimile or by e-mail with the Court.
Upon the written consent of all parties and upon any necessary waivers as may be required by law, the Division
Judges may allow for service of papers filed with the Court by electronic means, including by facsimile or by e-
mail. In the event that any procedures are modified pursuant to this paragraph, an electronic signature shall be
deemed an original signature.
12.
The Division Judges, in consultation with all parties, shall have the ability to order nonbinding
mediation, arbitration, or other means of alternative dispute resolution as dictated by the needs of a particular
Business Case. The Division Judges themselves, with the consent of all parties, may conduct such non-binding
mediation, arbitration, or other means of alternative dispute resolution.
13.
The calendar for the Division shall be prepared under the supervision of the Division Judges and shall be
made available to all parties with Business Cases pending in the Division. Pursuant to agreement of the parties
and the Court, the Court may notify parties of such calendar by electronic means, including by facsimile or by e-
mail.
14.
Subject to the rules of evidence, the Division encourages the parties to use electronic presentations and
technologically generated demonstrative evidence to enhance the trier-of-fact’s understanding of the issues
before it and to further the convenience and efficiency of the litigation process.
15.
Within thirty (30) days of a Business Case being assigned to the Division, or such shorter or longer time
as the Division Judges shall order, the parties shall meet with the Division Judge to whom the Business Case is
assigned to discuss the entrance of a case management order, including the following issues: (i) the length of the
discovery period, the number of fact and expert depositions, and the length of such depositions; (ii) a
preliminary deposition schedule; (iii) the identity and number of any motions to dismiss or other preliminary or
pre-discovery motions which shall be filed and the time period in which they shall be filed, briefed, and, if
appropriate, argued; (iv) the time period after the close of discovery within which post-discovery dispositive
motions shall be filed, briefed, and, if appropriate, argued; (v) the need for any alternative form of dispute
resolution; (vi) an estimate of the volume of documents and electronic information likely to be the subject of
discovery from the parties and non-parties, and whether there are means by which to render document discovery
more manageable and less expensive; (vii) and modifications to the rules under the Civil Practice Act or the
Uniform Superior Court Rules as may be applicable to a particular case; (viii) such other matters as the Division
Judge may assign to the parties for their consideration. Within ten (10) days of such a meeting, the parties shall
submit a proposed case management order to the Division Judge for consideration.
16.
In an effort to reduce the length of discovery and quickly resolve any discovery disputes, the Division
Judges shall be available to the parties to resolve disputes that arise during the course of discovery.
17.
In addition to telephone conferencing pursuant to Rule 9 of the Uniform Superior Court Rules, by
mutual agreement between the parties and the Division Judges, counsel may arrange for any hearing or other
conference to be conducted by video conference, subject to the same rules of procedure and decorum as if the
hearing or conference were held in open court. In addition to charging the parties for other costs associated with
Business Cases pending in the Division, the Clerk may charge the parties a fee for such video conferencing or
may include the costs of such video conferencing in any standard fee charged to parties participating in Business
Cases pending in the Division.

Rules For Filing In Business Litigation Session
This document from Hon. Allan van Gestel describes how cases from Essex, Middlesex
or Norfolk counties can be heard in the Business Litigation Session in Suffolk County.
For more information, Judge van Gestel's lobby number is (617) 788-8182.
Hon. Allan van Gestel

Suffolk Superior Court
90 Devonshire St.
Boston, MA 02109
I serve as the presiding justice in the Superior Court Business Litigation Session.
Recently, the venue for cases in the session was expanded so that now parties may, under
certain circumstances, bring cases from Essex, Middlesex or Norfolk counties into the
session in Suffolk County.
Given the number of calls from inquiring attorneys, particularly in the three counties that
are new to the session, there appears to be some degree of confusion about how to get
cases into the session in Boston. For that reason, Judge Margot Botsford and I put
together a memorandum entitled "Procedures for Processing Cases from Esses,
Middlesex and Norfolk to the Business Litigation Session (BLS) in Suffolk County."
(See below.)
The memorandum has been sent to the Clerks' Offices in Essex, Middlesex and Norfolk.
There has not, however, been any kind of explanatory notice to the trial bar. Thus, the
purpose for this letter.
PROCEDURES FOR PROCESSING CASES FROM ESSEX, MIDDLESEX AND

NORFOLK TO THE BUSINESS LITIGATION SESSION (BLS) IN SUFFOLK
COUNTY
Where do the cases from Essex, Middlesex and Norfolk get filed?
Cases can be filed in the county having venue over the case (e.g., Essex, Middlesex or
Norfolk) or in the BLS session in Boston. A plaintiff waives "venue" by filing the case in
Suffolk instead of in the county with the proper venue. If the plaintiff elects to file the
case in Suffolk County, the caption must read "Suffolk" and not one of the other counties.
If filed in Essex/Middlesex/Norfolk, how is the case referred to the BLS session?
A case must be accepted to the BLS by the presiding judge of the BLS who reviews the
case and makes his decision based on criteria originally established for the BLS. At
present, the presiding judge is Judge Allen van Gestel.
Therefore, if a party wants a case from Essex, Middlesex or Norfolk "transferred" to the
BLS session, the party must file a motion with the Court in the county where the case is
pending (e.g., Essex, Middlesex or Norfolk). A judge sitting in that county must consider
the motion and can either "Allow" or "Deny" transfer of the case to the BLS. These
motions should not be forwarded to the BLS in Suffolk.
If the judge in Essex, Middlesex or Norfolk "denies" the motion to transfer the case, then
that is the end of the request for "transfer" to the BLS; the judge's decision cannot be
appealed to the BLS.
If the judge in Essex, Middlesex or Norfolk "allows" the motion, the case will be
reviewed or screened by the presiding judge of the BLS, it does not mean that the case
has been accepted to the BLS.
Since Judge van Gestel currently is the presiding judge of the BLS, the clerk's office
should mail a copy of the complaint and motion to Judge van Gestel in Boston. He will
review the complaint and motion for appropriateness to the BLS and will notify the
clerks' offices and parties of his decision. The copy of the complaint and motion should
be mailed to the Hono rable Allan van Gestel at J.W. McCormack Post Office and
Courthouse, 90 Devonshire St., Room 1509, Boston, MA 02109.
Please note that since the case must first be "accepted" into the BLS, the case is not
considered "transferred" until it is accepted by the presiding judge of the BLS. If the case
is accepted into the BLS, a Suffolk clerk will send an order to the origination court and to
all the parties that the case has been accepted into the BLS. The originating court can
then make the proper entry in the docket that the case has been "transferred" to the
Suffolk BLS. The case will be assigned a new docket number in Suffolk County and it
will become a Suffolk case.
If the case is not accepted into the BLS, a notice to that effect will be sent to the
originating county with an order indicating that acceptance to the BLS was "denied." A
Suffolk clerk will also notify the parties of this decision.
What if the case is filed in Suffolk County and it is not accepted into the BLS?
If the plaintiff chooses to file the case in Suffolk County, it must still be "accepted" into
the BLS. If the case is not accepted, the parties will receive an order from the presiding
judge in the BLS that the case was not accepted and will be dismissed as a Suffolk case
unless within 30 days, a party files a motion to transfer the case to the county having the
proper venue. If the case is transferred, it will be assigned a new docket number in the
county accepting the transfer and it will be assigned to a regular civil time-standards
Session.
What if a defendant objects to the case being filed in Suffolk and chooses not to waive
venue?
If a defendant objects and does not waive venue, the case will be transferred to the county
having proper venue over the case. The case will be assigned a new number and will be
assigned to a regular civil time-standards Session.
What cover sheet should parties use when filing a case in Essex, Middlesex or Norfolk
counties? Parties should use the standard Civil Action Cover Sheet available and used in
all counties when filing a case in Essex, Middlesex or Norfolk counties.
When filing the case in Suffolk County, however, parties must utilize the special BLS
Civil Action Cover Sheet describing why counsel believes the case belongs in the BLS.
Published July 21, 2003
Notice to the Bar
Business Litigation Session
Suffolk Superior Court
The Business Litigation Session of the Suffolk Superior Court (BLS) will
commence operations on Monday, October 2, 2000. Judge Allan van Gestel will
preside and Judge Gordon L. Doerfer will act as a back-up judge. The session
will be held in Court Room 6 on the 15th floor of the John W. McCormack Post
Office and Court House in Boston.
Cases would presumptively qualify as complex commercial cases for the BLS
whether the litigants are individuals or entities, when issues come within, or meet
the qualifications for inclusion in, one or more of the following categories:
• a.claims relating to the governance and conduct of internal affairs of all

business enterprises and not-for-profit institutions, however organized,
including, without limitation, employment agreement disputes; liability of
officers. directors, partners. managers and trustees under statutes and
common laws arising out of the governance and conduct of affairs of the
enterprise or institution;
• b.shareholder derivative claims and claims relating to or arising out of
securities transactions;
• c.claims involving mergers, consolidations, sales of assets, issuance of
debt, equity and other like interests of business enterprises and not-for-
profit institutions;
• d.claims to determine the use or status of. or claims involving, intellectual
property, confidential, proprietary or trade secret information; claims
involving restrictive covenants;
• e.claims involving alleged breaches of contract or fiduciary duties, fraud,
misrepresentation, business torts or other violations involving business
relationships (e.g. unfair competition), if they have complex factual o r legal
issues or are likely to require complex case management;
• f.claims under the Uniform Commercial Code, if the claims involve
complex factual or legal issues or are likely to require complex case
management;
• g.claims arising from transactions with banks, investment bankers and
financial advisers, brokerage firms, mutual and money funds of all kinds, if
the claims involve complex factual or legal issues or are likely to require
complex case management;
• h.claims for alleged violations of antitrust and other restraint of trade laws;
claims of unfair trade practices if the claims involve complex factual or
legal issues or are likely to require complex case management;
• i.malpractice claims brought by business enterprises and not-for-profit
institutions against professionals relating to rendering of professional
services;
• j.claims to which a governmental entity or authority is a party if the claims
are described by any of the above categories and are not excluded from
the Business Litigation Sitting as set out in the next section: and
• k.Other commercial claims, including those involving insurance,
construction, real estate and consumer matters, which have complex
factual or legal issues or are likely to require complex case management.
Cases involving the following would not be eligible for assignment to the BLS
unless (except for cases within clause (a) below) there were issues in a case
where one or more of the other issues qualifies for the BLS:
• (a) matters subject to compulsory arbitration or to the exclusive jurisdiction

of the Probation Land and Housing Courts, the District Courts or the
Boston Municipal Court;
• (b)personal injury survival or wrongful death matters;
• (c)individual (non-class) consumer claims against businesses or insurers,
including product liability and personal injury cases;
• (d)environmental claims not involved in the sale or disposition of a
business;
• (e)eminent domain matters;
• (f)malpractice claims other than those designated above for the BLS;
• (g)employment disputes not involving written contracts and employment
discrimination cases:
• (h) administrative agency review under G.L. c. 30A, § 14. zoning and other
appeals from administrative agency orders;
• (i) residential real estate and non-commercial landlord-tenant disputes;
and
• (j) occupational health or safety matters.
• Cases will be assigned to the BLS under the following procedure:
1) As to cases filed on and after October 2, 2000:

A plaintiff who claims that the case fits one or more of the criteria listed above
should use a special cover sheet which is available at the office of the Clerk for
Civil Business and indicate thereon which criteria apply. The case shall be
thereupon initially assigned to the BLS for review by the presiding justice.
At any time thereafter any party who claims that the case fits one or more criteria
should serve and file a motion under rule 9A in the BLS requesting assignment to
the BLS and state with particularity why the case meets one or more of the
criteria.
The presiding Justice of the BLS will review all cases initially assigned thereto
and all motions requesting such assignment thereafter and determine in his or
her discretion which cases shall continue in the BLS. Any case assigned or
referred to the BLS may, in the discretion of the presiding justice of the BLS be
referred out of the BLS at any time if, in his or her judgment, it is not suitable for
the BLS. Those cases will be then assigned by the clerk's office to one of the
regular time standards sessions.
2). As to cases already pending in the Suffolk Superior Court on October 2,
2000:
Any justice may refer any case which fits one or more of the criteria to the
presiding justice of the BLS for his or her determination whether to accept the
case for assignment to the BLS.
The presiding justice of the BLS may, sua sponte, review any case pending in
any session and assign the case to the BLS if it otherwise meets the criteria for
referral.
3). As to all cases:
No party shall have a right of referral of a pending case to the BLS. A case will
not be assigned to or retained in the BLS unless it meets one or more of the
criteria listed above. Cases on the excluded list will not be assigned to or
retained in the BLS. All decisions to refer to or retain a case in the BLS shall be
at the discretion of the presiding justice of the BLS.
As a case progresses, the presiding justice of the BLS may determine that the
case does not involve complex factual or legal issues, or does not require
complex case management, even though the subject matter of the controversy
otherwise qualifies as a business litigation case. In such cases the presiding
justice of the BLS may return the case to the clerk's office for assignment to a
regular time standards session.
September, 2000
Signed: Chief Justice Suzanne V. DelVecchio
MARYLAND BUSINESS AND TECHNOLOGY COURT
TASK FORCE REPORT
TABLE OF CONTENTS
Page
I. EXECUTIVE SUMMARY .............................................................. 1

II. BACKGROUND ............................................................................... 1
III. HOUSE BILL 15 (Chapter 10 of the Maryland Acts of 2000).......... 2
IV. INPUT FROM THE BUSINESS AND LEGAL COMMUNITIES .. 4
V. EXPERIENCE OF OTHER STATES ............................................... 5
VI. FINDINGS ......................................................................................... 5
VII. EXPEDITED APPEALS ................................................................... 12
VIII. ADR (Alternative Dispute Resolution).............................................. 14
IX. ELECTRONIC FILING..................................................................... 15
X. CONCLUSION.................................................................................. 17
APPENDIX A (Input From The Maryland

Business And Legal Communities) ........................................................ 19
APPENDIX B (Experience Of Other States)................................................. 23
APPENDIX C (List of Members) .................................................................. 26
1316871
i
MARYLAND BUSINESS AND TECHNOLOGY COURT
TASK FORCE REPORT
Created by House Bill 15

Chapter 10 of the Maryland Acts of 2000
Wilbur D. Preston, Jr.

Chairman
Hon. Steven I. Platt

Vice-Chairman
Robert D. Kalinoski Hon. Charles B. Day

Susan M. Souder James I. Keane
Wesley D. Blakeslee Michael Hickman
Ava Lias-Booker Alan R. Duncan
Dr. Nariman Farvardin Christopher R. McCleary
John C. Weiss, III Sen. Leo Green
Sen. Leonard Teitelbaum Hon. John C. Eldridge
Del. Anthony G. Brown Hon. Marielsa A. Bernard
Del. John A. Hurson
Steven E. Tiller
Reporter
Eric G. Orlinsky
Consultant
1
BUSINESS AND TECHNOLOGY PROGRAM
TASK FORCE REPORT
I. EXECUTIVE SUMMARY
This is a report of the Maryland Business and Technology Court Task Force created by
the General Assembly to consider the feasibility of establishing a specialized court
function within Maryland’s Circuit Courts to adjudicate business and technology
disputes. This blue-ribbon task force included appointees from the Maryland Judiciary,
Maryland’s House and Senate, the Maryland State Bar Association and members of the
Maryland business and academic communities.
After hearing from the business community, judges, legislators, lawyers and
representatives of other “business courts,” the Task Force recommends establishing a
statewide program with specially trained judges and mediators to resolve substantial
disputes affecting business entities, including the unique and specialized issues involving
technology. The Task Force considered a separate court division within only certain
counties, but concluded that creating local specialized courts was not needed or desired
by many judges and lawyers, and would unfairly discriminate against business entities
located in other areas of the State.
The Task Force reviewed different models of “business courts” implemented in other
jurisdictions. Recognizing the effectiveness of Maryland’s Differentiated Case
Management (“DCM”) system, the Task Force concluded that a “program” based, in part,
on different models of business courts in other states would best take advantage of the
current DCM system, while providing a unique and specialized forum for handling
business and technology disputes.
Establishing a business and technology dispute management program like the one
detailed in this report provides Maryland with a unique opportunity to substantially
improve its perception among the business and technology communities as a preferred
place to do business. In the competitive national market for business, establishment of
such a program will serve to increase Maryland’s reputation as a place where disputes
involving substantial business interests are effectively and efficiently resolved, thus
increasing Maryland’s reputation as a favorable forum. 1
II. BACKGROUND
Over the past decade, the Internet has grown at a tremendous rate. At the start of the
Clinton administration, there were less than a dozen sites on the worldwide web. This
number currently totals in the hundreds of millions. In light of the significant advances
brought about by not only the Internet, but also the bioscience, aerospace, and
information technology industries, to name only a few, the business environment is
1
Although providing great insight and perspective to the Task Force during its deliberations,
Judge John Eldridge, Senior Judge of Maryland’s Court of Appeals, respectfully abstained from
participating in the recommendations and findings included in this report. Judge Eldridge believes that
given his position as a Judge on the Court of Appeals, and the likely event that the Court of Appeals will be
required to examine the adoption of rules to effect the recommendations contained herein, it is proper for
him to abstain from inclusion in the report.
1
changing at light speed. Business models that couldn’t have even been imagined a few
years ago are now commonplace. These technological advancements have, however,
created interesting dilemmas for all three branches of federal and state government.
In the legislative arena, elected officials must have a keen awareness of the significance
of technological trends, as well as a healthy regard for the limits of their ability to control
them. The executive branch is confronted with a similar dilemma. Regulations may
prove necessary to protect the public and prevent the improper use of technology, while
at the same time, efforts must be made to limit the breadth of such regulations so as not to
chill creative thought.
The role of the judiciary is even more problematic since its role is by design more re-
active than pro-active. Judges will be confronted with new and unique issues never
before seen as a result of emerging technology and new business models. Judicial
decisions will have to look forward to the potential impact of technology, as well as back
to established legal precedent. The Judiciary can nevertheless take a leadership role in the
development of new rules and enhancements in its functions to adapt to these new
challenges. Just as our judicial system created the state wide District Court system and
the nationally regarded DCM system, the pressure to change offers the Judiciary an
opportunity to forge its own adaptive institutions.
Maryland is poised at the forefront of the technological revolution. Already, Maryland

has one of the largest concentration of bioscience and aerospace companies in the
country. Maryland is first in the nation of percentage of technological workers in the
work force and can also claim top honors among states receiving research and
development awards from the National Institutes of Health.
Today, information technology is Maryland’s largest economic impact cluster.

Maryland’s information technology industry added over eighteen thousand new
technology jobs between 1993 and 1998 bringing the total employment attributable to the
information technology industry to well over 100,000. As of 1998, information
technology firms employed 56 of every 1,000 private sector workers in the State, and it is
believed that this number has significantly increased in the last two years. Maryland also
has one of the highest percentage of on-line households in the country with forty-six
percent of Maryland homes connected to the Internet.
Despite these impressive statistics, Maryland is still generally perceived by the business
community as anti-business. Whether accurate or not, such perception is often viewed as
reality. In an effort to change this perception, Maryland’s General Assembly, as part of
an overall plan to encourage technology companies to locate in the State (which includes,
among other things, adoption of the Uniform Computer Information Transactions Act and
the Uniform Electronic Transaction Act), passed House Bill 15 establishing this Task
Force to consider the feasibility of the establishment of a specialized court function to
effectively and efficiently administer business and technology disputes.
III. HOUSE BILL 15 (Chapter 10 of the Maryland Acts of 2000)
The General Assembly expressly stated its intent in passing House Bill 15 as follows:
2
It is the intent of the General Assembly that:
(1) business and technology matters be treated efficiently and effectively in the
judicial system; and
(2) the Chief Judge of the Court of Appeals consider the feasibility of the
establishment of a business and technology court division in Maryland, based on
a study to be completed by the Business and Technology Division Task Force, in
order to enable the circuit courts to handle business and technology matters in the
most coordinated, efficient, and responsive manner, and to afford convenient
access to lawyers and litigants involved in business and technology matters.
In establishing the Task Force, the General Assembly mandated that it solicit input from
both the Maryland business and legal communities, commence a review of the experience
of other states in creating so called business courts, and prepare a report on its findings
and recommendations to the Court of Appeals, the Governor, The Lieutenant Governor,
the President of the Senate, the Speaker of the House of Delegates, the House Judiciary
Committee, the Senate Judicial Proceedings Committee, and the General Assembly. The
General Assembly required this report to include a consideration of all operational
aspects of establishing a business and technology division, including:
(1) the benefits, costs, and potential negative impacts to the State and, in particular,
the Judiciary that are associated with the establishment of a business and
technology division in Maryland;
(2) the costs associated with and essential to the efficient operation of a business and
technology division;
(3) the criteria for determining the type and monetary threshold of matters to be
assigned and procedures for assignment of matters to a business and technology
division;
(4) a case management plan for the prompt and efficient scheduling and disposition
of matters assigned to a business and technology division, which shall identify
those matters that are appropriate for assignment to a specific judge who shall be
responsible for the entire case;
(5) the use of alternative dispute resolution;
(6) the feasibility of establishing an electronic filing system for pleadings and
papers;
(7) the feasibility of establishing an expedited appeals process for matters assigned
to a business and technology division; and
(8) the feasibility of either assigning technology-related criminal matters to a

business and technology division or of establishing some alternative means of
providing particular courts or judges with appropriate, specific training to deal
with technology related criminal matters.
3
IV. INPUT FROM THE BUSINESS AND LEGAL COMMUNITIES
The Task Force heard testimony from a number of business people, judges, lawyers,
legislators and representatives of business courts established in other states including:
(1) Hon. Robert Bell – Chief Judge, Maryland’s Court of Appeals

(2) Hon. Casper Taylor – Speaker of Maryland’s House of Delegates
(3) Hon. Ellen Heller – Administrative Judge, Baltimore City Circuit Court
(4) Hon. Paul Weinstein – Administrative Judge, Montgomery County
Circuit Court
(5) Hon. James Smith – Judge, Baltimore County Circuit Court
(6) Hon. William Chandler – Chancellor, Delaware Court of Chancery
(7) Robert Haig, Esq. – Co-Chairman, New York Commercial Courts Task
Force
(8) William Clark, Esq. – Chairman, Business Law Section of the
Pennsylvania Bar Association and the American Bar Association
Committee on the establishment of Business Courts
(9) James Thompson, Esq. – Past President, Maryland State Bar Association
(10) Gregory Wells, Esq. – Chairman, Litigation Section of the Maryland
State Bar Association
(11) Roger Wolf, Esq. – Chairman, Alternative Dispute Resolution Section of
the Maryland State Bar Association
(12) Richard Lewin – Secretary, Maryland Department of Business and
Economic Development
(13) Philip Singerman – President, Maryland Technology Development
Corporation
(14) David Schwiesow, Esq. – Vice-President and Associate General
Counsel, The Rouse Company
(15) Henry Hopkins, Esq. – Chief Legal Counsel, T. Rowe Price and
Spokesman, Maryland Securities Association
(16) Leonard Moodispaw – President, Essex Corporation
Individual members of the Task Force also polled committees of the Maryland State Bar
Association on which they are members, clients, constituents, and business people on
their thoughts concerning the Task Force’s charge. Also, as the Task Force was
comprised of a diverse cross section of judges, le gislators, lawyers, educators, and
business people, each brought with them unique knowledge and experience to the Task
Force’s deliberations.
Although differences in opinion existed regarding the necessity of a separate business and
technology division,2 as well as the precise model and methodology for its
2
The Task Force heard testimony concerning the need of a specialized business and technology
division, and indeed, engaged in its own spirited debate on the issue. Due to the unavailability of funds to
engage in a thorough study of cases currently pending in the courts, the Task Force was reduced to relying
on the experience of its members in determining the necessity of a specialized court function to hear such
disputes.
It has been the experience of other states that despite initial concerns regarding the necessity of
specialized procedures for the administration of business disputes, once such procedures were
implemented, those concerns proved unfounded. Moreover, with the increasing use of technology in our
society, and Maryland’s efforts to encourage technology businesses to locate in the State, the Task Force
4
implementation, the Task Force determined that there exists a general consensus that if
rules making Maryland’s courts more efficient and effective can be drafted, such rules
should be adopted. This report offers recommendations on the establishment of such
rules concerning the handling of substantive business and technology disputes.3
V. EXPERIENCE OF OTHER STATES
Ten Nine states currently have some form of an operational court function for the
specialized handling of business disputes. With one exception (Wisconsin), jurisdictions
instituting these functions have found that reaction has been enthusiastic. Businesses, as
well as the lawyers handling business litigation, believe that disputes are handled in a
more efficient, effective, and predictable manner. Moreover, the implementation of such
procedures has generally resulted in the increased efficiency of the courts as a whole as
complex business disputes requiring extensive court time are removed from the general
docket allowing judges to concentrate their efforts on other matters.4
It is important to note, however, that none of the states that have created or are
considering business courts have addressed specialization in technology. Just as
Maryland was the first state to put the Uniform Computer Information Transactions Act
into law, it is also the first state to consider a court with a special focus on technology
matters that will use technological tools to administer these disputes more effic iently and
effectively.
VI. FINDINGS
From formal testimony heard by the Task Force, informal polling by its members with
their constituencies in the Bar, the Senate, The House, the State and Federal Judiciary,
and the Maryland business community, and review of the experience of other states, the
Task Force finds as follows:
(1) Both the Maryland business and legal communities desire an efficient,
economical, and hospitable forum for the administration of business and
technology disputes in the circuit courts of our State. The key to this forum is to
assign judges who can handle cases involving complex business and technology
issues competently and in a timely manner regardless of the geographic sites of
the court, the dispute, or even the parties.
(2) The experience of other states that have created business courts initially began
with a perception that such cases were not being handled satisfactorily by the
general jurisdiction courts in those states. These deficiencies gave impetus to the
creation of specialized business courts in those states which have taken various
forms. These specialized courts have significantly improved the efficiency with
assumed that the number of disputes falling within the jurisdiction of the Business and Technology Case
Management Program detailed in this report will only increase.
3
A more detailed description of the testimony heard by the Task Force may be found in Appendix
A.
4
A more detailed description of the experience of other states in adopting special procedures for
the handling of business disputes may be found in Appendix B.
5
which business cases have been disposed of in those states. None of these states,
however, have created technology courts to specialize in the administration of
disputes involving complex technology issues.
(3) None of the states which have created specialized business courts had
implemented a differentiated case management or other system similar to that
already adopted in Maryland. Even the witnesses who testified before the Task
Force from other states acknowledged the significance of Maryland’s DCM
system in which complex cases, including business and technology cases, may be
given increased attention.
(4) Although there is no crisis in the handling of business and technology cases in
the Circuit Courts of this State, there are significant opportunities for
improvement. The substance of that improvement is more important than the
form it might take. Therefore, the benefits that have been documented from the
experience of those states and localities which have instituted “Business Courts,”
“Business Divisions,” or “Business Case Management Programs” were
inventoried by the Task Force without reference to whether a div ision, as such,
was required.
(5) Potential benefits of special procedures for the handling of substantive business
and technology disputes include:
(a) Specialized training and education for those judges with experience in
business and technology issues, as well as the application of specialized
case management techniques and technology for the handling of these
cases.
(b) Greater efficiency resulting from the specialized training and education
of judges, clerks, and staff, as well as the application of the most modern
technology to the filing and processing of these cases.
(c) More timely, rational, legally correct, and perhaps most importantly,
predictable rulings from judges who are better trained and educated in
the relevant subject matter, and comfortable in handling these cases.
(d) A higher rate of settlement of business and technology cases because of

the increased correctness and predictability of an identifiable group of
judges whose competence is certified by the requisite degree of judicial
education and training and whose written opinions are circulated on the
Internet and other available media.
(e) Greater efficiencies in the disposition of other types of cases within the
jurisdiction of the Circuit Courts because of the increased time available
for them as a result of the removal of time consuming business and
technology cases from the general court docket.
The Task Force further finds that the Judiciary of Maryland should forthrightly confront
the fact that the trend toward voluntary professional specialization in western societies is
likely to continue into the twenty-first century. This trend has already irreversibly
manifested itself in the legal profession with the specialization of attorneys and expert
6
witnesses. The Judiciary, however, has, although not entirely,5 declined to join this trend.
The Task Force believes that the inefficiencies and the reductions in the timeliness and
quality of judicial decision-making that will inevitably result from advocates with
specialized knowledge presenting cases to generalist trial judges with neither the
knowledge nor the time to devote to these cases will grow to a level which is intolerable.
The Task Force finds that, for the same reason it was not practical to establish Family
Divisions in all of the circuit courts of this State (i.e., those circuit courts having less than
seven (7) judges), it would not be practical to establish “Business and Technology
Divisions” in those same courts. The Task Force, therefore, concludes that it would not
be possible or practical to establish a “Business and Technology Division” in every
circuit court in this State.
The Task Force believes, however, it would neither be wise nor fair to provide
specialized management of business and technology cases in some jurisdictions, but not
others. This is particularly true since it is the public policy of the Executive and
Legislative branches to encourage high-tech businesses to locate in all parts of the State.
The Task Force, therefore, determines that it is neither necessary nor even the most
efficient organization of judicial resources to establish formal business and technology
circuit court divisions in certain limited jurisdictions in order to, in the words of the
statute, “enable the circuit courts to handle business and technology matters in the most
coordinated, efficient, and responsive manner and to afford convenient access to lawyers
and litigants involved in business and technology matters.”
Instead, the Task Force concludes that all of the benefits of the specialization of judges to
hear business and technology cases previously set forth, as well as a fair and equitable
allocation of judicial resources between different circuits, can be accomplished by the
establishment of a statewide “Business and Technology Case Manage ment Program” in
circuit courts of this State by Maryland Rules of Procedure as follows:
A. Organization
The Chief Judge of the Court of Appeals of Maryland, after consultation

with the various Circuit Administrative Judges, shall initially designate
not less than three (3) judges to the statewide Business and Technology
Case Management Program (the “Program”). The Chief Judge,
consistent with the caseload of the Program, may thereafter adjust the
number of judges assigned to the Program as needed. Pursuant to
Maryland Rule 16-101a.1, the Chief Judge may assign any judge
designated to the Program to sit temporarily in any other circuit court
within the judicial system for the purpose of carrying out the mandate of
the Program.
5
The judiciary has by Rule established “Family Divisions” in certain circuit courts in Maryland,
and by direction of the Chief Judge, ordered that no judge may hear a capital case without first completing
a specialized Judicial Institute education course.
7
B. Assignment of Cases to the Business and Technology Case Management
Program
1. Cases subject to Business and Technology Case Management Program
The Task Force believes that any system for determining whether a case
should be assigned to the Program must be flexible. It is recommended
that the selection system be based upon a format that establishes that
some cases be presumptively included, while others are presumptively
excluded. As the legal and business worlds develop in the face of ever
emerging technology, however, it is contempla ted, and indeed expected,
that such presumptions will be modified by judicial decision and/or rule.
If both parties agree to opt out of the Program, this should be permitted.
In resolving presumptions, consideration should be given to the desire of
both parties.
Assignment to the Program should be reserved for cases where there is a

substantial amount in controversy. This will typically include significant
monetary damages, but may also include consideration of potential future
economic loss in cases where non-monetary relief is the primary relief
being sought (i.e., injunctive or declaratory relief).
The Program should be limited primarily to cases involving business

entities, including individual sole proprietorships or individual partners
where the claim is against the partnership. Individuals, however, should
be permitted to take advantage of the benefits of the Program if involved
in a dispute appropriate for Program designation.
Cases should present commercial and/or technology issues of such a

complex nature that specialized treatment is likely to improve the
expectation of a fair and reasonable resolution of the controversy because
of the need for specialized knowledge or expertise in the subject matter
or familiarity with some specific law or legal principles which may be
applicable.
Thus, the Task Force recommends that notwithstanding anything to the

contrary in any Differentiated Case Management program, cases shall be
assigned to the Business and Technology Case Management Program
based on the following criteria:
a. Only complaints seeking compensatory damages totaling $50,000.00

or more, or complaints seeking primarily injunctive or other
equitable relief, will be considered eligible for assignment to the
Program if the other criteria identified below are met.
b. Actions in which the principal claims involve the following should

presumptively be assigned to the Program.
(i) Disputes arising out of technology development,

maintenance and consulting agreements including software,
8
network and Internet web site development and
maintenance agreements.
(ii) Disputes arising out of the hosting of Internet web sites for
business entities.
(iii) Disputes arising out of technology licensing agreements,

including software and biotechnology licensing agreements
or any agreement involving the licensing of any intellectual
property rights, including patent rights.
(iv) Actions relating to the internal affairs of businesses (i.e.,

corporations, general partnerships, limited liability
partnerships, sole proprietorships, professional associations,
real estate investment trusts, and joint ventures), including
the rights or obligations between or among shareholders,
partners and members or the liability or indemnity of
officers, directors, managers, trustees, or partners.
(v) Actions claiming breach of contract, fraud,

misrepresentation or statutory violations arising out of
business dealings.
(vi) Shareholder derivative and commercial class actions.
(vii) Actions arising out of commercial bank transactions.
(viii) Declaratory judgement and indemnification claims brought

by or against insurers where the subject insurance policy is
a business or commercial policy and where the underlying
dispute would otherwise be assigned to the Program.
(ix) Actions relating to trade secret, non-compete, non-

solicitation, and confidentiality agreements.
(x) Business tort actions, including claims for unfair

competition or violations of Maryland’s Trade Secret or
Unfair and Deceptive Trade Practices Acts.
(xi) Commercial real property disputes other than

landlord/tenant disputes.
(xii) Disputes involving Maryland’s Uniform Computer

Information Transactions Act, including alleged breaches of
the warranty provisions provided in such Act.
(xiii) Professional malpractice claims in connection with the

rendering of professional services to a business entity.
(xiv) Claims arising out of violations of Maryland’s Anti-Trust

Act.
9
(xv) Claims arising out of violations of Maryland’s Securities
Act.
c. Actions in which the principal claims involve the following shall be

presumptively not assigned to the Business and Technology Case
Management Program.
(i) Personal injury, survival or wrongful death matters.
(ii) Medical malpractice matters.
(iii) Landlord/Tenant matters.
(iv) Professional fee disputes.
(v) Professional malpractice claims, other than those

brought in connection with the rendering of professional
services to a business enterprise.
(vi) Employee/employer disputes, other than those relating to

matters otherwise assigned to the Program.
(vii) Administrative agency, tax, zoning and other appeals.
(viii) Criminal matters, including computer-related crimes.6
(ix) Proceedings to enforce judgments of any type.
d. Commencement of an Action
All subject actions shall be commenced as provided by applicable

statutes and the Maryland Rules. In all cases a copy of a Civil Non-
Family Cover Sheet, including any Business and Technology Case
Management Program addendum, shall be served with original
process on the parties. It is recommended that the currently used
Civil Non-Family Cover Sheet be modified to specifically address
cases falling within the jurisdiction of the Program. These
modifications should include designations to be filed by the parties
indicating which presumptively included category or categories the
party believes its case falls within so as to assist the judge assigned
to the matter in determining applicability of the Program to the
dispute.
6
The Task Force does not believe that technology and computer related criminal matters require
assignment to the Program. Although involving new means of committing crime, such matters still involve
fundamental principles of substantive and procedural criminal law that can be adequately resolved by
members of the Judiciary experienced in the handling of such matters.
10
e. Case Management Procedures
1. Authority Over Business and Technology Case Management

Program Status.
Where there is a dispute as to whether the case is properly

assigned to the Program, such dispute will be resolved by the
Administrative Judge of the County in which the case is filed or
the Administrative Judge’s designee as soon as practicable after
the case becomes at issue (i.e., the filing of an answer or other
responsive pleading by the defendant).
2. Tracks within Program
A Business and Technology Case Management Program

Expedited Track shall exist for matters in which the parties
consent and minimal discovery is required. Such an expedited
track shall provide for discovery to be completed and a trial date
scheduled within ninety days of the defendant’s filing of an
answer. Other matters should presumptively be designated
Business and Technology Case Management Program Standard
Track. This standard track should provide for discovery to be
completed and a trial date scheduled within nine months of the
defendant’s filing of an answer. Actions in which preliminary
injunctive relief is sought may be appropriate for either track
depending upon the circumstances.
3. Motion Practice and Discovery Motions
The Program Judge to whom the action is assigned shall hear all
proceedings until the matter is concluded, except under
exceptional circumstances where the Judge may make
arrangements for certain discovery and other pretrial motions to
be heard by one of the other Program Judges.
4. Rules to Show Cause and Emergency Motions and Petitions.
Unless there is a dispute as to Program applicability, show cause

orders and emergency motions and petitions shall be referred to a
Program Judge for immediate disposition. If there is any dispute
regarding Program applicability, that dispute shall be referred to
the Administrative Judge, or the designee of the Administrative
Judge, of the County in which the case is filed for immediate
disposition prior to hearing the emergency motion(s).
5. Publication of Written Opinions
Opinions of the trial court judges designated as Program Judges

shall be published on the Internet in the same manner as the
appellate courts of this State through the Maryland State Bar
Association and the Daily Record. To the extent practical,
11
Program Judges should discuss these opinions with each other in
an attempt to insure consistent decisions.
f. Additional Recommendations
1. The Task Force does not deem it appropriate to attempt to

further specify the rules, regulations, policies, and procedures
under which the recommended enactment of the statewide
Program would operate. The operational rules are best left to
Maryland’s Standing Committee on Rules of Practice and
Procedure to recommend and the Court of Appeals of Maryland
to adopt. The Task Force notes that a number of states (e.g.,
Pennsylvania, North Carolina and Wisconsin) have published
business case management plans and procedures that may
provide a useful framework for the development of rules,
regulations, policies, and procedures for the Program.
2. The Task Force recommends the creation of a committee, either

of the Conference of Circuit Judges or the Judicial Conference,
to further develop and continually oversee the operational details
of the Program, after consultation with and ongoing input from
the appropriate Sections (i.e., Business Law, Litigation, and
Alternative Dispute Resolution) of the Maryland State Bar
Association, as well as the business community.
3. The Task Force recommends that the Judicial Institute of

Maryland, the entity charged with educating judges in Maryland,
in consultation with the Maryland State Bar Association,
MICPEL, and the Universities of Maryland and Baltimore Law
Schools, develop a program for the training and continuing
education of judges, clerks, and staff who will have duties
associated with the Program.
4. The Task Force recommends that the Business and Technology

Case Management Program be prominently displayed on the
Judiciary’s website. The utilization of the Judiciary’s website is
recommended because it would demonstrate the Maryland
Judiciary’s ability to be cutting edge. In addition, it is currently
the research vehicle of choice, particularly for technology
companies, and is the easiest option to update. The Task Force
further recommends that the Program be similarly displayed on
the Maryland Department of Business and Economic
Development web site and linked to other State and legal web
sites.
VII. EXPEDITED APPEALS
House Bill 15 further requires the Task Force to examine, and report on, a number of
other issues relating to the establishment of a Business and Technology Program,
including the establishment of rules regarding expedited appeals, the use of alternative
12
dispute resolution techniques, and the electronic filing of pleadings and other uses of
information technology. As for the establishment of rules regarding expedited appeals,
the Task Force believes that existing rules, statutes and case law provide all of the
authority necessary for expediting appeals to Maryland’s Appellate Courts in important
cases presenting a real need for expedition. Thus, special rules to expedite such appeals
for cases falling within the jurisdiction of the Program are unnecessary.
The principal rule providing for an expedited appeal is Rule 8-207(a). Although Rule 8-
207(a) is limited to the Court of Special Appeals and to situations where all parties agree
upon expedition, there are other rules which authorize both appellate courts to expedite
cases even without the consent of the parties.
For example, Rule 8-206(b), dealing with prehearing conferences in the Court of Special
Appeals, provides the parties and the court a mechanism for agreeing upon “the time or
times for filing the record and briefs, and other pertinent matters.” Rule 8-412, setting
forth the times for transmitting the record, which is applicable to both appellate courts,
provides in subsection (d) that, “[o]n motion or on its own initiative, the appellate court
having jurisdiction of the appeal may shorten . . . the time for transmittal of the record.”
Expedition can also be effected under Rule 8-113(b), which states that the parties may
agree on a "Statement of the Case in Lieu of Entire Record.” If the parties so agree, there
is no need to have the trial court record prepared and transmitted to the appellate court, as
the agreed statement becomes the record on appeal.
Furthermore, Rule 8-521(b) authorizes either appellate court, either on motion or on its
own initiative, to advance a case. There have been numerous instances, involving
important cases which had to be decided promptly where the Court of Appeals has
dispensed with the requirements for record extracts and briefs, has heard the case soon
after the trial court’s decision on the papers filed in the trial court, and has decided the
case shortly after oral argument. In addition to the recent Public Service Commission
electric deregulation case, some examples include Save Our Streets v. Mitchell, 357 Md.
237, 743 A.2d 748 (2000); Stevenson v. Steele , 352 Md. 60, 720 A.2d 1176 (1998);
Blount v. Boston, 351 Md. 360, 718 A.2d 1111 (1998); Hertelendy v. Board of Educ., 344
Md. 676, 690 A.2d 503 (1997); State Election Bd. V. Election Bd. Of Balt., 342 Md. 586,
679 A.2d 96 (1996); Roberts v. Lakin, 340 Md. 147, 665 A.2d 1024 (1995); Maryland
Aggregates v. State , 337 Md. 658, 655 A.2d 886, cert. denied, 514 U.S. 1111, 115 S.Ct.
1965, 131 L.Ed.2d 856 (1995).
In addition to the provisions of the Maryland Rules discussed above, some statutory
provisions can be invoked to assist in expediting appeals. For example, Maryland Code
§ 12-201 of the Courts and Judicial Proceedings Article authorizes the Court of Appeals
to issue a writ of certiorari prior to the decision by the Court of Special Appeals. The
Court of Appeals may do this on petition of any party or on its own initiative. When a
case involves an important issue which is likely to be resolved by the Court of Appeals
eventually, the matter can be expedited by the issuance of a writ of certiorari soon after a
notice of appeal is filed, thereby by-passing the Court of Special Appeals. The above-
cited cases are also examples of this.
For all of these reasons, the Task Force does not believe it is necessary to establish new
rules to expedite appeals of cases handled by a Business and Technology Case
Management Program.
13
VIII. ADR (Alternative Dispute Resolution)
It has been proven in other states that the types of cases that the Task Force believes
should be referred to the Business and Technology Case Management Program are
particularly appropriate for resolution through the use of ADR techniques. In many cases
the parties have worked together and may want to continue their association. Efforts
should be made to build on these relationships rather than dissolving them as so often
happens in the adversarial nature of litigation. Even if placed on an expedited track,
litigation is going to be costly both in dollars and in executive and employee time – time
that could more productively be directed toward running and growing the respective
businesses. Additionally, there is the cost of having this unresolved issue weighing on
the businesses and impairing their ability to move forward.
The currently existing DCM system generally encourages the use of ADR. While
mediation is the process most frequently used, other processes such as non-binding
arbitration and neutral case evaluation (NCE) should be considered in appropriate cases.7
Many of the circuit courts already have in place DCM and ADR coordinators with a
system in place to refer cases to ADR before a list of approved mediators (e.g. Anne
Arundel County, Baltimore County, Baltimore City, Montgomery County, and Prince
George’s County), and a Business and Technology Case Management Program can
simply build on the experience of these jurisdictions in implementing specialized ADR
procedures.
It is recommended that all cases assigned to the Program be referred to ADR. Although
Title XVII (§ 17-103) provides that either party can opt out of an ordered fee for service
ADR process, experience has proven that this is rarely done, especially where business
entities are involved. The earlier in the process ADR is used the greater the chance of
cost savings. However, not all cases are ripe for ADR without some discovery. The
practice of most Maryland Circuit Courts using ADR is to refer the cases to mediation as
soon as the case is at issue with a deadline for when the ADR must be completed. The
parties, their lawyers, and the mediator, arbitrator, or neutral case evaluator then
determine the most appropriate time to use ADR.
Since many of the cases being considered for referral to the Program are currently being
handled by persons already trained as mediators, it will not be necessary to require
additional training with regard to mediation techniques. The Task Force believes,
however, that specialized training for the mediators designated as qualified to handle
cases in the Program must be provided. This would include specialized training in both
business and technology issues.
The ADR referral orders in most circuit courts currently provide that mediators will be
paid $150.00 per hour for civil cases to be divided equally between plaintiffs and
defendants. Some courts have specially assigned individual cases to specific persons and
provided for higher reimbursement by the parties, with their consent. The fee structure
may need to be reviewed as special expertise is being required. The fees should fairly
compensate the ADR provider yet not be too expensive as to deter parties from engaging
in the process.
7
Title XVII of the Maryland Rules, effective January 1, 1999, discusses the processes (§ 17-102)
and the training required for a person to be eligible to be on a court approved referral list (§§ 17-104, 105).
Amendments to these rules are currently before the Court of Appeals.
14
The expanded use of ADR in the Circuit Courts of Maryland has been a great benefit to
reducing costs as well as case backlogs. The Task Force strongly recommends that ADR
be an integral part of any Business and Technology Case Management Program.
IX. ELECTRONIC FILING
The Task Force was also charged with evaluating the feasibility of establishing a system
for the electronic filing, or “e-filing,” of pleadings within a Business and Technology
Case Management Program. In its basic form, e-filing simply allows law firms and
courts to exchange documents electronically. In its more integrated form, it allows law
firms to submit documents, view docket entries and submit filing fees directly into the
court’s workflow processes and systems. In turn, the court can conduct internal business
with electronic routing of documents and activities. Courts can also submit electronic
orders, opinions and administrative messages and actions to law fir ms in electronic
formats.
Generally, law firms that represent businesses have automated practice management
systems and create one hundred percent of their internally-generated documents using
word processing and document management systems. It is now commonplace for
business-oriented law firms to use e-mail extensively to exchange electronic documents
with clients. Indeed, clients are demanding such exchange.
The courts in Maryland have a distinct advantage as they are, for the most part, already
fully automated. The Judicial Information Systems (JIS) and case management systems
in the Circuit Courts of Montgomery and Prince George’s County provide one hundred
percent coverage of all pending cases. The administrative office of the courts, JIS and
county governments also provide microcomputers and word processing capabilities to
every Circuit Court Judge’s chambers throughout the state. A significant number of
Circuit Court Judges have internal e-mail capabilities through courthouse networks, and a
growing number have modem and even network based high-speed Internet connections.
A. Non-Use of E-Mail for e-filing
Except in extremely limited circumstances, neither the courts nor the law firms in
Maryland have used electronic mail for filing or service. This reluctance is well
grounded. In spite of emerging standards for e-mail, there can be significant
incompatibility between mail systems and substantial problems in exchanging documents
created in incompatible word processing formats. Word and WordPerfect documents can
have significant incompatibilities, particularly with paragraph numbering, tables of
citations, and precise recreation of formats, such as headers, footers and footnotes.
Indeed, this Task Force has experienced some problems in the exchange of meeting
agendas and minutes between members.
Once filed it is frequently impossible to maintain public record level control over e-mail
storage and computer directories. Finally, even if a document is “electronically
delivered” by e-mail, the clerk’s office has to post the receipt, create a docket entry and
oftentimes print the document to get it to chambers, file it in permanent storage at the
courthouse and even microfilm or image scan the document for back-up storage systems.
15
B. E-Filing’s Secure and Compatible Formats
E-filing allows law firms to transmit electronic documents to courts and to each other in
compatible formats, complete with an automatically generated docket entry and a
permanent filing retrieval system and audit trail.
Instead of using e-mail, e-filing uses the Internet FTP or File Transfer Protocol to
transmit the document and associated filing data to a neutral but highly secure web site.
The court connects with this web site through a single, secure channel rather than allow
thousands of lawyers to have direct access to the court’s systems. The web site and
underlying databases maintain a highly traceable audit and retrieval trail while the
document is delivered to the court and to counsel designated for service in a format that
eliminates incompatibility between word processing formats
C. E-Filing in Maryland (1995 – 2001)

In 1995 Prince George’s County began one of the earliest successful e-filing pilot
projects. The project was a demonstration initiated by the National Center for State
Courts.
For the last three to four years the Circuit Court for Baltimore City has laid the
foundation for an e-filing system for over 10,000 asbestos cases. Baltimore began its
initial efforts to contract for a first generation e-file system called CLAD (Complex
Litigation Automated Docket) offered by Lexis-Nexis. CLAD has been continuously in
use in the Superior Court of Delaware and other jurisdictions since 1991 for asbestos,
environmental, insurance, and tobacco cases.
D. E-File Costs
One of the prevailing e-filing systems, JusticeLink, involves no direct financial
expenditure for software by the court. The business model for installation, data
conversion, user training, maintenance and user support is built on transmission fees by
the sender and access fees by those other than the receivers of the documents or the court.
JusticeLink charges $0.10 per page with a $2.00 minimum for filing and a $2.00
minimum for service. There is no charge for indefinite storage in a highly secure and
redundant processing facility. Another prevailing system, WestFile, presently
contemplates either a $10 - $15 delivery fee or a prepaid subscription plan, again, with no
charge to the court. These delivery prices are either competitive with current manual
costs for delivery or well below them. Although the law firms and parties financially
support the system, they end up paying less than the same task in a manual system.
Courts and law firms will need to devote time and resources to the installation of certain
software and training. Vendors will need access and some labor effort to examine
equipment, set up the system, address any data conversion issues and coordinate training
efforts. These costs are best absorbed by the larger law firms that traditionally represent
businesses in their legal disputes. This proved true in New York where an e-filing system
was initiated in its business court. Firms appearing before the business court were, in
effect, made to be guinea pigs for establishment of an e-filing system that will soon be
rolled out to the general docket.
There can be indirect costs for a court to upgrade its computers, printers and Internet
connections. If a judge hears a case within the Program in a jurisdiction with insufficient
16
computing equipment or telecommunications facilities, there could be delays and costs
needed to implement the needed upgrades or use a temporary facility with proper
equipment.
E. Feasibility of e-filing for a Business and Technology Court Function
It is both feasible and cost effective for the Business and Technology Case Management
Program to use e-filing. Lawyers and the court can exchange documents and conduct
their work more productively, efficiently and effectively. There is considerable value in
allowing a court devoted to the resolution of disputes between business and technology
companies to use the dominant media by which the litigants and their lawyers create
documents, exchange them and communicate with each other.
Based on experiences in other jurisdictions and the groundwork already in place from the
efforts with the Baltimore asbestos cases, the Task Force has been told that e-filing can
be made operational in less than two months. With relatively minimal costs, the Business
and Technology Case Management Program can start its existence with its own statewide
“virtual” docket and document exchange repository. 8
X. CONCLUSION
The Business and Technology Division Task Force was composed of a diverse cross
section of judges, legislators, educators, lawyers, and business people. We have joined
together in making these recommendations to graft a statewide business and technology
8
In addition to establishing electronic dockets, calendars and e-filing, the Business and
Technology Case Management Program should consider using other technologies to conduct its business.
By taking advantage of different technologies for publishing case data, exchanging information and
electronic conferencing, the Program can improve its own productivity. These tools, which should be
affordable and comply with open standards, include:
1. On-line repositories of evidentiary materials (digital images of documents,

electronic transcripts, computer based and computer generated documents and
other evidence) for use by parties and hearing officers.
2. Multimedia briefs – Business litigators are increasingly using presentation and
desktop publishing software to compose briefs on CD-ROM disks and e-filing
sites. These briefs not only include digital exhibits in the text, but also include
links for references to the record, the case law and even high tech exhibits such
as computer animations and video clips.
3. Double blind bid and offer software allowing parties to post double-blind
settlement offers on a highly secure web-site. The applications analyze the
spread between the bids and allow multiple rounds of bidding.
4. Whiteboards or Netmeeting – This technology uses a live Internet site for parties
simultaneously review an exhibit or even mark-up an issue online. NetMeeting
software comes free with Microsoft Windows while Internet-based services such
as WebEx and PlaceWare allow anyone with a web browser to conduct on-line
meetings by collaborating on documents, screen shows and “whiteboards”
which function like a blackboard in which anyone can draw a diagram that
appears on the screens of every participant’s computer.
5. Video conferencing - This technology can be very effective in settlement
conferences, remote examinations of expert witnesses and on-line court
hearings.
17
court function onto the already successful DCM system in an effort to improve the
efficiency of an outstanding Judicia ry. We do not view these recommendations, as some
have suggested, as a “slippery slope,” leading to the unwarranted proliferation of
specialty courts. Other jurisdictions have found that the establishment of so-called
business courts, divisions or programs have succeeded in administering business disputes
more effectively without leading to such a problem. Indeed, the realities that have guided
our deliberations and driven our recommendations, i.e., the increasing specialization of
the world around us generally, and the legal profession, in particular, have compelled our
conclusion and recommendation that an even better and more specially trained judiciary
is required in order to efficiently serve the citizens of our State in the twenty-first century.
This proposal for a Business and Technology Case Management Program, we believe, is
unique and innovative, and provides Maryland with the opportunity to shed its perception
as having an anti-business atmosphere while not damaging the integrity of the Judiciary.
Indeed, this report has already attracted extensive local and national attention. Having a
court that has special business and technology competence and uses technology to
administer its docket puts Maryland in the forefront of adaptation to the new realities of
the Information Age.
18
APPENDIX A
INPUT FROM THE MARYLAND BUSINESS AND LEGAL COMMUNITIES
Testimony heard by the Task Force from Maryland citizens can be broken into the
following categories: (1) commentary from Maryland businessmen and women; (2)
commentary from various committees and members of the Maryland Bar Association;
and (3) commentary from Maryland’s judiciary.
A. Maryland’s Business Community
Commentary from the Maryland business community has been overwhelmingly

favorable. Maryland has long been looked upon by the business community as having an
anti-business atmosphere. The business people who testified before the Task Force
uniformly agreed that implementation of a business and technology function within the
State Circuit Court System would prove to be a significant step in changing this
perception. Although not one witness testified that the implementation of such a function
will prove to be the deciding factor in whether a business chooses Maryland as its state of
incorporation or principal place of business, the establishment of such a division will
certainly weigh in favor of Maryland being chosen. For example, one witness who
testified before the Task Force testified that the entry of what his organization perceived
to be a misguided and incorrect judgment in another state has led his company to re-
evaluate its holdings and operations in that state. Establishment of a division in the State
Circuit Court System that specializes in business and technology issues would, in the
mind of this witness, greatly reduce the chance of such a judgment being entered here.
The business people who testified before the Task Force all believe that the establishment
of a specialized court function to handle business and technology disputes will provide a
number of benefits to not only the business community, but to the judicial system as a
whole. For instance, businesses will be able to receive quick and efficient decisions from
the court in cases where every day that the case remains undecided costs the parties
significant sums of money. Decisions of such a specialized court, in the eyes of the
business community, will also be more predictable in that decisions will be made by
judges that are educated in business and technology issues. Parties will also be able to
rely on written decisions from the trial court which will not only prove helpful in
litigating disputes, but will also guide corporate officers and directors in making
everyday decisions. Such guidance may actually reduce the number of disputes filed.
The business community believes that the issues raised in cases of these types typically
involve complex issues at every stage, including discovery, and need the focus and
attention of experienced judges. The establishment of a specialized court function would
improve the quality of judicial and business administration and generally improve the
overall business climate.
Finally, the business people who testified before the Task Force focused on their
experiences in other states where specialized divisions for the administration of business
disputes have already been established. Other states, particularly New York, have found
that all parties are benefited by the establishment of a separate division for complex
business cases because of the removal of such cases from the general civil docket
rotation. By removing these cases from the general rotation (which although typically
19
involve a small percentage of the total cases in the system, occupy a disproportionately
large amount of judges’ time), the overall efficiency of the system is greatly increased.
For all of these reasons, the business community seems uniformly in favor of the
establishment of a Business and Technology Case Management Program.
B. Maryland’s Judiciary
Maryland’s judiciary takes a somewhat different view of the establishment of such a

function. Although the judiciary firmly supports the efficient and effective resolution of
all matters pending before it, as well as the establishment of any procedures which can
improve the overall efficiency and effectiveness of the courts, the judiciary questions the
need for a separate division and is concerned that the establishment of a separate
Business and Technology Division will lead to the unwarranted proliferation of other
specialty courts. The judiciary (as well as other groups who question the necessity of the
establishment of a Business and Technology Division) point to the establishment of
Maryland’s DCM program and note that none of the other states which have created
specialized business courts had implemented a similar system prior to creation of its
business courts. This is an important distinction between Maryland and these other states
as there was no evidence presented to the Task Force that there is any substantial problem
in the handling of complex cases in Maryland’s Circuit Court System. Indeed, even the
witnesses from other states that have created business divisions acknowledged the
significance of Maryland’s DCM system in which complex cases, including business and
technology cases, can be given increased attention.
For example, in the Circuit Court for Baltimore City, cases receive a computerized
scheduling order when the case becomes at issue, which sets forth a trial date, a
mandatory settlement conference, and deadlines for completion of pre-trial discovery and
the filing of dispositive motions. Moreover, the Court provides for a customized
scheduling order upon written request by any party. Finally, complicated cases, upon
request of the parties, may be specially assigned to a particular judge so as to reduce the
amount of time necessary to educate the judge hearing the various issues, and hopefully
insuring consistent rulings.
Notwithstanding these concerns, the judiciary is firmly in favor of specialized training

and education in all areas of the law, including business and technology law, as well as
the application of specialized case management techniques and technology for the
handling of these cases. Greater efficiency will result from this specialized training and
education of judges, as well as the application of the most modern state of the art
technology to the filing and processing of these claims. More timely, rational, legally
correct, and predictable rulings will result from the handling of these cases by better
trained and educated judges whose written opinions are made available to the public.
C. Maryland State Bar Association
Lastly, the opinion of the committees and members of the Maryland State Bar
Association, not surprisingly, runs according to the type of law engaged in by the
practitioner. The Business Law and Law Practice Management Sections of the Maryland
State Bar Association are supportive of the establishment of a Business and Technology
Division or Case Ma nagement Program. The Litigation Section, on the other hand, has
expressed opposition to a separate division, instead preferring to address business and
technology litigation with modifications to the existing DCM system.
20
The Business Law Section believes that the establishment of a separate business division
could substantially improve the quality of decisions in business cases, as well as the
efficiency with which Maryland courts decide these cases. By specially assigning
business cases to a particular judge who has interest, experience and specialized
education in business matters, the quality of decisions in such cases will be significantly
improved. Moreover, having one judge assigned to a case to hear and decide all issues
arising in that case could improve judicial efficiency by eliminating the need to
repeatedly educate different judges on the often extensive and complex facts of a
business case.
The Business Law Section also points to the experience of other states wherein the
burdens on the court system have been reduced by removing complex business and
technology cases from the general docket. Experience shows that business litigation is
typically far more complex than other forms of litigation and as a result, business cases
often require the courts to spend a disproportionately large amount of time on a relatively
small number of cases. As a business court could be designed to accommodate these
cases and facilitate their resolution, the overall efficiency of the court system could be
improved. Where complex business cases are given special attention, the experience in
other states has proven that such cases typically resolve more quickly thereby improving
the overall efficiency of the entire court system. Thus, the Business Law Section
contends, a specialized Business and Technology Division would help to process all
Maryland cases, civil and criminal, faster and more efficiently, thus providing
Maryland’s over-crowded dockets some relief.
The Business Law Section further contends that the establishment of a Business and
Technology Division within the State Circuit Court System could increase the number of
business entities incorporated and headquartered in Maryland which improves the State’s
overall economy. The Section believes that the quality of the State’s court system can
have a significant impact on the selection of the state of incorporation of a business
because of the increased likelihood that legal action involving that company will be
brought in that selected state. Having a business and technology court in Maryland may
make incorporation and headquartering of businesses in Maryland more attractive.
The Litigation Section believes that the current DCM program, with some modification,
should be able to handle the concerns relating to complex business and technology cases.
The Litigation Section further believes that the creation of a separate division solely for
business and technology cases may, in a myopic effort to attract more businesses to
Maryland, lead to the view that the State’s judiciary is “pro-business.” Although
certainly attractive to business owners, such a perception (whether real or illusory) could
prove harmful to the public perception of the court system for the administration of
justice, no matter who the parties may be.
The Litigation Section recognizes, however, that technology cases are relatively new to
the judicial system and may require specialized procedures. This Section believes that
the DCM system provides a ready solution of the “problems” brought on by these cases
and could serve to make Maryland more “business friendly” without a misconceived
perception of bias on the part of the judiciary. Towards that end, the Litigation Section
proposes that a track be established within the DCM system that would facilitate the fair,
prompt and efficient disposition of technology and business cases. Further, the Litigation
Section proposes specialized training and education for judges handling these matters and
21
the establishment of a panel of trained mediators who could help resolve technology
cases. The Litigation Section further recommends:
1. Establishment of an Maryland State Bar Association program offering training to

officials in the Maryland Department of Business and Economic Development on
the unique benefits of the Maryland court system in resolving technology and
business disputes.
2. Encouraging the General Assembly to approve increased spending for the courts
to upgrade electronic information and filing systems.
3. Establishment of an Maryland State Bar Association committee to monitor

developments concerning business and technology litigation and make
recommendations for future changes within the court system to keep pace with
this rapidly changing area.
4. Use of the trained mediators to prepare a memorandum of law highlighting

technology issues for the trial court in the event matters are not resolved in
mediation.
The Litigation Section believes that all of these recommendations will effectively address
the issues that arise with complex business and technology cases.
22
APPENDIX B
EXPERIENCE OF OTHER STATES
A state by state survey was conducted by the Task Force to determine the status of
business courts in other states throughout the country. The following is a summary of
this survey:
1. Ten states have operational business courts or tracks – Delaware, Illinois,

Massachusetts, Wisconsin, Nevada, New Jersey, New York, North Carolina,
Pennsylvania and Virginia.9
2. Two states have established complex litigation courts which hear, among other
types of cases, complex business litigation – California and Connecticut.
3. Fourteen states have had some form of discussion about establishing a business
court, with some states creating task forces to study the feasibility – Arizona,
Colorado, Florida, Georgia, Kentucky, Maryland, Michigan, Minnesota,
Mississippi, Missouri, New Hampshire, Ohio, Oklahoma and Texas.10
4. Twenty-four states have no current plans to propose establishment of a business

court.
Of the states that have some sort of specialized court to hear complex business litigation,
Delaware is the best-known, most highly respected, and long-standing. Delaware’s Court
of Chancery has existed for over two hundred years and has traditional equitable
jurisdiction. Its business specialization is not the result of a formal decision to specialize,
but rather the incorporation of a large number of companies in Delaware due to its
favorable corporate statutes, and the equitable nature of so many of the disputes in which
those companies are involved.
The Court of Chancery has five members who each handle approximately two hundred to
two hundred twenty-five cases per year. Each member of the Court is responsible for
overseeing each case assigned to him until resolution. Members typically draft
approximately sixty opinions each year, half of which are published.
The Court’s Chancellor, William Chandler, testified before the Task Force that business
litigation makes up approximately ninety-five percent of the Court’s docket and that the
effectiveness of the Court, as well as its national reputation, is brought on by a thorough
understanding of corporate issues. Members of the Court of Chancery often discuss
complex issues among themselves, and review opinions prior to release to the parties and
the public to insure consistency.
Upon request, cases may be expedited with discovery and trial completed in as little as
three months. Parties may also seek expedited appeals to the Delaware Supreme Court.
9
Wisconsin’s business program, although rarely used, is still operational.
10
As previously set forth, the states that have adopted business courts or are considering adoption
of such a court, only Maryland has proposed a division of its general jurisdiction court that focuses on both
business and technology issues.
23
In New York, the movement toward establishment of a business court began in January
1993, when New York County established four specialized "Commercial Parts" to hear
complex commercial and business cases. Four experienced judges were assigned to staff
this court which led to a thirty-five percent increase in the disposition of business cases in
1993 as compared to 1992.
In January 1995, the Commercial and Federal Litigation Section of the New York State
Bar Association issued a comprehensive report recommending establishment of a formal
commercial court. The Commercial Division began hearing cases on November 6, 1995,
and five New York State Supreme Court judges were assigned to hear exclusively
commercial cases in New York County, with an additional commercial division judge
designated in Monroe County (Rochester).
By the end of 1996, The Chief Administrative Judge in New York County reported that
the business court resulted in a 29% reduction in the average time to dispose of cases
assigned to it. Further, there had been an 85% increase in the number of cases settled
before trial, and a 26% decrease in the volume of pending cases. By 1998, the court
reported a 36% reduction in the average time to dispose of cases, reducing the average
time a case spends on the docket from 648 days to 412. These decreases in the number of
cases on the docket allowed New York County to reassign one of the business court
judges to the general docket as the amount of business cases formerly handled by four
judges could now be handled by three. As a result, one full judge's time became
available to address and dispose of other cases on New York's civil and criminal docket
creating judicial efficiency for all cases, not simply those pending before the business
court.
New York’s Commercial Division has been widely acclaimed by business people
throughout the country as a success. Robert Haig, Co-chair of the Commercial Courts
Task Force in New York and advisor to nine states and five countries on the
establishment of specialized courts to administer business litigation, testified before the
Task Force that establishment of the Commercial Division has had a positive impact on
New York’s economy and that the business community is extremely enthusiastic about its
continued operations.
Equally important, the Commercial Division takes advantage of technological advances

such as Courtroom 2000, which uses computers, display monitors and multimedia
equipment to increase the speed and effectiveness in which attorneys can try their cases.
A digital evidence presentation system allows instant retrieval and quick display of
digitized documents. Real-time court reporting allows parties to view the transcript of
the proceedings as it is being created. Litigants no longer need to rely on notes to cross-
examine, but instead can highlight appropriate passages of testimony for use later. Jurors
are able to follow along because the jury box has been equipped with monitors. All of
these features have served to shorten trials by up to forty percent, create livelier
proceedings, and improve jury retention.
Additionally, the New York County branch of the Commercial Division includes a court-
annexed alternative dispute resolution program, in which parties can obtain the services
of a mediator from a roster of specially trained professionals experienced in commercial
matters. By November 1999, the program had handled close to one thousand cases and
achieved settlements in approximately fifty-eight percent of these cases. The success of
24
the New York County ADR program led to the expansion of the program, with West
Chester County11 becoming the second county to create an ADR program. There are
further plans to expand the program to other counties. Also, the New York County
program itself was expanded to accept smaller commercial cases heard outside the
Commercial Division, usually involving smaller businesses, which are especially
appropriate for cost-effective ADR.
Finally, Philadelphia recently established a business division of its own. This division
went into effect on January 2, 2000 and unlike the New York Commercial Division, only
accepts new filings (no cases pending in the court prior to establishment of the business
division were transferred to the business division).
Like Maryland, opponents of the establishment of a business division questioned whether

there existed a sufficient number of cases to warrant its implementation. This concern
has proven illusory as over three hundred cases have been filed in Philadelphia’s business
division since its creation at the beginning of the year. The division has two judges
dedicated full time to handling cases assigned to it, and opinions are placed on a web site
for distribution to the public.
William Clark, Chairman of the Business Law Section of the Pennsylvania Bar
Association and the American Bar Association Committee on the establishment of
Business Courts, testified before the Task Force that a major concern in establishing
Philadelphia’s business division was that a perception would develop that the judiciary
was pro-business. Mr. Clark testified that although it is too early to conclusively
determine, it does not appear that this concern has proven true.
11
Buoyed by the overwhelmingly positive response in New York County, the Commercial
Division has been expanded and now operates in New York, Monroe, Nassau, West Chester, and
Erie Counties.
25
APPENDIX C
MEMBERS APPOINTED BY THE PRESIDENT OF THE MARYLAND STATE BAR

ASSOCIATION, INC.
Wilbur D. Preston, Jr. is Chairman of the Business and Technology Division Task Force,
appointed as the designee of the President of the Maryland State Bar Association, Inc. (MSBA).
Mr. Preston is Chairman of the law firm of Whiteford, Taylor & Preston L.L.P. with practice
areas in banking, government, municipal law and housing law. He was admitted to the Maryland
Bar in 1948 and is a graduate of Western Maryland College (A.B.) and the University of
Maryland (L.L.B.)
Wesley D. Blakeslee is a member of the Business and Technology Division Task Force,
appointed on the recommendation of the MSBA Special Committee on Technology. Mr.
Blakeslee is Associate General Counsel with Johns Hopkins University. He was admitted to the
Maryland Bar in 1976, and is a graduate of Pennsylvania State University (B.S.) and the
University of Maryland Law School (J.D.)
The Honorable Charles B. Day is a member of the Business and Technology Division Task
Force, appointed on the recommendation of the President of the MSBA to bring a federal
perspective to the panel’s proceedings. Mr. Day is U.S. Magistrate. He was admitted to the
Maryland Bar in 1985, and is a graduate of the University of Maryland (B.A., J.D.)
Alan R. Duncan is a public member of the Business and Technology Division Task Force. Mr.
Duncan is the President and CEO of Dynamic Access Systems, LLC, which was formed from the
merger of Duncan Technologies, LLC, providing technology services to businesses and
government in the planning and management of computer technology and computer security
programs. He is a graduate of Fairmont State College (B.S.) and The Wharton School, University
of Pennsylvania (Information Systems Program).
Nariman Farvardin is a public member of the Business and Technology Division Task Force.
Dr. Farvardin is the Dean of the A. James Clark School of Engineering at the University of
Maryland, College Park (effective August 2000). He is a graduate of Rensselaer Polytechnic
Institute (B.S., magna cum laude, M.D., Ph.D.)
Michael Hickman is a public member of the Business and Technology Division Task Force. Mr.
Hickman is the co-founder of Blue Lobster Software which was acquired by SEGA Software. He
is presently Global Product Manager for General Electric responsible for global exchange
services.
Robert D. Kalinoski is a member of the Business and Technology Division Task Force,
appointed on the recommendation of the MSBA Section of Business Law. Mr. Kalinoski is a
partner at the law firm of Kalinoski & Riordan, P.A. with practice areas in business law,
corporate law, probate and estate planning, contract law, taxation, real estate, intellectual
property, and employment law. He was admitted to the Maryland Bar in 1990, and is a graduate
of Harvard University (A.B., cum laude) and the Boston University School of Law (J.D.)
James I. Keane is a public member of the Business and Technology Division Task Force. Mr.
Keane is the Chief Legal Officer of Data West Corporation (CourtLink/JusticeLink, an Internet
company that permits secure electronic filing of court pleadings in many state courts, and
26
computer access to court dockets at the federal, state and local levels. He was admitted to the
Maryland in 1971, and is a graduate of Marquette University (B.A., magna cum laude), and the
Georgetown University Law Center (J.D.)
Ava E. Lias -Booker is a member of the Business and Technology Division Task Force,
appointed on the recommendation of the MSBA Section of Judicial Administration. Mr. Lias-
Booker is a partner at the law firm of Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC
with practice areas in commercial institutions, financial institutions, litigation and banking law.
She was admitted to the Maryland Bar in 1986, and is a graduate of Duke University (B.A.) and
the University of Maryland (J.D.)
Christopher R. McCleary is a public member of the Business and Technology Division Task
Force. Mr. McCleary is the Chairman and CEO of Usinternetworking, Inc., an Application
Service Provider (ASP) outsourcing business applications over the Internet. He is a graduate of
the University of Kentucky (B.S.)
Susan M. Souder is a member of the Business and Technology Division Task Force, appointed
on the recommendation of the MSBA Section of Litigation. Ms. Souder is a sole practitioner
with an emphasis on commercial litigation. She was admitted to the Maryland Bar in 1982, and
is a graduate of the University of Maryland (B.A., cum laude) and Georgetown University (J.D.,
cum laude).
John C. Weiss, III is a public member of the Business and Technology Division Task Force.
Mr. Weiss is the Executive in Residence for Innovation and Entrepreneurship at the University of
Baltimore, Merrick School of Business, and Special Consultant to the Board of Trustees of the
Maryland Venture Capital Trust. He is a graduate of Towson University (B.S.) and Loyola
College (M.B.A.), with graduate certificates from Harvard University and the American Institute
of Banking.
MEMBERS APPOINTED BY THE CHIEF JUDGE OF THE COURT OF APPEALS
The Honorable John C. Eldridge is a judicial appointee to the Business and Technology
Division Task Force. Judge Eldridge has been a member of the Maryland Court of Appeals from
the 5th Appellate Circuit (Anne Arundel, Calvert, Charles & St. Mary’s counties) since 1974. He
was admitted to the Maryland Bar in 1960, and is a graduate of Harvard College (B.A.) and the
University of Maryland School of Law (L.L.B.)
The Honorable Steve I. Platt is a judicial appointee to the Business and Technology Division
Task Force. Judge Platt has been a member of the Prince George’s County Circuit Court since
1990. He was admitted to the Maryland Bar in 1975, and is a graduate of the University of
Virginia (B.A.) and the American University Law School (J.D.)
The Honorable Marielsa A. Bernard is a judicial appointee to the Business and Technology
Division Task Force. Judge Bernard has been a member of the District Court of Maryland,
District 6, Montgomery County since 1998. She was admitted to the Maryland Bar in 1981, and
is a graduate of Loyola College (B.A.) and the Catholic University of America (J.D.)
27
MEMBERS APPOINTED BY THE PRESIDENT OF THE STATE SENATE
The Honorable Leo E. Green is a State Senate appointee to the Business and Technology
Division Task Force. Senator Green was first elected to the State Senate in 1982 and presently is
serving as Vice-Chair of the Senate Judicial Proceedings Committee. He was admitted to the
Maryland Bar in 1963, and is a graduate of Mount St. Mary’s College (B.S.) and the Georgetown
University School of Law (L.L.B., J.D.)
The Honorable Leonard H. Teitelbaum is a State Senate appointee to the Business and
Technology Division Task Force. Senator Teitelbaum was first elected to the State Senate in
1994 and presently is serving on the Senate Finance Committee. He is a graduate of Rensselaer
Polytechnic Institute (B.Mgt.Eng.)
MEMBERS APPOINTED BY THE SPEAKER OF THE HOUSE OF DELEGATES
The Honorable Anthony G. Brown is a House of Delegates appointee to the Business and
Technology Division Task Force. Delegate Brown was elected to the House of Delegates in 1998
and serves on the Economic Matters Committee. He was admitted to the Maryland Bar in 1994,
and is a graduate of Harvard University (A.B.) and the Harvard University Law School (J.D.)
The Honorable John Adams Hurson is a House of Delegates appointee to the Business and
Technology Division Task Force. Delegate Hurson was first elected to the House of Delegates in
1990 and presently is House Majority Leader and serves on the Environmental Matters
Committee. He was admitted to the Maryland Bar in 1979, and is a graduate of Georgetown
University (B.A.) and the Georgetown University Law Center (J.D.)
* * * *
Steven E. Tiller is the Reporter for the Business and Technology Division Task Force. Mr.
Tiller is with the law firm of Whiteford, Taylor & Preston L.L.P. with practice areas in
intellectual property, commercial law, computers and software litigation. He was admitted to the
Maryland Bar in 1992, the United States Patent Office in 1995, and is a graduate of James
Madison University (B.S.) and the University of Kentucky School of Law (J.D.)
* * * *
Eric G. Orlinsky is a consultant to the Business and Technology Division Task Force. Mr.
Orlinsky is with the law firm of Saul Ewing LLP with practice areas in business planning,
mergers, acquisitions and reorganizations. He was admitted to practice law in Maryland in 1992
and is a graduate of Johns Hopkins University (B.A.) and the University of Maryland School of
Law (J.D.)
1305736
28
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
)
IN RE Local Rules of Practice )
and Procedure for the North ) ORDER
Carolina Business Court )
)
)
This Court hereby adopts the attached Amended General Rules of Practice and Procedure
for the North Carolina Business Court (“Amended Local Rules”). The Amended Local Rules
will apply to all cases currently pending before or later assigned to the North Carolina Business
Court, including cases assigned to judges of the North Carolina Business Court under both
N.C.G.S. § 7A-45.1 and Rule 2.1 of the General Rules of Practice for the Superior and District
Courts.
SO ORDERED, this the 31st day of July, 2006.
/s/ Ben F. Tennille

Honorable Ben F. Tennille
Chief Special Superior Court Judge
for Complex Business Cases
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The following Local Rules for the North Carolina Business Court were prepared by a committee
of the North Carolina Bar Association. The committee has attempted to anticipate questions and
issues that will inevitably arise with the expanded use of technology in complex cases. The
Rules have been adopted by the Court and are currently in effect.
GENERAL RULES OF PRACTICE AND PROCEDURE

FOR THE NORTH CAROLINA BUSINESS COURT
Adopted March 9, 2000
Revised July 31, 2006
RULE 1 – PHILOSOPHY AND GOALS

1.1 – Citation to Rules
1.2 – Purpose
1.3 – Environment
1.4 – Goals
1.5 – Integration with Other Rules
RULE 2 – DEFINITIONS
2.1 – Electronic Identity
2.2 – Electronic
2.3 – Electronic Agent
2.4 – Electronic Record
2.5 – Electronic Security Procedure
2.6 – Record
2.7 – Document
2.8 – Information
2.9 – Information Processing System
2.10 – Paper
RULE 3 – MANDATORY BUSINESS COURT JURISDICTION

3.1 – Compliance with N.C. Gen. Stat. § 7A-45.1
3.2 – Contents of Notice of Designation
3.3 – Opposition to Notice of Designation
3.4 – Payment of Fee for Cases Assigned to the Business Court
RULE 4 – CASE IDENTIFICATION AND ELECTRONIC IDENTITIES

4.1 – Case Identification Numbers
4.2 – Electronic Identities
4.3 – Recipients of Electronic Identification
RULE 5 – SIGNATURES AND AUTHENTICITY

5.1 – Signatures
5.2 – Stipulations or Other Information Involving Multiple Signatures
5.3 – Original Document
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RULE 6 – ELECTRONIC FILING AND SERVICE
6.1 – Business Court Preference for Electronic Filing
6.2 – Attributes of Acceptable Electronic Filing
6.3 – Certification of Electronically Filed Document
6.4 – Notice of Electronic Filing
6.5 – Substituted Electronic Service
6.6 – Date and Time of Filing
6.7 – Submission of Filing
6.8 – Information not Filed with the Court
6.9 – Informal Communications
6.10 – Additional Time Upon Electronic Service
6.11 – Notice and Entry of Orders, Judgments, and Other Matters
6.12 – Good Faith Efforts with respect to Electronic Communications
6.13 – Determination of Failure and Effect on Due Date
6.14 – Procedure Where Notice of Electronic Filing Not Received
6.15 – Retransmission of Electronic Filing
RULE 7 – FILING AND SERVICE OTHER THAN BY ELECTRONIC MEANS

7.1 – Facsimile Transmission
7.2 – Hand Delivery
7.3 – Mail
RULE 8 – FILINGS WITH THE CLERK OF SUPERIOR COURT

8.1 – Required Filings with the Clerk of Superior Court
RULE 9 – TIME
9.1 – Clarification Concerning Time Calculations
9.2 – Enlargements of Time – Motions
9.3 – Enlargements of Time – No Motion Required
RULE 10 – PROTECTIVE ORDERS FOR INFORMATION DEEMED CONFIDENTIAL

OR PROPRIETARY
10.1 – Protective Order Respecting Proprietary Rights
RULE 11 – SECURITY
11.1 – Confidentiality of Electronic Identity
11.2 – Use of Electronic Identity by Additional Person
11.3 – Compromise of Security
RULE 12 – VIDEOCONFERENCING
12.1 – By Agreement
12.2 – Responsibility for Videoconferencing Facilities
12.3 – Allocation of Videoconferencing Costs
12.4 – Court Reporter
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RULE 13 – UNDERTAKINGS OF PARTIES AND LIMITATION OF COURT
LIABILITY
13.1 – Undertakings
13.2 – No Business Court Liability
13.3 – Viruses
RULE 14 – CALENDARING AND COMMENCEMENT OF ACTIONS

14.1 – Preparation of Calendar
14.2 – Appearances
14.3 – Notification of Settlement
RULE 15 – MOTION PRACTICE

15.1 – All Motions to Be Filed in Business Court
15.2 – Form
15.3 – Content
15.4 – Motions Decided on Papers and Briefs
15.5 – Movant’s Supporting Documents and Briefs
15.6 – Response to Motion and Brief
15.7 – Reply Brief
15.8 – Limitations on Length of Briefs
15.9 – Suggestion of Subsequently Decided Authority
15.10 – Motions Not Requiring Briefs
15.11 – Failure to File and Serve Motion Materials
15.12 – Determination of Discovery Motions Through Oral Argument Without Briefs
RULE 16 – PRESENTATION TECHNOLOGY

16.1 – Generally
16.2 – Foundation
16.3 – Virus Prevention
16.4 – Presentation Formats
RULE 17 – CASE MANAGEMENT MEETINGS, REPORTS, CONFERENCES, AND

ORDERS
17.1 – Case Management Meeting
17.2 – Case Management Report
17.3 – Case Management Conference
17.4 – Case Management Order
17.5 – Effect on Other Rules
RULE 18 – DISCOVERY
18.1 – North Carolina Rules of Civil Procedure Applicable
18.2 – Presumptive Limits on Discovery Procedures
18.3 – Depositions
18.4 – No Filing of Discovery Materials
18.5 – Discovery with Respect to Expert Witnesses
18.6 – Conference of Attorneys with Respect to Motions and Objections Relating
{00057666;v1}- 4-
to Discovery
18.7 – Expedited Resolution of Some Discovery Disputes
18.8 – Completion of Discovery
18.9 – Extension of the Discovery Period or Request for More Discovery
18.10 – Trial Preparation After the Close of Discovery
RULE 19 – MEDIATION
19.1 – Mediation Mandatory in All Cases
19.2 – Approved List of Business Court Mediators
RULE 20 – OPENINGS AND CLOSINGS

20.1 – Opening Statements
20.2 – Closing Argument
RULE 21 – EXAMINATION OF WITNESSES

21.1 – Examination of Witnesses
RULE 22 – COURTROOM DECORUM

22.1 – Communications and Position
22.2 – Professional Demeanor
RULE 23 – JURIES
23.1 – Jury Instruction Conference
23.2 – Objections to Instructions
23.3 – Treatment of Instructions during Jury Deliberations
23.4 – Contacts with Jurors Prohibited
23.5 – Presence of Counsel during Jury Deliberation
RULE 24 – TRIAL DATES AND FINAL PRETRIAL PREPARATION

24.1 – Trial Date
24.2 – Final Pretrial Preparation
RULE 25 – COURT REPORTING CONSIDERATIONS

25.1 – Scheduling of Court Reporters
25.2 – Request for Real-Time Transcription
25.3 – Rough-Draft Transcripts
25.4 – Publication of Transcripts
25.5 - Storage and Retention of Court Reporters’ Notes
RULE 26 – APPELLATE RECORD CONSIDERATIONS

26.1 – Filing of Transcripts
26.2 – Signatures on Appellate Materials
RULE 27 – WEB SITE AND PUBLICATION

27.1 – Web Site
27.2 – Citation to Business Court Opinions
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RULE 1 – PHILOSOPHY AND GOALS
1.1 – Citation to Rules. These rules shall be known and cited as the General Rules of
Practice and Procedure for the North Carolina Business Court. They may also be referred to in
abbreviated form as “BCR” or “Business Court Rules” (e.g., this section may be cited as “BCR
1.1”).
1.2 – Purpose. The Business Court Rules are designed to facilitate the pretrial and trial
of cases by the North Carolina Business Court and any other court(s) with comparable and
compatible technical capabilities and otherwise subject to the North Carolina Rules of Civil
Procedure and the General Rules of Practice for Superior and District Courts. They are intended
to take advantage of computer-assisted methods of information processing and the transmission
of such information by advanced communications equipment: (1) where feasible, (2) where
elected by one or more parties and (3) where approved by the Court. They are not, however,
intended to operate to the exclusion of paper-driven methods of handling litigation, absent prior
agreement.
1.3 – Environment. These rules are designed to accommodate litigation and trial of
cases utilizing electronic methods which include but are not limited to electronic filing, scanning,
storage and reproduction of written material in machine-readable form suitable for transmission
through a variety of communications media, as well as litigation and trial of cases in non-
electronic form dependent upon the physical manipulation of paper writings.
1.4 – Goals. These rules and the equipment and methods they enable are intended to
provide better access to Court information for litigants, counsel, and the public; increase the
efficiency and understanding of Court personnel, counsel, and witnesses; decrease costs for
litigants and others involved in the court system; and facilitate the efficient and effective
{00057666;v1}- 6-
presentation of evidence in the courtroom. Whether applied in an electronic or non-electronic
environment, these rules shall be construed and enforced to avoid technical delay, encourage
civility, permit just and prompt determination of all proceedings and promote the efficient
administration of justice.
1.5 – Integration with Other Rules. These rules are intended to supplement, not
supplant, the North Carolina Rules of Civil Procedure and the General Rules of Practice for
Superior and District Courts. Should any conflict be deemed to exist between the Business Court
Rules and the North Carolina Rules of Civil Procedure or the General Rules of Practice for
Superior and District Courts, the latter Rules shall control.
RULE 2 – DEFINITIONS
2.1 – “Electronic Identity” means the combination of Username and Password issued to
a person by the Court and utilized by that person for the purpose of filing an electronic record.
2.2 – “Electronic” means relating to technology having electrical, digital, magnetic,
wireless, optical, electromagnetic, or similar capabilities.
2.3 – “Electronic Agent” means a computer program or an electronic or other automated
means used independently to initiate an action or respond to electronic records or performances
in whole or in part, without review or action by an individual.
2.4 – “Electronic Record” means a record created, generated, sent, communicated,
received, or stored by electronic means. All electronic records shall be capable of being printed
as paper, or transferred to archival media, without loss of content or material alteration of
appearance.
2.5 – “Electronic Security Procedure” means a procedure employed for the purpose of
verifying that an electronic signature, record, or performance is that of a specific person or for
{00057666;v1}- 7-
detecting changes or errors in the information in an electronic record.
2.6 – “Record” means information that is inscribed on a tangible medium or that is
stored in an electronic or other medium and is retrievable in perceivable form.
2.7 – “Document” means a related and paginated grouping of information items
contained on a record.
2.8 – “Information” means data, text, images, sounds, or codes, manipulated manually
or by computer hardware and software.
2.9 – “Information Processing System” means a system for creating, generating,
sending, receiving, storing, displaying, or processing information on paper or in an electronic
medium.
2.10 – “Paper” means any item subject to filing, service, or another use contemplated by
these Rules.
RULE 3 – MANDATORY BUSINESS COURT JURISDICTION

3.1 – Compliance with N.C. Gen. Stat. § 7A-45.1.
(a) A party shall file a Notice of Designation of an action as a mandatory complex
business case under N.C. Gen. Stat. § 7A-45.4 by using Form 1 appearing at the end of these
Rules. The time period for filing the Notice of Designation is explicitly set forth in
N.C. Gen. Stat. § 7A-45.4. If the time period for filing a Notice of Designation expires with
respect to a party, such party may not proceed under N.C. Gen. Stat. § 7A-45.4, but may seek
assignment of the action to the Business Court under General Rule of Practice 2.1.
(b) In the event that a party amends a pleading under N.C. R. Civ. P. 15 (either by
right or with leave of Court), if the amendment raises a new material issue listed in subsections
(a)(1) through (a)(6) of N.C. Gen. Stat. § 7A-45.4, then a Notice of Designation (with respect to
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the entire action) may be filed with respect to such new material issue within the time periods set
forth in subsection (d) of N.C. Gen. Stat. § 7A-45.4. Such time periods will be calculated and
determined by reference to the amended pleading and all permitted responses thereto. A party
shall refrain from filing a Notice of Designation based on an amended pleading unless the new
material issue presented by the amended pleading substantially alters the nature of the action and
other considerations support assignment of the case to the Business Court. The Notice of
Designation procedure shall not be utilized in connection with an amended pleading for the
purpose of interfering with or delaying ongoing or upcoming proceedings, or where assignment
of the action to Business Court would be inconsistent with the interests of justice given the status
of the proceedings in the Superior Court where the action is pending.
(c) Service of a party’s Notice of Designation upon the Special Superior Court Judge
for Complex Business Cases who is then the Chief Business Court Judge as required by
N.C. Gen. Stat. 7A-45.4(b) shall be effected in the same manner (i.e., by e-mail or facsimile
transmission) in which the party sends the Notice of Designation to the Chief Justice of the
Supreme Court.
3.2 – Contents of Notice of Designation. N.C. Gen. Stat. 7A-45.4 provides an expedited
method for certain types of actions to be assigned to the Business Court. In setting forth the
categories of cases within the “mandatory” jurisdiction of the Business Court, the General
Assembly afforded the Court flexibility to determine (on its own motion or the motion of a party)
that the action should not be retained as a Business Court case. In order to allow the Court to
make such a determination on its own motion, Form 1 requires that the party filing the Notice of
Designation explain why and how the action falls within one of the specific categories set forth
in N.C. Gen. Stat. § 7A-45.4(a) and invites that party to supply any additional information that
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may be helpful in determining whether the Court should retain the action. When completing
Form 1, the party should briefly and succinctly explain the nature of the dispute and the material
issues likely to be presented in the action (including any material issues not listed in
N.C. Gen. Stat. § 7A-45.4(a)). In addition, the party should identify for the Court any other
factors that may assist the Court in deciding whether to retain the case, including but not limited
to (i) the amount in issue, (ii) the novelty of the issues, (iii) the degree to which the interests of
justice will be advanced by adjudication of the action under the Business Court’s rules and
procedures, and (iv) any other potential impacts on the parties or the Court that would be
associated with retention of the action.
3.3 – Opposition to Notice of Designation. N.C. Gen. Stat. 7A-45.4(e) provides that a
party may file an opposition to the Notice of Designation. In the event that a party files such an
opposition, all other parties to the action shall be entitled to file responses supporting or opposing
retention of the action in the Business Court. Such responses shall be filed within fifteen days of
service of the opposition or in such shorter time as the Court may direct.
3.4 – Payment of Fee for Cases Assigned to the Business Court. The fee for cases
assigned to the Business Court shall be paid to the Clerk of Superior Court in the judicial district
in which the matter is pending and is due immediately upon receipt of an Order assigning the
case to the Business Court. This fee is non-refundable in the event an Order is subsequently
entered remanding the case to the Superior Court in the County in which the case was originally
filed.
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RULE 4 – CASE IDENTIFICATION AND ELECTRONIC IDENTITIES
4.1 – Case Identification Numbers. On designation or assignment of any case to the
Business Court, the matter shall retain the civil action number assigned to it by the clerk in the
county in which the action originated.
4.2 – Electronic Identities. Upon application of any person having a matter before the
Business Court, the Court shall issue an Electronic Identity to such person which shall be used in
connection with, and shall authorize, the electronic filing of information by such person in the
Business Court. Electronic Identities are not case specific. The issuance of an Electronic
Identity without utilization shall not constitute an appearance in any matter. The utilization of an
Electronic Identity in connection with any electronic filing in the Business Court shall constitute
(a) the agreement of the person to whom the Electronic Identity has been issued that such person
shall use the Electronic Identity in compliance with the rules and procedures of the Business
Court for electronic filing and all other rules applicable to the Business Court and (b) an
appearance in the matter in which the filing is made of the person to whom the Electronic
Identity is issued.
4.3 – Recipients of Electronic Identification. Each person to whom an Electronic
Identity is issued (the “Recipient”) shall be responsible for the security and use of such
Electronic Identity. Any electronic filing made utilizing an Electronic Identity shall be deemed
to be made with the authorization of the Recipient, unless and until the contrary is demonstrated
by the Recipient to the satisfaction of the Court by clear and convincing evidence.
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RULE 5 – SIGNATURES AND AUTHENTICITY
5.1 – Signatures. Information filed with the Court electronically shall be deemed to be
signed by a person (the “Signatory”), regardless of the existence of a handwritten signature on
the paper, provided that such paper is filed by the Signatory using an Electronic Identity, and that
the paper contains the name, postal address, e-mail address and State Bar number (if applicable)
of the Signatory and the typed signature of the person preceded by the symbol “/s/” in the
location at which a handwritten signature would normally appear if filed in paper form. Unless
required by the circumstances, information filed electronically need not and should not be filed
in an optically scanned format displaying an actual signature.
5.2 – Stipulations or Other Information Involving Multiple Signatures. In the case of
a stipulation or other information to be signed by two or more persons representing different
parties, the person who files such information shall confirm that all persons due to sign the
information are agreeable to the content of the document, shall represent to the Court in the body
of the information or in an accompanying filing that such agreement has been obtained, and shall
insert the typed signature of persons other than the person filing preceded by the symbol “/s/”
and followed by the words “by permission” in the location where such handwritten signature
would otherwise appear. Thus, the correct format for the typed signature of a person other than
the person filing is: “/s/ Jane Doe by permission.”
5.3 – Original Document. Information filed electronically in accordance with these
Rules as it resides in the Court’s computer system, and true and accurate printouts of such
information, shall be considered authentic. To the extent that the original of a document is not
required by these Rules to be filed in the office of the Clerk of Superior Court in the judicial
district in which the matter is pending, the Court may require the party to produce that original
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document, document attachment, or exhibit, even though a copy of it has already been filed
electronically. A screen display or paper printout of an electronic filing is equivalent to the
electronic original for purposes of the Best Evidence Rule, if the display or printout is at a degree
of optical resolution equal to the resolution at which the document is stored in the records of the
Court.
RULE 6 – ELECTRONIC FILING AND SERVICE

6.1 – Business Court Preference for Electronic Filing. For all papers filed with the
Business Court, the parties are strongly encouraged to use the Business Court’s Electronic filing
and service system to effect transmittal and filing of those papers and to serve them on all
parties. However, except as provided in a Case Management Order, nothing in these Rules shall
require the filing of any information in the Business Court by electronic means.
6.2 – Attributes of Acceptable Electronic Filing. Electronic filing may be conducted
only through authorized use of a valid Electronic Identity in accordance with these Rules. All
electronic filings shall be made using only those file formats approved by the Court, and the
format for each electronic filing shall be designated by using a generally recognized file
extension that identifies a particular format. The manipulation of any file or the use of any
technique or format for the purpose of impairing access or display of any file is strictly
prohibited.
6.3 – Certification of Electronically Filed Document. For the purposes of Rule 11 of
the North Carolina Rules of Civil Procedure and these Business Court Rules, any electronically
filed information shall be deemed signed by one or more counsel of record or unrepresented
parties (each, a “Signatory”) pursuant to Rule 5 of these Rules.
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6.4 – Notice of Electronic Filing. Electronic transmission of a paper to the Business
Court file server in accordance with these Rules, together with the receipt of a Notice of
Electronic Filing automatically generated by the Electronic filing and service system as
authorized by the Court, shall constitute filing of the paper with the Business Court for purposes
of timing under the North Carolina General Statutes, the North Carolina Rules of Civil
Procedure, and the Business Court Rules, and shall constitute entry of that paper on the Business
Court Docket. An electronic filing with the Business Court is deemed complete only upon
receipt of such Notice of Electronic Filing by the person filing the paper.
6.5 – Substituted Electronic Service. Service of pleadings and other communications
with the Court shall be governed by Rules 6, 7, and the Case Management Order. Until an order
regarding service of written papers is entered by the Court, and in the absence of a written
stipulation, the parties shall serve documents upon each other in compliance with N.C. R. Civ. P.
5. Where a Business Court order calls for use of Electronic Filing in a matter, receipt by e-mail
of a Notice of Electronic Filing at the e-mail address specified in the Case Management Order
shall constitute an adequate and timely substitute for service pursuant to the North Carolina
Rules of Civil Procedure. Each person who may be served by e-mail shall be responsible for the
timely monitoring of receipt of e-mail messages, the proper operation of the person’s e-mail
service and the prompt notification of the Court and all other persons involved in a matter of any
change in e-mail address.
6.6 – Date and Time of Filing. When information has been filed electronically, the
official information of record is the electronic recording of the information as stored on the
Court’s file server, and the filing date and time is deemed to be the date and time recorded on the
Court’s file server for transmission of the Notice of Electronic Filing, which date and time is
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stated in the body of such Notice. In the event that information is timely filed, the date and time
of the electronic filing shall govern the creation or performance of any further right, duty, act, or
event required or permitted under North Carolina law or applicable rule, unless the Court rules
that the enforcement of such priority on a particular occasion would result in manifest injustice.
6.7 – Submission of Filing. An electronic filing may be submitted to the Court at any
time of the day or night. For purposes of determining the timeliness of a filing, if the submission
of the filing began during normal business hours of the Business Court (8:00 a.m. – 5:00 p.m.,
Monday through Friday, excluding holidays), the filing is deemed to have occurred on that date.
If the submission of the filing began after normal business hours of the Business Court, the filing
is deemed to have occurred on the next day the Business Court is open for business.
6.8 Information not Filed with the Court. The parties may choose to electronically
serve information that is not filed with the court (e.g., discovery).
(a) Service. All information that is served electronically, but not filed electronically
in the Business Court, shall be served on all persons or entities required to be served in the
manner designated in the Case Management Order. Service by e-mail shall be deemed satisfied
by transmitting the information by e-mail in a format approved by the Court or agreed upon by
the parties.
(b) Time service occurs. Service of an electronically transmitted document shall be
deemed to occur one hour after it is sent, provided that (i) documents sent after 5 p.m. shall be
deemed sent at 8 a.m. the following day; and (ii) documents sent by electronic means that are not
in a format in which the content is readily accessible to the recipient shall not be deemed served
until actually received in a form in which the content is readily accessible to the receiving party.
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6.9 – Informal Communications. All communications with the Court that are not filed
in the Business Court Electronic filing and service system (e.g., letters to the Court) shall be
simultaneously sent to all other parties in the case via e-mail (and if a party cannot receive e-
mail, by the most reasonably expedient method available to the sending party (facsimile
transmission, hand delivery, or mail)). The transmitting party shall promptly notify the Court if
the party is unable to comply with this rule.
6.10 – Additional Time Upon Electronic Service. Electronic service shall be treated
the same as service by mail for the purpose of adding three (3) days to the prescribed period to
respond under N.C. R. Civ. P. 6(e).
6.11 – Notice and Entry of Orders, Judgments, and Other Matters. The Court shall
file electronically all orders, decrees, judgments, and proceedings of the Court, and all other
docket matters, which shall constitute entry of the order, decree, judgment, or proceeding on the
Court’s Docket, pursuant to applicable law and procedure. Each order shall bear a date and a
typed signature of the Business Court Judge issuing the order. Immediately upon the entry of
such matter on the Docket, the Court shall transmit to each e-mail address of record a notice of
the entry. Transmission of such Notice of Entry shall constitute service pursuant to
N.C. R. Civ. P. 58. The Business Court shall be responsible for filing copies of its orders with
the Clerk of Superior Court in the judicial district in which the matter is pending.
6.12 – Good Faith Efforts with respect to Electronic Communications. The parties
shall make all reasonable endeavors in good faith to resolve technical incompatibilities or other
obstacles to electronic communications, provided that no purchase of hardware or software shall
be required and no extensive “manual” reformatting of documents shall be expected. Parties
shall, for example, attempt to identify and correct problems which render content of
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communications inaccessible and shall save or transmit documents in electronic formats that are
mutually available to all parties receiving them. It shall not be consistent with the rules for a
party to object to use of electronic communications and fail to cooperate in resolving a problem
upon which the objection is based. In the event that a party asserts that it did not receive an e-
mail communication or could not fully access its contents, the sending party shall promptly
forward the communication to the party by other means, notify the Court that the information has
been sent by other means and make reasonable efforts to assure that the receiving party obtains
and is able to access the communication at issue and subsequent communications. No party shall
encrypt the contents of a message or change the electronic format in a manner which prevents a
party from having access to all information made available to the Court.
6.13 – Determination of Failure and Effect on Due Date. The Court shall deem the
Electronic filing and service system to be subject to a technical failure on a given day if the
Court server is unable to receive and accept filings in accordance with these Rules, either
continuously or intermittently over the course of any period of time that, after 12:00 noon on
such day, amounts in the aggregate to more than one hour. In the event of a technical failure,
filings due that day which were not filed due solely to such technical failures shall become due
the next business day. Such delayed filings shall be rejected unless accompanied by a
declaration or affidavit attesting to the filing person’s failed attempts to file electronically at least
two times after 12:00 noon separated by at least one hour on each day of delay due to such
technical failure.
6.14 – Procedure Where Notice of Electronic Filing Not Received. If a Notice of
Electronic Filing is not received from the Court in response to a transmission of information for
filing, the information will not be deemed filed. The person making the filing shall attempt to re-
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file the information electronically until such a Notice is received, consistent with the provisions
of subparagraph 6.13 permitting delayed filings. Each person using the Electronic filing and
service system is solely responsible for the proper operation of all equipment and facilities used
to transmit an electronic filing.
6.15 – Retransmission of Electronic Filing. If, after filing information electronically,
any party discovers that the version of the information available for viewing through the
Electronic filing and service system is incomplete, garbled, or otherwise does not conform to the
information as transmitted when filed, such party shall notify the Court immediately and
retransmit the filing if necessary.
RULE 7 – FILING OTHER THAN BY ELECTRONIC MEANS
When a party is unable to use the Business Court’s electronic filing and service system,
any information required or permitted to be filed with the Business Court may be filed by
facsimile transmission, by hand delivery, or by delivery through the United States Mail.
7.1 – Facsimile Transmission. The Business Court may maintain one or more facsimile
machines for the purpose of receiving filings and communications from parties. Numbers for
such facsimile machines shall be posted on the Business Court web site. Except as provided in a
Case Management Order, any information required or permitted to be filed by facsimile shall be
transmitted to the facsimile machine for the Business Court Judge to whom a case has been
assigned located at the Business Court of the assigned Judge. In the absence of an assigned
Business Court Judge, facsimile transmissions shall be directed to the facsimile machine of the
Chief Business Court Judge. The date and time recorded for completion of such facsimile
transmission by the Business Court facsimile system shall establish the time of delivery to the
Business Court. Any person or entity submitting a filing by such facsimile method shall assume
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all risk of error, malfunction, misdirection, or other error that causes a failure in transmission or
otherwise prevents receipt by the Court of a complete and accurate filing. In the event of a filing
by facsimile, the filing party shall use its best efforts to serve the document on all parties by the
means most reasonably calculated to insure receipt of the document by all parties the same day.
If unable to serve by facsimile after diligent efforts, the filing party may serve by hand delivery
or overnight courier for receipt the next business day if within the state, and by the day following
the next business day if outside the state. The Court may receive a facsimile transmission into a
computer file, rather than receiving such a transfer onto paper, and shall image such facsimile
transmission for further system use.
7.2 – Hand Delivery. Except as provided in a Case Management Order, documents may
be filed with the Business Court by hand delivery to the Business Court at the chambers of the
Business Court Judge assigned to a case or, in the absence of an assignment, to the chambers of
the Chief Business Court Judge. Filing by hand delivery shall be deemed complete only upon
actual receipt by authorized Business Court personnel of a document.
7.3 – Mail. Except as provided in a Case Management Order, documents may be filed
with the Business Court by U.S. Mail but such a filing shall be deemed complete only when
actually received by the Business Court. The Court will maintain mailing addresses on its web
site. In cases assigned to a particular Business Court Judge, mail shall be directed to the Judge’s
chambers. In the absence of an assignment, mail shall be directed to the chambers of the Chief
Business Court Judge.
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RULE 8 – FILINGS WITH THE CLERK OF SUPERIOR COURT
8.1 – Required Filings with the Clerk of Superior Court. In accordance with the
provisions of N.C. R. Civ. P. 5(d), all documents and materials submitted to the Business Court
shall also be filed within five (5) business days with the Clerk of Superior Court in the judicial
district in which the matter is pending. Where such documents and materials have been
electronically filed with the Business Court, the certificate of service for filings with the Clerk of
Superior Court shall additionally be signed in handwriting above or in lieu of the electronic
signature line.
RULE 9 – TIME
9.1 – Clarification Concerning Time Calculations. In the event that the time
prescribed for taking any action by any statute, rule of procedure, or any order of the Court is
less than seven days, then even if the additional day allowed as a result of service by
telefacsimile after 5:00 pm (or the equivalent service by electronic filing or email under these
Rules) or the additional three days for electronic service or service by mail extends the time
prescribed to seven days or more, intermediate Saturdays, Sundays, and holidays shall
nevertheless be excluded in calculation of time (in the manner specified in N.C. R. Civ. P. 6(a)).
In such event, if time is enlarged further pursuant to Rules 9.2 or 9.3, then intermediate
Saturdays, Sundays, and holidays shall be included in calculating time only with respect to the
period of the enlargement.
9.2 – Enlargements of Time – Motions. Once a case has been assigned or designated to
the Business Court, all motions to extend any of the times prescribed or allowed by these Rules,
the North Carolina Rules of Civil Procedure, or by court order, shall be directed to the Business
Court Judge assigned to the case. If the case has not yet been assigned to a particular judge, the
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motion to extend time shall be directed to the Chief Business Court Judge. The motion for
extension of time shall not be considered to have been made until it is received by the Business
Court. After assignment or designation to the Business Court, a party shall not seek an order to
extend time from the Clerk of Superior Court in the judicial district in which the matter is
pending, notwithstanding the party’s obligation to file a hard copy of such material with said
Clerk of Superior Court.
The movant shall have a good faith basis for requesting any such extension of time and,
except in extraordinary cases, the movant shall first consult with any opposing party and reflect
that party’s position in the motion and indicate whether the opposing party wishes to be heard on
the motion. Provided that there is such a good faith basis, the filing of the motion for extension
of time shall automatically extend the time for filing or the performance of the act for which the
extension is sought until the earlier of the expiration of the extension requested, ten calendar
days, or a ruling by the court. In the event that the motion for extension of time is denied, the
filing shall be made or the act done no later than the second business day following filing of the
court’s order unless a different time is provided by the court’s order.
9.3 – Enlargements of Time – No Motion Required. With the exception of papers for
which time cannot be enlarged (as explicitly provided in N.C. R. Civ. P. 6(b) or in other court
rules or statutes), if a statute, any rule of procedure, or any order of the Court requires that a
paper be filed or served less than twenty days after the Chief Justice designates an action as a
complex business case under General Rule of Practice 2.1 and/or N.C. Gen. Stat. § 7A-45.4, then
the time for filing or service of such paper (and for filing of service of papers responsive thereto
or dependent thereon) is hereby automatically enlarged so that filing or service will be due on the
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twentieth (20th) day following such assignment. No motion or order shall be submitted to the
Court in such event.
RULE 10 – PROTECTIVE ORDERS FOR INFORMATION
DEEMED CONFIDENTIAL OR PROPRIETARY

10.1 – Protective Order Respecting Proprietary Rights. In connection with the
electronic filing of any information in the Business Court, any person may apply by motion for
an order prohibiting the electronic filing in the matter of certain specifically identified
information on the grounds that such information is subject to a proprietary right or a right of
confidentiality and that electronic filing is likely to result in substantial prejudice to those rights.
A motion for such an order shall be filed not less than three business days before the information
to which the motion pertains is due to be filed with the Court. Nothing in this paragraph shall be
construed to change any requirement or standard that otherwise would be applicable for issuance
of a protective order per se or in connection with information contained in a paper record.
RULE 11 – SECURITY
11.1 – Confidentiality of Electronic Identity. Each person shall maintain as
confidential, except as expressly provided in these rules, the Electronic Identity issued to that
person by the Court. Upon learning about information constituting reasonable evidence of the
likely compromise of the confidentiality of the Electronic Identity, an individual shall
immediately notify the Court.
11.2 – Use of Electronic Identity by Additional Person. A person to whom an
Electronic Identity has been issued may authorize another person to file a paper using his number
and signature; however, the authorizing person shall retain full responsibility for any paper so
filed or for other use of such number and signature.
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11.3 – Compromise of Security. Any attempt or effort to avoid, compromise or alter
any security element of the Electronic filing and service system is strictly prohibited. Any
person receiving information constituting reasonable evidence of a likely occurrence of such an
attempt or effort shall immediately notify and cooperate with the Court concerning such
information.
RULE 12 – VIDEOCONFERENCING
Rule 12.1 – By Agreement. By mutual agreement, counsel may arrange for any
proceeding or conference to be held by videoconference by coordinating a schedule for such
meeting that is convenient with the Business Court. All Counsel and other participants shall be
subject to the same rules of procedure and decorum as if the meeting were held in the courtroom
of the Business Court.
Rule 12.2 – Responsibility for Videoconferencing Facilities. The parties are
responsible for obtaining all communications facilities and arranging all details as may be
required to connect and interface with the videoconferencing equipment available to the Business
Court. The Business Court will endeavor to make reasonable technical assistance available to
the parties concerning the specifications and requirements of the Court’s equipment, but all
responsibility for planning and executing all technical considerations required to hold a
videoconference successfully shall remain solely with the parties.
Rule 12.3 – Allocation of Videoconferencing Costs. In the absence of a contrary
agreement among the parties, each party participating by videoconference shall bear its own
costs of participating in the conference.
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Rule 12.4 – Court Reporter. Where any proceeding or conference is held by
videoconference, the court reporter transcribing such proceeding or conference will be present in
the Business Court.
RULE 13 – UNDERTAKINGS OF PARTIES
AND LIMITATION OF COURT LIABILITY
13.1 – Undertakings. Parties wishing to utilize the computer-assisted facilities of the
Business Court agree by accessing such facilities to abide by all aspects of these rules, including
conditions of access and use and security procedures set out herein and as they may subsequently
be published by the Business Court.
13.2 – No Business Court Liability. Attorneys, litigants, and all other persons granted
access to the computer-assisted facilities of the Business Court agree that the Business Court
shall not be liable to them for damages of any kind resulting from the negligent misuse of Court
facilities. Such misuse may result in Court sanctions or, in the instance of an aggrieved party, in
a right to pursue compensatory damages from a party who intentionally or negligently misuses
Court facilities. Such misuse shall be deemed to include the introduction of computer viruses
into information handling systems of the Court or other parties, where virus control software
recommended by the Court is not being used.
13.3 – Viruses. Any party filing electronically shall check each file to be transmitted for
viruses before transmitting. Any electronic filing submitted to the Court containing viruses will
be rejected by the Court’s computer system.
RULE 14 – CALENDARING AND COMMENCEMENT OF ACTIONS

14.1 – Preparation of Calendar. The calendar for each of the Business Court Judges
shall be prepared by that Business Court Judge and published on the Business Court Web Site.
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Where e-mail addresses have been provided to the Business Court, Notices of Hearing shall be
distributed by e-mail to each attorney of record (or party where there is no attorney of record) no
later than five (5) business days prior to the day of the hearing unless otherwise specified by the
Case Management Order. An attorney or party who has not provided an e-mail address to the
Court will receive Notices of Hearing via facsimile, or where no facsimile number is available,
by first class mail.
14.2 – Appearances. An attorney and/or unrepresented party who is notified to appear
for the setting of a calendar, pretrial conference, hearing of a motion, or for trial, shall, consistent
with ethical requirements, appear or have a partner, associate, or another attorney familiar with
the case present. Unless an attorney has been excused in advance by the Business Court Judge
and has given prior notice to opponent(s), a case will not be continued for failure of appearance.
14.3 – Notification of Settlement. When a case is settled, counsel for the plaintiff and
each unrepresented plaintiff of record shall notify the Business Court Judge or the Judge’s
designee within twenty-four (24) hours of the settlement and shall advise the Court of the
identity of the party or parties who will prepare and present the judgment, dismissal, or
stipulation of dismissal, which shall be presented within thirty (30) days of the notification of
settlement.
RULE 15 – MOTION PRACTICE
15.1 – All Motions to Be Filed in Business Court. After a case has been assigned or
designated to the Business Court, and for as long as the case is pending in this Court, parties
shall seek rulings on all motions in the case from this Court, and not from Superior Court Judges
or Clerks in the counties where cases originate.
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15.2 – Form. All motions, unless made orally during a hearing or a trial, shall be in
paper writing or electronic form and shall be accompanied by a brief, except as provided in
Rules 15.10 and 15.12. Each motion shall be set out in a separate paper. Where the terms
“Motion,” “Brief,” “Affidavit,” “Document,” “Deposition” and like designations are used herein,
they shall refer to such items in paper writing or electronic form as determined appropriate under
these rules.
15.3 – Content. All motions shall state with particularity the grounds therefor, shall cite
any statute or rule of procedure relied upon and shall set forth the relief or order sought.
15.4 – Motions Decided on Papers and Briefs.
(a) Motions shall be considered and decided by the Court on the pleadings,
admissible evidence, the official court file, and briefs, without hearing or oral argument, unless
otherwise ordered by the Court. Special considerations thought by counsel sufficient to warrant
a hearing or oral argument may be brought to the Court’s attention in the motion or response.
(b) If the Court grants oral argument on any motion, it shall give the parties at least
five (5) business days’ notice of the date and place of oral argument. The Court, however, for
good cause shown, may shorten the five (5)-day notice period. The Court may in its discretion
conduct any oral argument by telephone or videoconference.
15.5 – Movant’s Supporting Documents and Brief. If allegations of facts not
appearing of record are relied upon to support a motion, affidavits, parts of depositions, and other
pertinent documents then available shall accompany the motion. If supporting documents are not
then available, the moving party may move for an extension of time in accordance with Rule 9.2.
15.6 – Response to Motion and Brief. The respondent, if opposing a motion, shall file a
response, including brief, within twenty (20) days after service of the brief supporting the motion
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(or thirty (30) days if the motion is for summary judgment). If supporting documents are not
then available, the respondent may move for an extension of time in accordance with Rule 9.2.
For good cause appearing therefor, a respondent may be required by the Court to file any
response and supporting documents, including brief, within such shorter period of time as the
Court may specify.
15.7 – Reply Brief. A reply brief may be filed within ten (10) days after service of the
response. A reply brief is limited to discussion of matters newly raised in the response.
15.8 – Limitations on Length of Briefs. The Court favors concise briefs. Unless the
following limits are modified by the Court for good cause shown, briefs in support of motions
and responsive briefs shall be double-spaced and limited in length to a maximum of seven
thousand, five hundred (7,500) words. Reply briefs shall also be double-spaced and may not
exceed three thousand, seven hundred and fifty (3,750) words. Headings, footnotes, quotations,
and citations count toward these word-count limitations. The case caption on the first page of a
brief, any table of contents, any table of authorities, and any required certificates of counsel or of
a party do not count toward these word-count limitations.
Requests for expansion of word limitations shall be made five (5) business days prior to
filing the brief for which expansion of word limitations is sought. Requests for expansion of
word limitations that are filed simultaneously with the brief shall be denied.
Each brief shall include a certificate by the attorney or party that the brief complies with
this Rule 15.8. The attorney or party may rely upon the word count of the word-processing
system used to prepare the brief.
Unless a Case Management Order or another order of the Court expressly provides
otherwise, all parties who are jointly represented by any law firm shall join together in a single
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brief. Unless otherwise ordered by the Court, that single brief may not exceed the length limit
stated above.
15.9 – Suggestion of Subsequently Decided Authority. As an addendum to a brief,
response brief, or reply brief, a suggestion of subsequently decided controlling authority, without
argument, may be filed at any time prior to the Court’s ruling and shall contain only the citation
to the case relied upon, if published, or a copy of the opinion if the case is unpublished.
15.10 – Motions Not Requiring Briefs. No brief is required by either movant or
respondent, unless otherwise directed by the Court, with respect to the following motions:
(a) discovery motions in which the parties have agreed to the expedited procedures
described in Rule 15.12;
(b) for extension of time for the performance of an act required or allowed to be done,
provided request therefor is made before the expiration of the period originally prescribed or
extended by previous orders;
(c) to continue a pre-trial conference, hearing, or the trial of an action;
(d) to add parties;
(e) to amend the pleadings;
(f) to file supplemental pleadings;
(g) to appoint a next friend or guardian ad litem;
(h) for substitution of parties;
(i) to stay proceedings to enforce judgment; and
(j) for pro hac vice admission of counsel who are not members of the North Carolina
State Bar.
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The above motions, which are not required to be accompanied by a brief, shall state good
cause therefor and cite any applicable rule, statute, or other authority justifying the relief sought.
These motions shall be accompanied by a proposed order.
15.11 – Failure to File and Serve Motion Materials. The failure to file a brief or
response within the time specified in this rule shall constitute a waiver of the right thereafter to
file such brief or response, except upon a showing of excusable neglect. A motion
unaccompanied by a required brief may, in the discretion of the Court, be summarily denied. If a
respondent fails to file a response within the time required by this rule, the motion will be
considered and decided as an uncontested motion, and ordinarily will be granted without further
notice.
15.12 – Determination of Discovery Motions Through Oral Argument Without
Briefs. With the consent of both parties and as allowed by the Court, the parties may present
motions and the Court may resolve disputes regarding discovery matters through the use of an
expedited oral argument procedure. Such motions will routinely be limited to matters which can
be argued and determined in one hour or less.
RULE 16 – PRESENTATION TECHNOLOGY

16.1 – Generally. Electronic presentations and technologically generated demonstrative
evidence should be used to enhance the trier-of-fact’s understanding of facts in the action or to
further the convenience or efficiency of the litigation process. Presentations which contain
technological aspects that primarily add dramatization or “special effects” may be excluded
pursuant to North Carolina Rule of Evidence 403. In making such determination, the Court will
consider, in addition to any other matters it deems pertinent, the extent to which the presentation
serves proper purposes, the extent to which the manner of the presentation may enhance a party’s
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factual contentions without adequate foundation, and the opposing party’s technological
resources, means, and ability to prepare to rebut the presentation.
16.2 – Foundation. No graphic reconstructions, dramatizations, or other technologically
manufactured representations shall be permitted unless:
(a) all representations made or conveyed in the presentation that may be probative to
issues in the case or prejudicial to another party are supported by other competent evidence
presented in the trial; and
(b) the opposing party has been given an adequate notice and opportunity, determined
under the circumstances of the case, to review the presentation and obtain any relevant
information concerning its preparation prior to it being presented to the trier-of-fact.
16.3 – Virus Prevention. Any media brought into the Business Court for presentation
purposes shall be checked for viruses using appropriate virus scanning software before such
media are used in the courtroom.
16.4 – Presentation Formats. All presentation software not in conformance with the file
formats accepted by the Court may not be utilized in the courtroom without the prior express
approval of the Court.
RULE 17 – CASE MANAGEMENT MEETINGS,
REPORTS, CONFERENCES, AND ORDERS

17.1 – Case Management Meeting. Within thirty (30) days of filing of assignment or
designation of a case to the Business Court, or such shorter or longer time as the Court shall
order, the parties shall meet to discuss case management issues, as well as the potential content
of a Case Management Order. Unless the parties agree otherwise, counsel for the first plaintiff
listed in the complaint is responsible for initiating the scheduling of the Case Management
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Meeting. In initiating the scheduling of the Case Management Meeting, plaintiff’s counsel
should contact each law firm that he or she knows will appear in the case, even if that law firm
has not yet entered a formal appearance.
The parties’ Case Management Meeting should cover at least the following subjects:
(a) The length of the discovery period, the number of fact and expert depositions to
be permitted, and, as appropriate, the length and sequence of such depositions.
(b) A preliminary schedule for depositions of such persons and entities as the parties
are able to identify.
(c) The date by which parties shall complete disclosure of expert information
pursuant to N.C. R. Civ. P. 26(b)(4)(a).
(d) The identity and number of any Motions to Dismiss or other preliminary or pre-
discovery motions which shall be filed and the time period in which they shall be filed, briefed,
and argued.
(e) Which parties should be required to file joint briefs for purposes of the length
limitations on briefs under Rule 15.8.
(f) The time period after the close of discovery within which post-discovery
dispositive motions shall be filed, briefed, and argued and a tentative schedule for such activities.
(g) A tentative date by which the parties will be prepared for trial.
(h) The timing of any mediated settlement conference (see Rule 19) and the selection
of a mediator or group of mediators.
(i) An estimate of the volume of documents and/or electronic information likely to be
the subject of discovery in the case from parties and nonparties and whether there are
technological means, including but not limited to production of electronic images rather than
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paper documents and any associated protocol, that may render document discovery more
manageable at an acceptable cost.
(j) The number of interrogatories which shall be allowed each party.
(k) The advisability of using special master(s) for fact finding, mediation of discovery
disputes or such other matters as the parties may agree upon.
(l) The situs of pretrial and trial proceedings.
(m) An identification of any disputes concerning personal jurisdiction, subject matter
jurisdiction, or venue, or a stipulation that no such controversies exist at the time of the Case
Management Meeting.
(n) Whether or not a party or parties desire to use the electronic filing, case tracking,
scanning, videographic, and real-time court reporting capabilities of the Court, and, to the extent
this is the case, a determination of:
(1) Fairness issues, including but not necessarily limited to use of such
capabilities by some but not all parties and/or by parties whose resources permit or
require variations in the use of such capabilities;
(2) Issues related to compatibility of Court and party facilities and equipment;
(3) Issues related to the use of demonstrative exhibits and any balancing of
relevance and potential prejudice which may need to occur in connection with such
exhibits;
(4) Such other issues related to the use of the Court’s and Parties’ special
technological facilities as may be raised by any party or the Court or its technological
advisor, given the nature of the case and the resources of the parties.
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(o) A good faith estimate by counsel for each party based upon consultation with
each such party of the costs each party is likely to incur in pursuing the litigation through trial
court adjudication, provided, however, that any party may, instead of disclosing this information
in a Case Management Meeting or Case Management Report, file this information with the Court
under seal and without service of the information on any other party, or discuss this information
privately with the Court at the Case Management Conference.
(p) A preliminary listing of the principal legal and factual issues which counsel
believe will need to be decided in the case.
(q) A preliminary listing of any issues in the case that any party believes are governed
by law other than North Carolina law or federal law.
(r) The need for retention of potentially relevant documents, including but not limited
to documents stored electronically and the need to suspend all automatic deletions of electronic
documents or overwriting of backup tapes which may contain potentially relevant information.
The parties shall also discuss the need for a document preservation order.
(s) The need for cost-shifting of expenses related to discovery of information stored
electronically, including the restoration of back-up tapes and forensic examination of computers,
and the possibility of obtaining the desired information from alternate sources at reduced
expense.
(t) The format in which the electronic records are to be produced, and procedures to
avoid unnecessary burden and expense associated with such production. If metadata is to be
produced, the parties shall discuss a protocol for producing such information, including the
format for production (e.g., native, copy, original), and the ability to search such information.
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(u) The need for security measures to be adopted to protect any information that is
produced in electronic format or that will be converted into electronic format and stored on
counsel’s computer systems. Such discussion should encompass whether and under what
circumstances clients will be afforded access to the information produced by another party and
what security measures should be used for such access.
(v) Such other matters as the Court may assign to the parties for their consideration.
17.2 – Case Management Report. The views of each party on the matters set forth in
Section 17.1 above, as expressed through counsel or any pro se litigant(s), shall be reduced to
writing, circulated for amendment or modification by each party, and filed with the Court in the
form of a Case Management Report. Unless the parties agree otherwise, counsel for the first
plaintiff listed in the complaint is responsible to prepare and circulate the initial draft of the Case
Management Report to all counsel, who shall have five days within which to propose revisions to
the report or raise issues about which the parties disagree. If the parties disagree on any issues in
the Case Management Report, they shall nonetheless file a single Case Management Report that,
in any areas of disagreement, states the views of each party. The final Case Management Report
shall be signed by counsel for each party and shall be filed with the Court within fifteen (15)
days of the Case Management Meeting.
17.3 – Case Management Conference. Within twenty (20) days of the case
management meeting of the parties or such longer period as the Court may prescribe, the Court
will convene a Case Management Conference with attendance by counsel for all parties and their
clients (or in the case of a business entity, such representative as has authority to make all
binding litigation-related decisions) unless the Court shall, in its discretion, excuse the
attendance of clients. Such conference will be conducted with as much informality as possible
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and with the active participation of clients encouraged. The Court will hear the views of counsel
and/or clients on such issues listed in Rule 17.1 above as are pertinent to the case and/or on
which there are material differences of opinion.
17.4 – Case Management Order. Following the Case Management Conference, the
Court shall issue a Case Management Order in the form appended to these Rules as Form 2. The
Case Management Order will deal with such issues developed in the Case Management Meeting
and/or the Case Management Conference as may be determined at the time, given the nature and
status of the case. The provisions of the Case Management Order may not be deviated from
without notice, grant of a hearing which is discretionary with the Court, good cause shown and
entry of an order by the Court. The Case Management Order shall also specify a schedule of
status conferences to assess the functioning of the Case Management Order, assess the progress
of the case, and enter such further orders or revisions in the Case Management Order, including a
trial date, as the Court may deem necessary or appropriate.
17.5 – Effect on Other Rules. This Rule 17 is intended to supplement, not substitute for,
the provisions of Rule 7 of the General Rules of Practice for Superior and District Courts and its
related sample form dealing with pre-trial conferences and orders.
RULE 18 – DISCOVERY
18.1 – North Carolina Rules of Civil Procedure Applicable. Except as expressly
supplemented by these rules, the North Carolina Rules of Civil Procedure governing the conduct
of depositions and discovery in State Courts shall control in the Business Court.
18.2 – Presumptive Limits on Discovery Procedures. Subject to an order modifying
discovery procedures for good cause shown, the Court expects discovery in cases assigned to the
Business Court to be completed within nine (9) months from issuance of the Case Management
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Order. Parties are free, however, to begin discovery prior to issuance of the Case Management
Order. Presumptively, subject to stipulation of the parties and order of the Court for good cause
shown, interrogatories (including sub-parts) and requests for admission are limited to fifty (50) in
number by each party. Depositions are presumptively limited to twelve (12) depositions each
(not including depositions of testifying experts) by the plaintiffs, by the defendants, and by any
third-party defendants, subject to alteration by the Court.
18.3 – Depositions. The Court expects counsel to conduct discovery in good faith and to
cooperate and be courteous with each other in all phases of the discovery process. Depositions
shall be conducted in accordance with the following guidelines:
(a) Counsel shall not direct or request that a witness not answer a question, unless
that counsel has objected to the question on the ground that the answer is protected by a privilege
or a limitation on evidence directed by the Court.
(b) Counsel shall not make objections or statements which might suggest an answer
to a witness. Counsel’s statements when making objections should be succinct, stating briefly
the basis of the objection and nothing more.
(c) Counsel and any witness/client shall not engage in private, off the record
conferences while the deposition is proceeding in session, except for the purpose of deciding
whether to assert a privilege.
(d) Deposing counsel shall provide to counsel for the witness and counsel for all
parties present a copy of all documents shown to the witness during the deposition. The copy
may be provided either before the deposition begins or contemporaneously with the showing of
each document to the witness. The witness and counsel for the witness may not discuss
documents privately before the witness answers questions about them.
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18.4 – No Filing of Discovery Materials. Depositions and deposition notices,
interrogatories, requests for documents, requests for admission, and answers and responses
thereto shall not be filed electronically on the Court’s Electronic filing and service system unless
the Court so orders or unless the Court will need such documents in a pretrial proceeding. All
discovery materials shall be served on other counsel or parties, and may be served electronically
pursuant to Rule 6.8 above. The party taking a deposition or obtaining any material through
discovery (including through third party discovery) is responsible for the preservation and
delivery of such material to the Court when needed or ordered in the form specified by the Court.
Any party seeking to compel discovery or other pre-trial relief based upon discovery material
which has not been filed shall identify the specific portion of the material which is directly
relevant and ensure that it is filed as an attachment to the application for relief.
18.5 – Discovery with Respect to Expert Witnesses. Discovery with respect to experts,
including expert depositions and disclosure of expert information, shall be conducted within the
discovery period set forth in the Case Management Order.
18.6 – Conference of Attorneys with Respect to Motions and Objections Relating to
Discovery.
(a) The Court will not consider motions and objections relating to discovery unless
moving counsel files a certificate that, after personal consultation and diligent attempts to resolve
differences, the parties are unable to reach an accord. The certificate shall set forth the date of
the conference, the names of the participating attorneys, and the specific results achieved. It
shall be the responsibility of counsel for the movant to arrange for the conference and, in the
absence of an agreement to the contrary, the conference shall be held in the office of the attorney
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nearest to the Court where the case was originally filed. Alternatively, at any party’s request, the
conference may be held by telephone.
(b) Prior to filing motions and objections relating to discovery of information stored
electronically, the parties shall discuss the possibility of shifting costs for electronic discovery,
the use of Rule 30(b)(6) depositions of information technology personnel, and informal means of
resolving disputes regarding technology and electronically stored information. The certificate
required by Rule 18.6(a) shall address efforts to resolve the dispute through these and any other
means related to discovery of information stored electronically.
18.7 – Expedited Resolution of Some Discovery Disputes. If, after a conference as
required by Rule 18.6, the parties agree that a discovery dispute can be ruled upon in a telephone
or videoconference of no more than thirty (30) minutes, the Court will schedule such a
conference and rule on the dispute without briefing by the parties. Alternatively, if the parties
agree that the dispute can be ruled upon in an in-court hearing of no more than one hour, without
briefing, subject to Rule 15.12 the Court will schedule a hearing of such matter at the earliest
date reasonably available to the Court and the parties. The fact that these proceedings are
expedited and are conducted without briefing does not alter the application of
N.C. R. Civ. P. 37(a)(4) relating to the imposition of sanctions and the award of expenses.
18.8 – Completion of Discovery. The requirement that discovery be completed within a
specified time means that adequate provisions must be made for interrogatories and requests for
admission to be answered, for documents to be produced, and for depositions to be held within
the discovery period. Normally the Court will not entertain motions relating to discovery
conducted after the close of the discovery period as set forth in the Court’s Case Management
Order.
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18.9 – Extension of the Discovery Period or Request for More Discovery. Motions
seeking an extension of the discovery period or permission to take more discovery than is
permitted under the Case Management Order shall be made or presented prior to the expiration
of the time within which discovery is required to be completed. Such motions must set forth
good cause justifying the additional time or additional discovery and will be granted or approved
only upon such a showing of good cause and a showing that the parties have diligently pursued
discovery. The Court will permit additional depositions usually only upon a showing of
exceptionally good cause.
18.10 – Trial Preparation After the Close of Discovery. For good cause appearing
therefor, the physical or mental examination of a party may be ordered at any time prior to or
during trial. Ordinarily, the deposition of a material witness not subject to subpoena should be
taken during discovery. However, the deposition of a material witness who agrees to appear for
trial, but later becomes unavailable or refuses to attend, may be ordered at any time prior to or
during trial.
RULE 19 – MEDIATION
19.1 – Mediation Mandatory in All Cases. Mediation is a valued tool in the resolution
of litigated matters. As such, all cases pending in the Business Court shall be subject to the
Rules Implementing Statewide Mediated Settlement Conferences in Superior Court Civil Actions
and such other Rules or orders consistent therewith as may be established or entered by the
Business Court.
19.2 – Approved List of Business Court Mediators. The Business Court maintains on
its website a list of mediators who have had experience with cases within the jurisdiction of the
Business Court. Parties are not, however, required to select a mediator from this list. In the
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event the parties to a Business Court case are unable to agree on a mediator, upon notice from a
party, the Business Court will appoint a mediator from the Business Court’s approved list to act
as mediator in that case.
RULE 20 – OPENINGS AND CLOSINGS

20.1 – Opening Statements. At any time before the presentation of evidence, counsel
for each party may make an opening statement setting forth the grounds of claim or defense. The
parties may elect to waive opening statements. Opening statements may be limited in time and
scope in the discretion of the Court.
20.2 – Closing Argument. If no evidence is produced by the defendant, the right to open
and close the argument to the jury shall belong to the defendant. If a question arises as to
whether the plaintiff or the defendant has the final argument to the jury, the Court shall decide
who is so entitled.
In a case where there are multiple defendants, if any defendant introduces evidence, the
closing argument shall belong to the plaintiff, unless the Business Court Judge in his discretion
orders otherwise.
RULE 21 – EXAMINATION OF WITNESSES

21.1 – When several counsel are employed by the same party, the examination or cross-
examination of each witness for such party shall be conducted by one counsel, but examining
counsel may change with each successive witness or, with leave of the Court, during a prolonged
examination of a single witness.
RULE 22 – COURTROOM DECORUM

22.1 – Communications and Position. Counsel are at all times to conduct themselves
with dignity and propriety. All statements and communications to the Court shall be clearly and
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audibly made from a standing position behind the counsel table or the computer-assisted podium.
Counsel shall not approach the bench except upon the permission or request of the Court.
Colloquies between and disrespectful references to opposing counsel shall be strictly
avoided. Adverse witnesses and parties shall be treated with fairness and due consideration.
Abusive language or offensive personal references are strictly prohibited.
The examination of witnesses and jurors shall be conducted from a sitting position behind
the counsel table or from the computer-assisted podium, except as otherwise permitted by the
Court. Counsel may only approach a witness for the purpose of presenting, inquiring about, or
examining that witness with respect to an exhibit, document, or diagram.
22.2 – Professional Demeanor. The conduct of the lawyers before the Court and with
other lawyers should be characterized by candor and fairness. Counsel shall not knowingly
misrepresent the contents of documents or other exhibits, the testimony of a witness, the
language or argument of opposing counsel or the language of a decision or other authority; nor
shall counsel offer evidence known to be inadmissible or cross-examine without a good faith
basis for doing so. In an argument addressed to the Court, remarks or statements may not be
interjected to improperly influence or mislead the jury.
Counsel shall yield gracefully to rulings of the Court and avoid disrespectful remarks
both in Court and out. Counsel shall at all times conduct themselves in a manner which
promotes respect for the Court and the judicial process.
RULE 23 – JURIES
23.1 – Jury Instruction Conference. At the close of the evidence (or at such earlier
time as the judge may reasonably direct) in every jury trial, the judge shall conduct a conference
on instructions with the attorneys of record (or party, if not represented by counsel). Such
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conference shall be out of the presence of the jury, and shall be held for the purpose of
discussing the proposed instructions to be given to the jury. If special instructions are desired,
they must be submitted in writing to the trial judge at or before the jury instruction conference.
23.2 – Objections to Instructions. An opportunity shall be given to the attorneys (or
party, if not represented by counsel) to request any additional instructions or to object to any of
those instructions proposed by the judge. Any such requests, objections, and the rulings of the
Court thereon shall be placed on the record.
At the conclusion of the charge and before the jury begins its deliberations (and out of the
hearing, or upon request, out of the presence of the jury), counsel (or party, if not represented by
counsel) shall be given an opportunity to object on the record to any portion of the charge as
given, or omission therefrom, stating with particularity the objection and grounds therefor.
23.3 – Treatment of Instructions during Jury Deliberations. The Court may recall the
jury after they have retired and give them additional instructions in order: (i) to correct or
withdraw an erroneous instruction; (ii) to inform the jury on a point of law which should have
been covered in the original instructions; or (iii) to respond to questions posed by the jury. The
provisions of Rule 23.2 above are also applicable to any such additional instructions or other
information provided at this stage of the proceeding. The Court, in its discretion, may give a
copy of the instructions to the foreperson or to all members of the jury.
23.4 – Contacts with Jurors Prohibited. All parties, witnesses, and attorneys shall
avoid any extra-judicial contact or communications with a member of a jury venire or panel who
has been or may be selected in a case in which that person is involved. No person may have any
extra-judicial contact or communication, either directly or indirectly, with a member of a jury
venire or panel which may reasonably have the effect of influencing, or which is intended to
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influence, the potential juror or sitting juror. Attorneys for parties shall inform their clients and
witnesses of this rule.
No person shall approach a juror, either directly or through any member of his immediate
family, in an effort to secure information concerning the juror’s background. No provision of
this rule is intended to prohibit communication with a juror after the juror has been dismissed
from further service, so long as the communication does not tend to harass, humiliate, or
intimidate the juror in any fashion.
23.5 – Presence of Counsel during Jury Deliberation. The right to be present during
the trial of civil cases shall be deemed to be waived by a party or counsel by voluntary absence
from the courtroom at a time when it is known that proceedings are being conducted or are about
to be conducted. In such event the proceedings, including the giving of additional instructions to
the jury after they have once retired, or receipt of the verdict, may go forward without waiting
for the arrival or return of counsel or a party.
RULE 24 – TRIAL DATES AND FINAL PRETRIAL PREPARATION

24.1 – Trial Date. Trial shall commence on the date established by the Court, normally
through revisions to the Case Management Order, or in such other manner as the Court shall
deem appropriate. The Court will consider a request to continue a trial date only if the request is
signed by both the party and counsel for the party.
24.2 – Final Pretrial Preparation. Except in cases deemed by the Court to require
different arrangements, no later than twenty (20) days before trial, the parties shall file trial
briefs, along with proposed instructions on the issues in jury cases or findings of fact and
conclusions of law in non-jury cases. The parties will also file at this time any motions in limine
or other motions they wish to have considered prior to trial. The Court may in its discretion
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schedule a final pretrial conference to deal with such motions or other pretrial matters as deemed
appropriate. Any party, or the Court on its own motion, may request a pretrial hearing or a
telephone or videoconference to address matters relating to final pretrial preparation or
settlement of a case. This rule is not intended to prevent submission of proposed jury
instructions as provided for in Rule 23.1.
RULE 25 – COURT REPORTING CONSIDERATIONS

25.1 - Scheduling of Court Reporters. Barring extenuating circumstances, official
court reporters will be used to report all hearings in the Business Court; however, if both parties
agree to hire a freelance reporter, that reporter would then become the official reporter for the
particular hearing or trial that he or she was hired to report. Where feasible, the same court
reporter will be used to report all hearings in a case. The scheduling of court reporters will be
handled through a joint effort of the local scheduling coordinator and the Judicial Scheduling
Coordinator for the Administrative Office of the Courts.
25.2 – Request for Real-Time Transcription. A request for real-time transcription of
the proceedings before the Court shall be made, to the extent possible, during the Case
Management Conference. The parties will use the appropriate AOC Form to make such a
request and shall submit the same to the Judicial Scheduling Coordinator for the Administrative
Office of the Courts. Prior to the proceeding for which transcription is needed, the parties shall
confer with the reporter assigned to the case regarding specific needs (e.g., real-time feed, rough
ASCII, daily copy) and shall arrange for compensation directly with the reporter. The parties,
prior to trial, will provide the reporter with information particular to the case to aid in clarity of
transcription, e.g., pleadings, deposition transcripts, glossary of unique terms, etc.
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25.3 – Realtime Feeds or Rough-Draft Transcripts. A “realtime feed” or “rough-draft
transcript” – that which is displayed simultaneously with proceedings occurring before the Court
or that which is provided by e-mail or ASCII disk prior to certification – may be referred to or
quoted from during a proceeding, provided, however, that any dispute concerning the accuracy
of the transcription of a realtime feed or rough draft transcript will be resolved by the Court in its
discretion after consultation with the reporter.
25.4 – Publication of Transcripts. Transcripts of proceedings before the Business Court
shall be published on the Court’s Web Site in the sole discretion of the Business Court Judge.
See Rule 27. Access to such transcripts via the Web Site, however, shall only be made available
to those counsel, pro se litigants or members of the public with authorization codes issued by the
Court after payment of the reporter’s transcription fee or under such other conditions as are set
by the Court.
25.5 – Storage and Retention of Court Reporters’ Notes. Per N.C. Gen. Stat. § 7A-95,
if stenograph, shorthand, or voice writing equipment is used to record proceedings in Superior
Court, the original tapes, notes, discs, or other records are the property of the state of North
Carolina, and the Clerk of Superior Court is the ultimate custodian of the notes; therefore, when
a hearing or trial is completed, the court reporter shall leave his or her notes with the clerk. The
court reporter shall not take those notes with him or her for any reason other than to prepare the
transcript in the case. If a transcript has been ordered and the reporter signs out the tapes, notes,
etc. from the clerk, that court reporter shall return those tapes, notes, etc. to the clerk’s office
upon completion of the transcript. This rule applies to both official and freelance court reporters.
RULE 26 – APPELLATE RECORD CONSIDERATIONS
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26.1 – Filing of Transcripts. Certified original transcripts and other record items shall
be filed in accordance with Rule 7 of the North Carolina Rules of Appellate Procedure and shall
be subject to any further requirement that the appellate court deems appropriate. Parties are
encouraged to assist the Court in transmitting original transcripts and other records electronically
in addition to the format required by Rule 7 of the North Carolina Rules of Appellate Procedure
to the end that the entire appellate record may be transmitted to the appeals court as efficiently
and expeditiously as possible.
26.2 – Signatures on Appellate Materials. Electronically filed transcripts shall contain
such means of signature as may be specified by the appellate courts.
RULE 27 – WEB SITE AND PUBLICATION

27.1 – Web Site. The Business Court shall maintain a site on the World Wide Web for
ready access to members of the bar and to the public generally. The Web Site shall be located at
the uniform resource locator www.ncbusinesscourt.net. The Web Site will store for ready
retrieval basic information about the Business Court, including but not limited to these Rules and
the procedure for Complex Business Case designation. In addition, the Web Site will store, in
the sole discretion of the Business Court Judges:
(a) the Court’s address, facsimile machine numbers, and the mailing and physical
addresses of the chambers of Business Court Judges;
(b) the Court’s docket;
(c) pleadings filed with the Court;
(d) motions filed with the Court;
(e) briefs filed with the Court;
(f) the opinions of the Court; and
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(g) rough-draft and/or official transcripts of proceedings before the Court.
27.2 – Citation to Business Court Opinions. Citation to the opinions of the Business
Court shall be to the year of the opinion, followed by “NCBC,” followed by the opinion number,
e.g., “1999 NCBC 1.” Pinpoint notations to Business Court opinions shall be made to the
numbered paragraph in which the cited material appears, e.g., “1999 NCBC 1 ¶1.”
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FORM 1

COURT DIVISION
COUNTY OF
CIVIL ACTION NO:
John Doe,
Plaintiff,
NOTICE OF DESIGNATION OF ACTION
v. AS MANDATORY COMPLEX BUSINESS
CASE UNDER N.C. GEN. STAT. § 7A-45.4
ABC Corporation,
Defendant.
Pursuant to N.C. Gen. Stat. § 7A-45.4, _______(insert name of party)_______ hereby

designates the above-captioned action as a mandatory complex business case. In good faith and
based on information reasonably available, _______(insert name of party)_______, through
counsel, hereby certifies that this action meets the following criteria for designation as a
mandatory complex business case pursuant N.C. Gen. Stat. § 7A-45.4(a), and should be
adjudicated in the Business Court:
_____ (1) The law governing corporations, partnerships, limited liability companies, and
limited liability partnerships.
_____ (2) Securities law.
_____ (3) Antitrust law, except claims based solely on unfair competition under
N.C. Gen. Stat. § 75-1.1.
_____ (4) State trademark or unfair competition law, except claims based solely on
unfair competition under N.C. Gen. Stat. § 75-1.1.
_____ (5) Intellectual property law.
_____ (6) The Internet, electronic commerce, and biotechnology.
Briefly explain (attach additional sheets if necessary) why the action falls within the
specific categories of N.C. Gen. Stat. 7A-45.4(a) checked above, as well as any additional
information you believe may be helpful to the Court in determining whether the Business Court
should retain jurisdiction of this matter:
A copy of all pleadings listed in N.C. R. Civ. P. 7(a) that have been filed to date in this
action are attached hereto as Appendix A for the convenience of the Court.
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This ____ day of _______, 20_____.
___________________________________
Attorney for _______________
{00057666;v1}49
FORM 2

COURT DIVISION
COUNTY OF
CIVIL ACTION NO:
John Doe,
Plaintiff,
v. CASE MANAGEMENT ORDER
ABC Corporation,
Defendant.
THIS MATTER is before the Court pursuant to Rule 17 of the Business Court Rules.
This case has been designated as an exceptional case pursuant to Rule 2.1 of the General Rules
of Practice. The parties have conferred in advance and have agreed that the Court should enter
an order covering scheduling and case management issues in order to facilitate the fair and
efficient disposition of this action.
THEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED that:
I. SCOPE OF ORDER
A. General Scope of Order
This order establishes certain procedures to be used and sets deadlines for various matters
likely to arise through trial. It shall remain in effect until rescinded by the Court or superseded by
subsequent orders. The North Carolina Rules of Civil Procedure, the General Rules of Practice
for the Superior and District Courts, and the Local Rules for the North Carolina Business Court
shall govern all matters not expressly covered by this Order.
{00057666;v1}50
B. Application of Order
This Order, as well as any subsequent case management orders entered by the Court,
shall bind all parties to this action and all parties added hereafter unless the Court orders to the
contrary.
C. Modification of this Order
The Court may amend or supplement this Order as deemed appropriate by the Court upon
the motion of any party or by the Court.
II. COMMUNICATION WITH THE COURT AND AMONG THE PARTIES
A. The parties are represented locally by the following: (hereinafter “Liaison
Counsel”):
1. __________________, of _________________, representing Plaintiff(s);
2. __________________, of _________________, representing Defendant(s).
B. The Court will communicate with counsel and counsel shall have the
responsibility for notifying all parties that it represents of all communications from the Court.
C. All communications with the Court, including a copy of any paper, pleading,
order or proposed order, and all exhibits, attachments or enclosures thereto filed in this action
shall be sent to the Business Court Judge assigned to the case.
The following parties have agreed to use the Business Court’s electronic filing and
service in accordance with Rule 6:
Any communication filed electronically automatically will be served on all parties
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equipped to receive electronic mail.
D. A copy of any paper, pleading, order or proposed order (including all attachments
or enclosures, or any other written or electronic communication with the Court, whether filed or
not filed) generated by counsel for any party shall be delivered, e-mailed or telecopied to counsel
for the other party or parties at least five (5) business days before any scheduled hearing on a
matter to which such documents relate.
III. JURISDICTION AND VENUE
A. This Court has subject matter jurisdiction over the disputes raised in this action.
B. The parties q do q do not (check one) stipulate that all of the defendants have
been properly served with the summons and complaint, and the Court has personal jurisdiction
over each of the parties.
C. The parties q do q do not (check one) stipulate that venue is proper in this
action.
D. All pretrial and trial proceedings in this matter shall occur in the following
location:______________________________________________________________________.
IV. ISSUES, DISCOVERY, MOTIONS, AND TRIAL
A. ISSUES
The principal legal and factual issues which counsel presently believe will need to be
decided in this case are as follows:
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The issues in this case which counsel presently believe are governed by the law of any
state other than North Carolina law or federal law are as follows:
B. DISCOVERY
At a hearing on ____________________, the Court heard discussion and arguments of
counsel regarding discovery in this case. Having considered the record and arguments of
counsel, the Court hereby incorporates into this Case Management Order the following
provisions regarding discovery on the merits:
The parties are instructed to conduct fact discovery first, then move on to expert witness
discovery. The parties shall have until ____________________ to conduct fact discovery on the
merits issues. The parties shall be permitted no more than ______ fact depositions each. The
parties shall be allowed ______ interrogatories each. The parties shall submit to the Court any
proposed protective orders by ____________________. There will be a subsequent sixty (60)
day period for discovery of expert witnesses, if necessary, though and including
____________________. This additional sixty (60) day period is reserved solely for discovery
of expert witnesses, and shall not apply if expert discovery is unnecessary. The parties shall be
permitted no more than ______ expert depositions each.
A preliminary schedule for depositions of such persons and entities as the parties
presently are able to identify is as follows:
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The parties shall produce electronic records shall in the following
format:_______________________________________________________________________.
The parties shall adopt the following procedures to avoid unnecessary burden and
expense associated with production of electronic records:
The parties shall adopt the following procedures for retention of potentially relevant
documents, including but not limited to documents stored electronically and the need to suspend
all automatic deletions of electronic documents or overwriting of backup tapes which may
contain potentially relevant information:
The parties shall adopt the following security measures to protect any information that is
produced in electronic format or that will be converted into electronic format and stored on
counsel’s computer systems:
{00057666;v1}54
The following further limitations and guidelines are hereby placed on discovery:
1. Depositions shall be conducted in accordance with the following
guidelines:
(a) All parties or employees will be made available for deposition on
ten days’ notice to counsel.
(b) Counsel shall not direct or request that a witness not answer a
question, unless counsel has objected to the question on the ground that the
answer is protected by privilege or a limitation on evidence directed by the Court.
(c) Counsel shall not make objections or statements which might
suggest an answer to a witness. Counsel’s statements when making objections
should be succinct, stating the basis of the objection and nothing more.
(d) Counsel and their witness-clients shall not engage in private, off-
the-record conferences while the deposition is proceeding in session, except for
the purpose of deciding whether to assert a privilege.
(e) Deposing counsel shall provide to the witness’s counsel a copy of
all documents shown to the witness during the deposition. The copies shall be
provided either before the deposition begins or contemporaneously with the
showing of each document to the witness. The witness and the witness’s counsel
do not have the right to discuss documents privately before the witness answers
questions about them.
{00057666;v1}55
2. The parties may conduct only that discovery specifically provided for in
this Order.
3. No extensions of time shall be granted without written consent of the
opposing party or by Order of the Court.
C. MOTIONS
The parties intend to file the following Motions to Dismiss or other preliminary or pre-
discovery motions, and have designated the following time periods in which such motions shall
be filed, briefed, and argued:
It is further ordered that the setting of the ____________________ deadline for
completion of discovery shall not limit any party from filing summary judgment motions as to
merits issues during such period, but any such motions should be very narrowly drawn so as to
address only issues on which fact discovery has been completed. If there are still motions
pending after the discovery period, the Court will set a briefing schedule at that time.
After the close of discovery, the parties shall have until ____________________ to file
post-discovery dispositive motions.
For the purposes of the length limitations on briefs under Rule 15.8, the following parties
shall be required to file joint briefs: ________________________________________________.
The parties have selected ________________________________ as a mediator and
mediation shall be completed by ____________________.
{00057666;v1}56
D. TRIAL
The tentative date by which the parties will be prepared for trial is: _________________.
The following parties have indicated a desire to use case tracking, scanning,
videographic, and real-time court reporting services:
SO ORDERED, this the ___ day of __________.
___________________________
The Honorable ______________
Business Court Judge Presiding
{00057666;v1}57
IN THE COURT COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION – CIVIL
ADMINISTRATIVE DOCKET 02 OF 2003
IN RE: COMMERCE CASE MANAGEMENT PROGRAM
AND NOW, this 29th day of April, 2003, it is hereby ORDERED and DECREED that the following
protocols shall apply to all civil cases within the Commerce Case Management Program on or after January 1, 2000:
Commerce Case Management Program:

Procedure for Disposition of Commerce Program Cases Filed on and after January 1, 2000
A Commerce Case Management Program ("Commerce Program") has previously been established within the
Trial Division of the Court of Common Pleas (Administrative Docket 01 of 1999 and 01 of 2000).
A. Organization
1. Judges. Three judges shall be assigned by the Administrative Judge to the Commerce Program. The
number of Commerce Program Judges may thereafter be adjusted by the Administrative Judge consistent with the
caseload of the Program.
2. Filings & Listings. Upon consultation with the Administrative Judge, the Civil Supervising Judge and
the Commerce Program Judges, with the goal of ease of access by the Commerce Program Judges and their staff, the
parties and the public, the Prothonotary shall establish procedures for maintenance of filings and listings in actions
assigned to the Commerce Program.
B. Assignment of Cases Subject to Commerce Program
1. Cases Subject to Commerce Program. Notwithstanding anything to the contrary in General Court
Regulation 95-2 (Day Forward Program) or any other General Court Regulation, Jury, Non-Jury & Equity, and Class
Action cases filed on or after January 1, 2000, but not Arbitration cases, shall be assigned to the Commerce Program if
they are among the following types of actions:
1. Actions relating to the internal affairs or governance, dissolution or liquidation, rights or obligations
between or among owners (shareholders, partners, members), or liability or indemnity of managers
(officers, directors, managers, trustees, or members or partners functioning as managers) of business
corporations, partnerships, limited partnerships, limited liability companies or partnerships,
professional associations, business trusts, joint ventures or other business enterprises, including but
not limited to any actions involving interpretation of the rights or obligations under the organic law
(e.g., Pa. Business Corporation Law), articles of incorporation, by-laws or agreements governing such
enterprises;
2. Disputes between or among two or more business enterprises relating to transactions, business
relationships or contracts between or among the business enterprises. Examples of such transactions,
relationships and contracts include:
(1) Uniform Commercial Code transactions;
Admin. Dkt. 02 of 2003 -- Page 1

(2) Purchases or sales of businesses or the assets of businesses;
(3) Sales of goods or services by or to business enterprises;
(4) Non-consumer bank or brokerage accounts, including loan, deposit cash
management and investment accounts;
(5) Surety bonds;
(6) Purchases or sales or leases of, or security interests in, commercial, real
(7) Franchisor/franchisee relationships.
4. "Business torts," such as claims of unfair competition, or interference with contractual relations or
prospective contractual relations;
6. Actions relating to securities, or relating to or arising under the Pennsylvania Securities Act;
7. Derivative actions and class actions based on claims otherwise falling within these ten types, and
consumer class actions other than personal injury and products liability claims;
9. Declaratory judgment actions brought by insurers, and coverage dispute and bad faith claims brought
by insureds, where the dispute arises from a business or commercial insurance policy, such as a
Comprehensive General Liability policy, and;
10. Third-party indemnification claims against insurance companies where the subject insurance policy
is a business or commercial policy and where the underlying dispute would otherwise be assigned to
the Commerce Program, not including claims where the underlying dispute is principally a personal
injury claim.
All of the above types of actions may involve individuals named as parties, in addition to business enterprises,
so long as all other criteria are met and the essential nature of the litigation is a business dispute. For example, a dispute
over a commercial loan may include individual guarantors as either plaintiffs or defendants, as the case may be, but such
a lawsuit would still be a commercial dispute.
2. Cases Not Subject to the Commerce Program. The following types of matters are not to be included in the
Commerce Program:
1. Matters subject to Compulsory Arbitration in this Court or to the jurisdiction of the Municipal Court,
including any appeals.
3. Individual (non-class) consumer claims against businesses or insurers, including products liability and
personal injury cases.

5. Environmental claims not involved in the sale or disposition of a business and other than those
addressed in Commerce Program types 9 or 10 above.
7. Malpractice claims, other than those brought by business enterprises against attorneys, or accountants,
architects or other professionals in connection with the rendering of professional services to the
business enterprise.
8. Employment law cases, other than those referenced in Commerce Program type 3, above.
10. Petition Actions in the nature of Change of Name, Mental Health Act Petitions, Petitions to Appoint
an Arbitrator, Government Election Matters, Leave to Issue Subpoena, or to Compel Medical
Examination.
12. Domestic relations matters, and actions relating to distribution of marital property, custody or support.
13. Any matter required by statute, including 20 Pa. C.S. Chapter 7, §§ 711 & 713, to be heard in the
Orphans' Court or Family Court Division of the Philadelphia Court of Common Pleas, or other matter
which has heretofore been within the jurisdiction of the Orphans' Court or Family Court Division of
this Court.
14. Any criminal matter other than criminal contempt in connection with a Commerce Program action.
3. Assignments Based on the Civil Cover Sheet. The Civil Cover Sheet, effective January 1, 2000, shall
include a box in which the attorney signing the sheet must certify that the action is, or is not, subject to the Commerce
Program. A "Commerce Program Addendum to Civil Cover Sheet," a sample of which is attached as Exhibit "A," is
hereby required to be filed with all initial filings (i.e., all filings requiring a Civil Cover Sheet) subject to the Commerce
Program, filed on or after January 1, 2000. The attorney shall indicate on the Commerce Program Addendum filed with
any filing denoted as a Commerce Program matter, the applicable type or types of action which result in the matter being
assigned to the Commerce Program. An attorney's signature on the Civil Cover Sheet shall constitute certification that
the matter is or is not subject to the Commerce Program, as indicated on the Civil Cover Sheet and Addendum. A copy
of the Civil Cover Sheet, including any Commerce Program Addendum, shall be served with the original process served
on all parties.
All actions designated into the Commerce Program pursuant to the Commerce Program Addendum are hereby
assigned to the Commerce Program and to the individual calendar of one of the Commerce Program Judges, according
to a random procedure established by the Administrative Judge or the designee of the Administrative Judge. This
assignment shall be noted on the Docket. All further filings in the matter shall state prominently in the caption and on
any cover sheets that the matter is "ASSIGNED TO COMMERCE PROGRAM."
4. Disputes Arising From the Civil Cover Sheet Designation. If any party disagrees with the designation or
lack of designation of a case into the Commerce Program, that party shall file with Civil Motions Clerk in the
Prothonotary’s Office, 278 City Hall, to be referred to the Administrative Judge, or the designee of the Administrative
Judge, for decision (which shall not be subject to appeal), and serve on all parties a Notice of Management Program
Dispute, in the form attached as Exhibit "B" and not exceeding three pages, as soon as practical, and no later than the

earliest of (a) the filing by that party of any pleading, motion or response to motion, (b) ten days in advance of a noticed
case management conference or (c) thirty days after service of process. A copy of the complaint or filing commencing
the litigation, shall be attached to the Notice of Management Program Dispute. Any party opposing the Notice of
Management Program Dispute may, but need not, submit a response thereto not exceeding three pages (to Civil Motions
Clerk, Room 278 City Hall) within seven days of service of the Notice.
In the event of the service of a Notice of Management Program Dispute, a copy of that Notice shall be attached
to and referenced in all motions and responses to motions filed by any party pending the resolution of the management
program dispute.
C. Commencement of Action
All subject actions shall be commenced as provided in Pa. R.C.P. 1007. Philadelphia Civil Rule *205.2 shall
be followed. As noted above, in all cases, not just those designated into the Commerce Program, a copy of the Civil
Cover Sheet, including any Commerce Program Addendum, shall be served with original process served on all parties.
All jury demands shall be perfected in accordance with Pa. R.C.P. 1007.1 and Phila. Civ. R. *1007.1.
A party seeking emergency relief immediately upon commencing an action subject to the Commerce Program
shall follow the procedure set forth in part D.6. below (Rules to Show Cause and Emergency Motions and Petitions).
D. Case Management Procedures
1. Authority Over Commerce Program Status: When there is a dispute as to whether the case is properly
assigned to the Commerce Program, the decision will be made by the Administrative Judge or the designee of the
Administrative Judge. If the Civil Case Manager conducting a case management conference or any party objects as to
the Commerce Program assignment, the Case Manager will forward the dispute to the Administrative Judge or the
designee of the Administrative Judge.
2. Alternative Procedures Available: The Commerce Program Judge, in his/her discretion, may, upon
application of any party or upon his/her own initiative, modify these procedures. Requests for changes in these
procedures will be made by filing a Petition for Extraordinary Relief (which Petition calls for a ten-day response time).
3. The Case Management Conference: Typically, notice of a Case Management Conference ("CMC")
will be sent to counsel and unrepresented parties (sixty days after filing) scheduling the CMC for approximately ninety
days after filing. In certain circumstances, the CMC may be scheduled through the Commerce Program Judge.
a. Presiding Officer: Unless otherwise ordered, the CMC shall be conducted by a Civil Case Manager
designated by the Court, acting on behalf of the assigned Commerce Program Judge.
b. Issues to be Addressed: The following subjects, along with other appropriate topics, such as service of
process, venue, pleadings, discovery, possible joinder of additional parties, theories of liability, damages claimed and
applicable defenses (see also Pa.R.C.P. 213.3), will be discussed.
(1) Means for Early Disposition
a. Timing and potential forms of Alternative Dispute Resolution (ADR).

The case manager will make available the list of Commerce Program
Judges Pro Tempore (as provided by the Business Litigation Committee
of the Philadelphia Bar Association).
b. Scheduling pre-discovery dispositive motions, only if oral argument is

needed. (Whether to hear oral argument is up to the Commerce Program

Judge). The Commerce Program Judge will likely have a half day set aside
for hearing Motions and Rules.
c. Scheduling limited-issue discovery in aid of early dispositive motions.

The Case Manager will advise counsel of the half day Discovery Program
set up for the assigned Commerce Program Judge.
(2) Schedules and Deadlines
a. Assignment to a Case Management Track and issuance of a Case

Management Order ("CMO"), which will set forth a target trial date,
deemed the earliest trial date pursuant to Pa. R.C.P. 212.1.
b. A discovery plan and schedule based on the CMO date for the completion
of discovery.
c. Anticipated areas of expert testimony, timing for identification of experts,

responses to expert discovery, exchange of expert reports (reference to the
CMO).
(3) Potential Use of a Commerce Court Judge Pro Tempore
a. On stipulation of all parties for supervision of discovery.
b. For mediation.
c. Identification of a particular Commerce Program Judge Pro Tempore

acceptable to all parties.
d. The choice of a particular Judge Pro Tempore for these purposes must be
approved by the Court.
e. Use of a Pro Tempore Judge for purposes of discovery or mediation

cannot affect the deadlines set forth in the CMO, unless the Commerce
Program Judge allows an extension of affected dates.
The Commerce Program Judge may establish any informal procedures to achieve expeditious resolution of
discovery disputes and other non-dispositive issues. Prior to the CMC, it shall be the obligation of the parties to confer
concerning all of the above matters, for the purposes of reaching agreements.
4. Case Management Order:
At the CMC, the Case Manager shall issue a Case Management Order ("CMO") setting forth dates for a
Settlement Conference and for a Pretrial Conference (with Pretrial Statements typically to be filed in advance), and for
Trial. The CMO will also address cut-off dates for completion of discovery, for the service of expert reports and for the
filing of Motions.
Based upon the nature and complexity of the case, the Case Manager with input from the parties at the CMC
shall assign the case to a track. The Commerce Program shall typically employ the following management tracks:
Commerce Expedited (Target Trial Date within 13 months of Complaint) and Commerce Standard (Target Trial Date
within 18 months of Complaint). Only exceptionally complicated cases should be designated Commerce Complex
(Target Trial Date within two years of Complaint). In the latter instance, the Commerce Program Judge may schedule
status conferences at six month intervals or at other times upon application of the parties, if appropriate.

The Commerce Expedited Track shall consist of matters in which minimal discovery is needed and legal issues
are anticipated to be routine. Examples of such actions, in the absence of complicating factors, are actions relating to
commercial loans, and contract, UCC and foreclosure matters. Other matters should presumptively be designated
Commerce Standard. Actions in which preliminary injunctive relief is sought may be appropriate for any of the tracks,
depending upon the circumstances.
A suggested form Case Management Order is attached as Exhibit "C." A grid of time standards that will be
employed depending upon the applicable track Case Management Order is attached as Exhibit "D." Sample Commerce
Program Class Action Case Management Order Forms are attached hereto as Exhibit “E”.
5. Commerce Court Motions.
a. Motion Practice and Discovery Motions.
The Commerce Program Judge to whom the action is assigned will hear all pretrial motions, including discovery
motions, except that, to the extent that scheduling or other concerns so require, a Commerce Program Judge may make
arrangements for certain discovery and other pretrial motions to be heard by another Commerce Program Judge. All
motions (except discovery motions) shall be filed in Motion Court with a designation on the Motion Court Cover Sheet
of the assigned Commerce Program Judge. Procedures of the Discovery Court should generally be followed, and filings
processed through Room 287. In some instances, the Commerce Program Judge may direct further briefing of complex
discovery motions. Any Notice of Management Program Dispute that is pending or is being filed contemporaneously
with the Motion filing, should be noted in the Motion Court Cover Sheet. Oral argument is at the discretion of the
Commerce Program Judge.
A Commerce Program Discovery List for each Commerce Program Judge shall be established so that discovery
matters ordinarily will be heard by that Judge on a particular day of the week. Each Judge may also scheduling hearings
on non-discovery motions on the discovery day, or at such other times as the Court deems appropriate.
b. Petitions for Extraordinary Relief.
A Petition for Extraordinary Relief must be filed whenever a party seeks an extension of a deadline imposed
by a case management order. Any party may seek relief from the time requirements by filing the Petition for
Extraordinary Relief. This Petition must be filed prior to the deadline that the party is seeking to change. Petitions for
Extraordinary Relief are filed with the Motions Court Clerk in the Prothonotary’s Office, Second Filing, Room 278, City
Hall. Any adverse party has ten (10) days after the filing of the motion to file a response. The Motion Court will forward
the pleading to the assigned team leader.
The Petition for Extraordinary Relief is ruled on by the individual team leaders. Counsel must include the name
of the team leader for that given case (Sheppard, Cohen, Jones) on the Motion Court Cover Sheet. The party filing the
petition must include a proposed order that sets forth the extension requested in months, as well as a copy of the current
Case Management Order.
Counsels’ agreement to extend deadlines within a Case Management Order is not a recognized basis for an
extension. A movant must demonstrate extraordinary and nonforeseeable circumstances justifying the deadline extension
request. Requests for extensions of Court ordered deadlines should be utilized only as a last resort and with compelling
reasons offered in support thereof.
6. Rules to Show Cause and Emergency Motions and Petitions. Rules to show cause in cases assigned
to the Commerce Program will be presented in the Motions Court, where they will be reviewed as to form, and forwarded
to the assigned Commerce Program Judge for consideration.
Unless there is a dispute as to Commerce Program applicability, emergency motions or petitions in a newly filed
action presented in a matter appropriate for assignment to the Commerce Program shall be referred to a Commerce

Program Judge for disposition. If there is any dispute regarding Commerce Program applicability, that dispute shall be
referred to the Administrative Judge or the designee of the Administrative Judge. Parties are encouraged to give the
Motion Court advance notice of an emergency motion or petition, including notice that the action is assigned to the
Commerce Program or may be appropriate for such assignment. If the assigned Commerce Program Judge is
unavailable, an emergency motion or petition in an action already assigned to Commerce Program shall be heard by the
other Commerce Program Judge, if available, with any subsequent hearing referred back to the assigned Commerce
Program Judge. If no Commerce Program Judge is available to hear an emergency motion or petition, such motion or
petition shall be referred to a Judge assigned to Motion Court (or, if necessary, the Emergency Judge), with any
subsequent hearing referred back to the appropriate Commerce Program Judge. An emergency motion heard by a
Commerce Program Judge in a case which has not yet gone through the random assignment procedure shall be subject
to that procedure prior to any subsequent hearing and the subsequent hearing shall be scheduled before the Commerce
Program Judge assigned.
7. Settlement Conferences. A settlement conference may be expeditiously scheduled in any case in

which counsel concur that such a conference may be productive. Such requests shall be made in writing by letter to the
assigned Commerce Program Judge, and in all other respects Local Civ. R. *212.1(B) should be applied.
Except as otherwise provided in Local Civil Rule *212.3 (Settlement Conferences -- Non Jury Cases),
Commerce Program Judges may assist the parties in reaching a fair and reasonable settlement or other resolution of the
matter. To that end, the assigned Commerce Program Judge, in his or her discretion, may schedule one or more formal
settlement conferences. The Commerce Program Judge may also encourage the parties to engage in settlement
discussions and in any form of Alternative Dispute Resolution (ADR), including the assistance of a Commerce Program
Judge Pro Tempore, that may result in settlement, avoidance of trial or expeditious resolution of the dispute. Except
upon order of the Court, the pendency of any form of ADR shall not alter the date for commencement of trial.
8. Pretrial Conference. A Pretrial Conference shall be held in all Commerce Program actions. At the
conclusion of the Pretrial Conference, a Pretrial Order controlling the conduct of trial may be entered. The Court shall
exercise its best efforts to try the matter as soon after the target trial date as practicable.
Typically, the CMO will require the filing of Pretrial Statements (Pa. R.C.P. 212.2) in advance of the Pretrial
Conference. Prior to the Pretrial Conference, principal trial counsel shall confer on the matters set forth in Pa. R.C.P.
212.3, and attempt to reach agreement on any such matters.
Following the Pretrial Conference, the Commerce Program Judge shall enter a Trial Scheduling Order,
identifying the date by which the matter should be prepared for trial, and, if applicable, the date to be placed into a trial
pool or the date of any special listings. The Trial Scheduling Order may further provide specific dates, to the extent not
already addressed in the Case Management Order, for such matters as:
b. Exchange of proposed stipulations and filing of stipulations in writing to facts about which
there can be no reasonable dispute;
c. Pre-marking and exchanging copies of all documents or other exhibits to be offered

in evidence at trial;
d. Service and filing of written objections to any documents or other exhibits as to which a party
intends to object at trial, together with the legal basis for such objections;
e. Identification in writing of all deposition testimony, by page and line number, intended to be
read into the record at trial, followed by counterdesignations and objections to deposition
designations;
f. Exchange of trial briefs and proposed findings of fact and conclusions of law (nonjury) or
requested points for jury charge (jury).

At such time prior to trial as may be fixed by the Court, it shall rule on all matters placed in issue under this
procedure.
In addition, the Commerce Program Judge may establish procedures consistent with the requirements of each
case to ensure close interaction with the parties in order to minimize trial time.
E. Commerce Program Judges Pro Tempore And Alternative Dispute Resolution
There shall be established in the Commerce Program, an Alternative Dispute Resolution program for Commerce
Program actions, which may include, but is not limited to, mediation and the assistance of Commerce Program Judges
Pro Tempore.
1. Panel of Commerce Program Judges Pro Tempore. The Administrative Judge or designee shall
designate a panel of Commerce Program Judges Pro Tempore from among volunteers nominated and approved by the
Philadelphia Bar Association Business Law Section, Business Litigation Committee, who shall be distinguished attorneys
engaged in active practice of law with no less than fifteen (15) years trial experience including a practice focused on the
type of litigation described in section B.1. above (Cases Subject to Commerce Program). Commerce Program Judges
Pro Tempore shall serve without charge. Persons may be added to or removed from the panel as the Administrative
Judge or designee may determine consistent with the qualifications above.
The Court may order a Commerce Program case to be assigned for Settlement Conference to a Commerce
Program Judge Pro Tempore who shall, on a date certain, hold a Settlement Conference which must be attended by trial
counsel representing the parties, as well as any unrepresented parties. Counsel and unrepresented parties shall provide
to the Commerce Program Judge Pro Tempore prior to the Settlement Conference a fully completed Settlement
Memorandum, in a form to be established by the Commerce Program Judges. The Commerce Program Judge Pro
Tempore on such a referral is not authorized to rule on any motions, but will attempt to facilitate a settlement between
the parties.
2. Mediation.
a. Referral to Mediation and Selection of Mediator. Commerce Program cases may be
referred to nonbinding mediation at the discretion of the Commerce Program Judge, who may make such referrals at the
time of the Case Management Conference, at a Pretrial Conference referenced above, or at any other time. Where
appropriate and whether or not mediation is pursued at an early stage of the litigation, the Commerce Program Judge has
the discretion to refer cases to nonbinding mediation at a later stage of the proceedings.
The Court may permit the parties to choose the mediator from among the panel of Commerce Program Judges
Pro Tempore, or agree to pay for a mediator not on the panel. The order of reference to mediation shall not stay or delay
any scheduling dates, unless the Court so orders.
b. Conflicts of Interest. A mediator to whom a case is assigned must disclose to the parties and
to the Court any apparent conflict of interest. Unless the mediator determines consistent with any applicable ethical
requirements and guidelines that he or she should preside notwithstanding any such apparent conflict of interest and the
parties and the Court agree that such mediator nevertheless shall preside, another mediator shall be selected.
c. Confidentiality of Mediation. The order referring an action to mediation shall require that
the mediator report to the Court the disposition of the mediation in accordance with a schedule as determined by the
Court, under the guidelines below. The order shall also provide that all information received by the mediator as to the
merits of the matter, including the submitted memoranda, shall remain confidential and not be reported or submitted to
the Court by the mediator or the parties, except as necessary in a stipulation of settlement agreed to by the parties.
d. Mediation Procedure. The first mediation session preferably shall be conducted within 30
days of the execution of the order of reference, unless the Court establishes a different schedule. At least ten days before

the first session, each party shall deliver to the mediator a copy of its pleadings, any briefs filed in the action important
to the mediation and a memorandum of not more than five pages (double-spaced), setting forth that party's contentions
as to liability and damages. The memorandum shall be served on all parties, but shall be marked "Confidential, for
Mediation Only," and may not be used, cited, quoted, marked as an exhibit or referenced in any proceedings. Attendance
at the first mediation session shall be mandatory, and the mediator may require, in addition to the appearance of the
attorneys, the presence of the parties or their representatives with authority to settle. If the first session is successful, the
settlement shall be reduced to a stipulation, and the mediator shall submit forthwith the stipulation, the notice of
discontinuance and the report of disposition to the Court. The report of disposition shall be on a form prescribed by the
Court Administrator.
e. Report; Extensions. If the action is not settled upon completion of the first session, the
mediator may schedule additional sessions on consent of the parties. However, at the end of the first session, any party
or the mediator may terminate the mediation effort, and in that case the mediator shall advise the Court forthwith that
mediation has been terminated but shall not disclose the identity of any parties who terminated or did not terminate the
mediation.
Except as set forth below, subsequent sessions should be concluded within 15 days from the date by which the
first session was to have been held according to the order of reference. The mediator shall report to the Court as to the
outcome of the mediation session(s) no later than 20 days from the date by which the first session was to have been held
according to the order of reference.
If mediation cannot be concluded within 15 days from the date by which the first session was to have been held
according to the order of reference, upon consent of all parties a 30-day extension of time to conduct further sessions
may be granted by the mediator. If such extension is granted, the mediator shall report to the Court as to the success or
lack of success of the additional sessions as soon as practicable but in any event no later than 5 days after the final
mediation session.
All deadlines and relevant procedures shall be set forth in a standard form order of reference.
BY THE COURT:
_______________________________
James J. Fitzgerald, III
Administrative Judge, Trial Division
This Administrative Docket is promulgated in accordance with the April 11, 1987 Order of the Supreme Court
of Pennsylvania, Eastern District, No. 55, Judicial Administration, Docket No. 1, Phila. Civ. *51 and Pa. R.C.P. 239,
and shall become effective immediately. As required by Pa. R.C.P. 239, the original Administrative Docket shall be filed
with the Prothonotary in a docket maintained for Administrative Dockets issued by the Administrative Judge of the Trial
Division and copies shall be submitted to the Administrative Office of Pennsylvania Courts, the Legislative Reference
Bureau and the Civil Procedural Rules Committee. Copies of the Administrative Docket shall also be submitted to
American Lawyer Media, The Legal Intelligencer, Jenkins Memorial Law Library and the Law Library for the First
Judicial District.

EXHIBIT A
COMMERCE PROGRAM ADDENDUM
TO CIVIL COVER SHEET
This case is subject to the Commerce Program because it is not an arbitration matter and it falls within one or
more of the following types (check all applicable):
1. Actions relating to the internal affairs or governance, dissolution or liquidation, rights or obligations
between or among owners (shareholders, partners, members), or liability or indemnity of managers
(officers, directors, managers, trustees, or members or partners functioning as managers) of business
corporations, partnerships, limited partnerships, limited liability companies or partnerships,
professional associations, business trusts, joint ventures or other business enterprises, including but
not limited to any actions involving interpretation of the rights or obligations under the organic law
(e.g., Pa. Business Corporation Law), articles of incorporation, by-laws or agreements governing such
enterprises;
2. Disputes between or among two or more business enterprises relating to transactions, business
relationships or contracts between or among the business enterprises. Examples of such transactions,
relationships and contracts include:
(1) Uniform Commercial Code transactions;
(2) Purchases or sales of business or the assets of businesses;
(3) Sales of goods or services by or to business enterprises;
(4) Non-consumer bank or brokerage accounts, including loan, deposit cash
management and investment accounts;
(5) Surety bonds;
(6) Purchases or sales or leases of, or security interests in, commercial, real
(7) Franchisor/franchisee relationships.
4. "Business torts," such as claims of unfair competition, or interference with contractual relations or
prospective contractual relations;
6. Actions relating to securities, or relating to or arising under the Pennsylvania Securities Act;
7. Derivative actions and class actions based on claims otherwise falling within these ten types, and
consumer class actions other than personal injury and products liability claims;
9. Declaratory judgment actions brought by insurers, and coverage dispute and bad faith claims brought
by insureds, where the dispute arises from a business or commercial insurance policy, such as a
Comprehensive General Liability policy;
10. Third-party indemnification claims against insurance companies where the subject insurance policy
is a business or commercial policy and where the underlying dispute would otherwise be subject to
the Commerce Program, not including claims where the underlying dispute is principally a personal
injury claim.
Commerce Program Addendum -- Page 1

Instructions: Please see Commerce Case Management Program: Procedure for Disposition of
Commerce Program Cases Filed On and After January 1, 2000. Arbitration matters are not subject to the
Commerce Program. Note that the following types of matters are not to be included in the Commerce
Program:
1. Matters subject to Compulsory Arbitration in this Court or to the jurisdiction of the

Municipal Court, including any appeals.
3. Individual (non-class) consumer claims against businesses or insurers, including products

liability and personal injury cases.
5. Environmental claims not involved in the sale or disposition of a business and other than
those addressed in Commerce Program types 9 or 10 above.
7. Malpractice claims, other than those brought by business enterprises against attorneys, or
accountants, architects or other professionals in connection with the rendering of
professional services to the business enterprise.
8. Employment law cases, other than those referenced in Commerce Program type 3 above.
10. Petition Actions in the nature of Change of Name, Mental Health Act Petitions, Petitions to
Appoint an Arbitrator, Government Election Matters, Leave to Issue Subpoena, Compel
Medical Examination.
12. Domestic relations matters, and actions relating to distribution of marital property, custody
or support.
13. Any matter required by statute, including 20 Pa. C.S. Chapter 7, §§ 711 & 713, to be heard
in the Orphans' Court or Family Court Division of the Philadelphia Court of Common Pleas,
or other matter which has heretofore been within the jurisdiction of the Orphans' Court or
Family Court Division of this Court.
14. Any criminal matter other than criminal contempt in connection with a Commerce Program
action.
Commerce Program Addendum -- Page 2

EXHIBIT B -- NOTICE OF MANAGEMENT PROGRAM DISPUTE
FIRM NAME
BY: ATTORNEY NAME
IDENTIFICATION NO.: XXXXX Attorney for Defendant: XYZ, Inc.
STREET ADDRESS
PHILADELPHIA, PA 191XX
TELEPHONE NO.: XXX-XXX-XXXX
: PHILADELPHIA COUNTY
PLAINTIFF : COURT OF COMMON PLEAS
:
v. : TERM, 20XX
:
DEFENDANT : No:
NOTICE OF MANAGEMENT PROGRAM DISPUTE
According to the Civil Cover Sheet and Commerce Program Addendum filed by Plaintiff
on [date] and served on [date], Plaintiff designated this action as [not subject to the Commerce
Program] [or] [subject to the Commerce Program, designating type[s] X [and X]].
[This action is not subject to the Commerce Program because .]
[or] [This action is subject to the Commerce Program. It is not an arbitration matter and falls
within type[s] X [and X] in the Commerce Program types, as identified in the Commerce
Program Addendum executed by the undersigned and attached as Exhibit A hereto.]
[Any additional comments, with total document (excluding cert. of service, Commerce
Program Addendum and Complaint) not to exceed three pages.]
Name of Attorney
Attorney for Defendant, XYZ, Inc.
[Include a copy of the complaint or other filing commencing the action, along with a
Certificate of Service identifying date and manner of service and names and addresses].
EXHIBIT C -- CASE MANAGEMENT ORDER
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

CIVIL TRIAL DIVISION
caption : Court term and number
COMMERCE PROGRAM
CASE MANAGEMENT ORDER
TRACK
AND NOW, this day of , 200 , it is ORDERED that:
1. The case management and time standards adopted for the Commerce Program, "
track" cases shall apply and are incorporated.
2. All discovery shall be completed no later than .
3. Plaintiff(s) shall identify and submit Curriculum Vitae and Expert Reports for all expert
witnesses intended to testify at trial to all other parties not later than .
4. Defendant(s) and any additional defendant(s) shall identify and submit Curriculum Vitae
and Expert Reports of all expert witnesses intended to testify at trial to all other parties
not later than .
5. All Pretrial Motions (other than Motions in Limine) shall be filed not later than
6. A settlement conference may be scheduled at any time after . On or

before that date all parties shall serve on all opposing counsel or pro se parties and file a
Settlement Memorandum containing the following:
(a) The plaintiff(s) shall provide a concise statement of the theory of

the case. The defendant(s) and additional defendant(s) shall
provide a concise statement as to the nature of the defense.
(b) A statement by the plaintiff(s) itemizing all damages sought by

categories and amounts.
(c) Defendant(s) and additional defendant(s) shall identify all

applicable insurance carriers, together with corresponding limits of
liability.
Commerce Program Case Management Order -- Page 1

7. A Pretrial Conference may be scheduled at any time after . Fifteen
days prior to the Pretrial Conference, all parties shall file and serve on all opposing
counsel or pro se parties a Pretrial Statement containing the following:
(a) The plaintiff(s) shall provide a concise statement of the theory of

the case. The defendant(s) and additional defendant(s) shall
provide a concise statement as to the nature of the defense;
(b) A list of all witnesses who may be called to testify at trial by name
and address. Counsel should expect witnesses not listed to be
precluded from testifying at trial;
(c) A list of all exhibits the party intends to offer into evidence. All
exhibits shall be numbered and exchanged among counsel prior to
the Conference. Counsel should expect any exhibit not listed to be
precluded at trial;
(d) Plaintiff(s) shall itemize all damages claimed by category and

amount;
(e) Defendant(s) and all additional defendant(s) shall state a position

regarding the damages claimed and identify all applicable
insurance carriers, together with applicable limits of liability; and
(f) An estimate of the anticipated length of trial.
8. It is expected that the case will be ready for trial , which is the
earliest trial date pursuant to Pa. R.C.P. 212.1, and counsel should anticipate trial to begin
expeditiously thereafter.
9. All counsel are under a continuing obligation, and hereby ORDERED to serve a copy of
this Order upon all unrepresented parties and upon all counsel entering an appearance
subsequent to the entry of this Order.
BY THE COURT:
, J.
Commerce Program Case Management Order -- Page 2

EXHIBIT D -- COMMERCE PROGRAM MANAGEMENT TRACKS
Commerce Program Time Standards by Track

Case Event Commerce Commerce Commerce
Expedited Standard Complex
Case Management Conference 3 months 3 months 3 months
Status Conference Discretionary Discretionary Discretionary1
Discovery Complete 6 months 11 months 17 months
Plaintiff Expert Reports 6 months 11 months 17 months
Defendant Expert Reports2 8 months 13 months 19 months
Motions Filed 8.5 months 13.5 months 19.5 months
Settlement Conference 11 months 16 months 22 months
Pretrial Conference 12 months 17 months 23 months
Trial 13 months 18 months 24 months
1
A Status Conference may be scheduled at six month intervals if requested by counsel and
approved by the Court.
2
The Court will provide for rebuttal expert reports to the extent appropriate.
EXHIBIT E - CLASS ACTION CASE MANAGEMENT ORDERS
E-1 Stipulated Case Management Order on Preliminary Objections – Class Action

:
:
:
Plaintiff(s) :
:
v. : No. -
:
:
:
:
Defendant(s) :
COMMERCE PROGRAM CLASS ACTION

STIPULATED CASE MANAGEMENT ORDER ON
PRELIMINARY OBJECTIONS
AND NOW, in consideration of the Parties’ consent to the following case management schedule
regarding preliminary objections, it is hereby ORDERED that:
1. Defendant shall file its preliminary objections on or before .
2. If Plaintiff amends a complaint in response to Defendant’s preliminary
objections, then the following deadlines shall apply:
a. Plaintiff shall file its amended complaint on or before .
b. Defendant shall file an answer or preliminary objections to such amended
complaint on or before . If the Defendant files
an answer, the Parties shall contact the Court regarding a case management
order for the certification stage of this action.
c. If Defendant filed preliminary objections in response to such amended
complaint, then:
i. Defendant shall file a brief in support of those preliminary objections
on or before .
ii. Plaintiff shall file a response to, and brief in opposition to, those
preliminary objections on or before .
Commerce Class Action Management Orders -- Page 1

iii. Defendant shall file a reply brief in support of those preliminary
objections on or before .
3. If Plaintiff does not amend the complaint in response to Defendant’s preliminary
objections, the following deadlines shall apply:
a. Defendant shall file a brief in support of those preliminary objections on
or before __________.
b. Plaintiff shall file a response to, and brief in opposition to, those
preliminary objections on or before _________.
c. Defendant shall file a reply brief in support of those preliminary
objections on or before __________.
4. If any deadline set forth in this Order or any other case management order in this matter falls on a date
on which the Court or the Office of the Prothonotary is not open, then the deadline shall be extended, without
further Order, to the next day on which the Court and the Office of the Prothonotary are open.
5. The absence of any provision in this Order or any other case management order in this matter for
surreply shall not prevent a Party from petitioning the Court for leave to file such surreply. It is agreed,
however, that in the event a surreply is permitted by the Court, any such surreply shall be filed no less than seven
days prior to the scheduled hearing to which the surreply related, unless otherwise ordered by the Court.
BY THE COURT,
, J.
DATED:
Agreed to as to form:
Attorneys for Plaintiff Attorneys for Defendant

E-2 Order on Preliminary Objections – Class Action

:
:
:
Plaintiff(s) :
:
v. : No. -
:
:
:
:
Defendant(s) :
ORDER
AND NOW, this day of 200__, upon consideration of the Defendant’s Preliminary
Objections to the Plaintiff’s Complaint and the Plaintiff’s response thereto, it is hereby ORDERED and DECREED
as follows:
1. The Preliminary Objections are Overruled.
2. The Defendant is directed to file an answer to the Complaint within twenty (20) days of the date of
entry of this Order.
3. The Parties shall jointly complete the attached case management order regarding class certification
and return a completed copy within thirty (30) days of the date of entry of this Order. If the Parties are
unable to arrive at an agreement as to all dates, they shall submit letters to the Court setting forth those dates
agreed upon and dates in dispute.
BY THE COURT,
, J.

E-3 Stipulated Case Management Order on Class Certification – Class Action

:
:
Plaintiff(s) :
:
v. : No. -
:
:
:
Defendant(s) :

CLASS CERTIFICATION
AND NOW, this day of 200__, upon consideration of the Parties consent to the
following case management schedule regarding class certification, it is hereby ORDERED that:
1. Plaintiff shall file a motion for class certification on or before __________.
2. The period for discovery relating to class certification shall close on ___________.
Deposition shall be noticed to occur, and written discovery requests shall be served,
on or before the date referenced in this paragraph.
3. Defendant shall file a response to, and brief in opposition to, Plaintiff’s motion for
class certification on or before ____________.
4. Plaintiff shall file a reply brief in support of its motion for class certification on or
before __________.
BY THE COURT,
, J.
DATED:

E-4 Order on Class Certification

:
:
:
Plaintiff(s) :
:
v. : No. -
:
:
:
:
Defendant(s) :
ORDER
AND NOW, this day of 200__, upon consideration of the Plaintiff’s Motion for Class
Certification, the Plaintiff’s response thereto, oral argument before the Court and all matters of record, and in accord with
the Opinion being filed contemporaneously with this Order, it is ORDERED and DECREED as follows:
1. The above captioned action is certified as a class action on the claims for
_______________________.
2. The cases shall consist of the following:
[DESCRIPTION]
3. Plaintiff __________ shall serve as class representative.
4. The Parties shall submit proposals for a notification procedure and proposed form of notice for class
members within thirty (30) days from the date of entry of this Order.
5. The Parties shall jointly complete the attached case management order regarding dispositive motions
and fact and expert discovery and return a completed copy within thirty (30) days of the date of entry
of this Order. If the Parties are unable to arrive at an agreement as to all dates, they shall submit letters
to the Court setting forth those dates agreed upon and dates in dispute.
BY THE COURT,
, J.

E-5 Stipulated Class Management Order on Dispositive Motions and Discovery

:
:
:
Plaintiff(s) :
:
v. : No. -
:
:
:
:
Defendant(s) :

DISPOSITIVE MOTIONS AND
FACT AND EXPERT DISCOVERY
AND NOW, this day of 200__, upon consideration of the Parties’ consent to
the following case management schedule regarding class certification, it is hereby ORDERED that:
1. Fact Discovery: The period for fact discovery shall close on ________________. Depositions shall
be noticed to occur, and written discovery requests shall be served on or before the date referenced in this
paragraph.
2. Expert Discovery: The Parties shall meet on or before _____________ to discuss the need for
experts in this case. At this meeting, the Parties shall disclose whether they intend to present expert testimony
at trial in this matter. In the event either or both of the Parties desire to present expert testimony at trial of
this matter, the following deadlines shall apply:
a. If the Plaintiff desires to present expert testimony, then:
i. Plaintiff shall make its expert disclosures on or before ____________.
ii. Defendant shall make its expert disclosures on or before ___________.
iii. The Parties shall complete expert discovery on or before __________.
b. If Plaintiff advises at the meeting referenced above that it does not intend to present expert
testimony:
i. Defendant shall make its expert disclosures on or before ___________.
ii. Plaintiff shall make any responsive expert disclosures on or before
______________.
iii. The Parties shall complete expert discovery on or before __________.
c. As used herein, the phrase “to make expert disclosures” mens to provide, for each

expert:
i. a Curriculum Vitae or equivalent document;
ii. a list of all publications authored by the expert within five (5) years
prior to the date of identification;
iii. a description of the terms and amount of compensation to be paid to
the expert;
iv. a list of all cases in which the expert has given sworn testimony at
deposition or trial within five (5) years prior to the date of disclosure;
v. a report setting forth a complete description of all opinions to be offered by the
expert, the basis for those opinions, a description of the materials considered in
forming those opinions, and a list of exhibits to be used as a summary of or in
support of those opinions.
3. Dispositive Motions: If either Party files any dispositive motions, then the following
deadlines shall apply:
a. Any dispositive motions, including all supporting materials, shall be filed on
or before __________________.
b. Any response to any such dispositive motion, including all supporting materials, shall be
filed on or before ________________.
c. Any reply brief in support of any such dispositive motion shall be filed on or
before ___________________.
d. If neither Party files any dispositive motion by the deadline set forth in Paragraph 3a of this
Order, the Parties shall contact the Court regarding a case management order for the pre-trial and
trial stage of this action.
BY THE COURT,
, J.
DATED:

E-6 Order on Summary Judgment – Class Action

:
:
:
Plaintiff(s) :
:
v. : No. -
:
:
:
:
Defendant(s) :
ORDER
AND NOW, this day of 200__, upon consideration of the Defendant’s Motion for
Summary Judgment, the Plaintiff’s response thereto and all other matters of record, and in accord with the Opinion being
filed contemporaneously with this Order, it is hereby ORDERED and DECREED as follows:
1. The Motion is Denied.
2. The Parties shall contact the Court within thirty (30) days of the date of entry of this Order proposing
dates for a settlement conference, a pre-trial conference and trial.
BY THE COURT,
, J.

E-7 Stipulated Case Management Order on Pre-Trial and Trial Events – Class Action

:
:
:
Plaintiff(s) :
:
v. : No. -
:
:
:
:
Defendant(s) :

PRE-TRIAL AND TRIAL EVENTS
AND NOW, this day of 200__, upon consideration of the Parties’ consent to the
following case management schedule regarding class certification, it is hereby ORDERED that:
1. Settlement Conference: A settlement conference shall be held on _____________.
On or before that date, all counsel shall serve all opposing counsel and file a settlement memorandum containing
the following:
a. The Plaintiff shall provide a concise statement of the theory of the case.
The Defendant shall provide a concise statement as to the nature of the defense;
b. A statement by the Plaintiff itemizing all damages sought by categories and amount; and
c. Defendant shall identify all applicable insurance carriers, together with corresponding limits
of liability.
2. Pre-Trial Conference: A pre-trial conference shall be held on ________________.
Fifteen days prior to pre-trial conference, all counsel shall serve all opposing counsel and file a pre-trial
memorandum containing the following:
a. The Plaintiff shall provide a concise statement of the theory of the case.
The Defendant shall provide a concise statement as to the nature of the defense.
b. A list of all witnesses who may be called to testify at trial by name and address. Counsel
should expect witnesses not listed to be precluded from testifying at trial;
c. A list of all exhibits the party intends to offer into evidence. All exhibits shall be numbered
and exchanged among counsel prior to the conference. Counsel should expect any exhibit

not listed to be precluded at trial;
d. Plaintiff shall itemize all damages claimed by category and amount;
e. Defendant shall state a position regarding damages claimed and shall identify all applicable
insurance carriers, together with applicable limits of liability; and
f. An estimate of the anticipated length of trial.
3. Trial: The trial in this matter is scheduled to begin on _________________.
BY THE COURT,
, J.

EXHIBIT F
COMMERCE PROGRAM TRACKING FORMULA
Initial criteria for cases to be tracked:

. Commencement of an action by Summons or Complaint over $50,000.00 at time of initial filing.
. At least one attorney of record.
. Case status equal to Active or Deferred.
. Note that the Program embodies both Jury and Non-Jury cases.
Breakdown by track
EXPEDITED - litigant count is less than or equal to (4) four, and case type is one
of the following:
1C Contracts (Goods) Enforcement 3O Real Property - Other

1D Insurance, Declaratory Judgment 3P Title to Real Property
1G Subrogation Action 3R Rent, Lease or Ejectment
1L Mechanics Lien E1 Equity - No Real Estate
1N Negotiable Instruments E2 Equity - Real Estate
1O Contracts - Other KF Franchise Disputes
IV Replevin 7C Confession of Judgment
3F Foreclosure 7F Foreign Judgment
3G Garnishment (Land) 8Q Petition to Stay Arbitration
3L Landlord/Tenant Complaint 8V Petition to Vacate/Modify Arb Award
3M Mechanics Lien Enforcement
STANDARD - where the litigant count is greater than four (4) and the case type are the same as Expedited,
or
- where the case type (regardless of the number of litigants) is:
KA Purchase or Sale of Business or the KS Securities Law Actions

Assets of the Business KB Surety Bond Actions
1J Bad Faith KT Business Torts
1T Construction Contract KC Non Complete Agreements/
1S Shareholder Suit Trade Secrets
4F Fraud KU Corporate Trust Affairs
KP Partnership Disputes
COMPLEX - following case types regardless of the number of litigants:
K1 Intellectual Property Disputes 4L Malpractice - Legal

4A Malpractice - Accounting 4Y Malpractice - Miscellaneous
eff. July 3, 2001
EXHIBIT G
Trial Division Civil Section

Administrative Docket 01 of 2000
Commerce Case Management Program
D. Case Management Procedures
Counsel Files Civil Cover

Notice of Management
Sheet with Commerce ProgramDispute
Court Addendum Dispute Over Filed by the earliest of a) filing
Resolution by
indicating that case fits Commerce Court Yes of pleading; b) motion; or c)
Assignment? response to motion Administrative Judge
criteria for Commerce
Court, all parties served.
No
Notice of Case
Assignment to Management
Commerce Court and Conference (CMC) Parties CMC
Within confer to Within
random assignment to sent via Civil conducted by
60 Days resolve 90 Days
individual calendar of Administration CMC Civil Case
of Filing of Filing
Commerce Court Judge (Rm 296 CH) issues. Manager
(2)
Commerce
Program Judges
Pro Tempore
1
CMC ADR
Means for
Early
Disposition Scheduling
Discussion Limited Expedited
Issue, and Commerce Track
Pre Target Trial
Discovery Program Judges Date within
Dispositive 13 months
Motions Case Management Order of
Assignment of Case complaint
2
Management Track
CMC
Settlement, Pretrial Conference, Standard
Scheduling
and Trial Dates Track
& Deadline
Discovery Plan Target Trial
Preparation
Expert Testimony Arrangements Date within
Discussion
18 months
a. On stipulation of all
of
parties for supervision
complaint
of discovery
b. For mediation
3 Complex
Potential Track
c. ID particular Pro
Use of Target Trial
Tempore acceptable to
Judges Pro Date within
all
Tempore 2 Years of
Discussion d. Particular Pro complaint
Tempore must be
approved by Court
e. Use of a Pro
Tempore for discovery
or mendiation cannot
affect scheduling in the
CMO
Motions Motions Court

(With approval of the
Cover Sheet Resolution by
Practice & Filed in Motion Court, early resolution at
Commerce Program
Discovery Court Judge any point of the process
Motions is encouraged)
Rules to Show Cause &

Emergency Motions & Resolution by Commerce
Petitions filed in Motions Program Judge, or if unavailable, Settlement Pretrial
Motions Court Judge or Trial
Court
Emergency Judge
Conference Conference
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC. SUPERIOR

COURT
ADMINISTRATIVE ORDER NO. 2001-9
RE: BUSINESS CALENDAR
There is hereby established for the Counties of Providence and Bristol, a
“Business Calendar”.
I. Civil actions in which the principal claim or claims involve the
following are appropriate matters to be assigned to the Business Calendar for all
purposes, including motion practice, discovery disputes, injunctive relief and
hearing on the merits (with or without a jury);
(a) Breach of contract or fiduciary duties, fraud, misrepresentation,

business tort or statutory violations arising out of business
dealings and/or transactions;
(b) Transactions governed by the provisions of the Uniform

Commercial Code;
(c) Complicated transactions involving commercial real property;
(d) Shareholder derivative actions;
(e) Commercial class actions;
(f) Commercial Bank transactions;

ADMINISTRATIVE ORDER NO. 2001-9 Page 2 of 3 pages
(g) Matters affecting the internal affairs or governance of business

organizations or entities;
(h) Business insolvencies and receiverships.
II. Simple collection matters, declaratory judgment proceedings with
respect to insurance coverage, confirmation or vacation of arbitration awards, and
general landlord and tenant issues shall not be assigned to the Business Calendar.
III. New matters shall be assigned to the Business Calendar at the request
of the plaintiff upon the filing of the Complaint, or of the defendant, not later than
ten days following the filing of defendant’s entry of appearance, but only with the
assent of the Justice designated to be in charge of the Business Calendar. In this
connection, the party moving shall set up, as soon as practicable, a chambers
conference with said Justice.
IV. In connection with cases presently pending, but not yet assigned to a
trial date, either party may request assignment to the Business Calendar with the
assent of such Justice procured at a conference to be set up as aforesaid.
V. It is the intent of the Superior Court to process matters on the
Business Calendar in as expeditious a manner as possible. To that end, the Justice
in charge of the Calendar is vested with the power to require mandatory

ADMINISTRATIVE ORDER NO. 2001-9 Page 3 of 3 pages
submission of the dispute to non-binding mediation. Failure to comply with an
Order to that effect may be sanctionable.
VI. The Justice in charge of the Business Calendar may establish generally,
or in a particular case, informal procedures not inconsistent with law which he/she
believes will be helpful in achieving prompt resolution of discovery disputes or
other preliminary matters.
VII. In the event of the absence of the Justice in charge of the Business
Calendar, any application or motions with respect to matters on the Business
Calendar should be taken up with the Justice in charge of the Formal and Special
Cause Calendar.
VIII. The Business Calendar to commence operation on Monday, June 4,
2001, in Courtroom No. 17. Justice Michael Silverstein will be in charge of said
Calendar from June 4, 2001, through Tuesday, December 18, 2001.
BY ORDER OF:
__________________________________
JOSEPH F. RODGERS, JR.
PRESIDING JUSTICE
DATED: April 17, 2001

Complex Civil Litigation Program
Page 1 of 3
FACT SHEET
ADMINISTRATIVE OFFICE
OF THE COURTS January 2007
455 Golden Gate Avenue
San Francisco, CA
94102-3688 Complex Civil Litigation Program
Tel 415-865-4200
TDD 415-865-4272
Fax 415-865-4205
www.courtinfo.ca.gov Complex civil cases are cases that require exceptional judicial management
to avoid placing unnecessary burdens on the court or the litigants. Complex
cases may involve such areas as antitrust, securities claims, construction
defects, toxic torts, mass torts, and class actions. The Judicial Council’s
Complex Civil Litigation Task Force was appointed in 1997 to find ways to
help trial courts manage complex civil litigation more efficiently and effec-
tively. When the task force concluded its work at the end of 1999, the coun-
cil’s Civil and Small Claims Advisory Committee assumed responsibility for
recommending improvements to complex civil litigation programs and rules.
History
For decades, complex litigation has been the subject of intense scrutiny and evalua-
tion. In 1996 in California, the Business Court Study Task Force, appointed by
then–Chief Justice Malcolm M. Lucas, conducted an exhaustive national and state-
wide review in which it solicited opinions from business leaders, judges, and attorneys
on the desirability of creating specialized courts for business cases. At the end of its
study the task force recommended against creating such courts.
The task force identified several reasons to develop complex litigation departments in
trial courts, rather than establish separate business courts:
• Responsiveness to the public. Business courts handle only business disputes; complex
litigation departments handle business matters plus a broader range of the public’s
disputes, including complex tort claims (such as mass torts) and other disputes
involving complicated legal and factual issues.
• Public perception. Business courts are viewed by many as assisting only the business
community; complex litigation departments handle complex cases affecting all
segments of society.
• Service to the public. Once business courts are established with separate jurisdiction
by statute, those courts can be used for only a limited number of cases. Complex
litigation departments, as part of the broader trial court system in a county, can
Page 2 of 3
expand or contract to respond to periodic fluctuations in caseloads, including

emergencies.
• Equal expertise and resources. Complex litigation departments would have the same
expertise as business courts through training and the use of a complex litigation
manual, as well as the same streamlined procedures (through statutory and rule
amendments) and human and technological resources.
Complex Civil Litigation Task Force

In response to the recommendations of the Business Court Study Task Force, Chief
Justice Ronald M. George appointed the Complex Civil Litigation Task Force and
charged it with identifying ways for trial courts to manage complex cases more effi-
ciently and effectively. In October 1999, after extensive study, the task force recom-
mended, and the Judicial Council approved:
• Distributing the Deskbook on the Management of Complex Civil Litigation to all judges;
• Forwarding the special judicial education curriculum Complex Civil Case Manage-
ment, with suggested policies for faculty, attendees, and course prerequisites, to the
Board of Governors of the Center for Judicial Education and Research (CJER);
• Referring to the CJER Board of Governors proposed amendments to standards
10.12 and 10.13 (formerly sections 25.2 and 25.3) of the California Standards of
Judicial Administration;
• Adopting new California Rules of Court, effective January 1, 2000, including a
rule that defines a complex case as one requiring “exceptional judicial management
to avoid placing unnecessary burdens on the court or the litigants and to expedite
the case, keep costs reasonable, and promote effective decision making by the
court, the parties, and counsel” (Cal. Rules of Court, rule 3.400(a) (formerly rule
1800(a)));
• Amending relevant rules and seeking conforming legislation; and
• Charging the Civil and Small Claims Advisory Committee with ongoing responsi-
bility for recommending improvements to complex civil litigation programs and for
updating the Deskbook on the Management of Complex Civil Litigation.
The Program
The Complex Civil Litigation Program began as a pilot in 2000 in six California trial
courts: the Superior Courts of Alameda, Contra Costa, Los Angeles, Orange, San
Francisco, and Santa Clara Counties. Alameda County has two judges dedicated to
the program; Contra Costa, San Francisco, and Santa Clara Counties each have one;
Los Angeles County has seven; and Orange County has five. The program was
Page 3 of 3
designed to give judges training and resources to help them manage complex civil
cases efficiently and effectively. Participating courts have used their grant funds to
hire additional research attorneys and court staff and to improve technology, among
other uses. Several courts have held bench-bar symposiums to educate users about
areas of the pilot program such as discovery, case management, alternative dispute
resolution, substantive legal areas, and use of technology. Program judges meet twice
yearly to exchange information and participate in continuing education.
In August 2003 the Judicial Council received the National Center for State Courts’
report Evaluation of the Centers for Complex Litigation Pilot Program and forwarded it to
the Legislature and Governor. The lengthy report included information on the
number of complex cases filed; the impacts of complex litigation departments on case
and calendar management; the impacts on trial courts, attorneys, and parties; and
recommendations to the Legislature and the Governor concerning the continued
operation of complex litigation departments.
Grants
Funds for the program are made available from the Judicial Administration Efficiency
and Modernization Fund. Grant amounts vary by county, reflecting differences in the
numbers of courtrooms the courts designate for the program. In the 2006–2007 fiscal
year, funds allocated to the program total $3.426 million.
Contact:
Susan R. Goins, Senior Attorney, susan.goins@jud.ca.gov
Additional resources:
Reports and publications, www.courtinfo.ca.gov/reference/4_5civil.htm
EVALUATION OF THE CENTERS FOR
COMPLEX CIVIL LITIGATION PILOT PROGRAM
Final Report
June 30, 2003
National Center for State Courts

California Administrative Office of the Courts
Paula L. Hannaford-Agor, J.D.

Nicole L. Mott, Ph.D.
Timothy F. Fautsko, M.A.
TABLE OF CONTENTS
EXECUTIVE SUMMARY ............................................................................................. V

PART 1 – PROJECT BACKGROUND AND OVERVIEW ........................................ 1
NCSC EVALUATION OF THE COMPLEX CIVIL LITIGATION PILOT PROGRAM ................... 3
The Unique Life Cycle of Complex Cases: A Tentative Working Theory.................. 3
Components of the NCSC Evaluation ......................................................................... 7
PART 2 – PILOT PROGRAM DOCUMENTATION .................................................. 9
AN OVERVIEW OF THE PILOT PROGRAMS ........................................................................ 9
Case Assignment Procedures.................................................................................... 10
Program Staffing....................................................................................................... 10
Technology................................................................................................................ 11
Complex Case Management ..................................................................................... 12
Effects on Non-Pilot Court Operations .................................................................... 12
INDIVIDUAL PROGRAMS ................................................................................................. 13
Contra Costa County (Martinez) .............................................................................. 13
Santa Clara County (San Jose)................................................................................. 14
San Francisco County............................................................................................... 15
Alameda County (Oakland) ...................................................................................... 17
Orange County (Santa Ana)...................................................................................... 17
Los Angeles County................................................................................................... 19
COMMON CONCERNS AND RECOMMENDATIONS ............................................................ 21
PART 3 – INTERVIEWS WITH JUDGES AND ATTORNEYS .............................. 23
FIRST ROUND INTERVIEWS WITH JUDGES AND ATTORNEYS........................................... 24
SECOND-ROUND INTERVIEWS WITH ATTORNEYS........................................................... 25
FINDINGS ....................................................................................................................... 27
Master Calendar versus Individual Calendar Systems............................................. 27
The Role of Special Masters in Complex Litigation ................................................. 33
Use of Alternative Dispute Resolution...................................................................... 37
Attorney Comparisons of Case Processing Characteristics..................................... 38
CONCLUSIONS FROM INTERVIEWS.................................................................................. 39
PART 4 – EMPIRICAL EXAMINATION OF CASE CHARACTERISTICS IN
THE COMPLEX CIVIL LITIGATION PILOT PROGRAM................................... 41
COMPLEX CASES ASSIGNED TO THE PILOT PROGRAM ................................................... 47
COMPLEX CIVIL CASE MANAGEMENT PRACTICES ......................................................... 51
Case Management Orders ........................................................................................ 52
Coordination and Consolidation .............................................................................. 52
Appointment of Referees ........................................................................................... 52
Status Conferences and Other Case Management Events........................................ 54
COMPARISON WITH BASELINE DATASET ........................................................................ 57
CONCLUSIONS ................................................................................................................ 59
PART 5 – CONCLUSIONS AND RECOMMENDATIONS...................................... 63
PROGRAM RECOMMENDATIONS ..................................................................................... 64
Specialized Procedures for Complex Litigation Management ................................. 64
Workload Assessment................................................................................................ 65
Case Screening and Assignment Policies ................................................................. 65
Judicial Assignment, Training, and Staff Development............................................ 65
Technological Support .............................................................................................. 66
Future Expansion of the Pilot Program.................................................................... 66
APPENDICES ................................................................................................................. 69
EXECUTIVE SUMMARY
In January 2000, the Judicial Council responded to a recommendation of the

Complex Litigation Task Force (task force) by establishing the Centers for Complex
Litigation Pilot Program in the Superior Courts of Los Angeles, Orange, Contra Costa,
Santa Clara, Alameda, and San Francisco counties. The task force recommendation was
one of several proposed to improve judicial management of complex cases as a means to
expedite case resolution, keeps costs reasonable, and promote effective decision making
by the courts, parties and counsel. Participation in the Pilot Program required each site to
commit to an individual calendar system dedicated exclusively to complex cases with a
substantially reduced caseload that would permit participating judges to engage in
intensive case management. Each court selected judges to participate in the pilot
program based on their training, experience, interest in business and complex litigation,
and commitment to engaging in ongoing judicial education.
The enabling legislation for the pilot program required a report evaluating the
effectiveness of the pilot program, including the number of complex cases filed, the
impact of the pilot program on case and calendar management, and program impact on
the trial courts, the attorneys, and the parties. The Administrative Office of the Courts
(AOC) contracted with the National Center for State Courts (NCSC) to conduct the
evaluation. NCSC used multiple methods to assess the effectiveness of the pilot
program, including site observations, telephone interviews with judges and lawyers, and
an empirical examination of key case management characteristics for complex cases in
the pilot program compared to complex cases in non-pilot program courts. This
executive summary summarizes the general conclusions of the evaluation, highlights its
key findings, and outlines its recommendations.
General Conclusions
The recommendation to establish the Pilot Program was made in response to
concerns that state court tribunals were perceived to be insensitive to the needs of
business litigants. It was alleged that a lack of knowledge about substantive commercial
law on the part of California superior court judges contributed to an absence of cohesive
law governing business transactions, resulting in unpredictable decisions in commercial
disputes and uncertainty within the business community. Interviews with judges and
attorneys conducted at the inception of the Pilot Program tended to confirm these views.
In particular, case assignment to a master calendar system and over-reliance on referees
were identified as the two most significant factors contributing to excessive delay,
expense, and litigant dissatisfaction with complex case management.
The NCSC evaluation was designed, in part, to assess how well the Pilot Program
addressed these and other identified issues related to complex case management. Both
interviews with judges and attorneys at the conclusion of the evaluation period and
empirical analysis of data compiled about complex case management suggest that the
approach adopted by the Pilot Program addressed those problems effectively. The
v
screening procedures employed by the pilot program courts produced a mix of cases that
appear in most respects to meet the statutory definition of complexity under Rule 1800,
and cases assigned to the pilot program received considerably more individual attention
from pilot program judges than complex cases that were not assigned to the pilot
program. The result, according to attorneys whose cases were assigned to the pilot
program, was improved judicial comprehension of legal and evidentiary issues, fewer
instances of excessive or inappropriate referee appointments, closer judicial supervision
of and insistence on case management requirements including referee decisions. These
impressions were confirmed by the empirical examination of the pilot program cases that
demonstrated measurably higher numbers of interim dispositions, suggesting more
effective and faster case resolution, compared to non-pilot program cases.
Key Findings
Findings are presented in two areas. First, general observations are offered about how
complex cases were managed in California before implementation of the pilot program,
based on interviews with attorneys and judges. Second, findings related to the
effectiveness of the pilot program are identified, based on comparisons between complex
cases assigned to the pilot program and those managed by non-pilot program courts as
well as on interviews of attorneys whose cases were assigned to the pilot program during
the evaluation period.
Complex Case Management Before Implementation of the Pilot Program

Finding 1: Use of a master calendar system was viewed as the single most
significant obstacle to effective complex case management in California prior to
the pilot program.
Interviews with knowledgeable judges and attorneys revealed substantial
dissatisfaction with the use of master calendar systems, in which civil cases are not
assigned to a judge until they reach trial, for complex cases. Under a master calendar
system, multiple judges hear motions, discovery disputes, and other pretrial matters in
complex cases, resulting in the lack of a single point of judicial accountability for case
supervision, insufficient judicial involvement in pretrial management of complex cases,
and lack of judicial knowledge about and experience in specific areas of substantive law.
The pilot program uses an individual calendaring system, in which an individual judge
has primary responsibility for managing a particular case from initial filing to resolution.
Interviews with judges and attorneys indicate strong preference for the individual
calendaring system, rather than the master calendaring system used throughout much of
the state, for complex litigation because it centralized judicial management in a single
judicial officer, thus resulting in improved judicial supervision and comprehension of
complex cases.
Finding 2: The role of referees in complex case management contributed to
attorney dissatisfaction with complex case management in many areas of the
state.
vi
Another major point of dissatisfaction with complex case management before
implementation of the pilot program was a widespread perception of inappropriate
reliance on court-appointed referees to conduct pretrial management of complex cases,
resulting in excessive costs for litigants with little benefit in terms of effective case
management. Attorneys and some of the judges specifically cited the referee pay
structure as problematic—referees are compensated by the amount of time spent working
on a case, creating an incentive for needless delay of complex cases, as well as the failure
of judges to supervise or provide effective direction to referees. Referring to the pilot
programs, attorneys reported that referee appointments were reserved for more complex
cases for which referee involvement was considered more appropriate, and that judicial
supervision of referees was improved, resulting in more efficient case management.
Pilot Program Effectiveness

Finding 3: The pilot program served all types of complex cases.
One of the original goals in establishing the pilot program was to manage all
forms of complex litigation, not merely commercial litigation. About one of every four
cases handled by the pilot courts consisted of commercial litigation, over one-third of the
cases consisted of complex tort actions, and the remainder could be classified in either
category. The pilot program’s appeal goes beyond the business community and is
available to all litigants who meet the program’s general eligibility criteria regarding
complexity.
Finding 4: Screening procedures employed by the pilot program courts were
reasonably effective at distinguishing complex cases from non-complex cases.
Half of the pilot program cases consisted of case types defined as provisionally
complex under Rule 1800 – that is, they are presumed to be complex unless a judge
determines otherwise after reviewing the initial pleadings. But even using other
measures of complexity defined by Rule 1800 (e.g., extensive motion practice, large
numbers of separately represented parties, large amounts of documentary evidence), the
cases that were retained in the pilot program were significantly more complex than those
excluded from the pilot program. For example, pilot program cases involved greater
numbers of litigants and had significantly higher total reasons for a complexity
designation than non-pilot program cases.
Finding 5: The pilot program cases had significantly more case activity than
complex cases handled outside of the pilot program.
Data was collected on complex cases that were not assigned to the pilot program.
It was not possible to identify a large number of cases with the same characteristics as
those in the pilot program. Those that were identified for comparison purposes were
somewhat less complex and newer than the pilot program cases. Nevertheless, across all
categories of case activities, the pilot program cases had significantly more case activity
than in the baseline cases, especially in settlement conferences and status conferences.
The pilot program cases were clearly supervised more closely than those cases not
assigned to the pilot program.
vii
Finding 6: Cases assigned to the pilot program showed measurable progress
toward resolution during the evaluation period.
The length of the pilot program and the evaluation did not allow for sufficient
time to adequately calculate time to disposition. However, there were indications that the
cases assigned to the pilot program progressed steadily toward final disposition during
the evaluation period. This is an important finding insofar that both attorneys and judges
complained that complex cases would “languish” without significant progress toward
resolution before the implementation of the pilot program. Indeed, over 10% of pilot
program cases were more than five years old at the inception of the pilot program, which
lends support to the validity of this complaint, at least in some types of cases. Two thirds
of the pilot program cases demonstrated measurable progress, averaging 1.6 phases
during the evaluation period with phases defined as pleadings, discovery, settlement
negotiations, and post-discovery/trial readiness. That is, the majority of cases that
entered the pilot program during the pleading stage (e.g., identification of and notice to
relevant parties) had concluded discovery and were in the midst of settlement
negotiations during the evaluation period. Similarly, the majority of cases that entered
the pilot program while the parties were engaged in discovery had concluded settlement
negotiations and were ready for trial during this period. Almost one-third of the cases in
the pilot program had been disposed by the end of the evaluation period, although the
disposition rates were affected by how the cases were assigned to the pilot program at
each of the sites.
Finding 7: The pilot judges limited their use of referees.
Before the pilot program, a generalized concern for attorneys was the over-
reliance on referees. The pilot program judges appointed a referee for some aspect of
pretrial management (usually discovery purposes) in just 20 percent of the cases, which is
a significant drop in the usage of referees. Pilot program judges were significantly more
likely to appoint referees in provisionally complex cases and those cases that scored high
on certain indicia of complexity. Construction defect cases were most likely to have a
referee appointed. The implication of the reduced rate of referee appointments is that
pilot program judges were directly supervising these cases, thereby promoting greater
judicial control of case management and reducing litigation costs for the parties.
Finding 8: Informal coordination was a common tool for pilot program judges.
The Deskbook recommends the formal coordination or consolidation of related
cases. Over one-fifth of the cases involved coordination or related actions, but the
majority of those cases were filed within the same court, making formal coordination
procedures unnecessary. Only very small percentage of applicable cases required formal
coordination under rules 404-404.10 of the California Rules of Court. The use of
informal coordination for related cases filed within the same court raises a question about
the suitability of existing case management technology, which is not capable of
identifying and tracking the progress of related cases without the assignment of a
“master” case number.
viii
Finding 9: Case management orders were reserved for those cases that were
considered highly complex.
The Deskbook on the Management of Complex Civil Litigation recommended that
judges develop and enter a comprehensive case management order. The evaluation of the
pilot program indicated that a case management order was filed in only 30 percent of the
cases. Judges appeared to be filing a case management order in only those cases they
considered more complex. For instance, case management orders were filed in nearly 60
percent of those cases that were provisionally complex. This suggests that a large
proportion of complex cases assigned to the pilot program can be managed with
established case management procedures and appropriate levels of judicial supervision.
Recommendations
The pilot program featured specialized case management for complex civil
litigation, judges experienced in both substantive law and complex case management
practices, reduced caseloads, and additional staffing and technological resources. Pilot
program judges viewed their primary objective as identifying the key legal issues in a
given case and focusing pretrial activities on resolving those issues as efficiently as
possible. The general means for accomplishing this objective included active judicial
oversight of case management, including the development of clear expectations for case
management, and consistent enforcement of those expectations.
The most significant improvements in complex civil case management appeared
to result from two specific features of the pilot program: an individual calendar system
and a caseload that was sufficiently reduced to permit more intensive case management
by the pilot judges. While the current pilot program shows great promise, some aspects
can be modified to increase the program’s effectiveness.
Recommendation 1: Specialized procedural rules for complex cases should be
developed.
A defining characteristic of complex cases is the existence of multiple legal issues
and large numbers of parties. The existing civil procedure provisions, however, are
tailored for routine civil cases. Although the Deskbook assumes that judges have the
authority to engage in issue-specific case management practices, the language of the
statutes and rules suggest otherwise. For example, the existing summary judgment
statute does not permit summary adjudication of an individual legal issue or claim of
damages unless doing so completely disposes of the case, a cause of action, or an
affirmative defense. Specialized rules or statutes for complex cases that enhance judicial
case management powers would authorize judges to conduct case management activities
more effectively than under the current Code of Civil Procedure.
Recommendation 2: A workload assessment study should be conducted to help
determine the appropriate number of judges and supporting court staff.
The average caseload assigned to each judge varied considerably from judge to
judge, and from site to site, and there was no consensus as to an appropriate caseload size
or even how to define a “case”. A workload assessment should be conducted to allow
ix
case assignments to equalize the workload and help determine the appropriate staffing
levels for courts handling complex cases.
Recommendation 3: Screening and assignment procedures should be established
to ensure that complex cases are identified and referred to the appropriate court.
Most of the pilot sites had fairly effective screening and assignment procedures to
identify complex cases. Los Angeles, however, had a decentralized process that
interfered with prompt assignment and early case management activities. The
decentralized process resulted in needless delays. The Los Angeles program should be
modified to include initial identification and immediate assignment of all types of
complex cases at filing based on objective criteria indicated on the Civil Case Cover
Sheet. The supervising judge for complex litigation should then ensure that the case
meets basic criteria for inclusion in the pilot program.
Recommendation 4: Training and staff development should be an ongoing
process for judges and staff handling complex cases.
Improving morale among non-pilot program civil division judges, as well as
training and development for pilot program judges and staff, would enhance the
effectiveness of the program. A rotation among judges assigned to the pilot program in
Orange and Los Angeles counties would help alleviate some of the frustration of civil
division judges who desire the intellectual and professional challenges that characterize
complex cases. A mentoring approach in the single judge courts would also improve the
knowledge and experience of the civil bench in general. In addition, educational
workshops on complex case management issues may be appropriate for all pilot program
staff and should be offered on a regular basis.
Recommendation 5: Case management technology should be developed and used
throughout the pilot program.
Case management technology that permits judges and their staffs to monitor case
progress more accurately, organize court documents more coherently, and communicate
with multiple attorneys would increase the efficiency of the pilot courts. Currently, only
Orange County employs imaging technology on a routine basis, and none of the pilot
program courts has advanced e-filing beyond an experimental basis. More frequent use
of Web-based case management systems would enhance the productivity of the courts by
facilitating communication with multiple parties and ensuring accurate documentation of
case management activities.
Recommendation 6: Practices used in the pilot program courts should be
encouraged throughout the state.
The pilot program sites were carefully chosen and quickly absorbed the major
concentrations of complex civil cases within the state. Yet complex cases are filed in
other courts around the state. The lessons learned by the pilot program should be made
available to and used by courts throughout California. For instance, even courts that
normally employ a master calendar system for civil cases should assign complex cases to
an individual judge for case management purposes—and reduce that judge’s caseload
accordingly. The AOC should strongly encourage judges managing complex cases to
attend the semi-annual meetings of the pilot program judges.
x
PART 1 – PROJECT BACKGROUND AND OVERVIEW
The genesis for the California Complex Civil Litigation Pilot Program (pilot
program) began more than five years ago with a report of the Business Court Study Task
Force (business task force) that made a series of recommendations to the Judicial Council
of California concerning the need and feasibility of establishing a specialized court in
California to handle business and commercial cases. The concerns in California that
prompted the creation of the business task force were similar to those in other states –
namely, the perception that state court tribunals had become insensitive to the needs of
business litigants both in how cases were processed and in the substantive law developed
by state court judges and implemented by state court juries.1 In particular, the business
task force acknowledged widespread perceptions by the business community that a lack
of knowledge about business transactions and substantive commercial law among the
judiciary was contributing to uncertainty within the business community, unpredictable
results in commercial disputes, and an absence of cohesive law governing business
transactions in California.
Unlike such task forces in many other states, however, the business task force
ultimately concluded that the concept of a business court would not be supported by
important constituencies within California, and it discouraged the creation of a “business”
or “commercial” court on a pilot basis or otherwise.2 According to Justice Richard
Aldrich, who chaired the business task force and a successor group, the Complex Civil
Litigation Task Force (complex task force), the business task force members felt that a
court dedicated solely to business and commercial litigation would be perceived as elitist
and might reflect a pro-business bias.3 Instead, the business task force viewed the more
salient issue as the need to develop specialized expertise among judges of the superior
courts to manage complex litigation of all types – business and commercial, tort, and real
property – and to equip those judges with the support staff, technology, specialized case
management procedures, and training necessary to improve the quality of decision-
making in complex cases. The business task force then recommended the creation of a
complex task force to make specific recommendations to the Judicial Council on steps to
improve the management of complex civil litigation in California.
In August 1997, the Judicial Council charged the complex task force to pick up
where the business task force left off. Specifically, it instructed the new task force to
prepare a manual on complex civil case management for state judges; to develop
guidelines for the identification of complex cases; to recommend appropriate statutory
and rule changes for complex case management; to oversee and assist in the
establishment of pilot programs in urban counties; and with the Center for Judicial
Education and Research (CJER), to develop specialized curricula and educational
programs on effective complex case management. In fulfilling its charge, the complex
1
Executive Summary, Final Report of the Business Court Study Task Force (May 16, 1997).
2
Id. at 5-6.
3
Remarks of Justice Richard Aldrich delivered at the Justice Roundtable, an annual meeting of the Board
of Directors and the Corporate Counsel Committees of the National Center for State Courts, in Washington,
DC, November 16, 1999.
1
task force contributed two of the fundamental cornerstones that ultimately led to the pilot
program. First, it recommended the adoption of Rule 1800 of the California Rules of
Court, which defines a complex case as one “that requires exceptional judicial
management to avoid placing unnecessary burdens on the court or the litigants and to
expedite the case, keep costs reasonable, and promote effective decision making by the
court, the parties, and counsel.”4 The rule also specified certain types of cases that should
be presumed complex unless a judge determines otherwise, and set out additional criteria
for identifying complexity. These criteria were then added to the Civil Case Cover Sheet,
which is filed with initial pleadings in all civil cases.5
The Complex Civil Litigation Task Force also developed the Deskbook on the
Management of Complex Civil Litigation as a reference manual for state judges. The
Deskbook outlines case management techniques for complex cases generally as well as
practices geared for specific types of complex cases. More importantly for the
subsequent direction of the pilot program, it provides what has become the principle
judicial strategy for managing complex cases: early and active judicial involvement in the
development and oversight of a case management plan for the orderly conduct of the
litigation. Effective case management hinges on defining and clarifying the disputed
issues in the case and then structuring the pretrial activities to narrow and resolve as
many issues as possible. In contrast to routine civil procedures in which a bench or jury
trial is the presumed disposition for the case (even though it is recognized that a trial is a
rare occurrence), complex case management makes a timely and just settlement or other
pretrial disposition the explicit objective of pretrial activities and embraces the use of
various forms of alternative dispute resolution as an integral part of achieving that
objective.
In 2000, with authorization and funding from the California legislature, the
Judicial Council established the pilot program in the Superior Courts of Los Angeles,
Orange, Contra Costa, Santa Clara, Alameda, and San Francisco Counties. Participation
in the pilot program required each site to commit to an individual calendar system
dedicated exclusively to complex cases with a substantially reduced caseload that would
permit participating judges to engage in intensive case management supervision.
Fourteen judges – six in Los Angeles County, four in Orange County, and one each in the
other four counties – were selected to participate in the pilot program based on their
training, experience, interest in business and complex litigation, and commitment to
engaging in ongoing judicial education. The $2.855 million annual appropriation by the
California legislature for the pilot program provided each site with funds for additional
staffing, technology, and other resources necessary to implement the program. Although
some of the details differed from site to site, the overriding judicial philosophy for the
program was active judicial oversight of case management including the development of
clear expectations and consistent enforcement of those expectations.
4
California Rules of Court, Rule 1800(a).
5
California Rules of Court, Rule 982.2.
2
NCSC Evaluation of the Complex Civil Litigation Pilot Program
The enabling legislation for the pilot program required a report evaluating the
effectiveness of the pilot program, including the number of complex cases filed, the
impact of the pilot program on case and calendar management, and their impact on the
trial courts, the attorneys, and the parties. The Administrative Office of the Courts
(AOC) contracted with the National Center for State Courts (NCSC) to conduct this
evaluation. To do so, however, the NCSC first needed to address a major methodological
challenge – namely, the absence of a theoretical framework in which to consider why
cases assigned to the pilot program are managed more effectively than cases assigned to
non-pilot courts. One of the hallmarks of a rigorous, independent evaluation is a solid
understanding of program objectives, as well as how program operations are intended to
achieve those objectives. From that beginning, evaluators must identify valid and reliable
measure on which to determine whether, and how well, program operations further
program objectives. With respect to complex litigation a number of business and
commercial courts around the country have made claims about the effectiveness of
various case management techniques, but none has previously evaluated its performance
empirically. One of the first major challenges for the NCSC was to develop a tentative
theory of complex litigation management against which to assess the findings from the
three components of the evaluation.
To do this, the NCSC reviewed the Deskbook on the Management of Complex
Litigation and scrutinized various case management techniques employed by the pilot
judges to try to identify the specific advantages they offered over case management
practices for non-complex civil cases. This process led the NCSC to consider the
characteristics that make cases complex and the implications those characteristics have
for the effectiveness of different case management techniques. In doing so, the NCSC
examined how the case management techniques employed by the pilot program judges
are purported to affect the life cycle of complex civil cases compared to that of non-
complex cases. The NCSC also considered how different dimensions of case complexity
and specific case management techniques might affect case processing. The following
section describes the tentative working theory that the NCSC developed for conducting
the evaluation.
The Unique Life Cycle of Complex Cases: A Tentative Working Theory
While routine civil cases tend to have a fairly straightforward and predictable life
cycle, the life cycle for complex cases appears to differ in three significant ways: the
length of the pleading stage, the direction (linear or circular) of discovery and
negotiations, and the use of a trial on the merits as an interim or final disposition.
In routine civil cases, the pleading stage usually lasts 30 days.6 During that time,
parties are identified and legal claims and defenses are articulated. Ninety-five percent of
all civil cases have no more than two plaintiffs; seventy-five percent have no more than
two defendants.7 In fact, the typical civil case involves one plaintiff asserting a single
6
CAL. CODE CIV. PROC. §§ 430.10-430.90.
7
1996 Civil Justice Survey of State Courts (data collected by the National Center for State Courts under a
grant from the U.S. Department of Justice, Bureau of Justice Statistics, on civil cases from 45 courts
3
cause of action against one or two defendants.8 In a complex case, however, the pleading
stage lasts for a much longer period of time, often lasting four to six months. More
complex cases often involve cross and third party claims, which necessarily lengthen the
pleading stage as newly added parties are served, retain counsel, and file responsive
pleadings. Cases involving large numbers of parties also require more time for the
lawyers to organize themselves and begin preparations for the discovery and negotiation
phases of litigation.
During discovery in routine civil cases, parties exchange information about their
respective claims and defenses, identifying areas of agreement and disagreement about
the facts and applicable law governing the case. After discovery, the parties enter a
period of negotiation in which they attempt to resolve the case without judicial
involvement. Approximately two-thirds of all civil cases are settled by the parties, and
over 25% result in either a dismissal or a default judgment.9 Fewer than 10% of civil
cases nationally require a judicial decision on the merits (summary judgment, bench or
jury trial).10
In complex cases, however, discovery and negotiation stages tend to progress in a
circular rather than linear fashion. For example, a key case management strategy
espoused by the pilot program judges is to have the parties identify which issues and
claims apply to which parties and to select the most salient issues as the focus of
intensive discovery and settlement negotiations. As key issues are resolved, tangential
issues either become moot or are resolved with less effort in subsequent cycles of
discovery and negotiation. Each cycle of discovery and negotiation provides
opportunities for interim dispositions that reduce the number of remaining parties or the
scope of disputed issues.
In the vast majority of routine civil cases, the period of negotiation is followed by
a dismissal or settlement of the case. In rare cases, a decision on the law (summary
judgment) or the facts (bench or jury trial) resolves any remaining issues.11 Some routine
cases will require a minimal amount of post-verdict or post-judgment involvement by the
trial court, but for the vast majority of cases, a trial on the merits signals the end of the
case for the trial court. Trials are also rare in complex civil litigation, but in contrast to
routine civil litigation, a trial in complex litigation can function as an interim disposition
to help parties assess the potential liability of respective defendants or gauge the potential
representing the 75 most populous counties in the United States (on file at the National Center for State
Courts).
8
Id.
9
1992 Civil Justice Survey of State Courts, (data collected by the National Center for State Courts under a
grant from the U.S. Department of Justice, Bureau of Justice Statistics, on civil cases from 45 courts
representing the 75 most populous counties in the United States, on file at the National Center for State
Courts).
10
Id.
11
The 1992 Civil Justice Survey of State Courts found that civil cases resulted in a summary judgment in
3.7% of cases and in bench and jury trials in 2.6%. Id.
4
range of damage awards.12 This information can then be used in subsequent settlement
negotiations. Even if repeated cycles through discovery and negotiation are ultimately
unsuccessful at disposing of all the parties and disputed issues, the process tends to
whittle down the number of parties and hone the disputed issues so that by the time the
case goes to trial, it is no more complex than other routine civil cases.
It was recognized from the very beginning of the evaluation that the time frame
established for the evaluation would be insufficient to use filing-to-disposition time, a
commonly used measure of case processing efficiency, as a measure in the evaluation. A
1992 national study of civil litigation found that civil cases with 7 or more parties13 had
an average filing-to-disposition time of 33 months, and 20% of those cases had a filing-
to-disposition time of more than 49 months.14 Given an evaluation period of only 33
months, and realistically fewer than 20 months in which to collect data, it was understood
that only a small proportion of the cases assigned to the pilot program would be
completely disposed during the evaluation period, making it difficult to assess this
commonly used measure of case management efficiency in cases assigned to the pilot
program. It was necessary, therefore, to identify some interim measures to assess case
efficiency. Using this tentative theory of complex litigation, the NCSC chose to examine
the number of interim dispositions and the number of parties disposed over the course of
the evaluation period instead.
One difficulty associated with an examination of complex litigation is that case
complexity has at least three different dimensions. Some cases are legally complex – that
is, the applicable law governing the case is particularly complex and requires a great deal
of judicial training and experience to master. These types of cases are often characterized
by numerous motions and arguments presented in briefs and in-court hearings on the
applicable law. Once the legal complexity is mastered, however, neither the facts of the
case nor the logistics of its management are necessarily more complex than in non-
complex civil cases. Cases that are characterized by legal complexity may require
specialized training for the trial judge on substantive law, but do not necessarily require
other types of case management techniques unless other dimensions of complexity are
present in the case.
Other cases are characterized by evidentiary complexity – the nature of the
evidence requires specialized expertise, such as scientific, engineering, financial, or
economic evidence and expert testimony. These cases likewise require judicial training,
but in a professional discipline other than law. They often involve large volumes of
evidence that require considerable time and attention to review and fully comprehend.
12
See generally JUDICIAL COUNCIL OF CALIFORNIA, DESKBOOK ON THE MANAGEMENT OF COMPLEX CIVIL
LITIGATION (2000) [hereinafter DESKBOOK]; NATIONAL CENTER FOR STATE COURTS, MANAGING MASS
TORT CASES: A RESOURCE BOOK FOR STATE TRIAL COURT JUDGES (1995); FEDERAL JUDICIAL CENTER,
MANUAL ON COMPLEX LITIGATION (3d ed. 1995).
13
The presence of multiple parties is one indicia of complexity identified by Rule 1800 and is frequently
utilized by the pilot program courts as eligibility criteria for assignment to the pilot program.
14
Civil Justice Survey of State Courts, 1992 (data collected by the National Center for State Courts under a
grant from the U.S. Department of Justice, Bureau of Justice Statistics, on file at the National Center for
State Courts).
5
Like legal complexity, evidentiary complexity often requires specialized judicial training,
although a popular approach that many of the California superior courts used before the
pilot program was to appoint a referee with specific knowledge about the subject matter
of the case.
Many complex cases are logistically complex in that they involve large numbers
of parties represented by many attorneys and frequently large volumes of evidence. In
some cases, the logistical complexity involves coordinating case management for several
cases with similar or identical factual claims. Much of the difficulty in these cases is
coordinating the activities of many people and ensuring that all of them have access to
the same information about case events and court decisions. A popular technique for
managing logistically complex cases is appointing one or two attorneys to serve as liaison
counsel for each side of the case or cases, who are responsible for disseminating
information to the parties and communicating with the court. Information technology,
such as Internet list-servs and secured Web sites, can facilitate this function.
Different types of cases involve different types of complexity and in different
combinations. Some cases may involve only one dimension of complexity, whereas
other cases may involve two or even all three dimensions. Because caseload composition
– the type and proportion of different types of cases – can differ substantially among
complex litigation courts, the NCSC believed that it was important to control for the type
of complexity inherent in each case when evaluating the effectiveness of the pilot
programs.
The assignment of a single judge to supervise all aspects of complex cases is the
cornerstone of case management strategies for the pilot program courts.15 Its objective is
to enhance the progress of case resolution through closer and more efficient judicial
supervision. Having one judge handle all case activity improves the judge’s
understanding of the legal and factual issues of the case, permits more informed decision
making about the prioritization of pretrial activities including discovery, facilitates
smoother working relationships with counsel, and encourages more consistent oversight
and enforcement of case management deadlines – all of which is intended to result in
earlier resolution of cases. In other words, frequent judicial involvement encourages the
parties to continue successive iterations of the discovery and negotiation phase of the
complex case life cycle, which promotes incremental case resolution in most instances
and, for those cases in which a trial on the merits is necessary, ensures that the disputed
issues of the case are fairly well developed before the trial begins.
This understanding of how judicial involvement facilitates case resolution led the
NCSC to an expectation of how the pilot program courts work and possible measures of
how well they might perform. A direct correlation was expected between the number of
times the pilot judge becomes formally involved in the case (e.g., case management
conferences, status conferences, settlement conferences) and the number of interim
dispositions (e.g., settlements, dismissals) that would occur over time. Similarly, there
15
See generally JUDICIAL COUNCIL OF CALIFORNIA, DESKBOOK ON THE MANAGEMENT OF COMPLEX CIVIL
LITIGATION (2000); NATIONAL CENTER FOR STATE COURTS, MANAGING MASS TORT CASES: A RESOURCE
BOOK FOR STATE TRIAL COURT JUDGES (1995); FEDERAL JUDICIAL CENTER, MANUAL ON COMPLEX
LITIGATION (3d ed. 1995).
6
would be an indirect relationship between the amount of judicial involvement in the case
and the number of parties who were still actively involved in the case.16
Components of the NCSC Evaluation
To provide the broadest possible assessment of the Complex Civil Litigation Pilot
Program, the NCSC used multiple methodological approaches including site
observations, telephone interviews with judges and lawyers, and an empirical
examination of key case management characteristics for complex cases in the pilot
program compared to complex cases in non-pilot program courts. The first approach was
purely a descriptive documentation of the policies, procedures and court resources that
each court employed to manage its complex litigation caseload. This component of the
evaluation is discussed in Part 2. A second approach consisted of in-depth telephone
interviews with pilot program judges and attorneys to ascertain their opinions about the
management of complex litigation in California both before and after the implementation
of the pilot program. This component is discussed in Part 3. The final approach,
discussed in Part 4, was an empirical examination of key case management
characteristics for complex cases assigned to the pilot program that was compared to
similar characteristics in complex cases managed by non-pilot courts. Part 5 includes
conclusions from the evaluation and recommendations for the future operation of the
courts handling complex litigation.
16
Some types of cases may be more intractable than others, requiring a proportionately greater number of
case events to achieve a similar number of interim dispositions and removal of parties from active
involvement in the case.
7
8
PART 2 – PILOT PROGRAM DOCUMENTATION
NCSC conducted a series of site visits to each of the pilot program sites to
document the pilot program through direct observation and interviews with the pilot
program judges, pilot program staff and other key superior court officials.17 The program
documentation focused on several key areas: case assignment policies, staffing,
specialized procedures for complex litigation, and the impact of the pilot program, if any,
on non-pilot program operations. To complement the second round of attorney
interviews, discussed in Part 3, these interviews also solicited the views on qualitative
aspects of the pilot program including the judges’ views about optimal case management
techniques and suggestions for change. Because the majority of those questions focused
on how pilot program judges approached the task of complex case management and their
assessments of how well those approaches worked, judges’ responses to those questions
have been integrated with the pilot program documentation. Judges’ suggestions about
how to improve the pilot program have been incorporated into the evaluation conclusion
and recommendations in Part 5 as appropriate.
Documentation of the pilot program was extremely important because the degree
of program variation from site to site was one of the more challenging aspects of this
evaluation. The basic criteria for obtaining state funding for the pilot program was a
commitment by each site to dedicate one or more judges to the exclusive management of
complex cases. Decisions about staffing levels and other resources for the pilot program
(e.g., facilities and technological support) as well as the development of local rules and
practices for managing complex cases were largely at the discretion of the pilot judges
themselves. Although institutional and environmental constraints such as existing state
statutes, court rules, and the existing infrastructure and culture of the superior court in
each jurisdiction resulted in many similarities among key program characteristics, there
were also some important differences among the various pilot programs. The NCSC
believed that it was important to document these program characteristics, not only as a
record of the pilot program, but also to inform the evaluation team about the possible
sources of site-specific variations in other components of the evaluation.
An Overview of the Pilot Programs

To gather information about each site’s complex program, a member of the NCSC
evaluation team conducted individual and group interviews with judges and court staff,
observed court proceedings, and reviewed case processing procedures during a series of
on-site visits during the week of July 18, 2002.
17
The NCSC deliberately waited until the very end of the evaluation period (July 2002) to compile the
program documentation because many of the program characteristics were likely to change, and in fact did
change, over the course of the pilot program in response to the actual case management needs of complex
cases. For example, several pilot courts began with an expectation that they would conduct a significant
numbers of trials, an assumption that later proved incorrect in most sites. To ensure confidentiality of
individual comments, this report uses the generic term “court officials” to refer to any of the individuals
interviewed in conjunction with the site visits.
9
This part provides a subjective description of the six pilot courts, with a focus on
case assignment policies, program staffing, use of technology, specialized procedures for
complex litigation, judicial philosophy about complex case management techniques and
procedures, and the perceived impact of the pilot program on non-pilot court operations.
Following the individual site descriptions is a summary of recommendations that judges
and court staff from all of the pilot sites expressed during the site visits.
Case Assignment Procedures
The six pilot courts tend to identify and assign cases in a similar manner, using
objective procedures and criteria to screen cases and determine eligibility. The pilot
judges in the single judge sites, and the supervising judges in Los Angeles and Orange
Counties, review cases before accepting them into the program. By local practice in Los
Angeles County, superior court judges sitting on the civil bench can opt to retain complex
cases that might otherwise be assigned to the pilot program. Decisions to accept other
complex cases are based on perceived need and complexity.
Program Staffing
Program staffing for each of the pilot program courts had only minor differences.
Typically, pilot program staff consisted of five to seven individuals including one or
more clerks, a court reporter, a bailiff, and one or more research attorneys. See Table 2.1.
Pilot program staff were not shared with non-complex civil divisions. Generally the
judges’ senior clerk was the lynchpin for pilot program operations. This individual,
according to those interviewed, was usually at the “heart of the action” and simply made
things work for the judge both in and out of the courtroom. In the words of one judge, “I
couldn’t do all this without her.”
10
Table 2.1:
Program Staffing Matrix (per judge)
Counties
San Los Contra Santa

Position Orange Francisco Alameda Angeles Costa Clara
Court Clerk 2 2 2 2 1 1
Court Reporter 1 1 1 1 1 1
Bailiff 1 1 1 1 1
Research Attorney 1 2** 1 1 1 1
Case Manager 1
Records Clerk 1
Intern 1
Technology Support 1*
* Shared by all pilot judges
** One position vacant at the time of the site visit
There were some minor differences in staffing among the various programs.
Research attorneys in particular were used differently, depending on the personality and
judicial style of the pilot program judges. Their responsibilities ranged from assisting
courtroom clerks, providing legal research support, and checking case law to
coordinating mediation for parties and acting as judges pro tempore. Staff in the pilot
program courts seemed to communicate well and more often than not their interactions
were described as communicative and team-oriented. Both of the large multi-judge
courts expressed a need for “floater clerks” to back up their divisions when additional
support staff was needed on very large cases or when staff were on leave.
The need for formal training was not a major concern for most of the judges and
court staff interviewed. Judges believed that the semi-annual meetings sponsored by the
AOC were beneficial for education, information sharing, and assisting judges in solving
common problems. The vast majority of those interviewed agreed that these important
semi-annual meetings should be continued by the AOC, although several judges thought
it would be beneficial to sponsor additional AOC/Center for Judicial Education and
Research courses on specific topics such as determination of insurance coverage and
management of large construction liability cases.
Technology
Each pilot court purchased different technology equipment to expedite case
processing. Some of these expenditures have been allocated to in-court technology, such
as smart boards, data ports, and computers. One court contracted with a firm specializing
in electronic presentations to provide these services on a rental basis. This court is
11
piloting electronic filing and had already run successful tests to make sure the system can
accept a large amount of data in a short period of time.
Although only a couple of the more “computer friendly” judges have
experimented with Web-based case management for a handful of cases, all of the judges
recognize the benefits of these systems for communicating with attorneys, especially in
multiparty suits, and view these systems as the next logical step in technology to support
the management of complex litigation for all of the pilot program sites. Indeed, these
technologies should be integrated with superior courts’ Web sites. Most of those
interviewed also recognized the benefit of using document imaging as their primary case
processing system. And, as an extension of the use of imaging, individuals from each
court stated that they expected in the future to be able to have litigants’ attorneys
electronically file documents.
Complex Case Management
The judicial philosophy concerning complex case management was consistent
throughout all of the pilot sites. The pilot judges viewed their role as proactive managers
of the cases filed in their courts whose primary objective is to help the parties identify the
key areas of dispute and conduct a sufficient investigation into those areas to make
informed judgments, facilitate negotiations among the parties, and make dispositive
rulings as necessary to resolve the suit. To effectuate this role, they relied on a
combination of substantive knowledge about complex litigation, case management skills
including scheduling date-certain case events such as status conferences, hearings, and
trials, and a consistent, even-handed approach when dealing with counsel for the parties.
As a rule, the pilot program judges disfavored the use of referees except for the limited
purposes of managing discovery, usually in construction defect cases. All of these
techniques were credited with providing attorneys with solid expectations about the
judges’ approach to cases, thus enhancing the attorneys’ incentives to move the cases
toward resolution. The small number of cases that actually went to trial in the six
complex litigation courts tends to substantiate the effectiveness of this approach.
Effects on Non-Pilot Court Operations
In general, the establishment of the pilot program was perceived as having a
positive effect on the operation of the civil court system, although some concern was
expressed regarding the ability of judges assigned to the regular civil bench to challenge
their skills by hearing more interesting, complex cases.
One area that may need review is the method by which complex cases in Los
Angeles County are screened in the judicial districts outside of the downtown courthouse
as well as the discretionary retention of complex cases by superior court judges in those
districts. The practice is ingrained in the organizational culture of that court system, but
as a practical matter, transferring cases from those districts to the pilot program often
takes several months, which undermines the objective of early judicial involvement in
case management activities.
It is the belief of many judges working in the pilot courts that an undocumented
benefit of the program is fewer appeals of complex cases. Moreover, when cases are
appealed, the pilot judges reported that those cases are better organized, and have clearer
12
and more concise orders and supporting documentation. As a result, appellate judges
spend less time finding documents and rulings, and making decisions whether to affirm
or overturn the cases.
Individual Programs
The pilot program courts were similar in many respects, but individual courts
demonstrated subtle differences in procedures, staffing, and judicial philosophy. The
following sections detail program characteristics for each pilot site.
Contra Costa County (Martinez)
Contra Costa County, with the city of Martinez as the county seat, is one of nine
counties in the San Francisco-Oakland Bay Area. Six judges are assigned to the civil
division of the Superior Court of Contra Costa County, one of whom manages all of the
complex litigation cases. The NCSC conducted interviews with Judge David Flinn, the
pilot court judge; Judge Garrett Grant, the Presiding Judge of the Superior Court of
Contra Costa County; and Mr. Ken Torre, the Executive Officer of the Superior Court of
Contra Costa County.
Contra Costa employs a three-step process for assigning cases to the pilot
program. Initially, newly filed civil cases are identified by court staff in the intake
section of the clerk’s office using the “Rule of 7” – a local screening criteria requiring
that a case have seven or more parties and be designated as complex on the Civil Case
Cover Sheet18 by the plaintiff’s lawyers or counter-designated by a defendant’s
attorney.19 If a case meets these initial criteria, it is referred to the presiding judge of the
superior court for review. The presiding judge examines the initial pleadings and makes
a decision either to forward the case to the pilot judge for his review, or to send the case
back to the clerk’s office for reassignment to the regular civil case calendars of the other
civil division judges. The pilot judge also has an opportunity to review the case before
accepting it into the pilot program. If, in his judgment, the case does not fit the criteria
for inclusion in the pilot program, or if a peremptory challenge has been filed,20 the pilot
judge will send the case back to the presiding judge for reconsideration or for
reassignment to another judge in the civil division. At any given time, approximately 180
to 200 cases are active in the pilot program in Contra Costa. Most of these cases were
transferred from other judges within the civil division or retained by the pilot program
judge.
Staff support for the pilot judge consists of 6 individuals – a courtroom clerk,
court reporter, bailiff, research attorney, case manager, and records clerk – who work
18
Form 982.2(b)(1) has been adopted for statewide use by the Judicial Council of California. The Civil
Case Cover Sheet provides basic information about the case at filing including whether the case meets any
of the criteria for management as a complex case under Rule 1800.
19
Some cases have fewer than seven parties, but were accepted into the pilot program because they
involved dimensions of complexity other than large numbers of parties.
20
Cal. Code Civ. Proc. §170.6.
13
together as a team to calendar, call, and hear cases. The judge does appoint referees21 to
hear certain issues, primarily in construction defect cases.22 More often than not, referees
are appointed at the request of both parties and are primarily used to settle cases. After
the referee negotiates a settlement, the case is referred to the pilot judge for approval and
closure of the case. Court officials estimate that most complex litigation cases with
referees are disposed within two years of filing.
The pilot judge did not express a need for additional training and believed that the
semi-annual conference held with other complex litigation judges from the six pilot
courts was sufficient to exchange information and learn from others involved in complex
litigation.
Although pilot program funds have been used to purchase video recorders, DVD
players, personal computers, a white board, and remote data access for counsel in the
courtroom, these tools are not used extensively. Court officials involved in the pilot
program would like to pursue electronic filing, document imaging, and case-based Web
sites to manage complex cases. At the time of the on-site visit, court officials were in the
process of converting their case processing system.
Although the complex litigation court in Contra Costa County exhibited many
benefits, it has increased the workload of the other judges hearing civil cases in the
Superior Court. As a result of complex cases only being heard by one judge, court
officials stated the other judges hearing civil cases are overloaded, which affects court
staff morale. In addition, court officials reported that some of the non-pilot judges
assigned to the civil division are concerned about being precluded from hearing these
more interesting and legally challenging cases.
Santa Clara County (San Jose)
The pilot program is located within the Superior Court of Santa Clara County in
the downtown section of San Jose. Twenty-one judges are assigned to the court’s civil
division, one of whom reviews and hears all complex litigation cases as part of the pilot
program. The NCSC conducted interviews with Judge Jack Komar, the pilot court judge;
and Judge Richard Turrone, the Presiding Judge of the Superior Court of Santa Clara
County.
The pilot program in Santa Clara County employs a one-step assignment process,
which was the most common process among the pilot sites. Plaintiffs’ attorneys indicate
that a case is complex on the civil case cover sheet at the time of filing or a defense
attorney submits a counter-designation. Court clerks initially assign the case to the pilot
judge, who determines if the case is actually complex. If it is not, it will be sent to the
presiding judge for reassignment. Court officials estimate that 8% to 10% of cases are
returned for reassignment. Approximately 170 complex cases are active in the court on
an annual basis.
21
See generally CAL. CODE CIV. PROC. §§ 638-645.2 for rules governing the appointment of referees. In
complex litigation cases, referees are used primarily for management of discovery.
22
It is important to note that due to the proximity of the naval base in Martinez, California and resulting
building projects, in recent years the court has experienced more construction defect cases.
14
Staff support for the pilot judge consists of four individuals – a courtroom clerk
who is a trained paralegal and also serves as the case coordinator, a research attorney, a
court reporter, and a bailiff. Those interviewed believed that working as a team is what
makes the pilot program effective and efficient.
The pilot judge and court staff in Santa Clara County did not report a need for
specific training in complex case management. They believe that best teacher in complex
litigation is experience in the courtroom as well as the judges’ participation in the semi-
annual meetings of complex litigation judges from the pilot courts.
To reach the stage in a case where a settlement is possible, the pilot judge
reported that he manages his cases using established timelines and case management
conferences. For example, within 110 days from the date of assignment, a case
management conference is held. According to the pilot judge, these techniques provide a
sense of predictability and continuity in the process for attorneys and their clients. In
short, attorneys know what is expected of them and what to expect from the court when
they come into the pilot program, which promotes settlements.
In the area of technology, court officials expressed an interest in improving case
processing through document imaging and electronic filing systems. The pilot judge has
established case-based Web sites for certain cases. Due to the improved communication
capabilities, he can more effectively control the pace of litigation and can provide notice
to parties regarding various actions in a case. The judge would like to expand the use of
technology by posting tentative decisions on case-based Web sites. For in-court
purposes, the pilot judge also uses a smart board system,23 touch screens and other
electronic enhancements, some of which are provided by the lawyers, to process
information more effectively during trial.
San Francisco County
More than 20 judges are assigned to the civil division of the Superior Court of
San Francisco County, one of whom was selected to manage all of the complex cases
through the pilot program. The NCSC conducted interviews with Judge Stuart Pollak,
the pilot court judge from the inception of the pilot program in January 2000 through
January 2002; Judge Richard Kramer, pilot program judge; Gordon Park-Li, Executive
Officer for the Superior Court of San Francisco County; Judge Ronald Quidachay,
Presiding Judge for the Superior Court of San Francisco County; and Elena Simonian,
court administrator. These court officials estimated that the number of active complex
litigation cases in the pilot program averages 100 cases.
The pilot program in San Francisco County also uses a one-step process for case
assignment purposes. Complex cases are initially identified and assigned to the pilot
program after being designated complex on the Civil Case Cover Sheet, and the pilot
program judge reviews the case to determine its acceptability into the program. It was
reported that some attorneys try to get non-complex cases assigned to the pilot program
in order to obtain the special attention they believe their cases deserve or to expedite
advancement through the civil litigation system. Those cases and others that are
23
A smart board system is a form of demonstration technology that facilitates viewing of documents,
illustrations, and other exhibits during in-court proceedings.
15
erroneously assigned to the pilot program are quickly identified and sent to the presiding
judge for reassignment to the regular civil division of the superior court.
The judge’s staff is similar to other pilot courts with the exception of having two
research attorneys. Court staff include a court reporter, two court clerks, two legal
research attorneys (one position was vacant at the time of the on-site visit), a bailiff, and
occasionally an intern. Because processing complex cases is so labor-intensive, court
officials believed that teamwork by the pilot program staff is what makes the program
work in San Francisco County. Additional training for the judge and court staff was not
considered necessary by court officials.
The major benefit of the pilot program, according to those interviewed, is the
assignment of an experienced judge who is dedicated to hear the majority of complex
cases. Court officials specifically cited judicial experience in complex litigation, attorney
education about case processing requirements, and individual judicial attention to cases
as the reasons for timely management, earlier case settlements and fewer appeals. The
use of hands-on management also was credited with fostering respect for the judge and
his expectations in a case, control of continuances by the court, and proactive
communication from the pilot judge to the parties’ lawyers.
Specific case management techniques include holding an initial case management
conference as soon as possible after the assignment date, usually around 30 days.
Thereafter, the pilot judge holds a series of subsequent case management conferences,
helping to control every phase of the case from filing to settlement or trial. The current
pilot judge does not regularly use referees, although the previous pilot judge generally
discussed this option with attorneys at the initial case management conference and often
appointed mediators for settlement conferences in larger, more complex cases. To
improve the conduct of complex trials, when they occur, the pilot judge frequently
bifurcates trial issues (e.g., key legal and factual issues to be resolved). He also uses this
approach as a method of organizing case management and discovery, so those issues can
be tried sooner.
Court officials expressed the need for an imaging system24 that would facilitate
the identification of documents, complement electronic filing capabilities, and encourage
the use of Web sites to manage individual cases, all of which are expected to reduce
delays in case processing. The Court uses e-mail to send information to parties on
hearing dates as well as to provide notice to the attorneys about the need for a hearing on
a specific issue in a case.
One unmeasured benefit identified by court officials was the effect of the pilot
program on the California Court of Appeal due to the manner in which appeals from the
pilot program are prepared, packaged and sent for review. It was the consensus of those
interviewed that the Court of Appeal had an easier time reviewing and deciding cases that
came from one judge experienced in complex litigation, rather than from many judges
inexperienced in complex litigation that were working in a civil court of general
jurisdiction.
24
Imaging technology is used to produce an electronic image of paper documents, which are then available
for viewing on computer terminals at any location to which access is permitted.
16
Alameda County (Oakland)
The pilot program court for the Superior Court of California, County of Alameda
is located in Oakland and is served by one judge who has an active caseload of 90 to 120
cases. In comparison, it was estimated that a judge hearing regular civil cases in
Alameda County has an active caseload of approximately 350. The NCSC visited the
pilot program on the afternoon of July 19, 2002, and conducted interviews with Judge
Ronald Sabraw, the pilot program judge; Judge Harry Sheppard, the Presiding Judge of
the Superior Court of Alameda County; and Mr. Arthur Sims, Executive Officer.
As in other pilot program courts, cases are initially identified as complex by the
plaintiff’s attorney or a defense attorney through use of the civil case cover sheet filed in
the clerk’s office. Sixty days after filing, the pilot judge holds a hearing to determine
whether the case is eligible for inclusion. These determination hearings are scheduled on
the same calendar with law and motion hearings, which in Alameda County are
conducted by the pilot program research attorney under the supervision of the pilot
program judge. The presiding judge of the superior court does not get involved in the
assignment process unless a motion to disqualify the pilot judge is filed.
Once a case is accepted into the program and the determination hearing held, a
case management conference is held within 30 to 60 days. At this conference, timelines
and deadlines are set for filing of answers and cross complaints. The parties are also
advised that if the case goes to trial for an extended period of time, the trial may be
conducted by another judge.
Court staffing is similar to other pilot courts. Staffing includes a research
assistant, a court reporter, a bailiff and two courtroom clerks who work in close proximity
and effectively as a team. In the area of training, it was suggested that training in
management of large construction defect cases and disputes over insurance coverage
would be useful. It would also be beneficial to have an annual conference of complex
litigation courts to be attended by judges, research assistants and courtroom clerks.
Court officials reported that the pilot judge’s temperament and case management
skills, and the expertise of his court staff, were essential to the success of the pilot
program. The pilot judge reported that he relies heavily upon the research attorneys to
explain case processing and courtroom procedures to attorneys and to warn the attorneys
about ex parte communication. The research attorneys encourage and coordinate
mediation hearings and are the central point of communication between the court and
counsel for most cases.
In the area of technology, the Superior Court of Alameda is equipped with
dataports for PC’s in the courtroom and at times uses a smart board to display bar-coded
exhibits and other evidence. Although all court cases in Alameda County are imaged,
court officials want to start managing cases through the use of case-based Web sites and
electronic filing.
Orange County (Santa Ana)
Orange County has an estimated population of 2,950,000, 34 cities, and covers a
798 square mile area. Over the years the county has experience rapid rates of growth
with homes being built in large tracts or subdivisions. This population expansion and the
17
location of companies offering technological services gives rise to many complex civil
cases, especially construction defect cases, filed in the Superior Court of Orange County.
There are 27 superior court judges assigned to work in the regular civil division of the
Court. Five fulltime judges are assigned to the pilot program. Most of the asbestos cases
are collected in one judge’s inventory, which also includes a variety of other case types.
The NCSC conducted a group interview with all of the pilot court judges except one
(who was unavailable), as well as individual interviews with Judge C. Robert Jameson,
the supervising judge for the pilot program; Mary Lou des Rochers, Executive Director,
Management Services for the Superior Court of Orange County; and Vicki Brizuela, the
Clerk of the Complex Civil Litigation Pilot Program.
All operations of the pilot program were recently relocated to the county’s Civil
Complex Center. This recent move to a building dedicated to complex litigation has not
only provided adequate courtroom space to hear complex cases, but it has also increased
the spirit and morale of judges and court staff. Court officials estimated judges in the
pilot program carried an average caseload of approximately 210 active cases at any given
time.
Each judge has a five-member staff that includes a court reporter, bailiff, clerk,
assistant clerk and research assistant. The court is technologically advanced and self-
contained, so the pilot program has a full time staff member to provide technological
support to judges and court staff. Because the pilot program in Orange County includes a
large number of construction defect cases, the use of referees and mediators to assist with
certain issues is prevalent. Further, in order to better manage cases, judges use their
research attorneys as judges pro tempore for some status conferences. According to court
officials, this special use of research attorneys not only helps keep cases moving, but also
provides a sense of teamwork within the pilot program.
The pilot program in Orange County uses a two-step assignment process. Cases
that are initially identified as complex based on the Civil Case Cover Sheet are randomly
assigned to the pilot judges, but will be reassigned if there is a successful challenge to the
judge. Cases that do not meet the eligibility criteria for the pilot program are forwarded
to the presiding judge for reassignment to the regular civil division. The supervising
judge will also accept cases transferred from judges in the civil division that were not
immediately recognized as complex at the time of filing.
The first case management conference is usually held 60 to 90 days after
assignment to the pilot program, and follow-up conferences are usually held every 30 to
60 days thereafter. Unlike many of the pilot program sites where judges are extremely
proactive in case management activities, the judges in Orange County place the
responsibility on attorneys to make motions at case management conferences to move the
case forward. At the request of lawyers, referees are appointed and frequently used in
construction defect cases to achieve settlement. While most complex cases settle, one of
the pilot judges is in trial for an estimated 200 days per year, an unusual amount of time
when compared to the number of courtroom trials days experienced by other pilot judges.
Orange County has the most sophisticated use of case management technology
among the pilot sites. Document imaging is used to record and track all filings in
complex cases. Some judges notify attorneys of case events via e-mail, which is
18
followed by a hard copy that is mailed to the parties. All program judges post tentative
decisions for law and motion matters on the court’s website. Most judges in the pilot
program still work from files during hearings, and at times make notes on the calendar
which are then entered into the court’s imaging-based case processing system when the
minute order is prepared. Some judges do not request files for specified hearing types,
relying instead on the imaging system or copies from it.
For trial purposes, the court has contracted with an outside vendor to provide
technological support and a presentation system in the courtroom. The system includes
components such as a server that can read presentation software, a VCR, evidence exhibit
capabilities, and large screen projection system. During hearings and trials, the court is
able to provide attorneys with a more up-to-date system to present and share case
information with judges, court staff, attorneys, and jurors. The system, which is
permanently located in the courtroom, is the only one permitted to be used for evidence
presentation purposes. The cost of the system, $550 per day, is shared by all parties to an
action who use the equipment. This rental requirement has caused minor concern for law
firms that have their own in courtroom computer equipment, but the pilot judges believe
that having the same equipment available to all parties justifies the cost to individual
parties. An evaluation of this approach for providing presentation systems is scheduled
to be conducted.
In the area of training, court officials stated that court staff were quite
professional, had good morale, and did not need specific training. On the other hand,
some judges stated even though they attended AOC-sponsored civil litigation training
courses, they would like additional education on class action wage and salary suits,
construction defect cases and additional training on dealing with multi-party complex
consumer cases brought under §17200 of the Business and Professions Code.
Los Angeles County
Los Angeles County has a population of over 9.8 million people, larger than the
population of 42 states. The Superior Court of Los Angeles County consists of twelve
judicial districts and 59 court buildings located throughout the county. Based on this
population and the amount of business transacted in the county, the Civil Division of the
Superior Court of Los Angeles County is one of the largest and busiest in the country.
Approximately 50 judges work in the regular civil division of the Superior Court and six
judges are assigned to the pilot program, which is located on separate floors in a large
county building northwest of downtown. The NCSC conducted interviews with Judge
Carolyn Kuhl, the supervising judge of the pilot program; Judge Gary Klausner,
supervising judge for the Civil Division; and, in a group setting, with all of the
participating pilot program judges.
Because of the decentralized nature of the Superior Court of Los Angeles County,
the case assignment process for the pilot program in Los Angeles differs dramatically
from the other pilot sites. All class action cases are filed in the downtown Los Angeles
division. They are initially identified as complex based on information on the Civil Case
Cover Sheet and are immediately assigned to the pilot program. Complex cases filed in
one of the other 12 judicial districts in the county are assigned to a civil court judge who
reviews the case approximately 30 to 60 days after filing and has the discretion to either
19
retain the case in the district or refer it to the pilot program for case management
purposes. Court officials estimated that two-thirds of the cases referred to the pilot
program from the judicial districts are ultimately determined to be complex. Those cases
that are determined to be not complex are sent back to the judicial districts for
reassignment on the regular civil docket.
The supervising judge for the pilot program reviews new cases referred from the
regular civil departments for eligibility in the pilot program and coordinates the case
assignments of five other judges working in the court. The assistant assignment judge
reviews the class action cases. Cases are assigned to judges on a rotating basis. When a
judge appears to have too many active cases assigned or too many cases going to trial,
they may request to be taken off of the assignment wheel for a time in order to balance
the workload, which averages 40 to 60 active case groupings at any given time.25 As an
example of the unique methods used by the Court to balance caseload and assignment,
the supervising judge described six complex case groupings involving insurance claims
on earthquake damage that included nearly 2,000 separate cases. Cases were assigned to
each of the six judges based on the litigants’ insurance carriers. Each of five judges was
assigned all those cases filed against one of the five major carriers, while the sixth took a
mix of other, non-major carrier suits.
Three to five weeks after a complex case has been accepted and assigned, the first
case management conference is held. The six pilot judges have developed and use
standard forms, such as a case management order and trial readiness orders, for case
management purposes. The pilot judges in Los Angeles use the case management
conferences in a unique manner, giving lawyers “homework assignments” including
expectations to report progress and completion of tasks to the court.
The pilot program relies on the superior court’s existing Sustain case processing
system to process and track actions in cases. As papers are filed in the clerk’s office,
papers are entered into the file jackets in chronological order. This practice poses
problems for the pilot judges and court staff when filing information needs to be located
in the courtroom during hearings or trials. Court officials believe this “hunt for papers”
can be alleviated by the use of imaging and eventually through electronic filing.
Each judge has a 4-member staff consisting of a research attorney, court reporter,
judicial clerk, and courtroom assistant/calendar specialist. As a matter of practice, the
pilot judges do not favor the use of referees to resolve issues or to help settle cases, which
they believe hinders their ability to control the pace of litigation, encourages the use of
continuances, and increases the cost of discovery to parties. Their preferred style is
proactive management of cases and judicial control of timelines, which promote a sense
of certainty and predictability for lawyers. The judges also encouraged the use of
mediation. According to those interviewed, it is this combination of techniques that
results in settlement for the vast majority of complex litigation cases.
25
Complex cases in the Superior Court of Los Angeles County are identified for case management
purposes as groups of related cases. Consequently, the number of individual cases that may be related to
the group is much larger.
20
The number of weeks in trial for the pilot judges in Los Angeles averages two to
three weeks per year. Judges in Los Angeles reported that the pilot program has resulted
in fewer appeals being filed. They also believe that appeals are packaged more uniformly
and provide appellate judges information in a more understandable and organized form,
thus saving decision-making time and money.
In the area of training, judges stated that there was benefit to the semi-annual
meetings that had been held for complex litigation judges and for the most part they were
self-trained. They acknowledged that judges that are new to the pilot program bench
need a thorough orientation to the pilot programs and training in the various techniques
that have been developed by other complex litigation judges to manage cases. It was also
recognized that court staff had a difficult job processing and keeping track of the many
filings and timeframes associated with complex cases and needed more training in
organization, time management and computer skills.
Common Concerns and Recommendations

A portion of the interviews conducted during the site visits solicited opinions
from the pilot judges, presiding judges, executive officers, and key pilot program staff
about how to improve various aspects of the pilot program. From these discussions,
several common areas of concern were raised. There was unanimous consensus among
the pilot judges that many of the existing rules of civil procedure hamper their ability to
manage complex cases effectively. Rules governing demurrers, discovery, and summary
judgment were specifically singled out. The rules governing summary judgment, for
example, specify that judges may grant a motion for summary judgment if the evidence
shows that there is no triable issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.26 The rules do not give judges the discretion to
grant partial summary judgment with respect to specific issues. The pilot judges agreed
that the ability to grant partial summary judgment would be a valuable tool in complex
case management for disposing of non-meritorious and peripheral issues and focusing the
parties on key issues of the suit. Similar points were raised about rules pertaining to
demurrers and discovery, especially in multiple party cases. The pilot judges believe that
complex cases could be more easily and effectively managed if they had the ability to
make rulings as to the timing and priority of pleadings and discovery for specific parties
and issues.
A second concern raised in several of the sites was uncertainty about the optimal
caseload size for judges managing complex civil litigation. The Los Angeles County site
had the lowest average caseload with 40 to 50 active cases per judge. The reported
caseload in San Francisco and Alameda Counties (80 to 100) was approximately half that
in Santa Clara, Contra Costa, and Orange Counties (170 to 215), although not all of the
pilot programs defined a “case” in precisely the same manner.27 All of the sites had
26
CAL. CODE CIV. PROC. § 437(c).
27
Among the individuals interviewed during the NCSC site visits, the term “case” was used
interchangeably to indicate a case with a uniquely assigned case number, a formally consolidated case in
which several uniquely-identified cases had been aggregated for case management purposes, an informally
consolidated case involving several uniquely-identified cases with common parties and underlying factual
21
similar caseload compositions,28 staffing and other resources. Several of the judges
expressed interest in participating in a workload assessment that would determine an
appropriate caseload size and help each of the pilot sites make the most efficient use of
resources without compromising the quality of judicial decision making and management
that has become the hallmark of the pilot programs.
The final issue was the future direction of technological support for the pilot
programs. Although several of the courts invested substantially in courtroom technology,
actual bench or jury trials in complex cases are rare occurrences. The vast majority of
cases are disposed through settlement negotiations. The more pressing need is for case
management technology that will permit the pilot judges and their staff to monitor case
progress more accurately, organize court documents (motions, briefs, documentary
evidence) more coherently, and communicate with multiple attorneys and parties more
effectively. Only Orange County currently employs imaging technology on a routine
basis and none of the pilot courts have advanced e-filing beyond an experimental and
small-scale basis, but both of these technologies would enhance the productivity of the
pilot courts. More aggressive use of Web-based case management systems would
likewise be a benefit in complex case management.
allegations and causes of action, and collections of uniquely-identified cases involving similar parties or
causes of action (e.g., the “clergy” cases filed against the Los Angeles Diocese).
28
Orange and Contra Costa Counties had larger concentrations of construction defect cases than the other
sites. In most other respects, however, all of the sites had similar ratios of provisionally and non-
provisionally complex cases.
22
PART 3 – INTERVIEWS WITH JUDGES AND ATTORNEYS
The second methodological approach employed in the evaluation consisted of two
rounds of in-depth telephone interviews with pilot program judges and attorneys.29 The
first round of interviews were conducted between April and July 2000 – after the
implementation of the pilot program in most courts, but well before the judges and
attorneys had become deeply involved in cases assigned to the program.30 The second
round of interviews was conducted with attorneys who had recent experience in cases
assigned to the pilot program.31 These interviews, which took place in April through
July, 2002, focused on the major issues that had been identified in the first round of
interviews to determine the extent to which the pilot program had addressed them. The
interviewers also solicited the judges’ and attorneys’ suggestions for ways to improve the
handling of complex cases in California courts. The second round of interviews with
pilot program judges was conducted as part of the pilot program documentation in
conjunction with the site visits in July 2002. Because so many of the questions in the
second round of interviews dealt with how pilot program judges actually approached the
task of complex case management in their respective courts, their responses were
incorporated in the discussion in Part 2 of this report.
The NCSC considered this subjective component of the evaluation to be critical
from the very beginning of the project. First, it was important to help the NCSC identify
specific issues and opinions about complex case management practices in California
before the existence of the pilot program. This information was used not only as a
baseline with which to compare interview responses before and after implementation of
the pilot program, but also to develop tentative theories about complex civil litigation and
measures for the empirical component of the evaluation. The first round of interviews
also documented the pilot program judges’ initial expectations about various case
management techniques they planned to utilize in their respective courts for comparison
with what was actually done. Finally, the second round of interviews with attorneys
provided valuable insights about the pilot program performance – in essence, putting
much needed flesh on the bones of the pilot program documentation and empirical
examination.
There was tremendous consensus in the first round of interviews that the master
calendar system and, to slightly lesser extent, inappropriate appointment of referees were
the two most significant problems associated with complex case processing in California
29
The NCSC also attempted to interview litigants in complex cases to assess their views, but was unable to
identify a sufficient number of litigants to participate in the interviews. See Appendix A for a detailed
discussion.
30
The judges interviewed for this task were all of the judges participating in the pilot program at that time.
The attorneys interviewed included individuals referred by the pilot program judges and key leaders from
the Association of Business Trial Lawyers, the Association of Defense Counsel, the American Board of
Trial Advocates, Consumer Attorneys of California, Trials Lawyers for Public Justice, and the American
Corporate Counsel Association. Most of the interviewed attorneys had substantial experience in complex
litigation and a sizable proportion had litigated at least one complex case before the referring pilot program
judge.
31
Second interviews were also conducted with the pilot judges during on-site visits, which are reported in
Part 2.
23
prior to implementation of the pilot program. The master calendar system was criticized
for involving too many judges with too little experience in the pretrial phase of complex
case management, thus introducing unpredictability in decision making and diffusing
judicial accountability for effective case management. Dissatisfaction with referee
appointments focused on the compensation structure for referees, which was alleged to
contribute to case delay and excessive costs, particularly in combination with inadequate
judicial supervision of and direction for referee activities. The second round of
interviews revealed that both of these issues were addressed satisfactorily by the pilot
program. The overwhelming consensus of attorneys in the second round of interviews
was that the pilot judges understood the legal and evidentiary issues, managed the cases
expeditiously, and restricted referee appointments to appropriate cases.
Both rounds of interviews with attorneys posed some methodological difficulties
that may limit the generalizations that can be drawn. See Appendix A for a detailed
discussion of methodological limitations. Nevertheless, there was sufficient consistency
in the responses that the NCSC believes that they are a valid reflection of the general
views of those attorneys who are familiar with the issues and problems related to
complex litigation management. The following discussion summarizes the protocols
developed for conducting both sets of interviews, a general description of the judges and
lawyers who participated in those interviews, and findings and conclusions from this
component of the evaluation.
First-Round Interviews with Judges and Attorneys

In preparation for the first round of interviews, the NCSC developed protocols
based on a series of preliminary interviews with a few key judges and lawyers familiar
with complex litigation management in California and with the development of the
Complex Civil Litigation Pilot Program. These preliminary interviews helped identify
key issues related to complex litigation management on which to focus the first round of
interviews. Among the issues identified were the appropriate scope of judicial
management and oversight of complex cases; the appropriate role of quasi-judicial
officers (e.g., referees) in complex case management; the implications of the court
calendar system (master calendar versus individual calendar) on the predictability of case
outcomes (e.g., consistency of rulings on similar issues among judges); and the length
and expense of litigating complex cases. The interview protocols attempted to gauge
judge and attorney agreement or disagreement with these identified areas of concern and
solicited concrete examples based on the respondents’ experiences in complex litigation.
See Judge Protocol and Attorney Protocol, at Appendix C.
All of the judges who were originally assigned to the pilot program were
interviewed, and were asked about their views of the judicial management of complex
litigation in their respective counties. The attorneys were asked to give their opinions on
court and judicial performance in complex cases overall and in complex cases they
recently litigated. Both judges and attorneys had the opportunity to comment on the role
of referees and Alternative Dispute Resolution (ADR), and their overall expectations
about the pilot program. Lastly, the attorneys and judges were asked to state whether
they agreed or disagreed with several statements on a scale of 1 to 10. These statements
24
dealt with the management of complex cases, the role of special masters, and judicial
competency in complex case management.
Most of the interviewed judges were from Orange and Los Angeles Counties, and
the attorney population fell along similar lines. See Table 3.1. Interviewers did not
specifically ask attorneys if they typically represented plaintiffs or defendants, and less
than half of the interviewed attorneys provided this detail. Of the attorneys who divulged
their practice type, over two-thirds were plaintiff attorneys and slightly under a third were
defendant attorneys.
Table 3.1:
Pre-Program Interviews
County Judges Attorneys
Alameda 1 1
Contra Costa 1 9
Los Angeles 6 16
Orange 4 28
San Francisco 1 6
Santa Clara 1 3
San Diego - 1
Total 14 64
Interviewers asked the attorneys about their complex law practices, and three
areas emerged as the most common practice types. Construction defect was the most
common practice area (37% of interviewed attorneys), followed by insurance coverage
(16%) and class action lawsuits (11%). Most construction defect attorneys were located
in Orange County, while the majority of attorneys specializing in insurance coverage
cases tended to practice in Los Angeles. The other areas of complex law specialization
included business litigation, patent and technology cases, eminent domain, and unfair
competition cases. The majority of attorneys practicing in eminent domain law resided in
Orange County, while most patent and technology specialists practiced in Northern
California. It was not clear from the interviews whether these practice concentrations
resulted from specific clusters of specializing attorneys or whether the method of
interview referrals caused these practice groupings to occur.
Second-Round Interviews with Attorneys

To develop protocols for the second round of interviews, the NCSC identified key
issues from the first round of interviews and formulated questions designed to determine
how well the pilot program addressed those issues. The procedure for selecting attorneys
to participate in the second round of interviews was very different from that for the first
25
round of interviews. To survey attorneys who had first-hand experience with the pilot
program, the NCSC used the database of complex cases that was compiled as part of the
empirical evaluation (see Part 4) and selected 100 disposed cases.32 A weighted sampling
technique was used. All 20 completely disposed cases that were initially filed after the
inception of the pilot program were selected. The NCSC then randomly selected 40 cases
retained by the pilot program judges at the beginning of the pilot program and 40 cases
transferred from non-pilot judges at the beginning of the pilot program. Participating
pilot sites were asked to provide the names and contact information of the lead attorneys
on each side of the case.
Due to sampling and response rate issues, NCSC staff ultimately conducted
interviews with 36 attorneys (an overall response rate of 21%). Of the original sample of
attorneys, the NCSC had the most success identifying, locating and securing the
cooperation of attorneys from cases filed in Contra Costa County (34% response rate).
The response rate for attorneys in Orange County were the second highest at 18%,
followed by Los Angeles (13%) and San Francisco (8%). Consequently, attorneys in
Orange and Contra Costa Counties account for nearly 90% of the interviews. See Table
3.2.
Table 3.2:
Post-Program Interviews
Counties Attorneys
Orange 17
Contra Costa 15
Los Angeles 3
San Francisco 1
Total 36
As noted above, the NCSC staff also conducted a second round of interviews with
pilot program judges in conjunction with site visits to document how the pilot program
was implemented in each court. Individual interviews took place with the pilot program
judge in the Superior Courts of Alameda, Contra Costa, San Francisco, and Santa Clara
Counties, and with the supervising judges of the pilot programs in the Superior Courts of
Los Angeles and Orange Counties. Group interviews were conducted with the remaining
pilot program judges in Los Angeles and Orange Counties. Summaries of those
interviews have been incorporated into Part 2 of this report.
32
The sample was drawn only from disposed cases for two reasons: to ensure that the attorneys
experienced the Pilot Program through the end of the case, and to increase the likelihood of candid answers
from the attorneys about their experience under the Pilot Program, which might be compromised if cases
were still under active supervision by the pilot program judges.
26
Findings
From the first round of interviews, the NCSC found that the master calendar
system of case assignment and the role of referees in complex case management both
contributed to attorney dissatisfaction with complex case management in many areas of
the state. The following section describes these issues in detail.
Master Calendar versus Individual Calendar Systems
In the first round of interviews, use of a master calendar system was identified as
the single most significant obstacle to effective complex case management in California,
from which all other issues and problems arose. Under a master calendar system, civil
cases are not assigned to a judge until they reach trial. Thus, during the pretrial phase, all
motions and other pre-trial matters are randomly assigned to a fixed panel of judges
designated to hear specific discovery and law and motion issues. No single judge has
primary responsibility for managing these cases from initial filing to resolution. Instead,
multiple judges hear motions, discovery disputes, and other pretrial matters.
A variety of issues were reported to result from the use of the master calendar
system. These include the lack of a single point of judicial accountability for case
supervision, insufficient judicial involvement in pretrial management (e.g., identifying
and resolving key legal issues and creating a discovery plan) of complex cases, and lack
of judicial knowledge about and experience in specific areas of substantive law. In the
first round of interviews, the master calendar system was also criticized for involving
judges who lack either the experience or skills to engage in effective case supervision.
The pilot program, of course, mandates the use of an individual calendar system.33
Thus, on the surface, it appears to solve the problems associated with master calendar
systems. Nevertheless, it is useful to discuss the alleged shortcomings of the master
calendar system and to examine the extent to which an individual calendar system
actually addresses those problems.
In the first round of interviews, judges and attorneys were asked whether they
agreed with the statement that too many judges in their respective courts are involved in
the pretrial management of complex litigation. Most judges thought that the lack of
single judicial assignment in the master calendar system presented a serious problem in
complex case management. Of the ten non-Orange County judges, all either agreed or
strongly agreed with the statement that too many judges are involved in the pre-trial
management of complex litigation. However, the Orange County judges, reflecting their
experience with a single judge assignment system, disagreed strongly with the statement
that too many judges were involved in complex cases.
33
Issues associated with the master calendar system did not, for the most part, apply to the Orange County
Superior Court, which instituted a single assignment complex court panel in 1991. For this reason, Orange
County has been analyzed separately in the section dealing with the general opinions of attorneys and
judges. In addition, despite the prevalence of a master calendar system, some complex cases were assigned
to a single judge in the non-Orange county trial courts. In order to take into account instances where
complex cases were assigned to one judge, questions about recently litigated cases have been separated into
two sets: those whose cases were assigned to one judge and those whose cases were managed under a
master calendar system. This section also distinguishes general from case specific opinions where
appropriate.
27
Similarly, the majority of attorneys outside of Orange County thought that the
master calendar system presented serious problems for competent complex case
management. Nearly 62% of the interviewed attorneys either agreed or strongly agreed
with the statement that too many judges were drawn into the pre-trial aspects of complex
litigation. Some attorneys argued that this system forces the parties to educate new
judges about a case’s particulars throughout the lifetime of the case, needlessly
prolonging complex cases. Other attorneys stated that the master calendar system
brought about inconsistencies, disorganization, and confusion in the processing of
complex cases. One attorney described the system as an “inane” way to process complex
cases.
Not all attorneys outside Orange County, however, felt negatively about the
master calendar system. Some commented that their cases were so complicated that it
did not matter whether one or several judges handled the case. Other attorneys stated that
a master calendar system sometimes worked to their advantage because eventually they
would be assigned a judge better qualified at handling complex cases. This is perhaps a
cynical view that reiterates a general consensus that most civil division judges are not
particularly well-qualified to manage complex litigation, so random assignment to
multiple judges throughout the pendency of the case can only improve the odds of
appearing before a qualified judge at least once.
Among the attorneys in Orange County, most expressed approval for the Orange
County’s system of single assignment. One attorney called the Superior Court of Orange
County a “gem” and contrasted it to Los Angeles where judges often allow attorneys to
“churn cases” and keep them “going in all directions.” Another Orange County attorney
commented that cases litigated in Orange County were treated as the federal courts
handle them. Seventy-two percent (72%) of the Orange County attorneys disagreed with
the statement that too many judges were involved in complex litigation.
Another major criticism of the master calendar system by judges and attorneys
was that it interferes with the ability of judges to engage in substantial pretrial
management and supervision of complex cases. Among the non-Orange County judges,
most believed that judges generally did not spend nearly enough time on complex case
management before implementation of the pilot program. The civil calendars, which
generally consisted of 300 to 400 general civil cases, precluded judges from spending
significant amounts of time on complex litigation. Indeed, because accountability for
case management is diffused among multiple judges in a master calendar system, judges
had little incentive to become involved in pretrial activities beyond those specifically
requested by the parties (e.g., discovery motions).
As an indicator of the comparative benefits of an individual calendar system, the
judges in the Superior Court of Orange County had more positive views on the levels of
judicial involvement. The judges in Orange County commented that they had the time
and resources to give these cases sufficient attention. But one of the judges argued that
the amount of judicial involvement in pretrial management was related more to the type
of case than to overwhelming caseloads or general lack of resources. According to this
judge, construction defect cases require little attention because the attorneys who handle
these types of cases generally have been working with each other for an extended period
of time. In other types of complex cases – business litigation, for example – the attorneys
28
may not have known or worked with each other previously, necessitating more judicial
involvement and supervision.
In both rounds of interviews, attorneys were asked to comment about several
aspects of judicial involvement in cases that they had recently litigated, such as status
conferences, court accessibility, and judicial enforcement of established case
management deadlines. In the first round of interviews, attorneys whose cases were
managed under a master calendar system expressed neutral or negative views regarding
the levels of judicial involvement for each of these components.34 Only 27% indicated
that judges frequently held status conferences to keep up with these cases, while the
remaining attorneys stated that judges would sometimes (40%) or never (33%) hold
status conferences.
Attorneys in the second round of interviews, in contrast, reported much higher
levels of judicial supervision of complex cases. These attorneys had cases recently
resolved through the pilot program. All but two of the attorneys indicated having status
conferences at least once every four months, and all reported having at least one status
conference at some time during the pendency of the case. Half had conferences every
three months, and over one-quarter (28%) had conferences every two months. Another
13% had status conferences on a monthly basis.
Similar contrasts could be found in attorney views about the degree of court
accessibility in the first round and second round interviews. In the first round of
interviews, slightly over half (53%) reported that the courts were not accessible in
complex cases that they had recently litigated. Among the remaining attorneys, only
18% reported that courts were regularly accessible and 23% indicated that they were
somewhat accessible. Among attorneys in the second round of interviews, over 90%
reported that the judge was accessible and helpful, with 76% indicating that the judges
were very accessible and helpful. Only two attorneys reported that the judge was not
very accessible and helpful. When asked whether the judge required compliance with
case management deadlines, over half (53%) of the attorneys from the first round of
interviews claimed that the judges rarely if ever enforced case management deadlines
compared to only 12% of attorneys in the second round of interviews.
During the preliminary interviews,35 the master calendar system – and, to a lesser
extent, the individual calendar system – was faulted for assigning complex case
responsibility to judges who lack expertise in substantive law and case management
techniques. Moreover, many lawyers criticized judges for lacking interest in business or
commercial litigation and for being unwilling to spend the necessary time and attention
on complex cases. In the first round of interviews, attorneys were asked to give their
34
In comparison, attorneys in the first round of interviews whose cases were assigned to a single judge for
pretrial management had more positive views about the level of judicial involvement. Ninety percent
(90%) of the attorneys reported that the judge regularly (45%) or sometimes (45%) held status conferences,
and only 11% said that status conferences were never held. Similar reports were given about court
accessibility. Over half reported that the courts were very accessible (51%) and that the judge enforced
case management deadlines (55%).
35
Recall that the NCSC conducted a number of preliminary interviews to develop the protocols for the first
round of interviews.
29
opinions on the matter of judicial competency in complex litigation in their respective
courts. The pilot program judges were also asked to assess the level of competence in
complex case management of their judicial colleagues in their respective jurisdictions.
There was a striking difference of opinion between the Orange County judges and
non-Orange County judges, due presumably to the different calendar systems for
complex litigation. The Orange County judges strongly agreed that their judicial
colleagues had sufficient knowledge about complex commercial law and sufficient
experience in complex litigation, while the Los Angeles and northern California judges
disagreed.36 See Figure 3.1.37 Although attorney opinions on this topic also varied a
great deal, the geographic difference was much less dramatic. See Figure 3.2. In fact,
there was no significant difference in attorney opinions with respect to judges’
substantive knowledge and a much less pronounced difference with respect to judges’
experience in complex case management.38
Figure 3.1: Judges' Assessment of Judicial Competence in

Complex Litigation
10 8.7
Mean level of agreement
8 7.3
6
3.7
4 2.7
1.5
2 1.0
0
Orange County Los Angeles Northern California
Sufficient knowledge about complex commercial law

Sufficient experience in complex litigation
36
It is not clear whether the Orange County judges were rating all Superior Court judges or only those
assigned the complex litigation calendar.
37
Knowledge of law F (2, 10) = 7.093, p = .012; Experience in complex litigation F (2, 11) = 31.167, p <
.001.
38
Knowledge of law F (2, 60) = 1.699, ns; Experience in complex litigation F (2, 61) = 4.460, p < .016.
30
Figure 3.2: Attorneys' Assesment of Judicial Competence in
Complex Litigation
10
Mean level of agreement
8
6 4.5
3.8 3.4
4 3.0
2.4 2.2
2
0
Orange County Los Angeles Northern California
Sufficient knowledge about complex commercial law

Sufficient experience in complex litigation
When attorneys were asked about judicial knowledge of the facts and law in a
recently litigated case, however, there was a strong correlation between attorney ratings
of judicial understanding and the calendar system under which the case was managed.
See Figure 3.3. For cases assigned to a single judge, the vast majority of attorneys (80%)
reported that the judge understood the case very well and only 11% indicated
dissatisfaction with judicial comprehension. For cases managed under a master calendar
system, however, over 40% reported that the judges involved in those cases had little or
no understanding and only a third reported good judicial comprehension of the case.
Figure 3.3: Attorney Ratings: How well did the judge(s)

understand the case?
100%
80%
80%
60%
35% 41%
40%
24%
20% 9% 11%
0%
Very Well Moderately Well Not at all well
Master Calendar Single Judge Assignment
Did implementation of the pilot program continue the high regard for judicial
competence that was found for cases assigned to an individual calendar? The answer is a
resounding “yes”. In the second round of interviews, 95% of attorneys rated judicial
understanding of the issues as well, and 80% rated it very well. In fact, only two
attorneys rated judicial competence as average or lower. There was no appreciable
31
difference among the sites for this measure.39 The judge’s prior case experience was the
reason most commonly cited by attorneys for these ratings. Another 11% credited the
fact that the judge had sufficient time to manage the case, which in turn provided
opportunities for the pilot judges to focus the parties on key issues in dispute. For
example, 88% of the attorneys reported that the judge was helpful with clarifying the
issues of the case, and 76% said the judge was very helpful.
Delay in case processing and resolution was reported as a serious problem in
complex litigation in the first round of interviews. Use of a master calendar system and
over-reliance on referees were cited as the most prominent factors contributing to delay
in complex cases. Judges and attorneys reported that as a result of the referee
appointment system, judges often gave their complex cases less attention and rarely
attempted to impose tight deadlines or manage these cases in a way that discouraged
delay. Instead of closely supervising these cases, judges were reported to delegate case
management duties to referees. Referees were reported to have little incentive to handle
cases expeditiously because their compensation was based on the amount of time they
spend managing the parties through discovery. Furthermore, referees could not afford to
alienate the parties by appearing to favor either side. These factors combine to produce
significant delay, and it was reportedly not uncommon for cases to languish for years
before finally being resolved.
Delay is also prevalent when complex cases reach the trial stage. A sizable
number of attorneys (38%) indicated that their most recently litigated complex case went
to trial, and delay was an issue in 44% of these cases.40 According to attorneys in the
first round of interviews, many judges fail to supervise and adequately tackle complicated
legal issues before trial and these unresolved legal and factual issues cause significant
postponements. One attorney remarked about a judge who put off resolving issues until
the case actually went to trial. This attorney claimed that the “judge literally went into
the case blind” and had to delay the case on numerous occasions in order to resolve a
variety of legal issues. Other attorneys complained about the postponements arising from
evidentiary issues that should have been decided before trial.
In contrast to attorneys in the first round interviews, those that participated in the
second round of interviews overwhelmingly (97%) reported that the case was managed
expeditiously, and apparently without sacrificing time for conducting meaningful
discovery. Interestingly, the attorneys were split in terms the degree of judicial
involvement in pilot program cases compared to complex cases not assigned to the pilot
program. Just over half (53%) said there was more judicial involvement in pilot program
cases, but another 43% said it was about the same as other cases. One respondent
thought there was less judicial involvement in his pilot program case that in non-program
cases.
39
Chi-Square (d.f. 4) = 6.531, ns.
40
The proportion of attorneys who reported trial experience is extremely high given the low trial rates in
civil litigation. Presumably this occurred because these attorneys were initially identified by the pilot
judges as those who were known to have substantial experience in complex litigation. It is reasonable to
assume that the pilot judges identified those attorneys with whom they had the most interaction in complex
cases – namely, those whose cases proceeded to trial.
32
The Role of Referees in Complex Litigation
Another area of concern identified in the first round of interviews was the role of
referees in complex litigation. Some judges and attorneys thought highly of the referees,
while others possessed a dim view.
Judicial preferences and case type influenced the utilization of referees among the
pilot judges in the first round of interviews. Some judges tended to appoint referees in a
large proportion of their complex cases, while others used them sparingly. Several of the
pilot judges indicated that referee use depended upon the case type (e.g., more frequently
in construction defect cases, but rarely in eminent domain or trade secrets cases). The
role of the referee, according to the pilot judges, was to oversee discovery and manage
the routine aspects of complex case management. Referees also helped judges resolve
technical issues in construction defect cases. Many construction defect cases involved
engineering issues dealing with building quality, and referees were often needed to help
the court decide these matters effectively.
Another possible difference in judges’ reliance on referees may have been
individual preferences for engaging in detailed supervision of pretrial case management.
Although the first-round interview questions did not specifically focus on this topic, there
was a clear difference of opinion among many of the judges interviewed concerning their
interest and willingness to become involved in resolving discovery disputes or in
organizing large volumes of evidence and testimony. Some judges expressed the belief
that these types of activities were quintessentially judicial in nature and should not be
delegated. Others believed that detailed case management was best left to the parties
with the assistance of a referee.
The judges in the first-round of interviews held a variety of opinions about
referees. Some judges thought that referees brought an important level of management
and knowledge expertise to complex case litigation. One judge commented that their
court was “very lucky” to have referees with the knowledge and capability to help in the
management of complex cases. Others argued that referees were crucial in preventing the
court from getting too involved in time-consuming discovery disputes. But other, judges
expressed reservations about employing referees. For example, they objected to the delay
associated with using referees. Nearly one-third of the judges thought that referees
lacked incentives to encourage early case resolution. They specifically cited referee pay
structure, in which compensation is based on the amount of time spent working on a case,
as an incentive for needless delay of complex cases. The judges also cited the referees’
need for maintaining the goodwill of all parties as another problem in complex litigation.
If a referee ruled against one party too frequently, that party would be unlikely to use that
particular referee in the future. According to the judges, fear of losing future business
often resulted in drawn-out discovery and a propensity to shy away from immediate
resolution of otherwise solvable disputes.
Finally, some judges indicated that they did not often have time to adequately
supervise the referee’s work. Approximately two-thirds of the judges agreed with the
following statement: “Some judges lack the time and resources to adequately supervise
the work of referees.” Lastly, judges expressed concerns about delegating what they
considered a public responsibility into the private arena.
33
The attorneys in the first round of interviews indicated that referees were used
frequently in complex cases they handled. Approximately two-thirds of the attorneys
specified that a referee was assigned in complex cases they had recently litigated.
According to the attorneys, the parties made the referee selection in 80% of the complex
caseloads. A minority of complex cases involved referees chosen by the judge from a list
of names submitted by the parties. Only on a very few occasions did the judge choose a
referee without input from the parties involved in the case. Referees tended to manage
only discovery or discovery and mediation. There were few instances in which a referee
was appointed only to mediate a case.
The attorneys in the first round of interviews likewise held a range of differing
views regarding the role for referees. They claimed a variety of benefits from utilizing
referees, one of the most important of which was the time referees are able to devote to
complex case discovery. According to the attorneys, complex cases are often
characterized by a large amount of detailed discovery that courts simply do not have time
to oversee. The attorneys argued that referees are advantageous because they have the
“time, motivation, and resources” to delve into the “minutia” of complex case discovery.
The attorneys also commented that the informal and expeditious nature of referee
oversight provides another advantage for using these private judges. Finally, many
attorneys claimed that referees bring a high degree of informality to discovery disputes;
they often settle conflicts between parties over the phone and they usually are amenable
to hearing discovery conflicts without the need for extended notice. In contrast,
discovery disputes brought before the court require more extensive briefing and usually
are not heard until several months after filing. Several attorneys mentioned that referees
are also sought for their expertise in insurance coverage and construction defect issues.
Lastly, some attorneys argued that referees played a key role in bringing complex cases
to settlement. The referees had the time and resources to engage in settlement options
that the trial judges lacked.
The attorneys also expressed a variety of reservations about referees. One
prominent complaint involved the amount of time referees spend resolving discovery and
other pretrial related disputes. Almost half (44%) of the attorneys thought that referees
lack incentives to limit discovery or to encourage early case settlement. According to
one attorney, it was not uncommon for referees to prolong pretrial proceedings needlessly
so that hearings, which normally took half an hour, would last up to 4 or 5 hours. The
attorneys cited the referee compensation system as a key factor contributing to this
pretrial delay problem. Another issue concerned the inclination among many referees to
“split the baby”, a phrase describing occasions when a referee refuses to consistently rule
in a party’s favor, even when one party acts unreasonably or is legally wrong. Rather
than doing so, referees were reported to issue favorable findings for one party and then
rule for the other party on the next occasion. Another attorney claimed that referees
would “split the difference” –making compromise rulings that favored neither party – as
a way to maintain good relations with both parties to insure future business.
Attorneys also claimed that over-reliance on referees contributes to the lack of
judicial involvement in complex cases. Seventy-one percent of the attorneys indicated
that judges did not have the time or resources to adequately supervise the work of
referees. The attorneys commented that this situation often results in judges who lack any
34
understanding of the case and who are unable to impose their own decisions on these
cases. A final cited drawback was the expense of employing referees. Special masters
are expensive; according to some attorneys, it is common to pay referees $300-$400 an
hour.
There were some site differences in attorney views of the use of referees, with
attorneys in Orange County having somewhat more favorable views than in the other
sites. See Figure 3.4. Attorneys practicing in Los Angeles and in the four Northern
California sites were more likely to agree with statements that referees lack incentives to
limit discovery and encourage settlement than attorneys practicing in Orange County.41
Attorneys in all jurisdictions agreed that judges lack the time and resources to supervise
referees effectively, although this was not quite as pronounced in Orange County
compared to the other sites. Attitudes toward the use of referees in complex litigation
may be a reflection of local legal culture. It is also likely to be a byproduct of the master
calendar system that would encourage excessive or inappropriate use of referees in
certain types of cases. That is, judges may be more inclined to appoint a referee to
manage discovery and other pretrial matters to compensate for the relative lack of judicial
oversight that is possible in the framework of a master calendar system. In contrast, an
individual calendar system provides a framework in which the assistance of a referee may
be less necessary and the activities of the referee can be more closely supervised.
Figure 3.4: Attorney Agreement with Statements (1=Low,

10=High)
10
7.5 7.5
8 6.23 6.06
5.46
6 4.28
4
2
0
Los Angeles Orange No. California
Special masters lack incentives to limit discovery or encourage settlement

Judges lack time and resources to supervise special masters
In the second round of interviews, attorneys reported a decrease in the proportion

of cases for which referees were appointed, although these cases still comprised more
than half (53%) of the total sample. Moreover, these appointments occurred exclusively
in the Orange and Contra Costa County sites.42 In two-thirds of these cases (63%), the
41
F (2, 75) = 3.083, p = .052.
42
This was consistent with the data collected in the empirical examination. See Part 4. Note, however, that
only four of the pilot sites were represented in the second round of attorney interviews, and in two of the
35
role of the referee was to manage the discovery process. In the remaining third (32%),
the referee oversaw settlement negotiations.
Attorneys in the second round of interviews reiterated many of the previous
observations about the advantages and disadvantages of referees. Cost was the most
frequently cited disadvantage (28%),43 followed by the observation that decisions by the
referee are not final and can be appealed to the judge (17%). Other reported
disadvantages were that the referees are too busy and cause delays, that people with the
authority to settle the case do not always attend settlement negotiations because the judge
is not there (6%), that the referee does not enforce deadlines (6%), and that referees take
more time than a judge (6%). Compared to the first round of interviews, however, these
types of disadvantages seem to be a much less prevalent concern by the attorneys. It is
important to note also that 28% of the attorneys reported no disadvantages to having a
referee assigned to the case.
Disadvantages notwithstanding, a substantial majority (72%) of the attorneys felt
that the appointment of a referee was appropriate and rated their satisfaction with the
referee at an 8 or higher on a 10-point scale. See Table 3.3.44 Only two reported ratings
at a 5 or below. These high ranks may be a reflection of more effective judicial
supervision over the activities of referees, may indicate that their use was limited to
appropriate cases, or be a more general approval for the use of referees in complex cases
in Orange and Contra Costa Counties.
sites this representation was marginal, at best. Site differences, therefore, might also be a function of the
small sample size rather than an actual difference in court practices.
43
In 79% of cases, the parties paid the referee fees, whereas in 11% of cases, the court paid for the service
and the remaining 10% the services were paid by the county or were reported as being provided for free.
44
Note that Table 3.3 excludes responses from attorneys whose cases did not involve a referee appointment
as well as those that did not respond to the question.
36
Table 3.3:
Attorney Satisfaction with Referee
Score N % Cum %
1 0 0.0% 0.0%
2 0 0.0% 0.0%
3 1 5.6% 5.6%
4 0 0.0% 5.6%
5 1 5.6% 11.1%
6 2 11.1% 22.2%
7 1 5.6% 27.8%
8 9 50.0% 77.8%
9 3 16.7% 94.4%
10 1 5.6% 100.0%
Total 18 100.0%
Use of Alternative Dispute Resolution (ADR)

One of the most dramatic differences between complex case management under
the pilot program and routine civil case management is the underlying assumption of how
cases will ultimately be disposed. Routine civil litigation proceeds as if the case will
ultimately go to trial, even though less than 5% of cases actually do so. In contrast, the
assumption in the pilot program is that cases will eventually settle. As a consequence, all
types of alternative dispute resolution are considered an integral tool of complex case
management. In the preliminary interviews, the courts were criticized for repeatedly
sending complex cases to alternative dispute resolution, even when doing so is unlikely to
produce significant results.45 In the first round of interviews, nearly two-thirds of the
judges and over half the attorneys (57%) agreed that courts overuse alternative dispute
resolution to avoid trials in general. But a different picture emerged when the judges and
attorneys were asked about their own practices. Most of the pilot judges indicated that
alternative dispute resolution is essential for case settlement. Attorneys, too, thought that
it is a key component in their complex casework. Seventy-two percent (72%) of the
attorneys stated that they had used alternative dispute resolution in their recently litigated
complex cases, and 74% thought that it was helpful in getting those cases to reach
settlement. In the second round of interviews, 28% of attorneys reported that some type
of alternative dispute resolution was ordered in their cases. Over 70% thought the
process was helpful with 42% reporting that it was very helpful. Only one respondent
thought it was not helpful and another was indifferent.
45
This was particularly a problem under the master calendar system where significant disruptions would
occur in trial calendars if a complex case actually went to trial.
37
Attorney Comparisons of Case Processing Characteristics
In addition to comparing attorney responses in the first and second rounds of
interviews, the NCSC also asked attorneys in the second round of interviews to comment
on their experience with cases in the pilot program compared to recent complex cases that
were not assigned to the pilot program. In general, responses to these questions were
mixed at every stage of the litigation process. See Table 3.4. Although only a handful of
attorneys reported that cases assigned to the pilot program were managed less efficiently
than cases assigned to non-pilot courts, nearly two-thirds (63%) did not report an
appreciable difference.
Table 3.4:
Compared to non-pilot cases, attorneys rated cases assigned to pilot program as…
Trial Stage N More efficient Same Less efficient
Pleadings 33 30% 61% 6%

Settlement Negotiations 30 33% 57% 10%
Trial 6 67% 17% 17%
Overall Assessment 32 31% 63% 6%
The attorney assessments of discovery illustrate some of the nuances involved in

these determinations. The timeframe for discovery was 1 to 2 years in most cases (37%)
and was less than 1 year in another 26% of cases. Attorneys reported that the pilot judge
used the statutorily set time frame in 15% of cases, did not set a specific time in 15% of
cases, and consulted with the attorneys to set the time frame in 4% of cases. All of the
respondents said the discovery time frame was adequate, accurate, and helpful, and
almost all (97%) said the information gleaned from discovery was sufficient to make
informed decisions about settlement alternatives. When asked to describe what the pilot
program judge did differently to facilitate discovery, the most common response (39%)
was “nothing.” However, 19% said the judge was more involved in the process, and
another 15% said the judge set a discovery plan. See Table 3.5.
38
Table 3.5:
Compared to non-pilot cases, what did the judge do differently to
facilitate the discovery process?
N %
Nothing 10 38.5
Was more involved 5 19.2
Set a discovery plan 4 15.4
Appointed referee/discovery referee 3 11.5
Did not micromanage the case 2 7.7
Was more lenient with deadlines 1 3.8
Made advisory rulings early in the process 1 3.8
Total 26 100.0
Nevertheless, the attorneys were divided on their ratings of the case management
techniques employed during discovery. 70% said the case management techniques
expedited a resolution and 67% said they improved quality, but only half said they
reduced costs.
Conclusions from Interviews

In the first round of interviews with attorneys and judges, two key areas emerged
as crucial to understanding the problems associated with complex case processing in
California prior to implementation of the pilot program. The first was the master
calendar system, which was criticized for involving too many judges with too little
experience in the pretrial phase of complex case management, thus introducing
unpredictability in decision making and diffusing judicial accountability for effective
case management. Attorneys who routinely handled complex cases in individual
calendar courts had remarkably more positive responses to all of the questions in the first
The second key area of concern raised in the first round of interviews involved the
use of referees to manage discovery and other pretrial matters. According to the
respondents, compensation structure for referees contributed substantially to case delay
because it was believed to encourage masters to spend inordinate amounts of time on
various pretrial matters at hourly rates of $300 and higher. While many respondents
expressed reservations about referees, others thought they provided a crucial component
to discovery management – namely, the time and expertise to manage the minutia of
complex case discovery and an informal means to resolve discovery and other pretrial
disputes.
The second round of interviews revealed that virtually all of the issues raised by
the master calendar system were addressed satisfactorily by the pilot program. Cases
39
assigned to the pilot program received individual attention from judges who are, by all
accounts, experienced, knowledgeable, and genuinely interested in complex litigation.
Moreover, these judges have a caseload that is sufficiently reduced to permit them the
relative luxury to engage in substantial supervision and involvement in pretrial case
management activities. The overwhelming consensus of attorneys in the second round of
interviews was that the pilot judges understood the legal and evidentiary issues, set
reasonable time limits on discovery, were accessible and helpful in keeping the cases
moving forward toward resolution, enforced case deadlines, and managed the cases
expeditiously.
With respect to issues concerning excessive or inappropriate use of referees, there
was also improvement over the first round of interviews. The proportion of attorneys
reporting the use of a referee reduced substantially from 80% in the first round interviews
to 53% in the second round interviews. Moreover, the general consensus was that
appointment of a referee was appropriate, and the participation of a referee did not tend to
diminish the effectiveness of judicial case management. Methodological concerns
suggest caution in relying too heavily on these findings, however. The sample is fairly
small and a significant proportion of attorneys participating in the second round
interviews were from Orange County, where attorney views of referees were generally
more favorable than in other jurisdictions. See Appendix A.
Attorneys in the second round of interviews also reported fairly high ratings for
judicial case management techniques. Curiously, only about half of these attorneys
reported that specific aspects of case processing were significantly improved compared to
complex cases assigned to non-pilot courts. Again, the apparent improvement may be a
function of the change to an individual calendar system under the supervision of a judge
experienced in complex litigation management, rather than an inherent improvement in
case management techniques. Part 4 turns to the question of whether it is possible to
discern an improvement in case processing through empirical rather than subjective
measures.
40
PART 4 – EMPIRICAL EXAMINATION OF CASE CHARACTERISTICS
IN THE COMPLEX CIVIL LITIGATION PILOT PROGRAM
The final methodological approach employed in this evaluation was an empirical

examination of key case management characteristics for complex cases assigned to the
pilot program that was compared to complex cases managed by non-pilot program courts.
To conduct this portion of the evaluation, the NCSC analyzed data that were collected by
the pilot program courts and by the California Administrative Office of the Courts. See
Appendix C for the data collection instruments. Data were collected on the pilot program
cases from August 2000 through December 2001. The pilot program courts were
instructed to complete Data Form 1 for every case that was assigned to the pilot program
within 30 days of assignment. Data Form 1 documented basic case information such as
case number, the judge to which the case was assigned, the original filing date (if
known), the method of assignment to the pilot program (new case, retained by the pilot
judge, transferred from a non-pilot judge), the assignment date to the pilot program, the
case type, indicia from the Civil Case Cover Sheet about its anticipated level of
complexity, and whether the case had been officially designated as complex.
If the assigned case was retained in the pilot program – that is, a subsequent
review of the case did not indicate that the case should be transferred to a non-pilot court,
the pilot program courts were instructed to complete Data Form 2 within 30 days of the
initial case management conference. Data Form 2 documented various case management
procedures employed by the pilot courts, such as the existence of related cases, case
coordination procedures, the appointment of lead counsel in cases with large numbers of
attorneys representing the parties, the appointment of referees for discovery, mediation,
or settlement purposes, and the number of named parties to the case at that time.
Thereafter, the pilot program courts were instructed to complete Data Form 3 on a
monthly basis until the case was completely disposed. Data Form 3 served as a monthly
progress report, documenting the current stage of litigation (e.g., pleadings, discovery,
settlement negotiations, pretrial, trial, post-verdict/post-judgment), the number and nature
of various “case events” (e.g., case management conferences, status conferences,
hearings, trials), the number and nature of formal dispositions in the case (e.g.,
settlements, voluntary or involuntary dismissals, summary judgments, default judgments,
jury verdicts and judgments), and the effect of those dispositions on the number of
parties. If no Data Form 3 was received for a case, the NCSC evaluation team assumed
that no official action in the case took place during that month.
Over the course of the evaluation period, the NCSC evaluation team received
2,815 Data Form 1s, 1,905 Data Form 2s, and 6,340 Data Form 3s from 2,160 individual
cases.46 The data from the three types of data instruments were aggregated into a single
database for analysis purposes, which consisted of data on 1,361 cases in which the pilot
46
It was clear from the report dates recorded on the data collection forms and by the number of forms
received by the NCSC that many of the pilot courts fell behind on their data collection activities over the
course of the evaluation period, which became particularly problematic in calculating filing-to-disposition
times. A thorough discussion of the complications related to data collection is included in Appendix A.
41
program court provided a Data Form 1, a Data Form 2 and at least one Data Form 3.
Figure 4.1 illustrates the final composition of the pilot dataset.
Figure 4.1: Composition of Final Pilot Project Data Set
Form 1 = 2,815 Cases
Final Dataset
1,361 Cases
Form 2 = 1,905 Cases Form 3 = 2,160 Cases
42
Each case in the final dataset had a minimum of one Data Form 3, but the majority of
cases had at least two, and over 15% reported seven or more. See Figure 4.2. The most
Data Form 3s received on any one case was 22.
Figure 4.2: Pilot Data: Frequency of Data Form 3s Per Case

15%
1 2
33%
7%
3 4
9%
5 6
10% 7+
15%
11%
Based on average caseload estimates reported by court officials,47 the total

average caseload should have consisted of approximately 1,020 to 1,290 cases. Given a
margin for clearance rates as disposed cases are removed and new cases are assigned to
the pilot program,48 the NCSC anticipated that the dataset would consist of 1,700 to 2,100
cases. The number of cases per site indicates that several of the pilot courts failed to
collect information on a sizeable portion of their caseload.49
47
See Part 2.
48
Assuming that the average assignment-to-disposition time for these cases is 24 months (a relatively
aggressive estimate), the pilot program courts would have cleared between 43 and 54 cases per month over
the 16-month data collection period.
49
Recall from Part 2 that court officials estimated that the average number of active cases assigned to the
Pilot Program at any given time was 100 cases in San Francisco, and between 90 and 120 cases in
Alameda.
43
Table 4.1:
Distribution of Pilot Program Cases, by Site
County n %
Los Angeles* 356 26.2

Orange** 593 43.6
Contra Costa 224 16.5
Santa Clara 115 8.4
Alameda 31 2.3
San Francisco 42 3.1
TOTAL 1,361 100
* Based on data from 6 judges in pilot program
** Based on data from 4 judges in pilot program
To compile a comparable dataset about complex cases from non-pilot courts, the
NCSC proposed a weighted sampling approach in which data from complex cases were
collected in approximately the same geographic area and with the same case type
distribution that was found in early analyses of the pilot program data. The NCSC also
wanted to capture complex cases from both individual calendar and master calendar
courts. Both the NCSC and the California Administrative Office of the Courts
recognized from the beginning of the evaluation that developing a baseline for this type
of evaluation would be extremely difficult in terms of securing a comparable sample of
complex cases. In particular, it was anticipated that it would be difficult to identify
complex cases in non-pilot courts using the standard case management systems currently
in place in the superior courts.
The Superior Court of San Diego County was specifically targeted as a potential
source of baseline data because it operates a complex litigation docket that resembles the
pilot program in place in Orange County, ensuring that a sufficient volume of complex
cases would be easy to identify. The AOC staff surveyed other counties in California to
determine if they could contribute complex cases to the baseline and if those cases could
be easily identified (e.g., by case type or because of specialized treatment by the court).
Finally, the NCSC took a random sample of non-pilot cases from the AOC-maintained
list of coordinated cases, which by definition are complex cases sharing a common
question of law or fact.
These efforts yielded a baseline dataset of 137 complex cases from 19 separate
counties. Almost half of the cases were drawn from the Superior Court of San Diego
County (47.4%). Non-pilot program cases from the Superior Court of Alameda County
accounted for 16.8% of the sample. The remaining counties each contributed fewer than
10 cases each to the dataset.
The baseline dataset consisted of information extracted from case records
designed to mirror the type of data elements provided in the pilot dataset. Because there
was only one opportunity to extract data (instead of the monthly progress reports in the
44
pilot program dataset), the baseline data collection form captured case events and interim
and final dispositions from the initial filing date through June 2002.
In addition to differences in the geographic distribution of cases, there were also
significant differences in the caseload composition of the baseline and pilot datasets. See
Table 4.2. Nearly three-quarters (72.3%) of the baseline dataset consists of case types
defined as “provisionally complex,”50 but only half of the cases in the pilot program
dataset (50.8%) fell into this category. The pilot program dataset has a much greater
concentration of non-provisionally complex cases such as breach of contract/warranty
cases, business tort, eminent domain, and other civil case types.51
50
Provisionally complex cases under Rule 1800 (b) include antitrust or trade regulation claims;
construction defect claims involving many parties or structures; securities claims or investment losses
involving many parties; environmental or toxic tort claims involving many parties; claims involving mass
torts; claims involving class actions; and insurance coverage claims arising out of any of these claims.
CAL. RULES OF COURT, Rule 1800 (b).
51
As discussed in Part 1, different types of cases involve different dimensions of complexity and may
require different types of case management techniques for effective judicial oversight and management.
Nevertheless, it is not clear that case types defined as provisionally complex are inherently more complex
and difficult to manage than other types of complex cases. Consequently, the results of statistical
comparisons of the baseline and pilot program datasets should be interpreted cautiously.
45
Table 4.2:
Case Type Distribution
Pilot Program
Provisionally Complex Cases Baseline Cases Cases
n % n %
Construction defect 67 48.9 358 26.3

Class action 25 18.2 223 16.4
Toxic tort/Environmental 2 1.5 47 3.5
Insurance claims rising from complex cases 0 0.0 30 2.2
Securities litigation 4 2.9 16 1.2
Mass torts (asbestos) 1 0.7 10 0.7
Antitrust/Trade regulation 0 0.0 7 0.5
Subtotal -- Provisionally Complex Cases 99 72.3 691 50.8
Non-provisionally Complex Cases
Breach of contract/warranty 9 6.6 147 10.8

Business tort 4 2.9 78 5.7
Insurance coverage 1 0.7 59 4.3
Eminent domain 0 0.0 55 4.0
Other non-PI/PD/WD 1 0.7 30 2.2
Product liability 2 1.5 25 1.8
Fraud 2 1.5 23 1.7
Other real property 0 0.0 22 1.6
Other PI/PD/WD 6 4.4 18 1.3
Professional negligence 2 1.5 15 1.1
Writ of mandamus 0 0.0 13 1.0
Medical malpractice 3 2.2 13 1.0
All other civil 8 5.8 162 11.9
Unknown 0 0.0 10 0.7
Subtotal -- Non-Provisionally Complex Cases 38 27.7 670 49.2
TOTAL -- ALL CASES 137 100 1361 100
One of the original goals in establishing the pilot program was to manage all
forms of complex litigation, not merely commercial litigation.52 Looking at the
breakdown of case types, it appears that the pilot program has also been successful at
meeting this objective. Although one-quarter of the cases can be fairly characterized as
commercial litigation (e.g., securities, antitrust, breach of contract/warranty, and business
tort), over one-third (37.4%) of the cases consist of complex tort actions,53 and the
52
See Part 1.
53
Complex tort cases include construction defect, toxic tort/environmental, mass torts, product liability,
fraud, medical malpractice, professional negligence, and other personal injury/personal damage/wrongful
death cases.
46
remainder could fall into either category. In short, the pilot program has not become a
“boutique” court reserved for the business community, but is available to all litigants who
meet the program’s general eligibility criteria regarding complexity.
Complex Cases Assigned to the Pilot Program
What kinds of cases were ultimately assigned to and accepted into the pilot
program? As a general rule, it appears that the various screening procedures employed
by the pilot program courts were reasonably effective at distinguishing complex cases
from non-complex cases. Half of the final dataset consisted of provisionally complex
cases, which by definition are presumed to be complex unless a judge determines
otherwise after reviewing the initial pleadings. But even by other recognized measures of
complexity, the cases that were retained in the pilot program were fairly complex. For
example, over 80% of the cases in the pilot program dataset had been formally
determined to be complex. See Table 4.3. Only eight cases were retained in the pilot
program despite a formal determination that they were not complex.
Table 4.3
Complexity Determination
Cases Cases Complexity

Determined Determined Determination
Complex Not Complex Unknown Total
Yes 551 4 124 679

Provisionally Complex
No 578 4 100 682
Total 1,129 8 224 1,361
Moreover, compared to cases that were excluded from the dataset because of incomplete
case information – that is, Data Forms 2 or 3 that were never submitted – cases in the
dataset were significantly more likely to be provisionally complex under Rule 1800,54
were more likely to be formally determined to be complex,55 and indicated a significantly
higher total number of factors related to complexity on the Civil Case Cover Sheet .56
This suggests that many of the cases that were ultimately excluded from the dataset were
determined to be not complex and were reassigned to the respective courts’ civil division
calendars.
A formal determination of complexity was not known for the remaining portion of
the dataset (“unknown”), in all likelihood because a complexity determination hearing
54
M (Excluded cases) = .44, M (Included cases) = .54, F (1, 2149) = 20.541, p < .001.
55
M (Excluded cases) = .74, M (Included cases) = .99, F (1, 1515) = 135.613, p < .001.
56
M (Excluded cases) = 2.16, M (Included cases) = 2.72, F (1, 2135) = 34.782, p < .001.
47
had not yet been held when this piece of information was collected. Several
characteristics of those cases suggest that they were somewhat less complex than those
that were officially designated as complex. For example, one characteristic of
complexity is the total number of factors related to complexity – and the breakdown of
those factors –indicated on the Civil Case Cover Sheet. See Table 4.4. Cases in which
the complexity determination was unknown indicated fewer total factors related to
complexity on the Civil Case Cover Sheet. Specifically, they were significantly less
likely to involve large numbers of separately represented parties, extensive motion
practice, large amounts of documentary evidence, and large numbers of witnesses. They
were also marginally less likely to be provisionally complex under Rule 1800. Although
there was no statistically measurable difference in the maximum number of plaintiffs,
cases for which the complexity determination was unknown also had significantly fewer
defendants.57
Table 4.4:
Indicia of Complexity
Cases Complexity
Determined to be Determination
Complex Unknown F p-value
Total factors related to complexity 2.86 2.28 25.477 * 0.000

Large number of separate represented parties 58% 45% 13.505 * 0.000
Extensive motion practice raising difficult issues 65% 50% 17.881 * 0.000
Substantial amount of documentary evidence 67% 57% 8.893 * 0.003
Large number of witnesses 45% 29% 18.48 0.000
Coordination and related actions 21% 23% 0.505 0.478
Substantial post-disposition judicial supervision 9% 8% 0.615 0.433
Maximum number of plaintiffs (truncated) 37.47 17.18 0.033 0.856
Maximum number of defendants (truncated) 17.26 11.689 5.478 * 0.020
Provisional complexity 51% 45% 3.213 ** 0.073
*Significant at α = .05
**Significant at α = .10
One interesting feature of the pilot program caseload is how these cases were
assigned to the program and the relative age of the caseload. There were three primary
methods through which cases could be assigned to the pilot program in each court, which
account for 92% of all cases: transfer from another civil division judge (37%), retained
by the pilot judge (26%), or assigned to the program at filing (30%). See Figure 4.3.
57
The statistics for the maximum number of plaintiffs and defendants are based on truncated samples, thus
controlling for highly skewed means due to the handful of cases in which the number of plaintiffs or
defendants exceeded 1,000.
48
Figure 4.3: Timeline for Pilot Cases
Programs Begin
Filed Prior to 2000 (Jan.- April, 2000) Filed After Program Begins
Non-Pilot Judge (37%) Designated Complex (30%)

-Transferred to Program
Pilot Judge (26%)

-Retained by Judge
But there were significant variations among the sites, which corresponded to
unique local conditions at the inception of each pilot program. See Table 4.5. Orange
County, which operated a complex civil calendar before the inception of the pilot
program, had the highest proportion of cases retained by the pilot judges. Los Angeles,
San Francisco and Contra Costa Counties, all of which apparently had substantial
complex caseloads prior to the inception of the pilot program, had the highest percentage
of transferred cases from other judges from the civil divisions of their respective courts.58
Table 4.5:
Method of Entry to the Pilot Program, by Site
Other/unknown
Transfer from Retained by Pilot Newly assigned method of entry
another judge (%) Judge (%) case (%) (%)
Site n
Los Angeles 356 64.0 2.8 30.1 3.1

Orange 593 17.4 48.9 32.0 1.7
Santa Clara 31 3.2 0.0 87.1 9.7
Alameda 42 11.9 7.1 73.8 7.2
Contra Costa 224 42.4 11.6 4.9 41.1
San Francisco 115 55.7 11.3 27.0 6.0
58
In Los Angeles, all cases except class action cases originally filed at Central Civil are technically
“transferred” from other judges in the civil division insofar that those judges have the discretion to retain
them for case management purposes if they so choose. For cases filed after April 1, 2000, however, the
transferring judge served primarily as a screening mechanism and did not typically engage in pretrial case
management activities. For the purposes of this evaluation, therefore, cases filed after April 1, 2000 that
were transferred to the pilot program within 120 days of filing were coded as newly assigned cases.
49
The distinction among the various methods of entry to the program is important
for analytical reasons. Preexisting cases that were assigned to the pilot program after its
inception could have been at any stage in the litigation – pleadings, discovery, settlement
negotiations, pretrial, or even post-judgment supervision – when they entered the
program. The effect of the program, therefore, could be minimal or substantial
depending on the amount of pretrial management that had already taken place. Similarly,
most of the pilot judges received a substantially reduced caseload after the inception of
the pilot program, giving them the opportunity to dedicate significantly more time and
attention to their preexisting complex cases.59 Finally, we know that the assignment
policies differ somewhat from site to site.60 Therefore, cases in some courts may
experience a slight delay before substantive case management activities can typically
occur.61 All of these factors affect the relative age of the caseloads in each of the sites.
See Table 4.6. Although less than 5% of the cases were more than 5 years old when the
pilot program was initiated, more than half the caseload did preexist the program.
59
Judges from the complex litigation division of the Superior Court o f Orange County, which was the
precursor to the pilot program in that site, already had a reduced caseload compared to their colleagues in
the civil division. That caseload does not appear to have changed substantially since the inception of the
program.
60
See Part 2.
61
In Los Angeles, for example, the average amount of time between filing and assignment to the pilot
program was 72 days. In addition, 78 cases were transferred from other civil division judges after the
inception of the pilot program in Los Angeles County. On average it took 195 days – over 6 months – from
the original filing date to the transfer date to the pilot program. One case took almost 16 months to
transfer.
50
Table 4.6:
Number of Cases Filed, by Year of Filing
Year n % Cumulative %
1976 1 0.1 0.1

1983 1 0.1 0.1
1986 1 0.1 0.2
1988 1 0.1 0.3
1990 2 0.1 0.4
1991 2 0.1 0.6
1992 3 0.2 0.8
1993 6 0.4 1.3
1994 16 1.2 2.4
1995 24 1.8 4.2
1996 44 3.3 7.5
1997 78 5.8 13.2
1998 212 15.7 28.9
1999 291 21.5 50.5
Program
2000 476 35.2 85.7
Inititation
2001 193 14.3 100.0
Total 1,351 100.0
Complex Civil Case Management Practices

The Deskbook on the Management of Complex Civil Litigation, which was
originally envisioned as the primary reference guide for the pilot program, makes a
number of procedural recommendations concerning judicial management of complex
litigation.62 What do the data reveal about the frequency with which those
recommendations are followed?
62
These include case management orders, initial case management conferences and subsequent status
conferences, and the appointment of referees to oversee discovery. See generally JUDICIAL COUNCIL OF
CALIFORNIA, DESKBOOK ON THE MANAGEMENT OF COMPLEX CIVIL LITIGATION §§ 2.20-2.56 (2000).
51
Case Management Orders
One of the most heavily emphasized recommendations in the Deskbook on the
Management of Complex Civil Litigation is that judges develop and enter a
comprehensive case management order for “the just, speedy, and economical
determination of the litigation.”63 Interestingly, a case management order was only filed
in 30% of the cases. As a general rule, the pilot judges appear to have reserved the use of
case management orders for the more complex cases on their calendars. For example,
provisionally complex cases were significantly more likely to have a case management
order filed (59%) than non-provisionally complex cases (46%).64 Also, the average
number of complexity measures indicated on the Civil Case Cover Sheet was
significantly larger for cases with a case management order (3.1) than those without an
order (2.5).65 This suggests that a large proportion of complex cases assigned to the pilot
program do not necessarily require specialized case management procedures per se, but
instead can be successfully managed using the established case management procedures
for civil litigation with appropriate levels of judicial supervision.
Coordination and Consolidation
Another recommendation is for the formal coordination or consolidation of
related cases.66 Over one-fifth (21.4%) of the cases involved coordination or related
actions, but the majority of those related cases (68.2%) were filed within the same court,
making formal coordination procedures unnecessary.67 Only 15% of those cases were
actually sought to be formally coordinated under Rules 404-404.10 of the California
Rules of Court. Informal coordination appears to be a common tool for the pilot judges,
but it does raise a question about the suitability of existing case management technology
to identify and track the progress of related cases. Anecdotal reports from the courts
suggested that this was an ongoing challenge. The NCSC was unable to identify
“clusters” of related cases in the dataset unless they had been formally coordinated, and
so could not examine the effectiveness of the pilot program when large numbers of
related cases were only informally coordinated.
Appointment of Referees
The first round of interviews68 with judges and attorneys identified over-reliance
on referees for discovery and other pretrial case management activities as a concern for
both judges and lawyers. Overall, the pilot program judges appointed a referee for some
63
Id. at § 2.30[1].
64
F (2,1358) = 9.856, p < .001.
65
F (2, 1358) = 17.790, p < .001.
66
Coordination can be done either formally pursuant to CAL. CODE CIV. PROC. §§ 404-404.10 or
informally by agreement of the parties, counsel, and as necessary, other judges. Consolidation, in contrast,
refers to the formal merging of cases into a single master case for trial purposes. DESKBOOK, supra note
12, at § 2.61[3][b].
67
Other related cases were filed in Superior Court in other counties in California (6.9%), other state courts
(6.8%), and other federal courts (2.7%).
68
See discussion supra, at pp. 32-36.
52
aspect of pretrial management in 20% of the cases, usually for discovery purposes.
Compared to the 80% of attorneys who reported the appointment of a referee in their
complex cases in the first round of interviews, this is a significant drop in usage. Across
all of the sites, pilot program judges were significantly more likely to appoint referees in
provisionally complex cases (73%) compared to non-provisionally complex cases
(44%)69 and in cases exhibiting a larger average number of complexity indicators on the
Civil Case Cover Sheet (3.10 compared to 2.68).70 Construction defect cases were most
likely to have a referee appointed.71
There were, however, striking differences across sites concerning the appointment
of referees. See Table 4.7. The pilot program judges in Orange and Contra Costa
Counties had the highest proportion of referee appointments, both over 25% of their
cases. In contrast, the pilot program judge in San Francisco appointed referees in less
than 15% of his cases, and the pilot program judges in the remaining three sites did so in
less than 10% of their cases.
Table 4.7:
Cases with Referee Appointment
Site n %
Orange 165 27.8

Contra Costa 60 26.8
Santa Clara 2 12.2
Los Angeles 30 8.4
San Francisco 14 6.5
Alameda 2 4.8
There is some correlation, of course, between the frequency of referee

appointments and the average active caseload size per judge. The delegation of certain
judicial management duties can free up judges to manage a greater number of cases. But
the correlation is not a perfect one. Although the pilot program in the Superior Court of
Orange County had the highest average rate of referee appointments, court officials there
reported that the active caseload averaged only 80 to 100 cases per judge, the second
lowest among the six sites. The pilot program in the Superior Court of Santa Clara,
which had the second highest average caseload, had the second lowest rate of referee
69
F (1,1359) = 74.696, p < .001.
70
F (1, 1359) = 15.136, p < .001.
71
Chi Square = 242.031, p < .001.
53
appointments. Apparently, local court culture continues to play a major role in the
referee appointment rate.
Status Conferences and Other Case Management Events
One measure of productivity that was captured in the dataset was the number of
case management activities or “events” that took place during the pendency of the suit.72
The importance of this information is rooted in the tentative hypothesis that frequent
judicial involvement in case management keeps the momentum for moving through
iterations of the complex civil case life cycle – discovery, settlement negotiations, and
interim dispositions on discrete issues or parties – until the case is completely resolved.
The NCSC expected to find a positive correlation between the number of case events, the
number of interim dispositions, and the number of parties dismissed from the suit. By
extension, a direct relationship between the number of case events and both the
proportion of cases completely disposed and the amount of time from filing to disposition
was also expected.
On a global level, the data do appear to support the theory that cases assigned to
the pilot program progress steadily toward final disposition. See Table 4.8. In each
monthly report, court staff indicated the current stage of litigation for the case. From this
information, The NCSC expected to see the aggregate caseload move gradually from the
beginning stages of litigation to more advance stages of litigation during the evaluation
period, which indeed occurred. Of the 897 cases for which there is more than one Data
Form 3,73 nearly two-thirds (64.9%) reported some progress during the evaluation period.
For example, of the 363 cases that began the evaluation period in the pleading phase of
litigation, 286 (79%) had progressed beyond this phase by the end of the evaluation
Almost one-third (32%) had completed discovery and were in the trial readiness/pretrial
phase of litigation. On average, these cases progressed 1.6 phases during the evaluation
period, with phases being pleadings, discovery, settlement negotiations, and post-
discovery/trial readiness.
72
Ongoing discussions with pilot judges and court staff during the evaluation period confirmed that much
of the case activity that takes place in complex case management is relatively informal (e.g., telephone
calls, e-mail correspondence, tentative settlement agreements concerning specific issues or parties) and
may not be memorialized as part of the formal case record. These types of events, although obviously an
important part of complex case management, could not be captured in the data collection instruments
because the court clerks assigned to the pilot programs, who were responsible for completing the monthly
data forms, often are not aware when these events occur. The NCSC strongly suspects, therefore, that the
dataset significantly underreports the amount of case activity that took place during the data collection
period.
73
Two or more Data Form 3s were needed to establish any change in case status.
54
Table 4.8:
Case Status Progress
Earliest Latest Case

Case Status Status
Reported Reported
(% of cases) (% of cases)
Pleadings 40.5 8.6
Discovery 35.3 25.0
Settlement Negotiations 15.4 19.3
Post-discovery/Trial readiness 2.9 17.8
Pretrial 3.6 16.5
Trial 1.1 1.8
Post-disposition 1.2 11.0
n=897 100.0 100.0
Within individual cases, the amount of actual case activity appears modest, with
status conferences comprising the bulk of these activities. See Table 4.9. These various
case events led to a total of 1,445 interim dispositions (average 1.06 per case),
collectively disposing of 26,925 parties, during the evaluation period.74 See Table 4.10.
Table 4.9:
Case Activity
Average
Total per case
Case Management Conferences 509 1.59

Settlement Conferences 415 1.54
Status Conferences 2,247 3.05
Pretrial Conferences 135 0.83
Other Case Activity 1,291 2.71
Total Case Activity 4,597 4.15
74
There was a marginal correlation between the total number of case events and the total number of interim
dispositions. Pearson’s correlation coefficient = .06, p = .052.
55
Table 4.10:
Interim Dispositions
Average per Plaintiffs Defendants
Total case Disposed Disposed
Involuntary Dismissal 34 0.02 1,086 1,111

Voluntary Dismissal 267 0.20 1,127 1,529
Settlement 923 0.68 4,178 6,597
Default Judgment 34 0.02 25 119
Summary Judgment 69 0.05 2,067 92
Court Trial 4 0.00 11 8
Jury Trial 15 0.01 9 31
Other Disposition 99 0.07 6,152 2,783
Total Interim Dispositions 1,445 1.06 14,655 12,270
Of the 1,361 cases in the dataset, 414 (32.3%) were reported as completely
disposed by the end of the evaluation period. Again, this disposition rate varied
considerably from site to site. See Table 4.11. This variation is most likely related to
how the majority of cases were assigned to the pilot program in each of those sites.
Cases that were retained by the pilot judges had the highest disposition rate at 41.9%,
cases that were transferred from other civil judges had the second highest rate at 34.2%,
and newly assigned cases had the lowest rate at 24.5%.75
75
Chi Square = 28.231, p < .001.
56
Table 4.11:
Disposed Cases, by Site
Completely
Disposed (%)
Contra Costa 43.2

San Francisco 37.6
Orange 34.9
Santa Clara 24.0
Los Angeles 22.0
Alameda 22.0
The average filing-to-disposition period for disposed cases was 24 months, but it
should be noted that many of the pilot program cases had been filed before the inception
of the pilot program and were later transferred to the pilot program from another civil
division judge or were retained by the pilot program judges after the inception of the pilot
program.76 The filing-to-disposition time by itself, therefore, does not accurately capture
the effect of the pilot program. From the time cases were assigned to the pilot program,
disposition times range from 12 months for newly assigned cases (filing-to-disposition)
to 17 months for cases retained by the pilot judges (program inception to disposition).
Transferred cases fell in the middle with 15 months (transfer to disposition). This is, of
course, a preliminary estimate of disposition time as only one-third of the cases were
complete disposed. A longer evaluation period would be necessary to make a more
reliable estimate of average filing-to-disposition times.
Comparison with Baseline Dataset

How do these various measures compare against similar measures in complex
cases that were not assigned to the pilot program? The baseline dataset consisted of 137
complex cases filed in non-pilot courts. It is important to note, however, that the cases in
the baseline dataset appear to be somewhat less complex along a number of different
measures than the pilot program dataset. For example, the average number of reasons
identified for a complexity designation was 1.95 in the baseline dataset compared to 2.14
in the pilot program dataset. Cases in the baseline dataset also had fewer parties than the
pilot program dataset.77 See Table 4.12. The baseline cases are also considerably newer
76
Estimates of filing-to-disposition times are necessarily longer than actual disposition times due to delays
in collecting a large portion of the data. See Appendix A.
77
The data collection forms only allowed for a 3-digit number to enter the number of plaintiffs and
defendants in the case. Therefore, in many cases “999” was entered. However, some court personnel hand
entered the actual number in the margins of the data collection sheets (e.g., “2532” plaintiffs). To ensure
57
than the pilot program cases. Only 25% of the baseline cases were filed prior to 2000,
compared to 50% of the pilot program cases. The oldest case in the baseline sample was
filed in 1996, compared to 1976 for the pilot program dataset.
Table 4.12:
The Number of Litigants
Baseline Pilot Program

Mean (Median) Maximum Mean (Median) Maximum
Plaintiffs 6.6 (1.0) 139 9.4 (2.0) 800*

Defendants 10.1 (4.0) 82 12.9 (6.0) 799*
*The maximum was 2,532 for plaintiffs and 1,000 for defendants. Any case
with 999 litigants or more listed for either number of plaintiffs or defendants
was not included in the numbers reported in the table.
The baseline data do not include information about filing-to-disposition periods.

Moreover, the uncertainty involved in calculating these measures in the pilot program
data make it inappropriate to attempt a comparison with the baseline. The comparison of
baseline and pilot program case events and dispositions was also troublesome in that the
baseline sample captured information for the entire lifetime of the case whereas the pilot
program sample only captured information about case events and dispositions that
occurred after the case was assigned to the pilot program. Nevertheless, some general
conclusions can be drawn. See Table 4.13. Across all categories of case activities, the
pilot program cases had significantly more case activity than in the baseline cases,
especially in settlement conferences and status conferences. The suspicion that the pilot
program dataset underreports the amount of actual case activity78 that occurred makes
this difference particularly remarkable.
consistency in the summary statistics, we analyzed only those cases with fewer than 999 plaintiffs or
defendants. However, without discounting the cases with large numbers of litigants, there were 76 cases in
the pilot program with “999” plaintiffs and 51 cases with “999” defendants. Four additional cases reported
litigant numbers higher than 999, ranging from 1000 to 2532. In sum, approximately 6% of the cases
involved 999 or more defendants. Approximately 4% of the cases involved 999 or more plaintiffs.
78
See Appendix A.
58
Table 4.13:
Percent of Cases in which Event Occurred
Baseline - Master Baseline - Individual Pilot

Calendar Calendar
Disposed Disposed Disposed
No Yes No Yes No Yes
Case Management Conference 50.0 42.1 95.0 82.1 72.4 79.7

Settlement Conference 6.0 11.1 12.5 14.3 66.0 87.0
Status Conference 26.0 31.6 57.5 32.1 98.3 97.4
Pretrial Conference 46.0 68.4 22.5 25.0 38.4 73.5
Other Case Activity (e.g., hearings) 76.0 78.9 77.5 35.7 94.3 98.1
Conclusions
This portion of the evaluation was the most difficult of all of the evaluation
components for several reasons. One difficulty was that, other than utilizing an
individual calendar for assignment of complex cases, the pilot sites were not required to
implement similar procedures and practices as part of the pilot program. Each site could
use its funding for a variety of purposes including increased staffing, facilities,
technology, and education. See Part 2 for a description of the specific features of each
site. In effect, each site implemented its own unique pilot program, making it difficult to
compare aggregate case characteristics against a baseline.
A second difficulty was the very short time frame allotted for the evaluation – a
total of only 33 months, with realistically less than 20 months in which to collect data. A
national study of civil litigation, conducted in 1992, found that civil case with 7 or more
parties79 had an average filing-to-disposition time of 33 months, and 20% of those cases
had filing-to-disposition times of more than 49 months.80 The NCSC recognized at the
very beginning of the evaluation that only a small proportion of the cases assigned to the
pilot program would be completely disposed during the evaluation period, making it
difficult to assess whether this commonly used measure of case management efficiency
would improve compared to non-pilot complex cases.
Finally, the nature of the pilot program suggested that a more global approach to
the evaluation would be more appropriate than an in-depth analysis of specific details of
the pilot program. For example, the caseload composition, the level and types of
complexity, the relative age of cases, and the types and frequency of case management
techniques that would be employed were all unknown at the outset of the pilot program.
79
The “Rule of 7” is an indicia of complexity used by at least one of the pilot program sites.
80
Civil Justice Survey of State Courts, 1992 (data collected by the National Center for State Courts under a
grant from the U.S. Department of Justice, Bureau of Justice Statistics, on file at the National Center for
State Courts).
59
The Administrative Office of the Courts and the NCSC agreed at the beginning of the
evaluation to focus on more general performance measures, rather than the effectiveness
of specific case management practices.81
Nevertheless, a few conclusions can be made with reasonable certainty. First, it is
apparent that the cases that were assigned to the pilot program meet the general criteria
for inclusion in the program. Not only were the majority of cases formally determined to
be complex, they also met the criteria for complexity along a number of different
measures including provisional complexity, the number of complexity indicators on the
Civil Case Cover Sheet, and the number of parties. A small proportion of cases that had
not been formally determined to be complex at the time of data collection appeared to be
somewhat less complex than the designated cases, but nonetheless were more complex
than cases that were excluded from the dataset.
Substantial differences were noted among the sites in terms of how cases were
assigned to the pilot program. The Superior Court of Orange County had the greatest
proportion of cases retained by the pilot judges, which ostensibly were a remnant of that
court’s previous complex litigation docket. The Superior Courts in Los Angeles, San
Francisco and Contra Costa had the greatest proportion of cases transferred from other
civil division judges, while the majority of cases in Alameda and Santa Clara were new
cases filed after the inception of the pilot program. These differences in how cases came
into the pilot program have a dramatic effect on other measures of effectiveness,
especially disposition rates.
The NCSC examined how closely the cases adhered to the case management
recommendations outlined in the Deskbook on the Management of Complex Civil
Litigation and found that they were followed selectively, but appropriately in most cases.
A case management order was used in only one-third of the cases, but these were
generally filed in more complex cases. Coordination of related cases was done
informally as related cases tended to be filed in the same court, rather than in other
courts, which would require more formal coordination. The rate of referee appointments
appears greatly reduced from those reported during the first round of interviews, and the
appointments that were made appear to be based on high levels of complexity, especially
in construction defect cases. Nevertheless, there are still local variations in referee
appointment rates that cannot be explained solely on objective case characteristics. The
decision to appoint a referee still appears to be a feature of local court culture.
A comparison of case activity does reveal significantly greater case activity in the
pilot program cases compared to baseline cases, even taking into account that the pilot
program cases only include information on case events that took place during the
evaluation period. It is unquestionable that the pilot program cases are subject to
significantly closer judicial supervision than the baseline cases. The short time frame
allotted for the evaluation and the small proportion of fully disposed cases in the dataset
made it difficult to assess the overall impact of increased judicial supervision on the
overall filing-to-disposition rate, but preliminary data suggest that the judicial
management techniques employed by the pilot program judges significantly decrease the
81
Geographic considerations also argued against a focus on pilot program minutiae.
60
amount of time needed to dispose complex cases. The Administrative Office of the
Courts should continue to monitor filing-to-disposition times for cases assigned to the
pilot program to verify the filing-to-disposition rate based on a larger proportion of newly
filed cases, rather than on the older transferred and retained cases that made up the bulk
of fully disposed cases in the evaluation dataset.
61
62
PART 5 – CONCLUSIONS AND RECOMMENDATIONS
The impetus for the creation of the pilot program began with recognition of
several pervasive problems associated with the management of complex civil litigation in
the superior courts throughout California. Of particular concern were courts that
assigned complex cases on a master calendar system, in which judicial responsibility for
case management was diffused among a relatively large number of judges. Moreover,
large caseload assignments prevented judges in both individual and master calendar
systems from dedicating adequate time and attention to complex cases, and few judges
had sufficient training or experience in complex case management. Frequent use of
court-appointed referees for discovery and settlement purposes did not provide a
satisfactory remedy in most jurisdictions. There were widespread perceptions that the
compensation system for referees provided perverse incentives to prolong discovery
rather than seek a speedy and just resolution to complex cases. The costs associated with
referee appointments, as well as the lack of effective judicial oversight of referee
activities, contributed to litigant and attorney dissatisfaction.
The remedy proposed by the pilot program for these various ills was a specialized
case management system for complex civil litigation that featured judges experienced in
both substantive law and complex case management practices, a substantially reduced
caseload that permitted judges to focus exclusively on complex cases, and additional
staffing and technological resources for case management purposes. The pilot program
judges viewed their primary objective as identifying the key legal issues in a given case
and focusing litigant pretrial activities (e.g., discovery and settlement negotiations) on
resolving those issues as efficiently as possible. Although some of the pilot program
details differed from court to court, the general means for accomplishing this objective
was active judicial oversight of case management including the development of clear
expectations for case management and consistent enforcement of those expectations.
Interviews with attorneys who participated in the pilot program suggest that this
approach effectively addresses the major problems associated with complex litigation
management. The attorneys reported that judges had better understanding of the legal
and evidentiary issues and more effective management of pilot program cases compared
to their assessments in the first round of interviews. Theyalso reported improved use of
referee appointments – that is, fewer instances of excessive or inappropriate referee
appointments and better judicial supervision of referee activities.
Many of these impressions were confirmed with an empirical examination of the
pilot program cases. The cases managed under the pilot program were appropriately
characterized as complex by a number of different criteria. Indeed, the pilot program
cases were significantly more complex using these measures than a sample of complex
cases that were not assigned to the pilot program, which was compiled for baseline
comparison purposes. The data revealed an increase in the percentage of cases in which
various case management activities took place, resulting in a commensurate increase in
interim dispositions, compared to the baseline cases. This is particularly remarkable
given the difference in the average level of complexity between the pilot and baseline
63
datasets. Moreover, the pilot program dataset only recorded information on case events
and dispositions that occurred during the pilot program, rather than during the entire
pendency of the case as was the case for the baseline dataset.
The data also confirm a slight reduction in the referee appointment rate compared
to the baseline cases, which suggests more direct judicial attention to cases as well as
lower litigation costs for parties. But this reduction was concentrated in four of the
courts: Los Angeles, Alameda, San Francisco, and Santa Clara. The pilot program courts
in Orange and Contra Costa Counties continued to appoint referees at approximately the
same rates as the baseline cases.
The most significant improvements in complex civil case management appear to
result from two specific features of the pilot program: an individual calendar system and
a caseload that is sufficiently reduced to permit more intensive case management by the
pilot judges. Each site varied in terms of program staffing and resource allocation,
average caseload size, and preferred case management practices, but these did not appear
to make a significant difference in overall performance in cases. Differences in case
processing times, which are necessarily preliminary estimates due to the short timeframe
for the evaluation, were related to how each case was assigned to the pilot program
(retained, transferred, or newly filed) rather than to its treatment once assigned to the
program.
Preliminary data suggest that the judicial management techniques employed by
the pilot program judges significantly decrease the amount of time needed to dispose
complex cases. The Administrative Office of the Courts should continue to monitor
filing-to-disposition times for cases assigned to the pilot program to verify the filing-to-
disposition rate based on a larger proportion of newly filed cases, rather than on the older
transferred and retained cases that made up the bulk of fully disposed cases in the
evaluation dataset.
Program Recommendations
As a general observation, the pilot program appears to address most of the
problems associated with complex case management fairly well. There are, however,
some aspects of the pilot program that could be modified to improve its effectiveness.
Specialized Procedures for Complex Litigation Management
One of these is the development of specialized procedural rules for complex
cases. A defining characteristic of complex cases is the existence of multiple legal issues
and dozens, or even hundreds, of parties. The primary objective of judicial involvement
in these cases is to identify which issues apply to which parties and to select the most
salient issues as the focus of intensive discovery and settlement negotiations. As key
issues are resolved, tangential issues either become moot or are resolved with less effort.
The existing civil procedure provisions, however, are tailored for routine civil
cases, which typically involve a single cause of action and no more than 5 parties. The
Deskbook on the Management of Complex Civil Litigation assumes that judges have the
authority to engage in issue-specific case management practices. Although many of the
pilot program judges report that they were moderately successful at securing the consent
64
of the parties to specialized case management procedures, the judges claim that the
statutes themselves do not permit this level of judicial discretion sua sponte. For
example, the existing summary judgment statute does not permit summary adjudication
of an individual legal issue or claim of damages unless doing so completely disposes of
the case, a cause of action, or an affirmative defense. Similarly, the statutes do not grant
judges the discretion to reorder trial preferences for litigants. Specialized rules or statutes
for complex cases that enhance judicial case management powers, especially in the
conduct of discovery and settlement activities and summary adjudication of issues, would
authorize judges to conduct case management activities more effectively than under the
current Code of Civil Procedure.
Workload Assessment
One of the striking differences among the various pilot program courts was the
average caseload assigned to each judge, which varied considerably from judge to judge
and from site to site. There was no consensus as to an appropriate caseload size, and the
various performance measures examined in the course of the evaluation did not indicate
an optimal caseload size. This disparity could be resolved through a workload
assessment study, which would help determine the appropriate number of judges and
supporting court staff given variations in case complexity. Currently, all complex cases
are treated and counted equally, regardless of their case type, the number of parties, or
other indicia of case complexity. A workload assessment study for complex litigation
would allow case assignments to equalize the workload and help determine the
appropriate staffing levels for courts handling complex cases.
Case Screening and Assignment Policies
Most of the pilot sites have developed fairly effective screening and assignment
procedures to ensure that complex cases are identified and referred to the pilot program
courts in a reasonably expeditious fashion. Los Angeles, however, has a decentralized
process that interferes with prompt assignment and early case management activities.
Although complex cases filed downtown are immediately assigned to the pilot program,
cases filed in the other judicial districts are reviewed by a civil division judge who has
discretion to refer the case to the pilot program or to retain the case at the judicial district.
Even the most quickly assigned cases take an average of 72 days to transfer. In other
cases, the average delay is over 6 months. The assignment process in all of the Los
Angeles districts should include initial identification and immediate assignment of
complex cases at filing based on objective criteria indicated on the Civil Case Cover
Sheet, with review by the supervising judge for complex litigation to ensure that the case
meets basic criteria for inclusion in the pilot program. Cases that do not meet these
criteria can then be referred back to the judicial districts for routine case management.
Judicial Assignment, Training, and Staff Development
Other needs associated with the pilot program include improving morale among
non-pilot program civil division judges as well as training and development for pilot
program judges and staff. A rotation among judges assigned to the pilot program in
Orange and Los Angeles Counties would help alleviate frustration of civil division judges
who want the intellectual and professional challenges that characterize complex cases.
Assigning one new judge in a program ordinarily staffed by four to six judges would not
65
unduly disrupt program management, and would offer civil division judges the possibility
of future involvement in the pilot program. A mentoring approach would effectively
address this issue in the single judge programs. One judge could be used primarily to
process cases, hear motions and hold case management conferences, while the other
judge could be used for settlement conferences, to preside over long trials, and to manage
complex cases if the primary judge is disqualified for some reason. The other benefit of
this type of system is the fact that if one of the judges leaves the bench for whatever
reason, a judicial officer trained and knowledgeable in complex litigation is ready to
assume the role as primary judicial officer in the single judge complex court.
Training was not a cited as a critical need by the pilot program courts, but several
of the judges identified the semi-annual meeting of pilot judges as an excellent way to
exchange information and ideas about managing complex cases. Other judges expressed
a desire for training on specific substantive topics such as determination of insurance
coverage, class action wage and hour suits, and construction defect suits. Given the team
atmosphere in which each of the sites operate, educational workshops on complex case
management issues may be appropriate for all pilot program staff. The workshops could
be conducted jointly with the semi-annual judicial meetings.
Technological Support
Several of the courts invested substantially in courtroom technology. However,
actual bench or jury trials are rare occurrences, so the more pressing need is for case
management technology that permits judges and their staff to monitor case progress more
accurately, organize court documents more coherently, and communicate with multiple
attorneys more effectively. Only Orange County currently employs imaging technology
on a routine basis and none of the pilot program courts have advanced e-filing beyond an
experimental and small-scale basis, but both of these technologies would enhance their
productivity. More frequent use of Web-based case management systems would likewise
be a benefit in complex case management.
Future Expansion of the Pilot Program
Notwithstanding the apparent success of the pilot program, it is not clear that
expansion of the program to additional courts would be advisable at this time. It appears
that the existing pilot program sites were well chosen insofar that they quickly absorbed
the major concentrations of complex civil cases within the state. Only the Superior Court
of San Diego County, which also operates a complex litigation docket similar to the
program that previously existed in the Superior Court of Orange County, has a substantial
complex civil caseload. Indeed, in gathering data for the baseline sample, it was difficult
to identify complex cases that were not already assigned to one of the pilot program
courts.
Complex civil cases are filed in other courts around the state, of course, and the
lessons learned through the pilot programs about effective complex case management
should be made available to and used by those courts. Even courts that normally employ
a master calendar system for civil cases should assign complex cases to an individual
judge for case management purposes – and reduce that judge’s caseload accordingly to
permit the judge to exercise appropriate judicial oversight. The AOC should strongly
encourage judges managing complex cases to attend the semi-annual meetings of the
66
pilot program judges. The ability to interact with peers that are experienced in complex
case management can only enhance their ability to manage these cases without significant
costs to the pilot programs themselves.
67
68
APPENDIX A – METHODOLOGICAL CONSIDERATIONS
Two of the three components of the NCSC evaluation involved substantial data
collection and analysis efforts. Part 3 of the evaluation discusses the survey data
collected through telephone interviews with judges and attorneys about their respective
views about complex litigation management in California both before and after
implementation of the pilot program. Part 4 discusses objective characteristics (case
type, number of litigants, case management procedures, number and types of case events,
filing to disposition times) of cases assigned to pilot program, and similar information
about non-pilot program cases. From these analyses, the NCSC makes several
conclusions about the effectiveness of the pilot program overall. Nevertheless, the
approaches employed in both components posed some methodological difficulties that
may limit the generalizations that can be drawn. This Appendix outlines the major data
limitations of the evaluation and discusses the implications for its overall reliability.
Methodological Issues in Part 3 of the Evaluation

Originally, the evaluation plan included interviews with parties in complex cases as well
as with the pilot program judges and attorneys, but this plan was abandoned due to the
relative difficulty of interviewing the parties in complex litigation cases.82 Unfortunately,
none of the anticipated sources provided a sufficient number of litigant referrals to
include their responses in this evaluation. Attorneys expressed concern over violating the
pledge of confidentiality between attorney and client. Moreover, most attorneys reported
that even if they could freely provide names, their clients’ knowledge of complex case
management techniques would be limited, particularly in multiparty cases. Although
representatives of the American Corporate Counsel Association expressed willingness to
forward us litigant referrals, they failed to provide us with names of corporate litigants
other than in-house counsel for some of the represented litigants. The Chamber of
Commerce was only willing to provide referrals to members of its Legal Affairs
Committee, composed mainly of attorneys.
Although the sampling protocols for the two rounds of interviews differed
dramatically, both resulted in complications concerning responses rates. In the first
round of interviews, the pilot program judges were asked to provide the names and
contact information of attorneys who had recently litigated complex cases in their
courtrooms. Ten of the 14 judges participating in the pilot program were located in either
Orange County (4) or Los Angeles (6). Consequently the vast majority of attorneys who
were interviewed were located in those two counties. The overrepresentation of Orange
and Los Angeles Counties precludes drawing broad inferences about the litigation of
complex cases throughout the state, but rather limits the findings to Los Angeles and
Orange Counties, and to a lesser degree, Santa Clara, Contra Costa, San Francisco, and
Alameda Counties.
82
The NCSC anticipated conducting interviews with litigants referred by the interviewed attorneys, the
American Corporate Counsel Association, the California Chamber of Commerce, and other sources.
The NCSC employed a very different sampling approach in the second round of
interviews, but still encountered difficulties related to the geographic representativeness
of the interview population. To identify attorneys for the second round of interviews, the
NCSC attempted to contact the lead attorneys from a random sample of disposed cases
that were assigned to pilot program. The sample of cases was drawn from the database of
pilot program cases in January 2002, which at that time consisted of 317 disposed cases.83
Because several of the pilot sites had fallen behind in their data collection efforts (see
discussion of methodological issues related to the empirical study, below), the sample of
cases that was randomly drawn for the second set of interviews consisted of 37 cases
(13%) from Los Angeles County, 73 cases (26%) from Contra Costa County, 154 cases
(54%) from Orange County, and 19 cases (7%) from San Francisco County. The dataset
at that time did not include any cases from Alameda or Santa Clara Counties.
Consequently, no attorneys with cases in those counties were included in the second
A second difficulty involved identifying and securing the cooperation of attorneys
to participate in the second round of interviews.84 Using the sampling procedure, a total
sample of 200 attorneys was expected. In attempting to contact these attorneys, however,
the NCSC encountered several problems. Many of the pilot sites did not have complete
or accurate attorney contact information for the selected cases. In approximately one-
third of the cases, the NCSC was unable to identify attorneys who were sufficiently
familiar with the case to conduct the interview. Moreover, a total of thirteen attorneys
were listed as the primary contact for more than one of case in the random sample,
accounting for 37 cases, thus reducing the total number of identified attorneys in our
sample to 118.
Securing the cooperation of the attorneys was also problematic. Ten percent
(10%) of the attorneys could not be contacted, despite numerous attempts to do so. The
NCSC also encountered a great deal of resistance from attorneys who did not
immediately understand that these interviews were part of an official evaluation that was
being conducted under the authority of the California AOC and with the full knowledge
and consent of the pilot sites.85 Many attorneys were surprised, and even offended, that
their names and contact information had been obtained from court records. Other
attorneys were reluctant to participate due to concerns that the information sought in the
interviews was protected by attorney-client privilege. Some attorneys, especially in
83
Of the 317 cases, 34 were individual cases that were coordinated under a master case or otherwise related
to other cases in the sample. To avoid duplication of cases, only the master cases were included in the
dataset from which the sample was drawn.
84
For the first round of interviews, the NCSC was able to tell prospective interviewees that a particular
judge had recommended that we speak with him or her about their knowledge of complex litigation
management in California, which tended to increase their willingness to participate in the interviews.
85
To address concerns in the second round of interviews, the AOC and the participating pilot sites sent
letters to all of the attorneys for whom we had mailing addresses assuring them that the evaluation was
sanctioned by the AOC and encouraging the attorneys to cooperate in the interviews. NCSC staff also
faxed copies of the interview questions to the attorneys before each interview so they could see that we
were only seeking information about the management of their respective cases, and not privileged
information. Nevertheless, these efforts did not improve the response rate of attorneys appreciably.
jurisdictions that employed an individual calendar system for complex cases, were
unaware that their cases had been assigned to a pilot program, and thus did not
understand the significance of their participation in the interviews. Overall, nearly one
third (31.3%) of the attorneys refused to participate in the survey for one reason or
another.
Analysis of the first round of interviews was also complicated by differences in
the complex case management practices in each of the respective pilot sites before the
inception of the pilot program. For most of the sites, the pilot program was the first time
a specialized docket had been dedicated exclusively for complex cases. The Superior
Court of Orange County, however, had been operating a complex litigation calendar since
1991. A designated panel of judges have exclusive jurisdiction over the complex
caseload and have established specific procedures for handling complex cases. As a
result, the Orange County site did not radically change its operations with the inception
of the pilot program. Indeed, many of the procedures that have been adopted for the pilot
program are based on the Orange County model. This situation made evaluating
attorneys’ and judges’ views difficult because many of the issues and problems
associated with complex civil litigation had been effectively resolved in Orange County.
A final issue that affected analysis of the interview data was the lack of a clear
geographic distinction between attorneys whose experience in complex litigation
occurred under a master calendar system and those whose experience occurred under a
single judge assignment system. Although the Superior Court of Orange County has
operated a complex litigation program since 1991, about one-third of the Orange County
attorneys reported that their most recent complex case had been managed under a master
calendar system.86 Many of the attorneys in jurisdictions that traditionally operate under
a master calendar system had cases that were assigned to a single judge for pretrial
management purposes. This situation complicated the analysis insofar as the general
views of attorneys about complex litigation management may have reflected attitudes and
opinions about the calendar system in their respective jurisdiction, but their most recently
litigated case experiences may reflect the inherent advantages or disadvantages of the
other system. For analysis and reporting purposes, therefore, the NCSC distinguished
wherever possible between Orange County and non-Orange County data, and between
master calendar system data and single judge assignment calendar data.
Methodological Issues in Part 4 of the Evaluation

Data collection for Part 4 of the evaluation required the pilot program staff to
follow fairly precise protocols concerning the timely completion of data collection
instruments for each of the cases assigned to the pilot programs. There was substantial
evidence that these protocols were not uniformly followed by all of the pilot program
courts, raising questions about the completeness and accuracy of the resulting dataset.
For example, pilot program staff were instructed to complete and submit a Data Form 3
documenting any case activity (hearings, case management or status conferences,
86
These attorneys may have litigated their cases in a California superior court other than Orange County or
their most recent complex case may not have satisfied the criteria for eligibility for the Orange County
complex litigation program.
dispositive rulings) for the previous month for every case assigned to the pilot program
until the case was fully disposed. One-third of the cases in the final dataset consisted of
only a single Data Form 3.
There are two possible conclusions that may be drawn from this. One is that there
was only one month during the entire data collection period in which any official activity
took place in those cases.87 This is a plausible interpretation given that ongoing
discussions with pilot program judges and court staff during the evaluation period
confirmed that much of the case activity that takes place in complex case management is
relatively informal (e.g., telephone calls, e-mail correspondence, tentative settlement
agreements concerning specific issues or parties) and may not be memorialized as part of
the formal case record. These types of events, although obviously an important part of
complex case management, could not be captured in the data collection instruments
because the court clerks, who were responsible for completing the monthly data forms,
often were not aware when these events occur. It is highly likely, therefore, that the
dataset significantly underreports the amount of case activity that took place during the
data collection period. A second possibility is that pilot program staff did not complete
data collection for a sizeable portion of their cases, especially as many of the sites did not
collect data until very late in the evaluation period. The truth is likely to be a
combination of these two possibilities.
Another problem arose as a result of the delay in completing monthly reports by
several of the courts. Each Data Form 3 included a “report date” in which the pilot
program court staff were instructed to enter the date that the report was completed.
Timely completion of those monthly reports would have provided a reasonably accurate
estimate of the litigation stage for each of the cases (e.g., pleadings, discovery, settlement
negotiations, pretrial, trial, post-judgment), including the month in which the case was
completely disposed. Because several of the courts did not collect the data on a monthly
basis, but instead completed all of the Data Form 3s in December 2001,88 the report date
cannot be used as a reliable proxy for estimating litigation stages and final disposition
dates. Calculations of filing-to-disposition periods are likely to be significantly inflated –
that is, the actual filing-to-disposition periods are shorter than the data suggest – and the
evaluation findings should be viewed with this in mind.
Implications for the Evaluation

Each of these methodological issues limits the conclusions that can be drawn from
any individual component of the evaluation. In spite of these constraints, the NCSC
found a great deal of consistency between the program characteristics (especially the
underlying philosophy of complex case management espoused by the pilot program
judges), the responses of attorneys to the first and second round of interviews, and the
empirical information collected from cases assigned to the pilot program. The fact that
all of the evaluation components paint a consistent picture about the overall effectiveness
87
Approximately half (49%) of these cases were completely disposed at the time the data were collected.
88
One-third of the Data Form 3s (33.4%) had a final report date of either November 30, 2001 or December
31, 2001.
of the pilot program provides an additional level of confidence in the overall assessment
of the pilot program that might not otherwise be appropriate.
APPENDIX B – STATUTE 68617
68617. On or before October 30, 2002, the Judicial Council shall submit a report to the
Legislature and the Governor regarding the effectiveness of the Centers for Complex Litigation
established pursuant to the Budget Act of 1999. The report shall examine, among other things,
the number of complex cases filed, the impact of the centers on case and calendar management,
and the impact on the trial courts, the attorneys, and the parties, and shall make recommendations
to the Legislature and the Governor.
APPENDIX C – ATTORNEY INTERVIEW PROTOCOL #1
Good morning/good afternoon. My name is _________________. The National Center

for State Courts has been contracted by the California Administrative Office of the
Courts to conduct an evaluation of how the California courts manage complex litigation
cases. Judge _________ of the [County] Superior Court gave us your name and number,
and said that your opinion on this topic would be valuable. Do have some time to discuss
this with me right now? It should take 15 to 20 minutes. [If not, offer to reschedule to a
more convenient time].
1. Before we begin, can you tell me about the types of complex cases that you
typically litigate in the Superior Court? Are you normally involved in
litigation only in _____ County? Or do you handle cases in other parts of
California too?
We've already talked to a number of Superior Court judges in connection with this
evaluation and we think that we have a reasonably good idea of how the judges view their
ability to manage complex litigation. We'd like to hear your views concerning the issues
that they identified.
2. From your perspective as a trial attorney, what factors or characteristics make

a complex case "complex"? [prompts: # of parties, # of related claims,
volume of documents or witnesses, length of discovery, sophisticated nature
of the evidence or testimony, complex legal issues] Is there any single factor
or characteristic that is most important?
3. Think about the complex case that most recently concluded (by any
disposition – settlement, summary judgment, trial).
a. How was that case managed by the court?
b. Was it assigned to a single judge or assigned to the master calendar?
c. If the case actually went to trial, was the trial judge the same as the judge
who handled the pretrial management of the case?
d. If you found yourself dealing with more than one judge over the course of
the litigation, what impact (if any) did that have on your ability to move
the case forward to a resolution?
e. How did the management of this case compare to other complex cases that
you have filed in the Superior Court?
4. If the case was assigned to a single judge, how often did you meet with him or
her for status conferences or other meetings?
a. How well did the judge understand the legal and factual issues of those
cases? Were there any particular factors that contributed to the judges'
ability to understand those issues (e.g., prior experience in complex civil
litigation, sufficient time and attention to the details of the case)?
b. How accessible was the judge for resolving discovery disputes or other
problems as the case progressed? How helpful was the judge in this
regard?
c. Would the judge lean on the parties to meet case management deadlines?
Or would the judge let the parties set and manage their own deadlines as
they saw fit?
d. How easy or difficult was it to find out how the judge might view any
particular issue? [prior rulings on similar issues, word of mouth in the
legal community, discussions during status conferences or other meetings
with the court]
e. In your opinion, did the judge manage that case in a reasonably
expeditious fashion? Did the judge allow sufficient time for the parties to
complete discovery and prepare for trial?
f. How did the level of judicial involvement in this case compare to other
complex cases?
5. Was a discovery referee or special master appointed in the case?

a. If so, how was the selection made? [mutually agreed upon by the parties,
selected by the judge from a slate of nominees by the parties, randomly
selected by the judge, recommended by the judge]
b. What was his or her role? [helped parties develop a case management
plan, managed the discovery process, acted as a mediator or otherwise
facilitated settlement negotiations]
6. Are special masters or discovery referees typically appointed to assist in the

management of complex cases?
a. If so, how are those selections typically made?
b. What are the benefits of special masters or discovery referees? What are
the drawbacks?
c. What is overall opinion about the special masters?
7. Did the court order the parties to engage in any form of ADR in that case? If
so, how helpful was that process?
8. Did the case ultimately go to trial?
a. What was the schedule for trying the case (e.g., half-day trials, 4-day trial
weeks)?
b. Did the judge make any other accommodations (e.g., bifurcated trial, use
of technology, facility changes) based on the complexity of the case?
c. How well did those accommodations work for your ability to present
evidence and testimony in a coherent manner?
d. Did you encounter any delays due to legal issues that were not resolved
prior to trial? If so, please describe those problems.
9. If you could make three changes to the way that the California Superior
Courts manage their complex litigation calendars, what would they be?
10. In preliminary discussions about the management of complex litigation in

California before the implementation of the pilot program, judges and
attorneys identified several areas of concern. Please indicate whether you
agree or disagree with the following statements on a scale of 1 to 10 (1 =
strongly disagree; 10 = strongly agree).
a. The existing body of substantive caselaw in complex litigation is
insufficient for attorneys to advise their clients about the probable legal
consequences of certain commercial transactions.
b. Too many different judges are involved in the pretrial management of

complex litigation, often making inconsistent rulings and thus thwarting
settlement opportunities.
c. The referees and special masters who are appointed to help manage
complex cases lack sufficient financial incentives to limit discovery or
encourage early settlement of these cases.
d. Some judges lack the time and resources to adequately supervise the work
of court-appointed referees and special masters.
e. Some judges do not have sufficient knowledge about complex commercial

law to decide such cases fairly and accurately.
f. Some judges do not have sufficient experience in complex litigation to

manage their caseloads in an efficient and effective manner.
g. Some judges envision a future for themselves in the private judging

industry and thus lack incentives to place effective limits on the activities
and expenses of referees and special masters.
h. Lack of direct communication between trial counsel and the judge creates
confusion about court orders and prevents counsel from accurately
predicting judicial decisions on key issues.
i. Some judges are so concerned about the impact that a complex case will
have on their trial calendars that they will order the parties to engage in
additional settlement negotiations or ADR, even when the likelihood of
success is extremely low.
11. Are you aware that California has begun a Complex Litigation Pilot Program
in several courtrooms around the state?
a. If so, are you familiar with the specifics of that program?
b. What do you expect the pilot program to accomplish? What would you
hope to see it accomplish?
12. Our next task in this evaluation will be to interview litigants about their
experiences with complex litigation in the California courts. Are the specific
individuals – clients or other individuals that you know– that you would
recommend that we contact for their views? Please provide names and
telephone numbers. Can we use your name when we contact them?
APPENDIX C - ATTORNEY INTERVIEW PROTOCOL #2
Scheduled interview date: ___ ___ / ___ ___ / ___ ___ ___ ___
M M D D Y Y Y Y
Scheduled interview time: ___ ___ : ___ ___ a.m. / p.m.

H H M M (circle one)
OPEN-ENDED QUESTIONS
Good morning/good afternoon, my name is _________________, and I’m calling from

the National Center for State Courts in Williamsburg, Virginia. We’re working with the
California Administrative Office of the Courts on an evaluation of the California
Complex Litigation Pilot Program. We received your name and phone number from the
pilot program and are calling to interview you as part of our evaluation. We are not
seeking privileged information of any kind, and we will not ask you to disclose attorney-
client work product of any kind during this interview. Do you have some time to answer
a few questions about this right now (it should take about 30 minutes)?
[If yes: Okay, thank you.] [Proceed to # 1 below]
[If no:] Can we reschedule to a more convenient time?
a. New date/time: ___ ___ / ___ ___ / ___ ___ ___ ___
M M D D Y Y Y Y
___ ___ : ___ ___ a.m. / p.m.

H H M M (circle one)
[Read the following questions verbatim:]
13. To begin, I’d like to confirm some background information about the case that
you participated in [from the California pilot program]. The case that we’d
like to discuss with you is [confirm the following information]:
a. Case Name:
b. Docket #:
c. Case type: ________________________________________________________
14. When was this case first filed?
___ ___ / ___ ___ / ___ ___ ___ ___

M M D D Y Y Y Y
According to our records the case reached a final disposition on:
___ ___ / ___ ___ / ___ ___ ___ ___

M M D D Y Y Y Y
15. What made this case complex?
16. Do you normally practice in complex litigation, or was this case an exception
for you?
[Circle one]
NORMALLY PRACTICE EXCEPTION
17. Do you normally practice in this particular field of law?
[Circle one]
YES NO
[ask for normal field of practice]

18. Now I have a few questions to ask about the judge assigned to this case…
a. How often did the trial judge schedule status conferences or other
meetings? Did you attend all (or most) of those meetings? If not, why
not?
b. How well did the judge understand the legal and factual issues of this
case?
c. Were there any particular factors that contributed to the judges' ability to
understand the legal and factual issues of this case (e.g., prior experience
in complex civil litigation, sufficient time and attention to the details of
the case)?
d. How accessible and how helpful was the judge for resolving discovery
disputes or other problems as this case progressed?
e. How helpful was the judge at clarifying the primary issues in the case and
developing procedures to handle them?
f. To what extent did the judge enforce management deadlines?
DEADLINE PRESSURE NO PRESSURE

g. In your opinion, did the judge manage the case in a reasonably expeditious
fashion? Did the judge allow sufficient time for the parties to complete
discovery and prepare for trial?
h. How did the level of judicial involvement in this case compare to other
complex cases in which you’ve been involved?
i. How satisfied were you overall with the judge assigned to your case?
19. Was a discovery referee or special master appointed in the case?
[If No: Skip to # 8 below]

[If Yes: proceed directly below…]
[Note: If there was a discovery referee and a special master, and they were two different
people, ask the following questions once for each:]
a. How was the selection of the discovery referee [or special master] made?
[Prompts: mutually agreed upon by the parties, selected by the judge from a slate of
nominees by the parties, randomly selected by the judge, recommended by the judge]
b. Please describe the role of the discovery referee [or special master].
[Prompts: helped parties develop a case management plan, managed the discovery
process, acted as a mediator or otherwise facilitated settlement negotiations]
c. What were the disadvantages of having a discovery referee [or special
master] in this case?
d. Who paid the discovery referee [or special master] in this case?
e. Do you believe that it was appropriate or inappropriate to appoint a

discovery referee [or special master] in the case?
[Circle one]
APPROPRIATE INAPPROPRIATE
f. Were you satisfied with the work of the discovery referee or special
master? Why or why not?
[Circle one]
SATISFIED UNSATISFIED
g. On a scale of 1 – 10, with 1 = “very unsatisfied” and 10 = “very satisfied,”

please rate your overall level of satisfaction with the discovery referee [or
special master] assigned to your case.
[Circle one number below.]
1 2 3 4 5 6 7 8 9 10
Very Unsatisfied Very Satisfied
20. Did the court order the parties to engage in any form of ADR in this case?
[If Yes:]
i. How helpful was that process, and what in particular made it
helpful or unhelpful?
21. Please describe the parties and claims in this case.

i. How long did it take to identify all parties and claims in the case?
ii. How many parties were identified?

[Prompts]:
• Was it run more or less efficiently than in other cases?
• How did the pleading stage of this case differ from that of other
(i.e., less complex) cases?
• How did the pleading stage of this case differ from cases not part
of the pilot program?
22. Please describe the discovery process in this case.

a. What (if anything) did the trial judge in this case do differently than other
trial judges to facilitate the discovery process?
b. What time frame was established for discovery?
c. Was that time frame adequate?
d. Did the process produce sufficient information? Was the information

accurate? Was it helpful?
23. Please describe any settlement negotiations that took place in this case.
a. To what extent was the trial judge involved in settlement negotiations?

Not at all involved in settlement negotiations
Aware of negotiations, but not actively involved
Actively involved in negotiations
b. Were the necessary people present at these negotiations?

[Prompts]:
• How many meetings/negotiations took place?
• How long did they last?
• Were there more, less, or about the same number of parties

involved than in other cases?
• How satisfied were the various parties with the outcome(s) of

these negotiations?
• How did the settlement negotiations that took place in this case
differ from those of other (i.e., less complex) cases?
• How did the settlement negotiations that took place in this case
differ from those in cases not part of the pilot program?
24. How did the pilot program affect settlement negotiations, settlement
agreements, or other case dispositions?
25. Our records indicate that there [CONFIRM RECORD: was / was not] a trial in
this case.
a. Please describe the trial.
[Prompts]:
• How long did the trial last?
• Was it a bench trial or a jury trial?
• What was the outcome of the trial?
• Is it under appeal?
• Were there more, less, or about the same number of parties

involved as in other cases that go to trial?
• How satisfied were the various parties with the outcome(s) of

the trial?
• How did the trial in this case differ from that of other (i.e., less
complex) cases?
• How did the trial in this case differ from trials not part of the
pilot program?
26. Did the judge make any special accommodations based on the complexity of
the case (e.g., bifurcated trial, use of technology, facility changes)?
[If applicable:]
a. How well did those accommodations work for your ability to present
evidence and testimony in a coherent manner?
27. Did you encounter any problems or delays due to legal issues that were not
resolved prior to trial?

[If Yes:]
i. Please describe those problems.
28. Would you recommend any changes or ways to improve the pilot program,
and, if so, what would you recommend?
29. Describe your overall impression of the California Complex Litigation Pilot
Program and your main reason (or reasons) for this impression.
i. How would you compare the overall management of this case to other
complex cases that you have filed in the Superior Court that are not part of
this pilot program?
ii. Is your overall impression of this pilot program favorable or unfavorable?
[Circle one]
UNFAVORABLE FAVORABLE
iii. Do you believe that there is a need for such a program at all?
[Circle one]
YES NO
30. Based on your experience with the California Complex Litigation Pilot
Program, which of the following recommendations would you make for the
program’s future?
a. KEEP THE PROGRAM AS IS/MAKE NO CHANGES TO THE

EXISTING PILOT PROGRAM
b. REFORM THE EXISTING PILOT PROGRAM BUT DO NOT

ELIMINATE IT COMPLETELY [EXPLAIN BELOW]
c. ELIMINATE THE PROGRAM COMPLETELY
d. OTHER: [EXPLAIN BELOW]

[If applicable:]
EXPLANATION:
That concludes the interview. Thank you very much for your participation in this
evaluation. If you would like additional information about this project, or if you would
like to receive information about the results of our evaluation, I can now provide you
with information on how to contact the California Administrative Office of the Courts:
455 Golden Gate Ave.

San Francisco, CA 94102-3660
Phone: 415-865-4200
APPENDIX C - JUDGES QUESTIONNAIRE
1. From your perspective as a trial judge, which aspects of complex case

management are the most difficult? Which aspects are the least difficult? Please
explain. What changes, if any, do you make to your case management process to
address those difficulties?
2. Some judges describe their complex litigation caseloads as being inordinately

time-consuming and disruptive to their general civil calendar. Others say that the
ability to delegate significant case management responsibilities to a referee or
special master made their complex litigation cases less time-consuming than their
general civil calendar cases. Before the implementation of the Complex
Litigation Pilot Program, what was your experience in this regard? Please give
specific examples.
3. Compared to the general civil cases on your calendar, did you find that the
complex cases on your calendar were more likely or less likely to adhere to the
case management schedule? Why or why not?
4. Alternative Dispute Resolution (ADR) techniques are often, but not always, very
effective for resolving cases without going to trial. In managing complex cases,
have you had circumstances in which you thought that ADR would not be helpful
in resolving the case? If so, what did you do?
5. When your complex cases do go to trial, what if anything do you change about
your trial schedule or procedures to minimize the disruptive effect on your
calendar? [For example, half-day trials, four-day trial weeks, bifurcated trials,
etc.]
6. Before the implementation of the Complex Litigation Pilot Program, in what

percentage of complex cases did you appoint a referee or special master? [If less
than 100 percent], were you more likely to appoint a special master for a
particular type of case? If so, what type of case(s) and why?
7. In cases in which you appointed a special master, for what types of activities did
you grant him or her a great deal of discretion to manage the case (e.g.,
scheduling matters, discovery matters, settlement negotiations)? What types of
activities did you prefer to supervise more closely or handle yourself?
8. How are legal staff (research attorneys, law students, etc) used in your court.
How much do you rely on legal staff to manage your caseloads? How many legal
staff do you use? Are they permanent or temporary?
9. Have you attempted to impose uniformity in terms of motions, discovery orders,

and general steps as to how to handle these cases? If so, how? Has this
uniformity helped in case processing?
10. What additional resources have the complex court provided?

11. In preliminary discussions about the management of complex litigation in
California before the implementation of the pilot program, critics of the courts
voiced a number of complaints. Please indicate whether you agree or disagree
with the following complaints on a scale of 1 to 10 (1 = strongly disagree; 10 =
strongly agree).
a. The existing body of substantive caselaw in complex litigation is

insufficient for attorneys to advise their clients about the probable legal
consequences of certain commercial transactions.
b. Too many different judges are involved in the pretrial management of

complex litigation, often making inconsistent rulings and thus thwarting
settlement opportunities.
c. The referees and special masters who are appointed to help manage
complex cases lack sufficient financial incentives to limit discovery or
encourage early settlement of these cases.
d. Some judges lack the time and resources to adequately supervise the work
of court-appointed referees and special masters.
e. Some judges do not have sufficient knowledge about complex commercial

law to decide such cases fairly and accurately.
j. Some judges do not have sufficient experience in complex litigation to

manage their caseloads in an efficient and effective manner.
k. Some judges envision a future for themselves in the private judging

industry and thus lack incentives to place effective limits on the activities
and expenses of referees and special masters.
l. Lack of direct communication between trial counsel and the judge creates
confusion about court orders and prevents counsel from accurately
predicting judicial decisions on key issues.
m. Some judges are so concerned about the impact that a complex case will
have on their trial calendars that they will order the parties to engage in
additional settlement negotiations or ADR, even when the likelihood of
success is extremely low.
12. We've discussed a number of issues related to the management of complex

litigation. What are your expectations about the Complex Litigation Pilot
Program?
13. Before this appointment to the Complex Litigation Pilot Program, what was your
professional background and previous experience in complex litigation?
14. Our next task in this evaluation will be to interview attorneys and litigants about
their experiences with complex litigation in the California courts. Are the specific
individuals – attorneys or litigants – that you would recommend that we contact
for their views? Please provide names and telephone numbers. Can we use your
name when we contact them?
COMPLEX CIVIL LITIGATION PILOT PROGRAM
IN MARICOPA COUNTY
JOINT REPORT TO THE ARIZONA SUPREME COURT

SUBMITTED BY THE
SUPERIOR COURT IN MARICOPA COUNTY
AND THE
COMPLEX CIVIL LITIGATION COURT EVALUATION COMMITTEE
DECEMBER 2006
(PAST AND PRESENT MEMBERS AND SUPPORTERS)
COMMITTEE MEMBERS
Andrew M. Federhar, Esq.

Fennemore Craig PC
Chair
Hon. Anna Baca Mark J. Larson, Esq.

Superior Court in Maricopa County Honeywell Aerospace
Henry Camarot William J. Maledon, Esq.

Bullhead City, AZ Osborn Maledon PA
Hon. Robert J. Corcoran Tracy Nuckolls, Esq.

Arizona Supreme Court, Ret. Tucson Medical Center
Hon. Margaret J. Downie Marcus Reinkensmeyer

Superior Court in Maricopa County Maricopa County Judicial Branch
COMMITTEE SUPPORTERS
Hon. Rebecca Albrecht Hon. Kenneth Fields

Superior Court in Maricopa County Superior Court in Maricopa County
Hon. Janet Barton Hon. Pendelton Gaines

Superior Court in Maricopa County Superior Court in Maricopa County
Nita Billingsley Mitch Michkowski

Judicial Assistant Civil Department Administrator
Superior Court in Maricopa County
George Knecht
Sr. Business Analyst
Maricopa County Clerk of Court
COMMITTEE STAFF
Jennifer A. Greene
Court Projects Unit * Court Services Division
Administrative Office of the Courts
SUBMITTED BY THE
SUPERIOR COURT IN MARICOPA COUNTY AND THE
Table of Contents
PAGE
A. Introduction …………………………………………………………... 1
B. Program Components ………………………………………………… 2
1. Rules ……………………………………………………………….. 2
2. Three-judge panel …………………………………………………. 2
3. Electronic filing/e-courtrooms …………………………………….. 2
4. Staff attorney position……………………………………………... 3
5. Case management system enhancements ………………………...... 3
6. Filing fee …………………………………………………………... 3
C. Program Cases ………………………………………………………... 4
D. User Survey Results ………………………………………………….. 4
E. Recommendations for Program Modifications ……………………… 5
F. Conclusion ……………………………………………………………. 7
Appendices
Appendix A
Rules of Civil Procedure Applicable to Cases in the Complex Civil Litigation Pilot
Project in the Superior Court in Maricopa County
Appendix B
Summary of Complex Civil Litigation User Survey Results
SUBMITTED BY THE
SUPERIOR COURT IN MARICOPA COUNTY AND THE
DECEMBER 2006
A. INTRODUCTION
The Supreme Court established the Complex Civil Litigation Pilot Program at the
Superior Court in Maricopa County in January 2003 on an experimental basis pursuant to
Supreme Court Administrative Order No. 2002-107.1 The Order also appointed members
to the Complex Civil Litigation Court Evaluation Committee to monitor the program and
directed the committee to file a joint report with the Presiding Judge in Maricopa County
at the conclusion of the program. This report responds to that directive.
The Complex Civil Litigation Court in Maricopa County is one of many similar programs
around the country. Within the last five years, the number of business or complex civil
specialty courts has grown from six states to no less than sixteen states. Interest in
implementing these types of courts continues to grow.2 In keeping with this trend, the
American Bar Association’s Conference of State Trial Judges initiated a Business and
Commercial Court Judges Committee in 2003. Last year several business and complex
civil court judges established the American College of Business Court Judges with some
initial funding provided by the Brookings Institute. These organizations facilitate the
exchange of ideas and best practices for trying complex cases touching on commercial
and corporate governance issues.
Although business and complex civil court programs vary from state-to-state in many
respects, they generally fall into either one of three distinct categories: pure business
courts, where the parties must be commercial entities but the dispute need not be
complex; complex business courts, where parties must be commercial entities and the
case must be complex; or complex civil courts, like the California and Maricopa Superior
Court programs, where the parties need not be businesses, but the case must be complex.
1
The program was extended by two years in Administrative Order No. 2004-27 (April 28, 2004).
2
The list of states includes Delaware, California, Connecticut, Florida, Georgia, Hawaii, Illinois, Maine,
Maryland, Massachusetts, Nevada, North Carolina, New Jersey, New York, Pennsylvania, and Rhode
Island. Other states known to be considering such a program include Michigan, Ohio, and Oklahoma.
Colorado considered establishing a commercial division in Denver and decided against it for the time
being. Wisconsin offered a business court in Milwaukee for a few years, but the program has been shelved
for lack of interest. See, Business and Technology Courts, A Survey of Existing State Business and
Technology Courts (March 2005), Univ. Maryland School of Law; Civil Action (Winter 2004) National
Center for State Courts, Williamsburg, VA; M. Bach & L. Applebaum, A History of the Creation and
Jurisdiction of Business Courts in the Last Decade, The Business Lawyer (November 2004); and
information provided by Lee Applebaum, Vice-Chair, Subcommittee on Business Courts, ABA Business
Law Section.
1
B. PROGRAM COMPONENTS
1. Rules
The Complex Civil Litigation Pilot Program consists of several new rules of civil
procedure for use by the parties in designating complex cases and designed to emphasize
active pre-trial management by the judge. The rules applicable to the program cases
appear in Appendix A.
2. Three-judge panel
The Superior Court in Maricopa County designated three judges assigned to the civil
bench to preside over program cases, Hons. Kenneth Fields, Pendleton Gaines and
Rebecca Albrecht. Judge Albrecht retired in 2005 and was replaced by Judge Janet
Barton. In-coming program cases have been assigned to one of the three judges on a
rotating basis. In addition to handling complex cases, each of these judges also presided
over a full complement of non-complex civil matters. The program judges have attended
a variety of specialized trainings out-of-state that focused on complex case management.
They have also had opportunities to learn from other complex and commercial case
judges from jurisdictions outside Arizona. They have shared what they learned with
other judges on the civil bench in Phoenix.
The Presiding Civil Department Judge acted as the program’s gatekeeper, ruling on all
motions for complex designation filed by parties seeking to have their cases formally
assigned to the Complex Litigation panel.
3. Electronic filing/e-courtrooms
After the first year of the program, the superior court initiated its first electronic filing
program through LexisNexis. This program was implemented exclusively for cases in
the pilot program. Once it was available, all participating parties were required to file
their pleadings electronically. Program participants have electronically filed 144,600
pages of documents with the court.3 LexisNexis has electronically served a staggering
3,262,159 pages of documents on program participants in just three years.4 The user
survey revealed that being able to e-file was either very important or somewhat important
to 83 percent of responding attorneys. The court is in the process of implementing e-
filing in all divisions court-wide, so the complex litigation program will soon lose this
advantage over the regular civil divisions.
In addition to learning how to work with e-filing, each program judge presided over an e-
courtroom equipped with the most up-to-date electronic technology for evidence
3
Data provided by LexisNexis as of October 19, 2006.
4
According to LexisNexis, if these pages were stacked up, the stack would roughly equal the height of a
103-story building.
2
presentation, electronic recording and computer-enhanced judicial management of the
courtroom.
4. Staff attorney position
The court created a special position for an experienced staff attorney to assist program
judges with research and drafting. The attorney also serves as a liaison between the
judges to ensure consistent rulings on similar issues, an important goal of the program.
Generally speaking, judges at Maricopa Superior Court do not have access to a law clerk
or must rely on law-trained bailiffs for assistance with research and drafting.
5. Case management system enhancements
The IT staff at Maricopa Superior Court customized a new module for the court-wide
case management system (iCIS) to assist in tracking pilot program cases. Judicial
assistants for each of the program judges input pre-defined data in this application,
including type of complaint, whether the case was a class action, whether a master was
appointed, number of trial days, number of motions filed, date and type of disposition, if
any, and a brief explanation of the gatekeeper’s decision to admit or deny admission for
each case.
6. Filing fee
Six months into the program, the Maricopa County Board of Supervisors approved a
special $500 filing fee, which parties were required to pay upon admission to the
program. The user survey disclosed that nearly 80 percent of responding lawyers agreed
the $500 fee was not a disincentive to participation in the program. The fee was waived
or reduced in some cases. Revenue generated by this fee totaled $258,600 over three
years, or approximately $86,000 a year. This is less revenue than originally anticipated.
To date, expenditures, totaling $43,128,5 have been focused on the staff attorney position,
which was only recently filled ($36,200), equipment and supplies ($4,400) and limited
funding of education and training ($2,500) for the panel judges. This is less than the
level of additional training for the judges anticipated when formation of the Complex
Court was first recommended. The superior court and clerk of court’s office have picked
up all other costs associated with the program. Projections indicate that absent additional
funding sources or increased utilization of the program, the program will not bring in
enough revenue to support the staff attorney position beyond 2009.
5
Data current as of October 19, 2006, provided by Maricopa County Superior Court Administration.
3
C. PROGRAM CASES
Complex case designation was sought in 301 cases, several of which were consolidated
matters. The court admitted 91 cases, a number that actually represents approximately
242 separate actions. The court denied motions for designation in 59 cases. In four
cases, the parties either resolved their disputes or moved to another jurisdiction while the
motion to designate was pending. Common characteristics of cases denied admission to
the program have been lack of complexity and because they were too old to benefit from
early and active judicial management.
A total of 5,246 individual plaintiffs and 1,352 defendants were represented in the
program cases. More than 560 attorneys entered appearances in these actions. Litigants
filed nearly 17,000 motions, of which 2,622 were substantive in nature. The program
judges presided over ten trials. Approximately 70 percent of the cases in the program
were newly-filed cases. Approximately 30 percent of the cases were resolved within the
four-year pilot phase. Fifteen cases were dismissed; judgment was entered in six other
cases.
All but one case involved businesses on one or both sides of the dispute. The one non-
business case was a divorce action requiring division of a multi-million dollar estate with
interests in California and Arizona. As reported by the court, approximately 39 percent
of the complex cases were classified as “tort non-motor vehicle.” Contract disputes
comprised another 30 percent of the caseload. The other 30 percent fell into an “other
civil” category. The attorneys who responded to the committee’s user survey provided
more specific information about case types. Their descriptions indicate a majority of the
claims were based on construction defect or contract. Additional case types reported
were product liability, anti-trust, insurance coverage, securities, shareholder derivative
suits, toxic tort, securities, and medical and legal malpractice.
D. USER SURVEY RESULTS
The committee did not undertake a comparative analysis of case processing efficiencies
between cases in the program and those not in the program, since no two complex cases
are sufficiently alike to permit meaningful data. Additionally, with fewer than 100 cases
in the program so far, most of which have not yet been completed, the sample size is too
small to render valid empirical data. Consequently, the committee surveyed participating
attorneys for an indication of whether the program is meeting its stated goals.
4
In September 2006, the AOC conducted an online survey of the 560+ lawyers who had
entered appearances in program cases. Responses were received from 83 attorneys. The
survey results are summarized in Appendix B.
By a large majority, attorneys who responded to the survey were veteran lawyers with
experience in handling complex cases. Three out of four responders reported they have
been in practice for ten years or more. Seventy percent described themselves as defense
lawyers. More than half work in firms of more than 20 lawyers and have handled five or
more complex cases in the past ten years.
Ninety-six percent of those responding favored continuation of the program. Fifty-five

percent favored expanding the volume of cases in the program by admitting more case
types, but 80 percent favored keeping the program without making any changes.
Program judges were uniformly perceived to be well-equipped to handle complex civil
matters and were somewhat more able to devote attention to these cases compared with
other non-program judges. The program judges also received high marks in consistency
of rulings, predictability, communication with counsel, familiarity with complex case
law, experience, active case management, and client and attorney satisfaction.
E. RECOMMENDATIONS REGARDING PROGRAM MODIFICATIONS
Administrative Order No. 2002-107 directs the committee to provide the court with
recommendations for modifications “to procedural rules, staffing, and funding parameters
as needed” and “for implementing the program in other counties and/or on a statewide
basis as the committee deems appropriate.”
Recommendation No. 1. Continue the program
The Complex Civil Litigation Pilot Program should be converted to a permanent

component of the Civil Department of the Superior Court in Maricopa County. The
program has evolved more slowly than originally anticipated, and its strengths have yet to
be fully appreciated. Nevertheless, the program has already achieved unqualified success
in eliminating problems related to judicial rotation and in providing the community with
a cadre of specially-trained experienced judges able to competently and efficiently
manage complex disputes working with a full complement of modern litigation support
tools in an environment designed to provide consistency and predictability.
Recommendation No. 2. Explore funding options
Absent a substantial influx in cases, additional funding for this program will be needed
within the next few years to support the program’s staffing and training needs. The $500
filing fee needs to be supplemented through legislative appropriation or some other
source.
5
Recommendation No.3. Find ways to increase case volume preferably without changing
the rules for admission
A large majority of program participants have expressed a desire to see the program
continued without modifying the rules. However, funding constraints threaten the
program’s continued viability and efficacy unless more cases are designated complex. At
the same time, voluntary participation is a desirable feature of the Arizona program that
distinguishes it from most other similar programs around the country. Therefore, the
committee prefers to approach the problem of case volume in a way that would maintain
the voluntary nature of participation but assist the court in identifying the most deserving
cases, not only to increase funding for the program, but also to remove them from the
regular civil calendar. Internal case processing in the clerk’s office should be modified to
bring newly-filed presumptively complex cases to the attention of the program
gatekeeper automatically. The civil cover sheet may be used for this purpose. The
gatekeeper could then notify presumptively-eligible petitioners to consider moving for
complex case designation under A.R.Civ.P. 8(i). With experience, the court can identify
the appropriate categories of cases to be handled in this fashion. For example, experience
to date has demonstrated that construction-defect claims involving more than 20 homes
typically require extensive judicial involvement in coordinating discovery and therefore
should be considered presumptively complex and automatically screened by the program
gatekeeper as recommended here.
Recommendation No. 4. Extend the term of the evaluation committee
In the view of everyone involved, the committee’s periodic meetings with program
judges and court administrators have been essential to steering the program through the
pilot phase. Committee members have actively assisted in promoting the program,
including arranging and conducting a February 2005 continuing legal education session
that attracted more than 70 participants. On-going collaboration between practitioners
and the superior court will play a critical role in ensuring accountability, refining the
program’s parameters, and possibly even identifying new funding options.
Recommendation No. 5. Defer statewide expansion
The original committee envisioned a complex division in both Maricopa and Pima
County Superior Court locations. Pima County declined to participate. Given the volume
of program cases to date and the limited funding options, the establishment of complex
civil divisions in other counties does not appear practical or necessary at this point in
time. The presiding civil department judge entertained one motion for complex case
designation filed by a party in an out-of-county case from Coconino County. Current law
permits a change of venue to another county in civil cases by either the consent of the
parties or by court order based on a determination of good and sufficient cause. A.R.S.
§12-401 et. seq.
6
F. CONCLUSION
Over the past four years, the committee has had the pleasure of watching this program
grow from a concept into a reality of recognizable value to the legal community. Many
people deserve acknowledgement for this accomplishment, not least of which are the
judges, clerks, administrators, and judicial staff at the Superior Court in Maricopa
County. They have laid a solid foundation on which to continue to build. The committee
urges the court to continue the program with the eventual goal of making it a permanent
part of the judicial landscape in Arizona.
7
Appendix A
Rules of Civil Procedure Applicable to Cases in the Complex Civil Litigation

Pilot Project in the Superior Court in Maricopa County
[Revised] Rule 8(h). Classification of Civil Actions
(1) Counsel for plaintiff or petition shall describe in the caption of

each complaint or petition filed with the court the nature of the civil action
or proceeding, as follows: Tort Motor Vehicle, Tort Non-Motor Vehicle,
Contract, Domestic Relations, Eminent Domain or Non-classified Civil,
Writ of Garnishment.
(2) Writs of garnishment shall include under the caption whichever of

the following notations is applicable:
(1)A. Federal Exemption.

(2)B. Enforce order of support.
(3)C. Enforce order of Bankruptcy Court
(4)D. Enforce collection of taxes.
(5)E. Non-earnings.
(3) In those counties in which a complex civil litigation program has been
established, in addition to the description required by (1), the caption shall
also identify the action as complex if the action meets the criteria listed in
Rule 8(i).
Appendix A-1
[New] Rule 8 (i) Complex Civil Litigation Program Designation
(1) Definition. In those counties in which a complex civil litigation program has
been established, a “complex case” is a civil action that requires continuous judicial
management to avoid placing unnecessary burdens on the court or the litigants and to
expedite the case, keep costs reasonable, and promote an effective decision making
process by the court, the parties, and counsel.
(2) Factors. In deciding whether a civil action is a complex case under subdivision
(a), the court shall consider the following factors:
(A) Numerous pretrial motions raising difficult or novel legal issues that will be
time-consuming to resolve;
(B) Management of a large number of witnesses or a substantial amount of
documentary evidence;
(C) Management of a large number of separately represented parties;
(D) Coordination with related actions pending in one or more courts in other
counties, states or countries, or in a federal court;
(E) Substantial postjudgment judicial supervision;
(F) The case would benefit from permanent assignment to a judge who would
have acquired a substantial body of knowledge in a specific area of the law
(G) Inherently complex legal issues;
(H) Factors justifying the expeditious resolution of an otherwise complex dispute;
(I) Any other factor which in the interests of justice warrants a complex
designation or as otherwise required to serve the interests of justice.
(3) Procedure for designating a complex case. At the time of filing the initial
complaint, a plaintiff may designate an action as a complex case by filing a motion
and separate certification of complex case identifying the case attributes outlined in
(2) justifying the designation. The certification shall be in a form approved by the
Supreme Court and must be served on the defendant along with the motion at the
time of service of the complaint. Plaintiff’s certification, and any controverting
certificate of a party represented by an attorney, shall be signed by at least one
attorney of record in the attorney’s individual name. A party who is not represented
by an attorney shall sign the party’s certification of complexity or controverting
certification.
The signature of an attorney or party constitutes a certification by the signer that the
signer has considered the applicability of Rule 8(i) of the Arizona Rules of Civil
Procedure; that the signer has read the certificate of complexity or controverting
certificate; that to the best of the signer’s knowledge, information and belief,
formed after reasonable inquiry, it is warranted; and that the allegation as to
complexity is not set forth for any improper purpose. The provisions of Rule 11(a)
of these Rules apply to every certification of complexity filed under this Rule.
(4) Procedure for opposing designation. If a plaintiff has certified a case

complex and the court has not previously declared the action to be a complex case,
Appendix A-2
and the defendant disagrees with the plaintiff’s assertion as to complexity, the
defendant shall file and serve no later than that party’s first responsive pleading a
response to plaintiff’s motion and a controverting certification that specifies the
particular reason for the defendant’s disagreement with plaintiff’s certificate.
(5) Designation by defendant or joint designation. A defendant may designate an

action as a complex case if the plaintiff has not done so and if the court has not
already made a ruling in this matter by filing a motion and the certification of
complex case described in (3) at or before the time of filing defendant’s first
responsive pleading and serving them upon the plaintiff. The parties may join in
designating an action as a complex case by filing a joint motion and certification of
complex case with or before the filing of defendant’s first responsive pleading.
(6) Action by court. The presiding judge of the court or designee shall decide, with
or without a hearing, whether the action is a complex case within 30 days after the
filing of the response to the designating party’s motion. The court may decide on its
own motion, or on a noticed motion by any party, that a civil action is a complex
case or that an action previously declared to be a complex case is not a complex
case. This ruling may be made at any time during the pendency of an action, for
good cause shown. If the court finds that an attorney or party has made an
allegation as to complexity which was not made in good faith, the court, upon
motion or upon its own initiative, shall make such orders with regard to such
conduct as are just, including, among others, any action authorized under Rule 11(a)
of these Rules.
(7) Not Appealable. Parties shall not have the right to appeal the court’s decision
regarding the designation of an action as complex or noncomplex.
COMMENT
Proposed Rule 8(i) is intended to establish a process by which the
parties can alert the court to the complex nature of their dispute.
However, the determination that a case is, in fact, eligible for the
complex litigation program is to be made by the presiding judge or
designee. The parties are not to self-select in the absence of a
determination by the court on good cause shown.
Justification for this rule: This rule sets the standard for
determining whether a case is eligible for participation in the
complex case program. It also sets out a process for designating a
case as complex and for contesting the designation. A ruling on
whether a case is eligible for the complex case program is not
appealable to promote early final resolution of the issue of eligibility
for participation in the program. This is in keeping with one of the
overall goals of the program: to achieve finality for complex cases in
an expedited manner.
Appendix A-3
[New] Rule 8(i) Program Designation Certification Form
IN THE SUPERIOR COURT OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
)
_______________________, ) Case No. _______________________
Plaintiff )
) 9 Certification of Complexity
vs. ) 9 Joint Certification of Complexity
) 9 Contravening Certification
_______________________, )
Defendant )
)
The (undersigned certifies) (parties certify) that this action is a complex case for the
following reasons:
9 Numerous pretrial motions raising difficult or novel legal issues that will be time-consuming to
resolve
9 Management of a large number of witnesses or a substantial amount of documentary evidence
9 Management of a large number of separately represented parties
9 Coordination with the following related actions pending in one or more courts in other counties,
states or countries, or in a federal court:
_______________________________________________________________________________
_______________________________________________________________________________
9 Substantial postjudgment judicial supervision
9 The case would benefit from permanent assignment to a judge who would have acquired a
substantial body of knowledge in a specific area of the law
9 Inherently complex legal issues
9 Factors justifying the expeditious resolution of an otherwise complex dispute
9 The following other factor(s) warranting designation as a complex case, in the interest of justice:
________________________________________________________________________
________________________________________________________________________
The (undersigned certifies) (parties certify) that this action is not a complex case for the following
reasons:
________________________________________________________________________
________________________________________________________________________
Dated this __________ day of _______________________________________, 200____.
___________________________________ _____________________________________
(Attorney for) (Plaintiff) (Defendant) (Attorney for) (Plaintiff) (Defendant)
[This certification must be accompanied by a motion]
Appendix A-4
[New] Rule 16.3. Initial Case Management Conference in Cases Assigned to the
(a) Subjects for Consideration. Once a case is determined to

be a complex civil case, an initial case management conference with all
parties represented shall be conducted at the earliest practical date, and a
Case Management Order issued by the court promptly thereafter. Among
the subjects that should be considered at such a conference are:
(1) Status of parties and pleadings

(2) Determining whether severance, consolidation, or
coordination with other actions is desirable
(3) Scheduling motions to dismiss or other preliminary
motions
(4) Scheduling class certification motions, if applicable
(5) Scheduling discovery proceedings, setting limits on
discovery
and determining whether to appoint a discovery master
(6) Issuing protective orders
(7) Appointing liaison counsel and admission of non-resident
counsel
(8) Scheduling settlement conferences
(9) Notwithstanding Rule 26.1, the establishment and timing of
disclosure requirements
(10) Scheduling expert disclosures and whether sequencing of
expert disclosures is warranted
(11) Scheduling dispositive motions
(12) Adopting a uniform numbering system for documents and
establishing a document depository
(13) Determining whether electronic service of discovery
materials and pleadings is warranted
(14) Organizing a master list of contact information for counsel
(15) Determining whether expedited trial proceedings are
desired or appropriate
(16) Scheduling further conferences as necessary
(17) Use of technology, videoconferencing and/or
teleconferencing
(18) Determination of whether the issues can be resolved by
summary judgment, summary trial, trial to the court, jury
trial, or some combination thereof
(19) Such other matters as the court or the parties deem
appropriate to manage or expedite the case
(b) Meeting of Parties Before Conference. Before the date

set by the court for the initial case management conference, all parties who
have appeared in the action, or their attorneys, shall meet and confer
Appendix A-5
concerning the matters to be raised at the conference, shall attempt in good
faith to reach agreement on as many case management issues as possible,
and shall submit a joint report to the court no later than seven (7) days
before the initial case management conference. A party who fails to
participate in good faith shall be subject to sanctions.
(c) Purpose of Conference. The purpose of the initial case

management conference is to identify the essential issues in the litigation
and to avoid unnecessary, burdensome or duplicative discovery and other
pretrial procedures in the course of preparing for trial of those issues.
(d) Establishing Time Limits. Time limits should be

regularly used to expedite major phases of complex civil cases. Time
limits should be established early, tailored to the circumstances of each
case, firmly and fairly maintained, and accompanied by other methods of
sound judicial management. The date of the final pre-trial conference
shall be set by the court as early as possible with a trial date to follow
within 60 days of the final pre-trial conference.
(e) Commencement of Discovery. Absent an order of the

court, or by stipulation of the parties filed with the court, no party may
initiate discovery or disclosure in a complex civil case until the court has
issued a Case Management Order following the initial case management
conference.
COMMENT
Justification for this rule: Rule 16.3 is intended to supplement the
Arizona Rules of Civil Procedure in a manner that will provide
judges and litigants with appropriate procedural mechanisms for the
fair, efficient and expeditious management of discovery, disclosures,
motions, service of documents and pleadings, communications
between and among counsel and the court, trial, and other aspects of
complex civil litigation. Other than as specifically set forth, cases
assigned to the complex litigation program are not exempt from any
normally applicable rule of procedure, except to the extent the trial
judge may order otherwise. Proposed Rule 16.3 should be available
to any trial judge who wishes to follow it, in whole or in part, in
managing a civil dispute, even in cases that are not formally
assigned to a complex litigation program.
Case Management Resources. In considering procedures for
management of a complex civil case, the court, in its discretion, may
look for guidance to the Manual for Complex Litigation published
by the Federal Judicial Center and to similar complex litigation
manuals used by courts in other jurisdictions.
Appendix A-6
[New] Rule 39.1. Trial of Cases Assigned to the Complex Civil Litigation Program.
The court should employ trial procedures as are deemed necessary or

appropriate to facilitate a just, speedy and efficient resolution of the case,
including, but not limited to, time limits and allocation of trial time,
sequencing of evidence and arguments, bifurcation of issues or claims,
advance scheduling of witnesses and other evidence, pre-trial admission of
exhibits or other evidence, electronic presentation of evidence, jury
selection and juror participation issues and other means of managing or
expediting the trial of a complex case.
COMMENT
Justification for this rule: See 16.3.
Appendix A-7
Appendix B
Complex Civil Litigation User Survey
Results Summary
October 2006
A. Rate your experience in the Complex Civil Litigation pilot program
Based upon my experience in the CCL program, overall, I am more

satisfied with the case management process vs. the way cases are
managed by conventional civil judges.
Strongly Somewhat Neutral Somewhat Strongly

Agree Agree Disagree Disagree
Total 37 28 14 1 3
Responses
Response 45% 34% 17% 1% 4%
Percent
The level of judicial management and involvement in my CCL program

cases(s) was greater than in non-pilot civil cases in the Superior Court
in Maricopa County.

Total 30 30 19 2 2
Responses
Response 36% 36% 23% 2% 2%
Percent
The assigned judge of my CCL cases(s) was more accessible

compared to my cases that were not in the pilot program.

Total 24 26 28 2 3
Responses
Response 29% 31% 34% 2% 4%
Percent
Appendix B-1
The judge(s) in my CCL case (s) were more experienced in dealing with
complex issues than judges who are not assigned to the CCL pilot
program.

Total 39 29 8 3 3
Responses
Response 48% 35% 10% 4% 4%
Percent
CCL judges, overall, have more familiarity with complex case law to
decide such cases fairly and accurately than judges who are not in the
CCL pilot program

Total 28 37 9 5 3
Responses
Response 34% 45% 11% 6% 4%
Percent
Taken as a whole, CCL judges communicate more with trial counsel

than judges who are not in the pilot program.

Total 37 28 14 1 3
Responses
Response 45% 34% 17% 1% 4%
Percent
Appendix B-2
Given that CCL judges have long-term judicial assignments (not
rotated), trial counsel and their clients are more able to accurately
predict the course of the case in cases assigned to the CCL program
than in cases not assigned to the CCL program.

Total 45 24 8 5 1
Responses
Response 54% 29% 10% 6% 1%
Percent
Clients generally are happy with the operation of the CCL program.

Total 26 26 25 3 3
Responses
Response 31% 31% 30% 4% 4%
Percent
A. Rate your experience with non-CCL cases.
I am satisfied with having more than one judge become involved in

pretrial management.

Total 1 9 21 30 20
Responses
Response 1% 11% 26% 37% 25%
Percent
Appendix B-3
Rulings are just as consistent.

Total 2 14 23 35 6
Responses
Response 2% 18% 29% 44% 8%
Percent
Non-complex judges devote the proper amount of time and resources

to adequately mange a case.

Total 3 29 30 13 5
Responses
Response 4% 36% 38% 16% 6%
Percent
Most non-complex judges have sufficient knowledge about complex

commercial law to decide such cases fairly and accurately.

Total 4 18 28 28 2
Responses
Response 5% 22% 35% 35% 2%
Percent
Appendix B-4
Most non-complex judges have sufficient experience in complex
litigation to manage their caseloads in an efficient and effective manner.

Total 4 14 28 31 4
Responses
Response 5% 17% 35% 38% 5%
Percent
Direct communication between trial counsel and the non-complex

judges is adequate.

Total 2 27 32 15 3
Responses
Response 3% 34% 41% 19% 4%
Percent
B. Evaluate the Complex Civil Litigation program’s future
Keep the program as is/make no changes to the existing pilot program.
Yes No
Total 65 17
Responses
Response 79.3% 20.7%
Percent
Appendix B-5
Reform the existing program but do not eliminate it completely.
Yes No
Total 22 43
Responses
Percent
Eliminate the program completely.
Yes No
Total 3 73
Responses
Response 3.9% 96.1%
Percent
Expand the volume of case types that are admitted to the program.
Yes No
Total 44 36
Responses
Response 55% 45%
Percent
Appendix B-6
Support legislation that would provide for a statewide Complex Civil
Litigation program.
Yes No
Total 67 15
Responses
Percent
The criteria for designating whether a case is “complex” (and thereby

allowing or disallowing entry into the CCL pilot program per
A.R.C.iv.P.8 (i)) are reasonable.
Yes No
Total 74 6
Responses
Response 92.5% 7.5%
Percent
C. A few questions about your civil litigation background and

preferences
How important is it to you to e-file your pilot program case(s)?
Very important Somewhat Not important

important
Total 41 27 14
Responses
Response 50% 33% 17%
Percent
Appendix B-7
Please indicate the types of case(s) that you have handled in the Complex
Litigation pilot.
Response Total Response Percent

Construction 39 48%
Defect
Contracts 30 37%
Malpractice 3 4%
(legal or
medical)
Product liability 14 17%
Tort non-motor 16 20%
vehicle
Toxic tort 7 9%
Antitrust 11 14%
Insurance 3 4%
Class action 3 4%
Business Tort 2 2%
Commercial 2 2%
Fraud
Securities 4 5%
litigation
Do you consider the $500 filing fee to be a disincentive to participating

in the Complex Civil Litigation pilot program?
Yes No
Total 18 64
Responses
Response 22% 78%
Percent
Appendix B-8
How many complex civil cases (pilot and non-pilot) have you handled in
the Superior Court in Maricopa County or elsewhere in the past 10
years?
1 to 4 5 to 10 11 to 20 21 +
Total 36 24 15 6
Responses
Response 44% 30% 19% 7%
Percent
How many lawyers are in your firm?
1 to10 11 to 20 21 to 50 51 +
Total 20 12 19 29
Responses
Response 25% 15% 24% 36%
Percent
Do you consider yourself to be primarily a defendant’s or a plaintiff’s

attorney?
Defendant’s Plaintiff’s
Attorney Attorney
Total 54 23
Responses
Percent
Appendix B-9
How many years have you been an attorney?
1 to 10 11 to 20 21+
Total 22 23 36
Responses
Response 27% 28% 44%
Percent
Appendix B-10
THE BUSINESS LITIGATION SESSION IN
MASSACHUSETTS SUPERIOR COURT: A STATUS REPORT
Business Litigation Session Resource Committee
Gael Mahony, Esq., Co-Chair Beth I.Z. Boland, Esq., Co-Chair

Holland & Knight LLP Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
Michael P. Angelini, Esq. Paul T. Dacier, Esq.

Bowditch & Dewey, LLP EMC Corporation
John J. Egan, Esq. Robert A. Gelinas, Esq.

Egan, Flanagan & Cohen, P.C. Bulkley, Richardson and Gelinas, LLP
Andrew R. Grainger, Esq. Franklin H. Levy, Esq.

New England Legal Foundation Dwyer & Collora, LLP
Harry L. Manion, III, Esq. James J. Marcellino, Esq.

Cooley, Manion & Jones LLP McDermott, Will & Emery
James D. O’Brien, Jr., Esq. Charles V. Ryan, Esq.

Mountain, Dearborn & Whiting LLP Crevier & Ryan, LLP
Deborah L. Thaxter, Esq. Steven H. Wright, Esq.

Nixon Peabody LLP Holland & Knight, LLP
February 2003
FOREWORD AND ACKNOWLEDGEMENTS
The dedication of a separate session of the Superior Court to the resolution of business
disputes has been considered for some time in the Commonwealth both by the judiciary and by
legal practitioners. It was not until October 2000 that this possibility became a reality when
Superior Court Chief Justice Suzanne V. DelVecchio launched the Business Litigation Session
of the Suffolk Superior Court as a two-year pilot program, with Superior Court Associate Justice
Allan van Gestel presiding.
To assist with this ambitious program, Chief Justice DelVecchio also appointed a
committee of attorneys from a variety of backgrounds to provide input and feedback to the
public and the Chief Justice. In an effort to obtain informed responses about the impact of the
Business Session on the practice of law in the Commonwealth and the experiences of
practitioners with the Session, members of the Committee traveled the state, speaking with
practitioners in every county. The Committee examined how other states had implemented
business litigation courts, and commissioned a professional survey of attorneys with cases before
the Business Session. Committee members also consulted the judges appointed to the Business
Session and the Chief Justice of the Superior Court regarding various aspects of the operations of
the Session.
This report is the written culmination of the work of the Committee over the past two
years. It is intended to provide members of the legal and business community with information
on the operation of the Business Session in its first two years, and to make recommendations
concerning the future of the Session.
This report was prepared with the assistance of numerous individuals and institutions, to
whom we are grateful. In particular, we wish to acknowledge the New England Legal
Foundation for its financial support, and EMC Corporation and Chris Goode at EMC for their
valuable in-kind assistance. A number of attorneys and paraprofessionals from Hill & Barlow,
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, Holland & Knight, and McDermott, Will &
Emery assisted in the work of the Committee and the preparation of this report, including Sarah
Herlihy, Melissa Nott, James Wodarski, Lauren Benowitz, Rebeccah Weiss, Amy LaPrade, and
Terrence McNeil.
The Committee would also like to acknowledge the assistance of Chief Justice
DelVecchio, Business Session Presiding Justice Allan van Gestel, and Associate Justice Margot
Botsford. During the two-year pilot program, they have provided valuable information and
assistance to the Committee and have been extremely generous in discussing the inner workings
of the Business Session.
As a final note, the members of the Committee would like to express our sadness upon
the passing of one of our members, Richard Testa. While his legacy reverberates within the
larger legal community of which he was such an integral part, we are fortunate to have benefited
from his insight as well.
The Business Litigation Session Resource Committee

February 2003
EXECUTIVE SUMMARY
The establishment of the Business Litigation Session of the Suffolk County Superior
Court in October 2000 represented the culmination of a long-discussed innovation within the
Massachusetts trial court system. After considerable debate among the judiciary and members of
the bar, in September 2000 Superior Court Chief Justice Suzanne DelVecchio announced a two-
year pilot program in which a session of the Superior Court sitting in Suffolk County would be
set aside for complex commercial litigation, with Associate Justice Allan van Gestel presiding.
The decision to create the Business Session was not without controversy. Numerous
members of the bar and the judiciary voiced concern that a separate session for complex cases
would be “elitist” and would be used to dispense “better” justice to the business community than
to less-affluent litigants; that it would unnecessarily impede the appropriate allocation of judicial
resources within the Superior Court civil sessions, when other mechanisms such as special
assignments could be utilized more efficiently; and that it would require judges who would
prefer to serve as generalists into forced specialization of their docket. Yet there also existed
strong countervailing policy reasons to support a specialized business tribunal: commercial
disputes in particular were being increasingly litigated through alternative dispute resolution
services which provided a system of private justice not available to many litigants, which did not
produce publicly-available judicial opinions, and which deprived the public of a broader
jurisprudential foundation in the field of business law. Complex commercial cases requiring
specialized knowledge were many times assigned through the rotation system to judges with
little experience in the area. And, the Commonwealth’s reputation as a judicial forum hostile to
business litigation deepened.
1
Meanwhile, state courts around the country have increasingly adopted specialized
business courts, with positive results. Building on the experience of other states, the Business
Litigation Session in Suffolk County Superior Court was born. After two years of operation, all
indicators suggest that the experiment has been highly successful and should not only be made
permanent, but should be expanded to other counties. In particular, the Committee recommends
that the session include cases from Middlesex, Norfolk, and Essex counties in addition to Suffolk
County, with the expectation that the session will ultimately encompass cases filed statewide as
the structure is refined and the pool of interested and experienced judges is expanded.
Committee Findings and Recommendations
• The recent trend in state court administration -- concurrent with the trend in the
practice of law -- weighs heavily in favor of establishing specialized tribunals for
commercial litigation;
• Massachusetts’s reputation as a forum for business dispute resolution ranks in the

bottom twenty percent in the nation, for reasons which can in part be addressed by
the continued operation and expansion of a business litigation tribunal;
• In a survey of Business Session practitioners conducted in the spring of 2002, the

vast majority (88%) stated they were extremely “satisfied” or “very satisfied”
with their experience in the Business Session;
• 83% of the survey respondents reported that the existence of the Business Session
had enabled them to provide better legal service to their clients. The primary
reasons cited by the respondents were (i) the assignment of one judge throughout
the case, (ii) the timeliness of hearings and decisions, and (iii) the establishment
of firm trial dates;
• Nearly two-thirds of all respondents (60%) reported that they are more likely now
to recommend that a client file suit in the Business Session rather than using
private dispute resolution services, and a similar number (58%) rated their
experience with the Business Session more favorable than their experience with
ADR for resolving commercial disputes;
• Nearly all respondents (95%) stated that the Business Session should be made
permanent, with 89% indicating that it should be expanded to counties other than
Suffolk County;
2
• The best practices which have emerged from business courts established in other
states include (i) the assignment of cases to a single judge from filing to trial,
(ii) early and active judicial involvement in case management, (iii) early
application of ADR as a complement to judicial resources to expedite case
resolution, and (iv) the incorporation of appropriate technology to support the
court’s case management and trial activities. While the Business Session has
adopted a number of these best practices, the lack of adequate resources for
technology will substantially hinder the fulfillment of the Session’s potential to
adjudicate complex business disputes in the future;
• The Business Session pilot program in Suffolk County should be made

permanent;
• Cases filed in Middlesex, Norfolk, and Essex counties should be eligible for
acceptance into the Business Session, in addition to those filed in Suffolk County;
• In all other counties, parties should be allowed to “opt in” to the Session by
mutual agreement, and a small pool of interested judges with extensive experience
in complex commercial cases should be named to receive special assignments for
disputes satisfying the criteria for acceptance into the Business Session;
• The locus of the Business Session should remain in Suffolk County for the
present; and
• The criteria for acceptance of cases into the Business Session should not be
currently expanded to encompass non-commercial complex disputes, although
such an expansion may be advisable in the future.
Much credit for the apparent success of the Business Session lies with the selection of the
judges who have agreed to serve in it: Presiding Justice Allan van Gestel, Judge Margot
Botsford, Judge Nonnie Burnes, and Judge Gordon Doerfer have all brought necessary
experience and wisdom to the Session. As in the past, the Committee believes that the key to the
future success of the Business Session will lie in the identification of judges with similar
experience and interest in presiding over the types of complex commercial litigation which
comprise the bulk of the Session’s docket.
3
BACKGROUND OF THE BUSINESS LITIGATION SESSION
The establishment of the Business Session in the fall of 2000 capped a five-year process
involving input from numerous members of the bar and the judiciary. While the Delaware
Chancery Court has long stood at the forefront of business litigation through an experienced
judiciary well versed in the development and promulgation of business jurisprudence, until
recently few other states had followed suit. In the wake of the establishment of a separate
Commercial Division of the Supreme Court in New York in 1995, the Corporate Law and
Business Litigation Committees of the Boston Bar Association, with the approval of then BBA
President Joel Reck, began studying the feasibility of establishing a similar specialized tribunal
for complex commercial litigation in Massachusetts.1
The New York model has proved instructive. In January 1993, four judges of the state
Supreme Court were assigned administratively to hear commercial cases in New York County
(Manhattan), and in November 1995 a more formal Commercial Division was established. In
November 1996, the Chief Administrative Judge of the New York State Unified Court System
reported that since the tribunal’s inception, overall there had been:
• A 29% reduction in the average time to dispose of cases
• An 85% increase in the number of cases settled before trial
• A 26% decrease in the volume of pending cases
• A 6% increase in case dispositions.2
Of particular note was the fact that the Commercial Division was created through the court’s
rule-making powers, with no new courthouses or courtrooms needed to institute the Division.
The experiment has been received favorably within the New York business community:
according to the Chairman of the Business Council of New York State and then-Chairman of the
4
Board and Chief Executive Officer of Texaco, Inc., Peter I. Bijar, “[W]e have now gone . . . from
a court system that often evoked frustration among businesses, to a business court that is the
envy of other states . . . [T]he Commercial Division is an asset to the business community in
New York State.”3
Meanwhile, after almost a year of inquiry and study, the BBA committee began
conferring with the Superior Court judiciary regarding the feasibility of establishing a similar
session in the Commonwealth. During those discussions a number of issues were raised, such as,
for example, concern regarding the necessity for such a tribunal in light of the availability of
special assignments for complex commercial cases. Others were concerned with the potential
perception that the business tribunal would serve as an “elite” court, dispensing “better” justice
on a selective basis to the business community and to the detriment of other litigants. In
addition, some raised very pointed concerns regarding the effect of such a tribunal on the ability
of the Chief Justice to appropriately allocate judicial resources, particularly in the event there
were not a sufficient number of cases to keep the business judges occupied.
Such concerns echoed those identified by the American Bar Association in a May 1997
report issued by the ABA Ad Hoc Committee on Business Courts.4 In response, the ABA Ad
Hoc Committee, along with other bar association and judicial committees, identified numerous
policy considerations in favor of such tribunals. Many states, including Massachusetts, have
experienced a shift from public to private dispute resolution providers, such as the American
Arbitration Association or other ADR services. To the extent such cases do not re-enter the
judicial system, the development of comprehensive decisional case law on business and financial
matters necessary for providing jurisprudential predictability is hindered. And by matching
judges with appropriate expertise to litigation requiring that expertise, judicial resources may be
5
appropriately targeted through the removal of otherwise time-consuming cases from the regular
docket: as the ABA Ad Hoc Committee observed, “the work of more than four generalist judges
can be accomplished by three specialty business judges.”5 Such resource allocation issues can be
even further alleviated if the business jurists are made available for other assignments if
workloads became uneven. Also, the concerns surrounding “elitism” have to some extent been
undercut by the existence of other well-accepted specialty courts such as those handling probate,
family, juvenile, traffic, drug-related, or criminal matters. Recently, for example, some members
of the Massachusetts bar have advocated for the establishment of a specialized trust and estate
session of the Probate and Family Court.6
Finally, as the ABA Ad Hoc Committee observed in response to the argument that many
judges and lawyers simply enjoy remaining generalists:
Unfortunately, the failure to build an expertise and the cost of being a Renaissance
lawyer exacts a high price which must be paid by someone. In the case of the private bar,
that someone, namely the public that retains lawyers to provide services, simply refused
any longer to pay the price for the non-expert lawyer to dabble in various fields. The
public has forced reluctant lawyers to develop experience, expertise and knowledge in the
field of law which they practice . . . There are no similar direct pressures on the judiciary,
but to the extent that it resists specialization, it imposes significant costs on society.7
In light of these policy considerations, many states have adopted specialty business
litigation tribunals in the last decade:
• Since 1992, Illinois has maintained in Cook County (Chicago) a special

commercial calendar;
• Beginning in 1993, New York adopted first a pilot program and then a formalized
Commercial Division handling only commercial disputes;
• In 1996, the Governor of North Carolina appointed a state-wide Superior Court

Judge to hear complex business cases where the amount in controversy exceeds
$500,000;
• In 1996, Wisconsin implemented a business court pilot program by designating

two judges to the Special Business Court in Milwaukee County;
6
• In 2000, the Court of Common Pleas of Philadelphia County, Pennsylvania has
assigned two judges to hear commercial cases;
• In 2000, California instituted a three-year pilot program to create six urban centers
to serve as regional clearinghouses for complex litigation;
• In 2000, the Colorado Governor’s Task Force on Civil Judicial Reform

recommended that a business court be created for Denver;
• In 2002, Michigan authorized the nation’s first “cybercourt,” an online tribunal

with jurisdiction to hear non-jury commercial cases, designed to take advantage of
existing technology to minimize the necessity for the physical presence of lawyers
and judges in the courtroom; and
• In January, 2003, Maryland implemented a specialized track to handle complex

and technology cases, assigning two or three judges in each circuit to receive
special training and hear cases that qualify for this track.
In Massachusetts, the impetus for establishing a specialized tribunal was exemplified in a
recent survey conducted by the United States Chamber of Commerce on perceptions regarding
the state’s reputation for its ability to effectively handle business litigation. The nationwide
survey, conducted among corporate and in-house counsel in 2001, placed Massachusetts near the
bottom of the country in a variety categories. According to that survey (relevant portions of
which are included as Appendix A hereto), Massachusetts ranked:
• 42nd in overall treatment of tort and contract litigation;
• 45th in timeliness of summary judgment decisions and dismissal of cases;
• 44th in juries’ predictability and 34th in juries’ fairness;
• 39th in efficiency of discovery;
• 37th in treatment of class action suits;
• 30th in judges’ impartiality; and
• 29th in judges’ competence.8
7
In 1999, members of the Massachusetts legislature filed a bill to adopt a Complex Case
Division within the trial court. Then-BBA President Lauren Rikleen appointed an ad hoc
committee to study the feasibility of the legislation; that committee concluded that specialization
within the court was desirable but could be achieved through a different mechanism than that
proposed by the legislation. Specifically, the BBA Committee recommended that two judges be
assigned to a special business court division of Suffolk County to hear cases that involve certain
defined issues. The BBA Committee further recommended that cases be eligible for the business
court division based solely on the issues in the case, without regard to the amount in controversy
(except that the amount must meet the minimum ad damnum for all Superior Court cases) or
whether the parties in the case were individuals or entities. In so doing, the BBA Committee
also considered whether the special assignment system -- already available for complex cases --
could address the needs of complex cases without the addition of a business court division; the
committee concluded that it would not satisfy the need for a specialized judiciary to develop a
comprehensive decisional law on business and financial matters.
In the summer of 2000, Superior Court Chief Justice Suzanne V. DelVecchio announced
the creation of a special session in the Suffolk Superior Court to hear business-related cases. The
Business Litigation Session was initiated as a two-year pilot program commencing on October 2,
2000, with the Honorable Allan van Gestel, an Associate Justice of the Superior Court, presiding.
8
OPERATION OF THE BUSINESS LITIGATION SESSION
A. Criteria
According to the Notice to the Bar announcing the opening of the Business Litigation
Session of the Suffolk Superior Court (attached as Appendix B hereto), cases involving the
following issues may be admitted into the Business Session:
• claims relating to the governance and conduct of internal affairs of business

entities;
• claims relating to employment agreements affecting the governance or internal

affairs of business entities;
• claims relating to liability of shareholders, directors, officers, partners, etc.;
• shareholder derivative claims;
• claims relating to or arising out of securities transactions;
• claims involving mergers, consolidations, sales of assets, issuance of debt, equity

and like interests;
• claims to determine the use or status of, or claims involving, intellectual property;
• claims to determine the use or status of, or claims involving, confidential,

proprietary or trade secret information;
• claims to determine the use or status of, or claims involving, restrictive covenants;
• claims involving breaches of contract or fiduciary duties, fraud, misrepresentation,

business torts or other violations involving business relationships involving
complex issues;
• claims under the U.C.C. involving complex issues;
• claims arising from transactions with banks, investment bankers and financial
advisers, brokerage firms, mutual and money funds involving complex issues;
• claims for violation of antitrust or other trade regulation laws;
• claims of unfair trade practices involving complex issues;
• malpractice claims by business enterprises against professionals involving

complex issues;
9
• claims by or against a business enterprise involving complex issues to which a
government entity is a party; and
• other commercial claims, including insurance, construction, real estate and

consumer matters involving complex issues. 9
The venue and jurisdictional limits of the Business Session pilot program have been
confined to Suffolk County. While venue can, in some cases, be waived, jurisdiction cannot be
waived. Cases filed in the Business Session are reviewed to confirm that venue and jurisdiction
are appropriate.
As with any new process, there has been some confusion regarding the proper procedures
for filing cases in the Business Session. In Devellis v. Hewlett-Packard Co., Sup. Ct. Civil
Action No. 01-0169 (June 21, 2001) (attached as Appendix C hereto), Judge van Gestel clarified
the methods by which cases may be accepted into the Session:
1. By plaintiffs’ filing with the Suffolk Civil Clerk’s Office and utilizing the
special BLS Civil Action Cover Sheet describing why counsel believes the
case belongs in the Session; after which the Presiding Justice of the BLS
will review the complaint to assess its appropriateness.
2. On motion filed in another session by either party in a case considered

appropriate for the BLS. In this instance the motion may be determined,
at least preliminarily, by the Justice in that session.
If the session Judge denies the motion then there is no appeal to or right to
reconsideration by the Presiding Justice of the BLS. If, however, the
session judge allows the motion, the Presiding Justice of the BLS still
retains the discretionary authority to consider and decide upon the
appropriateness of the transfer before it becomes effective.
The Justice in another session where a motion to transfer to the BLS is

filed may, but need not, transfer the motion to the Presiding Justice of the
BLS for decision in the first instance.
3. A justice in another session, may, on his/her own determination, send a

case to the BLS for discretionary review by the Presiding Justice.
4. A party in another session may file a motion to transfer directly in the

BLS. In this latter instance, the Justice in the session from which the
10
transfer is sought ought to be given the courtesy of notice because the
potential for transfer may affect scheduling and other issues.
As these guidelines make clear, once jurisdictional and venue considerations are satisfied,
the Presiding Justice of the Business Session has the final authority to decide whether to accept a
case into the Session.
B. Operation
During its two-year existence, several Superior Court judges have been assigned to
adjudicate cases within the Business Session, with Associate Justice Allan van Gestel serving as
the Presiding Justice of the Session since its inception. Prior to his appointment to the Appeals
Court, Judge Gordon L. Doerfer served as the Session “back-up” judge, handling cases that
Judge van Gestel could not adjudicate due to substantive or scheduling conflicts. With an
increasing caseload and Judge Doerfer’s departure, Judge Nonnie S. Burnes was selected to
serve as “back-up” judge for the Session. The necessity for appointment of a second judge to the
Business Session soon became apparent, and Judge Margot Botsford joined the Session in
January 2002. Judge Botsford currently manages the coordinated asbestos litigations pending in
Superior Court that had previously been administered by the Honorable Hiller Zobel until his
retirement, with the remainder of her docket comprised primarily of cases within the Business
Session. New cases accepted into the Business Session are assigned alternately to Judge van
Gestel or Judge Botsford. Each of the judges who have served in the Business Session were
selected based upon his/her experience with and interest in adjudicating complex business
litigation.
Cases accepted into the Business Session are assigned to a single judge and are expected
to remain with that judge throughout the life of the case. The continuity of a single judge
permits ongoing management of discovery and the narrowing of legal issues throughout the case.
11
Shortly after assignment of a case to the Business Session, a Rule 16 conference is scheduled to
establish a case-specific tracking order. At that time, a presumptive trial date is identified by the
Business Session judge in consultation with the parties. The dates selected for trial are blocked
out on the calendar of the judge, and will not be changed absent extraordinary circumstances.
Initial concerns that a specialized business court would not carry a large enough caseload
appear unwarranted. In all, 610 cases have been accepted into the Business Session from
October 2, 2000 through January 28, 2003, with the frequency of filings increasing over time:
currently, approximately 5-7 new cases are accepted into the Business Session each week, with
that number continuing to rise as attorneys become more familiar with the Session. Upon the
Business Session’s inception, 81 cases satisfying the case intake criteria that were already
pending in Suffolk Superior Court were transferred into the Session either sua sponte, by motion
of one of the parties, or on the recommendation of a judge in the regular session. As of January
28, 2003, 529 new cases have been accepted into the Business Session and 59 cases have been
rejected (mostly for venue-related reasons but increasingly due to a lack of complexity). Of the
610 cases in the Session, 374 have been disposed of; of those, 188 have settled, and the
remainder have been resolved by trial, dispositive motion, or, in a few instances, removal to
federal court. While the total number of cases currently handled by the Business Session is less
than the docket found in other civil sessions, cases accepted into the Session generally appear to
be more consistently complex than the case load found in such other sessions.
Data regarding the types of cases admitted into the Business Session indicate that
practitioners are using the Session for the complex types of business litigation originally
contemplated by the Notice to the Bar. A substantial percentage of the cases accepted into the
Business Session involved claims for breach of contract or tortious conduct involving business
12
relationships, followed by other commercial claims (including insurance, construction, real estate
and consumer matters) involving complex issues and claims involving restrictive covenants; the
remainder of the Business Session docket consists of a wide range of commercial litigation,
ranging from shareholder derivative claims to corporate governance issues to intellectual
property and trade secrets.10
SURVEY RESULTS
In order to ascertain the progress of the Session, the Committee, through subcommittee
chairs Andrew Grainger of the New England Legal Foundation and Paul Dacier of EMC
Corporation, commissioned a telephone survey of attorneys practicing in the Business Session at
the end of the Session’s first year and a half of operation. The survey was conducted by an
independent research organization, Atlantic Research & Consulting, in order to (i) measure
overall satisfaction/dissatisfaction levels with the Business Session, (ii) measure
satisfaction/dissatisfaction with individual aspects of the Session, (iii) determine attorneys’
willingness to recommend the Session to clients and peers, and (iv) gauge interest in geographic
expansion of the Session.
The survey indicated an extremely high degree of satisfaction with the Session. Among
the key survey findings:
• 88% of survey respondents stated they were “extremely satisfied” or “very

satisfied” with the Business Session overall;11
• 83% of respondents stated that the Business Session enabled them to give better
legal service to their clients. When asked to describe how the Business Session
allowed them to do so, respondents cited in particular the assignment of a single
judge throughout the case, the timeliness of decisions and hearings, and the firm
trial dates;
• 94% of respondents were “extremely satisfied” or “very satisfied” that the judge
was prepared for their case;
13
• 91% of respondents were “extremely satisfied” or “very satisfied” with the
firmness of the schedule established by the Business Session for their case;
• 55% of respondents had filed an emergency motion requiring prompt resolution,

with 87% of those respondents reporting they were “extremely satisfied” or “very
satisfied” with the efficiency of the Business Session’s response to that motion;
• 58% of respondents stated that their experience with the Business Session was
“more favorable” than their experience with private ADR, and 60% stated that
their experience in the Business Session would make them more likely in the
future to recommend the Session to their clients than ADR;
• 97% of respondents would recommend the Business Session to their colleagues

and clients; and
• 95% stated they believed the Business Session should be made permanent, with
89% favoring expansion to other counties.
A copy of the survey results is attached as Appendix E hereto.12 Significantly, satisfaction levels
among the survey respondents were consistent across all major analytic subgroups, such as
practitioners from small, medium, and large firms, and those representing individuals versus
corporations.
Types of Cases Before the Business Session
Respondents were first asked to indicate the nature of the case they litigated before the
Business Session. The chart below categorizes all of the responses.
14
What is the nature of your case? (Top Mentions) (Multiple responses
accepted) (N=94)
Construction contract disputes 7%

Real estate/landlord tenant disputes 9%
Employment disputes 9%
Partnership disputes/dissolutions 10%
Business disputes 11%
Commercial disputes 11%
Non-competes 13%
Shareholder disputes 13%
Contract Disputes/breach of contract 29%
0% 5% 10% 15% 20% 25% 30% 35%
Operation and Impact of the Business Session
An overwhelming number of responding attorneys (94%) reported that they were
satisfied (6 or 7 on a 7-point scale) that the judge was prepared for their case. No respondent
reported dissatisfaction (1 or 2 on a 7-point scale) with the judge’s preparedness. The average
satisfaction rating was 6.60.
How satisfied or dissatisfied are you that the judge was prepared for your case?
(N=91)
Extremely satisfied 70%
6 24%
5 3%
4 0%
3 2%
2 0%
Extremely dissatisfied 0%
0% 10% 20% 30% 40% 50% 60% 70% 80%
The survey further indicated that practitioners were pleased with the ability of the
Business Session to establish firm dates for their cases. A strong majority of respondents (91%)
15
reported that they were satisfied (6 or 7 on a 7 point scale) with the firmness of the schedule
established by the Business Session for their case. No respondent reported dissatisfaction (1 or 2
on a 7 point scale). The average satisfaction rating was 6.48.
The survey further suggested that the establishment of firm trial dates has had a positive
effect on the progress of cases. Fifty-three percent (53%) of respondents agreed that the
establishment of firm dates changed the way in which they litigated their case. More than half
(58%) of responding attorneys indicated that the establishment of firm dates by the Business
Session facilitated earlier settlement in their cases. Forty-six percent (46%) of respondents said
that it has enabled them to better or more efficiently prepare for their case, while 12% reported
that it has streamlined discovery, and 10% said it has reduced the costs of litigation.
What effect has the establishment of firm dates had on your case? (Multiple
responses accepted) (N=49)
Earlier settlement 58%
Enables better or more

46%
efficient preparation
Streamlined discoveries 12%
Reduced Cost 10%
Other 6%
0% 10% 20% 30% 40% 50% 60% 70%
A majority (55%) of respondents had filed an emergency motion requiring prompt
resolution in the Business Session. The strong majority (87%) of those respondents who had
filed an emergency motion reported that they were satisfied (6 or 7 on a 7-point scale) with the
promptness and efficiency with which the Business Session ruled in their emergency motion. No
respondent reported dissatisfaction (1 or 2 on a 7-point scale) with the promptness and efficiency
of emergency motion rulings. The average satisfaction rating was 6.54.
16
How would you rate your satisfaction or dissatisfaction with the
promptness and efficiency with which the BLS ruled on your emergency
motion? (N=52)
6 12%
5 7%
4 4%
3 2%
2 0%
0% 10% 20% 30% 40% 50% 60% 70% 80%
The survey also asked respondents to indicate the total number of motions they filed
during the time period their case had been in the Business Session. Forty-five percent (45%) of
respondents stated that they had filed three or more motions, 24% had filed two motions, 18%
had filed one motion. Only 10% of respondents had not yet filed any significant motions at the
time of the survey.
A full 83% of respondents reported that the Business Session had enabled them to give
better legal services to their clients, primarily due to the assignment of one judge throughout the
case (47%), and the Business Session’s ability to set and maintain firm litigation deadlines (44%
cited the timeliness of decisions, 40% cited the timeliness of hearings and 24% cited firm trial
dates).
17
In what way has the Business Session enabled you to give better legal service to
your clients? (Multiple Responses accepted) (N=78)
One judge throughout the case 47%
Timeliness of decisions 44%
Timeliness of hearings 40%
Firm trial dates 24%
Development of a consistent body of law 15%
Judge is more informed 13%
Predictability of the outcome 13%
Customized scheduling order 12%
Reduced legal costs 3%
Other 3%
0% 5% 10% 15% 20% 25% 30% 35% 40% 45% 50%
The survey results also suggested that the existence of the Business Session may result in
recapturing some of the business litigation that has opted for private ADR service in recent years.
Virtually all of the respondents (97%) reported they would recommend the Business Session to
their clients, with a majority (60%) further indicating they would be more likely to recommend
that a client file suit in the Business Session rather than using a private mediation or arbitration
process. Fifty-eight percent (58%) of respondents stated that their experience with the Business
Session compared more favorably to their experiences with private alternative dispute resolution.
Overall Satisfaction with the Business Session
Respondents were nearly uniform (88%) in stating that they were very satisfied or
extremely satisfied with the Business Session. Fully 95% expressed their opinion that the
Business Session should be made a permanent fixture of the Superior Court.
18
How would you rate the Business Litigation Section overall? (N=94)
6 36%
5 9%
4 2%
3 1%
2 0%
0% 10% 20% 30% 40% 50% 60%
Do you believe the Business Session should be made permanent?

(N=94)
No
2%
Don't know
3%
Yes
95%
19
Expansion of the Business Session
Similarly, the vast solid majority (89%) of respondents believed that the Business Session
should be expanded, with many (25%) stating that it should be expanded to all counties
statewide. For those who specified individual counties for expansion, Middlesex County topped
the list (69%), followed by Norfolk County (49%) and Essex County (16%).
Do you think the current geographic jurisdiction of the Business

Session should be expanded to other counties in Massachusetts?
(N=93)
Don't know
5%
No
6%
Yes
89%
To where would you like to see the Business Session expand? (Multiple responses
accepted) (N=83)
All counties 25%
Middlesex 69%
Norfolk 49%
Essex 16%
Worcester 11%
Plymouth 4%
Hampden 1%
Other 6%
Don't know 1%
0% 10% 20% 30% 40% 50% 60% 70% 80%
20
The survey also provided respondents with an opportunity to provide comments
regarding improvements to the Business Session. Several respondents suggested the addition of
a law clerk dedicated to the Session; others recommended more judges for the increasing
caseloads; and still others specifically expressed dissatisfaction with the circuit system in civil
sessions other than the Business Session. There were also a number of positive comments
regarding the quality of the justices in the Business Session.
In addition to gaining widespread acceptance as measured both by the survey responses
as well as by the increasing frequency of cases applying for acceptance into the Session, the
Business Session has become well integrated into the legal community. Chief Justice
DelVecchio and Judges van Gestel and Botsford are regular fixtures on bar panels, in the local
media, and in other public arenas discussing the Business Session. Numerous media articles --
including op-ed pieces by members of the Committee and bar journal articles by Session
judges -- have been devoted to the operations of the Business Session. The center for
Massachusetts Continuing Legal Education conducts an annual Business Litigation Conference
which addresses the various legal issues handled within the Session and at which Session judges
serve as keynote speakers. Session judges and members of the Committee have met with
representatives from other states and from other countries regarding the operations of the
Session. The Business Session has been increasingly woven into the fabric of the legal
community in Massachusetts, and there appears a clear mandate to continue the work of the
Session by making it permanent and considering means of expanding its scope.
21
“BEST PRACTICES” FROM BUSINESS COURTS IN OTHER STATES
The Committee also considered in detail the “best practices” in business court
administration gleaned from experiences in other states, and appointed a subcommittee, headed
by Deborah Thaxter of Nixon Peabody and James Marcellino of McDermott, Will & Emery, to
investigate such issues.
According to the National Center for State Courts, the four “best practices” for case
management in business and complex litigation courts involve:
1. Single Assignment – cases are assigned to a single judge for all case
management purposes from filing to trial.
2. Early and Active Judicial Involvement – the business court judge takes a
direct and active role in managing the case, including developing the case
schedule; appointing quasi judicial personnel (i.e., mediators); oversight of
frequent and meaningful case status conferences; and direct availability to
counsel and parties to help resolve case management disputes and
problems.
3. Early Application of ADR – ADR should be utilized as soon as possible

once parties know the primary claims and before they have expended
considerable time, expense and effort in discovery.
4. Appropriate Technology – judges should incorporate appropriate

technology to support the court’s case management and trial activities
including electronic filing and Internet technology; videoconferencing;
interactive software to integrate key filings with references to statutory
and legal citations; and presentation software to communicate trial
evidence in a comprehensible format.13
The Committee’s review of the operation of specialized business courts in California, Delaware,
New York and North Carolina reveal that these courts have incorporated, to a much greater
degree than in Massachusetts, each of these best practices despite the fact that some of the courts
are of roughly equal vintage as the Business Session here.14
22
California
California determined that it needed a specialized court for complex cases dealing with a
broad range of subject matters, not just business issues. Accordingly, California developed a
complex litigation department rather than a separate business court.15
California created the Complex Civil Litigation Pilot Program in six counties in 2000.
The program was designed to give judges training and resources to help them manage complex
civil cases with greater effectiveness and efficiency. The pilot program provided funds for
augmenting the personnel and technological resources dedicated to complex civil cases. Courts
used their grant funds to hire additional research attorneys and staff and to improve technology.
Pilot courts held symposia to educate and share information with users of the complex litigation
system regarding discovery, case management, ADR, substantive legal areas and the use of
technology. Judges in the pilot program meet twice a year to exchange information and
participate in continuing education. The Legislature allocated almost $3 million per year to the
pilot program.
As part of its initiative, California created and distributed the Deskbook on Management
of Complex Civil Litigation to all judges in the state. The manual is intended to enable all judges
to identify and handle complex cases more efficiently and equitably. California also created a
specialized judicial curriculum devoted to complex civil case management and substantive law
issues that frequently arise in complex cases.
Additionally, Orange County created a Complex Litigation Center. The center focused
on creating an environment that allows parties to take advantage of technology in courtroom
presentations. Each courtroom is wired to permit attorneys to easily display documents on
monitors located throughout the courtroom. There are also specialized computer displays that
23
allow attorneys and witnesses to draw on the exhibits and maps, which can then be saved and
stored. This technology was implemented by a private company and is available to parties on a
per diem basis.16
Delaware
The Delaware Chancery Court was established in 1792 and has fully incorporated each
“best practice” into its operation. The Chancery Court’s jurisdiction is purely equitable and all
cases are heard without a jury. The judge handling a case is responsible for all fact finding,
rulings and written final opinions. This approach results in an extensive body of case law on
business matters. The scholarly culture of the Chancery Court is one of its chief benefits, and
emphasizes opinion writing among the judges. Further, the geographic proximity of all the
judges on the Chancery Court bench encourages collaboration and collegiality, allowing judges
to consult each other on new and complex legal issues.17
In the Chancery Court, new cases are assigned to a judge on the day they are filed,
allowing the judge to make initial decisions regarding scheduling orders. The early assignment
to a single judge creates immediate accountability and responsibility for the progression of the
case.18
Judges on the Chancery Court bench may refer cases to ADR where appropriate.
Because Chancery Court judges have their own separate dockets, a matter referred to mediation
may actually be mediated by another member of Delaware’s Chancery Court, or by other
experienced members of the bar certified to mediate business disputes.
The Chancery Court is also active in incorporating technology to facilitate the disposition
of business cases. The court allows attorneys to appear by videoconference for case conferences
and hearings. Delaware has a virtual docketing system in place, allowing every member of the
24
court to see the entire docket as cases are filed. The Chancery Court also allows attorneys to
submit briefs on CD-ROM with hyperlinks to case law. Electronic filing is used to expedite time
sensitive cases.
New York
New York instituted an administrative session for business litigation in 1993, which in
1995 expanded into a more formalized Commercial Division. Similar to the Business Session,
the Commercial Division has judges with experience in handling commercial cases. Judges in
the Commercial Division are assigned to a case from filing to resolution and are expected to set
and strictly enforce deadlines and discovery.19
In 1996 the Commercial Division established the Alternative Dispute Resolution
Program. Commercial Division judges may refer cases to ADR upon consent of the parties or on
its own initiative. Parties may choose the form of ADR they wish to utilize (mediation, early
neutral evaluation, arbitration, etc.). Parties ordered into the ADR program may choose to use
the court’s resources or private services. There is no charge for litigants who use standard ADR
services through the Program.20
The Commercial Division maintains a website and regularly posts leading decisions. The
Commercial Divisions in New York and Monroe Counties are pilot venues for electronic filing
in New York. The e-filing system is voluntary.21
New York recently created the “Courtroom for the New Millennium” for the Commercial
Division. The courtroom provides parties with state of the art technology and serves as a
technological training ground for the rest of the state. The courtroom features:
(a) real time court reporting;

(b) electronic transcripts;
(c) easily presentable electronic evidence;
(d) interactive “whiteboard;”
25
(e) touch screen monitor;
(f) capabilities for computer generated animation;
(g) customized integrated electronic podium;
(h) personal computer docking stations;
(i) video cassette recorder;
(j) component computers designed to run all courtroom software.22
North Carolina
North Carolina established its Business Court in 1995. All cases in the Business Court
are assigned there by the Chief Justice of the North Carolina Supreme Court. Judges in the
Business Court are required to write an opinion on the final disposition of all cases. Delaware’s
experience indicates that the requirement of a written opinion on all cases will help North
Carolina develop a consistent body of case law regarding business issues.23
A key element to the Business Court is case management. A single judge is responsible
for a case from the time it enters the Business Court until its final disposition. The specialization
of Business Court judges is another benefit of the system. Judges who address only business
cases develop an expertise and proficiency that allows the judge to handle cases more efficiently.
The Business Court uses electronic filing and courtroom presentation extensively. The
court is wired for videoconferencing and all participants in a trial have access to their own
technology. The judge can control all the technology in the courtroom. Attorneys trying a case
in the Business Court have a variety of technologies available to them to enhance presentation.
Even witnesses are able to use tools such as a touch screen to help them illustrate their testimony.
Private foundations provided the funding for development of the technology used by the
Business Court.24
Business Court “Best Practices” in Massachusetts
Using the criteria identified by the National Center for State Courts, the Business Session
has been successful in adopting certain “best practices” and not as successful in adopting others.
26
As is reflected in the survey results, the experience and capabilities of the judges assigned to the
session have been exemplary. The adoption of strong case management techniques such as the
assignment of a single justice throughout the life of a case, the establishment of customized
tracking schedules, the use of frequent case management conferences, and the setting of firm trial
dates has yielded very high satisfaction levels from litigants regarding the ability of the Session
to effectively resolve disputes. And, the Session is beginning to produce an evolving body of
commercial jurisprudence, especially in the area of trade secrets.
At the same time, the Session has not been particularly focused on engaging the use of
ADR services in conjunction with its operations. While one of the goals of the Session is to
provide a viable forum for business disputes which have increasingly turned to ADR, as the
Session expands it may consider adopting more formalized mechanisms for incorporating
alternative dispute resolution techniques into its case management approach. For example, the
New York Commercial Division has established a formalized ADR process under the auspices of
the Division, and in Delaware cases are often sent to other Chancery judges to serve as
mediators.
Finally, Massachusetts is woefully behind many of its peers in its incorporation of
technology into the Session. By necessity and by design, the Session has been budget-neutral,
and has not required any additional facilities or personnel to maintain operations. This fiscal
austerity, however, has had an opportunity cost: in stark contrast with the keen focus on
technology exhibited in virtually all other business courts, at the present time, for example, the
Session does not even regularly provide manual stenographic services to litigants for hearings.
As noted above, California’s Orange County has created a special “wired” courtroom for its
complex litigation; Delaware allows attorneys to submit briefs on CD-ROM with hyperlinks to
27
case law; New York has built a “Courtroom for the New Millennium” featuring real-time court
reporting, touch screen monitors, personal computer docking stations and customized courtroom
software; North Carolina has tapped into a private foundation for funds to develop technology in
its business court, which allow attorneys, judges, and even witnesses to access documents
electronically; and, by proposing a new “cybercourt” designed to minimize even the need for a
physical presence in the courtroom, Michigan hopes to take the process one step further. While
the newly revitalized docket computerization program within the Massachusetts statewide court
system will undoubtedly provide great improvements in the technological infrastructure, the
Session has yet to realize its full potential on this score.
THE FUTURE OF THE BUSINESS LITIGATION SESSION
The Committee firmly recommends that the Business Session be made a permanent
session in the Superior Court. The survey results speak for themselves regarding the
endorsement of the Business Session among its practitioners: as noted above, virtually all
respondents (95%) affirmatively indicated that they believed the Session should be made
permanent. In these times of fiscal austerity, the Session has effectively served as a specialized
tribunal without the expenditure of additional funds from the trial court budget. The pilot
program has been a success; the Business Session has proven its value to the wider legal
community; and the Session should be given permanent status.
There also appears to be strong support for expanding the session into other counties in
Massachusetts as well. In addition to anecdotal comments in support of such expansion, the
Business Session survey showed that the vast majority of respondents believed that the Business
Session should be expanded, with many advocating for its expansion statewide.
28
Accordingly, a subcommittee, headed by Michael P. Angelini, Esq. of Bowditch &
Dewey in Worcester, and former Worcester County Bar Association President James D.
O’Brien, Jr., Esq., was created to consider and gather information from the legal community
regarding the potential expansion of the Business Session, both geographically and in the types
of cases accepted. Members of the subcommittee contacted Bar Association leaders from each
county to solicit their views regarding the desire and/or need for expansion of the Business
Session; these interviews were supplemented by contacts with lawyers from that county with
business litigation practices. The subcommittee members then traveled to various regions of the
Commonwealth to meet with bar leaders and business practitioners to discuss their thoughts on
the future of the Business Session in their area.
After these meetings, the subcommittee determined that while there was significant
business activity and a real interest in the Business Session outside of metropolitan Boston, the
interest lessened the further the subcommittee ventured outside of Boston. As a result of these
discussions and after consultation with the Business Session presiding judge regarding caseload
considerations, the Committee has concluded that the following would be in the public interest:
1. Expand the Session to allow acceptance of cases from Essex, Middlesex

and Norfolk counties, which were identified in the Business Session
survey as the three most likely counties for expansion. Many practitioners
with cases currently in the Business Session in Suffolk County carry a
virtually identical caseload in those counties but have not been able to
bring them into the Business Session simply due to its limited venue.25
2. Continue, for now, the locus of the Business Session in Suffolk County,
even for cases from Essex, Middlesex, and Norfolk counties. The two
current Business Session judges, in conjunction with the Chief Justice and
the office of Suffolk County Clerk Michael Donovan, have developed
procedures to efficiently handle the intake and administration of cases
accepted into the Business Session; as in Delaware, the physical proximity
of the judges here has also assisted their ability to coordinate the
development of jurisprudence within the Business Session. The
proximity of these counties to Suffolk should minimize inconvenience to
29
parties, especially given the fact that many of the cases anticipated to be
filed in the Business Session are litigated by the same practitioners who
practice in the Business Session now.
While a relatively high proportion of trials in the Business Session are

non-jury trials, jury selection in the other cases should be addressed on a
case-by-case basis; such issues may potentially be resolved by agreement
of the parties or through the process available under Mass. Gen. L. ch.
234A, § 2. The two current judges anticipate they will initially be able to
accommodate cases from other counties, but the post-expansion caseload
should be closely monitored to determine whether additional judges
should be added to the Business Session and, if so, where they should be
located.
3. Allow parties from other counties to “opt in” to the Business Session by
mutual consent and, in jury cases, by waiver of venue-driven jury
selection.
4. Establish a limited panel of judges (perhaps five to seven) which would be

a priority panel for appointment in qualified business cases for counties
other than Suffolk, Middlesex, Essex, and Norfolk, and encourage special
appointments in those cases.
5. Do not, for now, expand the subject matter of cases eligible for acceptance
into the Business Session to include non-commercial complex cases.
While such expansion may be desirable in the future, such decisions
should be made after the results of the geographic expansion of the court
are analyzed and addressed.
CONCLUSION
Based upon all indicators, the establishment of the two-year pilot Business Litigation
Session in Suffolk County has been a successful and cost-effective innovation within the
Massachusetts court system. By providing a specialized forum staffed with judges experienced
with and interested in adjudicating complex commercial disputes, and by adopting more active
judicial oversight of cases within the session, the Business Session has been very well received
by business litigation practitioners and by the broader legal community. Importantly, the
Business Session has been cost-neutral, and has not required any additional facilities or
personnel. These results mirror the success of similar business tribunals in other states, and
30
should serve to elevate Massachusetts’s reputation regarding its ability to handle business
litigation.
While a number of legitimate concerns were raised prior to the establishment of the
Business Session, it appears that many of these concerns have either been addressed or have been
counterbalanced by the other policy considerations favoring the permanence and expansion of
the Session. For example, the concern regarding the provision of an “elite” session for a well-
heeled few has to some degree been allayed by the results of the survey conducted last spring: as
the survey noted, the positive reviews for the Session appear uniform across all demographic
lines, including practitioners from small, medium, and large firms, as well as those representing
individuals versus corporations. In addition, the Session appears not to have created any
significant case resource allocation issues: a ready supply of complex commercial litigation has
filled the Session’s docket, and Judge Botsford in particular has taken on a substantial number of
cases not formally accepted into the session. As with any administrative system, there exists a
tension between providing specialized services and allocating resources most efficiently. The
establishment of the Business Session appears to have achieved an appropriate balance between
the two goals.
The Committee recommends that the two-year pilot program for the Business Session in
Suffolk County be made permanent, and that the Business Session be expanded to allow
acceptance of appropriate cases from Middlesex, Essex, and Norfolk counties. For cases filed in
other counties, the Committee recommends that parties be allowed either to “opt in” to the
Business Session, or to apply for special assignment from among a limited pool of judges named
to accept complex commercial cases. Currently, the Committee does not recommend that the
subject matter criteria for acceptance into the Business Session be expanded to include non-
31
commercial complex litigation, although expansion of the criteria may be desirable in the future.
Finally, while the Committee anticipates that the two current judges assigned to the Business
Session may continue to adjudicate cases from other counties while sitting in Suffolk County,
their ability to do so should be closely monitored to determine whether additional judges should
be added and, if so, where they should be located.
It has been the Committee’s pleasure to provide analysis and make recommendations
concerning the future of the Business Litigation Session. We welcome public comment on this
very important issue within the state judiciary.
Respectfully submitted,
Members of the Business Litigation Session Resource Committee
Gael Mahony, Esq., co-chair

Beth I.Z. Boland, Esq., co-chair
Michael P. Angelini, Esq.
Paul T. Dacier, Esq.
John J. Egan, Esq.
Robert A. Gelinas, Esq.
Andrew R. Grainger, Esq.
Franklin H. Levy, Esq.
Harry L. Manion, III, Esq.
James J. Marcellino, Esq.
James D. O’Brien, Esq.
Charles V. Ryan, Esq.
Deborah L. Thaxter, Esq.
Steven H. Wright, Esq.
February 2003
32
BOS1 #1313702 v1
1
See “A Proposal for Adjudication of Complex Commercial Cases,” Boston Bar Association.
2
Ibid., citing Press Release of November 7, 1996.
3
“New York Commercial Division Celebrates Fourth Anniversary,” The Metropolitan Corporate Counsel
(December 1999).
4
Report of the ABA Ad Hoc Committee on Business Courts, “Business Courts: Towards A More Efficient
Judiciary,” 52 Bus. Law. 947 (May 1997).
5
Ibid. at 952.
6
See “Practitioners Pushing for Trusts and Estates Session.” Massachusetts Lawyers Weekly (May 28, 2001).
7
Ibid. at 954.
8
U.S. Chamber of Commerce State Liability Systems Ranking Study, Final Report, Jan. 11, 2002.
9
The Notice to the Bar also specifies that the following types of cases are not eligible for assignment to the Business
Session:
• matters subject to compulsory arbitration or to the exclusive jurisdiction of the Probate, Land and
Housing Courts, the District Courts or the Boston Municipal Court;
• personal injury, survival or wrongful death matters;
• individual (non-class) consumer claims against businesses or insurers, including product liability
and personal injury cases;
• environmental claims not involved in the sale or disposition of a business;
• eminent domain matters;
• malpractice claims other than those designated above for the Special Sitting Justice;
• employment disputes not involving written contracts and employment discrimination cases;
• administrative agency review under G.L. 30, § 14, zoning and other appeals from administrative
agency orders;
• residential real estate and non-commercial landlord-tenant disputes; and
• occupational health or safety matters.
10
A listing of the cases accepted into the Business Session, by category, is attached as Appendix D hereto.
11
Participants were asked to rate their satisfaction levels on a scale of 1 to 7, with 7 being “extremely satisfied” and
1 being “extremely dissatisfied.” Responses of 6 on the 7-point scale were interpreted as “very satisfied.”
12
The survey was made possible by a grant from the New England Legal Foundation, for which the Committee is
grateful.
13
See Paula Hannaford, David Rottman, Roxana Gonzalez, Civil Action: A Briefing on Civil Justice Reform
Initiatives: Focus on Business and Complex Litigation Courts, National Center for State Courts (Aug. 2000).
14
In addition to the four states discussed here, a number of other states, including Colorado, Illinois, Maryland,
Michigan, Nevada, New Jersey, Ohio, Pennsylvania, Virginia, and Wisconsin are either considering or have
implemented some method for handling complex business cases.
15
See JUDICIAL COUNCIL OF CALIFORNIA, ADMINISTRATIVE OFFICE OF THE COURTS, FACT
SHEET: COMPLEX CIVIL LITIGATION.
16
See Remarks by Chief Justice Ronald M. George at the Inauguration of Orange County’s Complex Litigation
Center (Aug. 6, 2001), available at http://www.courtinfo.ca.gov/reference/speech0801.htm. See also DOAR,
HANDS ON TECHNOLOGY AT THE CIVIL COMPLEX LITIGATION CENTER.
17
See Hannaford, supra.
18
Id.
19
See The Commercial Division of The State of New York: Commercial Division Operating Statement, available at
http://www.courts.state.ny.us/comdiv/CD%20Operating%20Statement%202002%20-%20Introduction.htm.
20
See The Commercial Division of The State of New York: Commercial Division Alternate Dispute Resolution
Program, available at http://www.courts.state.ny.us/comdiv/ADR_Guide.htm.
21
See The Commercial Division of The State of New York: Electronic Filing Overview, available at
http://www.courts.state.ny.us/comdiv/e_filing.htm. The pilot program ran through July 2002.
22
See The Commercial Division of The State of New York: Courtroom for the New Millennium, available at
http://www.courts.state.ny.us/comdiv/Courtroom_Millennium.htm.
33
23
See North Carolina Business Court: About the North Carolina Business Court, available at
ttp://www.ncbusinesscourt.net/New/aboutcourt/.
24
See Report on Activities of the North Carolina Business Court 2000-2001, available at
http://www.ncbusinesscourt.net/ref/2001%20General%20Assembly.htm.
25
The expansion of the Business Session’s venue can be accomplished in several ways. First, cases from other
counties could be accepted into the Session by agreement and waiver of venue by all litigants. Similarly, waiver
could be attained by the plaintiff’s filing of an action in the Session and the defendant acceding to such filing. Or,
the Supreme Judicial Court could be petitioned to use its powers under Mass. Gen. L. ch. 234A, § 2 to allow for
acceptance of cases into the Session.
34
CHIEF JUSTICE’S COMMISSION ON THE FUTURE OF THE
NORTH CAROLINA BUSINESS COURT
FINAL REPORT AND RECOMMENDATION

28 OCTOBER 2004
INTRODUCTION
The North Carolina Business Court
In April 1994, Governor James B. Hunt established the North

Carolina Commission on Business Laws and the Economy (NCCBLE).
The NCCBLE was charged with recommending “any needed changes in
existing statutes and regulations which affect the operation of
businesses in North Carolina.” Specifically, the Governor asked
the NCCBLE to recommend statutory and regulatory changes to help
create a legal environment that would attract businesses to the
State of North Carolina and provide businesses the flexibility
and support they need to operate successfully.
In January 1995, the NCCBLE issued a report recommending,

among other things, the creation of the North Carolina Business
Court. The NCCBLE noted the high esteem in which the Delaware
Chancery Court is held by the national business community.
While many states, including North Carolina, had amended their
business laws to be more consistent with the Model Corporation
Act, none had taken steps to make its court system as responsive
and predictable as the Delaware Chancery Court in dealing with
complex corporate issues.
To meet these specifications, the NCCBLE recommended that

the North Carolina Supreme Court amend Rule 2.1 of the General
Rules of Practice for the Superior and District Courts (the
General Rules of Practice) to allow the Chief Justice to
designate certain cases as complex business cases and adopt Rule
2.2 to allow the Chief Justice to designate one or more Special
Superior Court Judges to hear such cases. The NCCBLE further
recommended that Governor Hunt appoint at least one expert in
corporate law to be so designated by the Chief Justice.
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In the fall of 1995, the North Carolina General Assembly
appropriated the funds for an additional Special Superior Court
Judge for a five-year term, and the North Carolina Supreme Court
amended Rule 2.1 and adopted Rule 2.2 to implement the NCCBLE
recommendations. In January 1996, Governor Hunt appointed Ben
F. Tennille as a Special Superior Court Judge, and Chief Justice
Burley Mitchell designated him as North Carolina’s first Special
Superior Court Judge for Complex Business Cases. Judge Tennille
was reappointed for a second five-year term in October 2000.
On 6 November 2003, the North Carolina Supreme Court

created the Chief Justice’s Commission on the Future of the
North Carolina Business Court (the Commission). By order of the
Court, the Commission was directed to study the functions and
procedures of the North Carolina Business Court and compare them
to those of other business courts. Under the terms of the
Supreme Court’s order, the Commission was directed to report its
findings and issue recommendations to the Chief Justice and the
North Carolina Judicial Council on or before 31 December 2004.
The Commission is composed of one Justice from the North

Carolina Supreme Court, one Judge from the North Carolina Court
of Appeals, and six Superior Court Judges; two administrative
employees of the Administrative Office of the Courts; three
members of the North Carolina Senate; three members of the North
Carolina House of Representatives; two members of the Commission
on Business Laws and the Economy; sixteen attorneys licensed to
practice law in North Carolina; and three members of the general
public who are not attorneys-at-law. A complete list of
Commission members is attached to this report. This report is
the culmination of the Commission’s work over the past year.
National Trends
The creation of the North Carolina Business Court in 1995

placed North Carolina at the forefront of a growing national
trend towards specialized adjudication of complex business
cases. North Carolina was one of the first states to institute
reforms in its administration of complex business litigation.
It was certainly not the last. In 1997, an ad hoc committee of
the American Bar Association recommended that all states
consider adopting some form of business court, stating that “the
movement toward specialized business courts” is “gaining
strength,” and that “there appears thus far to be no criticism
in jurisdictions where business courts have been established.”
At present, specialized business courts, or business programs or
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divisions within existing trial courts, have been established in
Florida, Illinois, Maryland, Massachusetts, New Jersey, New
York, Nevada, Pennsylvania, and Rhode Island, as well as in
North Carolina. The Minnesota and Oklahoma legislatures have
studied the concept of a business court, and a pilot program has
been initiated in Wisconsin. Finally, Georgia’s Administrative
Office of the Courts, with the support of Georgia’s State Bar
Association, has recommended the creation of a business court
modeled closely on North Carolina’s.
Successes of North Carolina Business Court
The North Carolina Business Court has been an unqualified

success since its inception in 1995. For example, in a recent
study entitled Best Practices in U.S. Business Courts, the
authors highlighted the twelve most important “best practices”
in the existing business and commercial courts in this country.
The North Carolina Business Court was cited as a model in eleven
of the twelve categories. Among the many benefits the Business
Court has secured for the business community, the court system,
and the public at large are the following:
• Improved Case Management. The North Carolina

Constitution requires Resident Superior Court Judges to rotate
among the various judicial districts within their divisions.
While rotation has numerous benefits, it may cause deleterious
effects in complex business cases. In addition, civil matters
before a Superior Court sometimes lose their priority to
criminal cases on both motion and trial calendars. A case
designated as a “complex business case,” in contrast, is handled
exclusively by a single trial judge who controls the calendering
of cases on his or her own docket. Thus, the possibility of
conflicting decisions on evidentiary and substantive matters is
greatly reduced, and cases are promptly and efficiently
administered. For example, of the 179 cases brought before the
North Carolina Business Court from April 2002 to April 2003, 116
had closed by the end of that time period and only 63 remained
open. Of the 116 cases that had been closed, 73 reached
settlement prior to or during trial. Of the 63 cases that
remained open in April 2003, 5 were on appeal, 3 had reached
settlement, 2 were stayed, and 17 were extremely complex multi-
party class action lawsuits.
• Increased speed and flexibility. In many complex

business cases, particularly those involving changes in
ownership or corporate governance issues, preliminary injunctive
{00055053;v1}
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relief is a critical issue. Often decisions need to be rendered
before specific times such as shareholder meetings. Having a
judge available to hear such cases on short notice is a
significant benefit to the parties. Moreover, the cultivation
of expertise in one or more Business Court Judges promotes the
timely and efficient disposition of cases, thus enabling
business leaders to focus on running their companies. In short,
the speed and flexibility provided by the Business Court
improves the administration of justice and meets many of the
most pressing needs of the business community.
• Advanced technology. At its inception, the North

Carolina Business Court was at the cutting edge of advanced
courtroom technology. The Court’s website, which boasted an
average of 4,255 “hits” per weekday between 18 July 2003 and 18
February 2004, provides a searchable archive of all of the
Court’s prior decisions, as well as a court calendar and docket,
local rules, information about the Court, important notices,
useful links, and practice pointers for attorneys and business
people. The website also features an advanced electronic filing
system, which greatly enhances the efficiency of case management
and dramatically reduces filing costs, in addition to
eliminating errors caused by manual filing systems.
The courtroom is wired for video-conferencing and for the

use of computer technologies at trial. Attorney rostrums are
equipped with touch-screen computers by which attorneys can
access exhibits and other materials stored on CD-ROM, videotape,
and floppy disks. Such exhibits and materials can be displayed
on all screens so that judge, attorneys, and witnesses may
review them simultaneously. Witnesses may be allowed to use
touch-screen computers to help illustrate their testimony by,
for example, highlighting relevant portions of electronically
displayed materials. The presiding judge has two computers, one
used to run his or her own programs and the other to control all
the technology in the courtroom. Based on the results of a
technology survey conducted by the Business Court in February
2002, the Court made a training video available for free
download on the court’s website. In addition, over 500 people
have attended the Court’s free technology training sessions.
• Specialization. The need for judicial specialization in

complex business litigation has been recognized by the American
Bar Association, the North Carolina Commission on Business Laws
and the Economy, and numerous other authorities. Because the
Business Court hears only complex business disputes, the
{00055053;v1}
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presiding Business Court Judge, Judge Ben Tennille, has been
able to build on his already significant knowledge of corporate
law and related fields. Between April 2000 and April 2003, the
Business Court has been assigned 463 cases, all of them complex
business cases. In comparison, only 2 to 5% of the civil docket
of a Wake County Superior Court Judge is composed of cases
suitable for the Business Court.
• Predictability. All of the Business Court’s decisions

are posted on the Court’s website. A search screen allows
interested parties to search all of the Court’s opinions for key
words and phrases, thus creating a valuable online legal
resource for all attorneys in this State. The creation of this
large body of case law at the trial court level provides greater
predictability for businesses, as well as helping to assure
consistency in the Business Court’s judgments and orders.
Likewise, the concentration of all complex business cases into
the dockets of one or a few Business Court Judges helps promote
uniformity of legal decision.
• Attracting Businesses to North Carolina. Although it is

impossible to quantify the number of new businesses attracted to
this State by the creation of the Business Court, the available
information is encouraging. For example, in 2001, Site
Selection magazine chose North Carolina as the State with the
best business climate in America. In addition, in its
recommendation to create a business court modeled after North
Carolina’s, the Georgia State Bar observed that many attorneys,
including attorneys from other states, actively seek assignment
to the North Carolina Business Court.
The Need for Change
Although North Carolina was a pioneer in its establishment

of the Business Court in 1995, our State has since fallen
behind. Currently, no state other than North Carolina has a
specialized business court with only one judge and one
geographic location. Illinois, Massachusetts, Nevada, New York,
and Pennsylvania, for example, have all expanded their business
court programs by adding additional judges and/or moving into
additional counties. As described in more detail below, the
Business Court is substantially overburdened, and without
additional funding and administrative reforms, it will be unable
to meet the challenges of the future and remain competitive in
attracting new business to the State. As North Carolina’s
business economy grows, so must its Business Court.
{00055053;v1}
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RECOMMENDATIONS OF THE COMMISSION
Geographic Expansion
At present, Judge Ben Tennille is the only Business Court

Judge in our State. As noted above, no other state with a
specialized business court has only one judge and one geographic
location. Accordingly, expansion of our Business Court is
critical to maintain North Carolina’s competitive advantage in
attracting new businesses to the State, a principal reason
originally articulated for creation of the Business Court.1
Furthermore, should Judge Tennille have a conflict of interest
or otherwise be unable to preside over a particular complex
business case, there is nowhere else to send that case except
back to the Superior Court.
Perhaps most importantly, expansion is necessitated by the

Business Court’s pressing and ever-increasing caseload. As of
10 August 2004, there were 210 Rule 2.1(a) (“exceptional”) and
Rule 2.1(b) (“complex business”) cases pending at various stages
in the trial courts of North Carolina. Of those cases, 66 are
assigned to Judge Tennille at the Business Court. Of the 66
pending cases, 4 are on appeal, 1 is stayed, and 4 have reached
settlement. Stated succinctly, the Business Court handles
roughly one-third of the exceptional/complex cases currently
pending in the trial courts of our State.
Moreover, from April 2000 to April 2001, the Business Court

adjudicated, in whole or part, 129 cases from 25 counties. From
April 2001 to April 2002, that number increased to 155 cases
from 25 counties. From April 2002 to April 2003, that number
again grew to 179 cases from 33 counties. Based on these
figures, the caseload of the Business Court increased by nearly
40% during the three years from April 2000 to April 2003. In
sum, as the only Business Court Judge in our State, Judge
Tennille is currently being taxed to the limit.
1
A specialized tribunal for the adjudication of business
disputes serves to promote economic development because of that
Court’s perceived expertise in resolving complex and time-
sensitive cases. As with any legal tribunal, the Business Court
applies the law uniformly and without regard to the identity or
legal status of the parties.
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It is also instructive to consider the statistics for Wake
and Mecklenburg counties, two of the primary originating
counties for complex business cases. As of 30 July 2004, there
were 2,633 civil cases pending in Wake County Superior Court, 59
of which have been designated as “exceptional” or “complex
business” and assigned to a specific judge under Rule 2.1. Of
these 59 cases, 30 have been assigned to Judge Tennille at the
Business Court. Thus, Judge Tennille is presiding over
approximately one-half of the exceptional/complex business cases
currently pending in Wake County, and roughly 45% of the
Business Court docket consists of Wake County cases.
Judge Donald Stephens, Senior Resident Superior Court Judge

and Case Manager for the Civil Docket in Wake County, is
reluctant to request a Rule 2.1 designation for a Wake County
case. Judge Stephens states, “Basically, I realize that the
Business Court is at maximum capacity. I make sure that only
the most complex business or exceptional cases go there.” Judge
Stephens also notes that under the current strategy, Rule 2.1
cases in Wake County constitute slightly more than 2% of the
civil docket, but that it would be reasonable to designate as
much as 5% of the docket as complex business cases. Judge
Stephens also believes that Wake County could double the number
of cases it sends to the Business Court over the next several
years if current litigation trends continue. Judge Stephens
concludes that “[i]t is very important for Wake County that the
Business Court continue in existence. If it does not, Wake
County may ultimately need an additional resident Superior Court
Judge in the foreseeable future to preside over these cases that
are no longer being sent to Judge Tennille.”
The statistics for Mecklenburg County further support the

need for geographic expansion of the Business Court. According
to Judge Tennille, approximately one-third of the Business
Court’s caseload originates in Mecklenburg County. Since the
Mecklenburg County Trial Court Administrator’s Office commenced
keeping records of complex business cases, there have been 87
cases so designated, 31 of which have been assigned to Judge
Tennille. Of the remaining 56 cases, 35 were Speedway personal
injury cases assigned to Judge W. Erwin Spainhour and three were
Paw Creek personal injury cases assigned to Judges Marvin K.
Gray and James E. Lanning. Thus, 36% of all complex business
cases and 63% of all non-personal-injury complex business cases
originating in Mecklenburg County have been assigned to Judge
Tennille.
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Based on the statistics of past and current Business Court
activity and in the interest of bringing North Carolina’s
Business Court back to the national forefront, the Commission
recommends that the Business Court retain its Greensboro
location and presiding judge while expanding into two additional
locations, Wake and Mecklenburg Counties. The Commission
further recommends that the Chief Justice designate two sitting
Special Superior Court Judges to serve as the Business Court
Judges at these new locations.
Although there will be no direct costs incurred in the

assignment of sitting Special Superior Court Judges to the
Business Court, the Business Court will incur costs associated
with providing for courtroom space and other operating expenses.
These costs, however, can be minimized. With the impending
completion of the new courthouse in Mecklenburg County, for
example, space will be available for a judge and law clerk, as
well as a courtroom. Although the Wake County courthouse may
not be able to accommodate a new Business Court, sufficient
courtroom and office space could certainly be found in downtown
Raleigh near the existing Wake County Courthouse or in nearby
Research Triangle Park.
With three judges strategically located throughout the

State in the areas where most complex business cases originate,
the Business Court will be well positioned to dispose of the
large and growing number of complex business cases in this
State. Expanding the Business Court in this manner would also
make a strong statement that North Carolina has the
infrastructure to expeditiously resolve complex business
disputes.
Assignment of Cases/Administrative Efficiency
Under the current version of Rule 2.1 of the General Rules

of Practice, a case may be designated as a “complex business”
case only by the Chief Justice of the North Carolina Supreme
Court following a recommendation by the Senior Resident Superior
Court Judge, Chief District Court Judge, or presiding Superior
Court Judge. Judicial recommendation for “complex business”
case designation may be made ex mero motu or on the motion of
any party.
This procedure for the assignment of cases is becoming

increasingly cumbersome as the number of complex business
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disputes in the State continues to increase. In addition, the
requirement of a judicial recommendation to the Chief Justice
for a “complex business” case designation creates a risk of
inconsistent results, as some judges may be more inclined than
others to view any given matter as meriting such a designation.
In light of these concerns, the Commission recommends a

bifurcated system of “mandatory” and “discretionary” Business
Court jurisdiction. Under this bifurcated system, “mandatory”
complex business cases would be designated as such under the
procedures of a proposed new Rule 2.1.1 set forth below and
“discretionary” complex business cases would be those designated
by the existing procedure under the current version of Rule 2.1.
“Mandatory” complex business cases would encompass

specifically defined subject matters, such as state or federal
securities and antitrust law; trademark and unfair competition
law; law governing corporations, partnerships, and other
specific business entities; intellectual property law; and legal
issues concerning the Internet, electronic commerce, and
biotechnology. In cases of “mandatory” Business Court
jurisdiction, a party to a civil action would be permitted to
designate a case as a “mandatory complex business case” by
simultaneously filing a Notice of Designation in the Superior
Court and with the Chief Justice of the North Carolina Supreme
Court, and serving such notice on opposing parties and the
Senior Business Court Judge. The process would be similar to
the process of “removal” in federal court, whereby a party may
automatically transfer a case by filing a proper motion to
remove. As in the procedures for removal in federal court, a
party objecting to the designation of a case as a mandatory
complex business case would be permitted to file an opposition
to such designation with the Business Court. The Business Court
Judge would then determine whether the case should or should not
be so designated, and either party could appeal the Business
Court’s decision to the Chief Justice of the North Carolina
Supreme Court.
“Discretionary” complex business cases would encompass all

cases that do not fall within the prescribed categories of
proposed Rule 2.1.1. These cases could be designated as
“complex business” cases only according to the existing
procedures set forth in Rule 2.1. In other words, the
designation would be made only by the Chief Justice upon
recommendation of the Senior Resident Superior Court Judge,
Chief District Court Judge, or presiding Superior Court Judge.
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The decision to recommend or not to recommend any given case for
“complex business” case designation would be discretionary and
non-appealable, as would the Chief Justice’s final decision.
The text of the Commission’s proposed Rule 2.1.1 is as

follows:
Rule 2.1.1. Designation of Mandatory Complex Business Cases
(a) For purposes of this rule, a Mandatory Complex

Business Case is an action that involves a material
issue relating to:
1. Law governing corporations (except a charitable or

religious corporation that is qualified as such under
G.S. § 55A-1-40(4) on the ground of its religious
purposes), partnerships, limited liability companies,
and limited liability partnerships, including, but not
limited to, issues concerning governance, involuntary
dissolution of a corporation, mergers and
acquisitions, breach of duty of directors, election or
removal of directors, enforcement or interpretation of
shareholder agreements, and derivative actions;
2. Securities law, including, but not limited to,

proxy disputes and tender offer disputes;
3. Articles 3, 4, and 5 of Chapter 105 of the General

Statutes of North Carolina;
4. Antitrust law, except claims based solely on

unfair competition under G.S. § 75-1.1;
5. State trademark or unfair competition law, except

such claims based solely on unfair competition under
G.S. § 75-1.1;
6. Intellectual property law, including, but not

limited to, software licensing disputes.
7. The Internet, electronic commerce, and

biotechnology.
(b) Any party may designate a civil action as a

Mandatory Complex Business Case pursuant to this rule
by timely filing a Notice of Designation in the
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Superior Court in which the civil action has been
filed and simultaneously serving such designation on
each opposing party or counsel and on the Special
Superior Court Judge for Complex Business Cases
(“Business Court Judge”) who is then the senior
Business Court Judge. A copy of the designation shall
also be sent contemporaneously by email or fax to the
Chief Justice of the Supreme Court for approval of the
designation of the action as a Mandatory Complex
Business Case and assignment to a specific Business
Court Judge.
(c) The Notice of Designation shall succinctly state

the basis of the designation and include a certificate
by or on behalf of the designating party, in good
faith and based on the information reasonably
available, that such civil action meets the criteria
for designation as a Mandatory Complex Business Case
pursuant to subsection (a) above.
(d) The Notice of Designation shall be filed by the

plaintiff or third-party plaintiff contemporaneously
with the filing of the complaint or third-party
complaint in the action. Such designation shall be
filed by any intervenor at the time the intervenor
filed the motion for permission to intervene in the
action. Such designation shall be filed by any
defendant or any other party within 30 days after
receipt of service of the pleading seeking relief from
such defendant or party.
(e) Within 30 days after service of the designation,

any other party may in good faith file and serve an
opposition to such designation of the action as a
Mandatory Complex Business Case.
(f) Based on such opposition or ex mero motu, the

Business Court Judge may make a determination that the
action should not be designated as a Mandatory Complex
Business Case. If any party disagrees with a decision
of the Business Court Judge under this subsection (f),
such party can appeal the decision to the Chief
Justice.
(g) Once a designation is duly filed under subsection

(d), and after preliminary approval by the Chief
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Justice, it shall be designated and administered as a
Complex Business Case, and all proceedings in such
action shall be before the Business Court Judge to
which it has been assigned by the Chief Justice,
unless and until an Order is entered under subsection
(f) determining that the case should not be designated
as “Complex Business” or the Chief Justice otherwise
revokes approval. After any final determination that
an action should not be designated as a Mandatory
Complex Business Case, the action will be treated as
any other civil action unless it is designated as an
Exceptional Civil Case or a Discretionary Complex
Business Case pursuant to Rule 2.1.
In addition, the Commission recommends that Rule 2.2 be amended

to read as follows:
Rule 2.2. Designation of Business Court Judge

Presiding in the Business Court
The Chief Justice shall designate one or more special

superior court judges as special judges to hear and
decide complex business cases as provided in Rule 2.1.
Any judge so designated shall be known as a Business
Court Judge and shall preside in the Business Court.
If there is more than one Business Court Judge, the
Chief Justice may from time to time designate one of
them as the Senior Business Court Judge, in the
absence of which designation the Business Court Judge
with the longest term of service as such will serve as
the Senior Business Court Judge unless and until the
Chief Justice shall appoint another judge to that
position.
In the event the Supreme Court adopts the proposed rule and
rule revision set out above, the Commission recommends that Rule
2.1.1 and revised Rule 2.2 be made effective 180 days after the
date of their adoption. The purpose of a prospective effective
date is to provide clerks of court, judges, private attorneys,
and other interested persons adequate notice of and proper
training in the procedures described in these rules. The
Commission further recommends, however, that the Supreme Court
delay its adoption of Rule 2.1.1 and revised Rule 2.2 to afford
the General Assembly and the Governor the opportunity to
consider the recommendations of the Commission and to evaluate
an appropriate funding mechanism for ongoing operations of the
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Business Court.
Jurisdiction
Clarity and certainty in jurisdiction are essential to the

efficient functioning of any court, including the Business
Court. As noted above, dependence on individual Superior Court
Judges to initiate assignments to the Business Court may produce
inconsistent results, and the process may become unwieldy and
slow as the Court’s caseload continues to grow. These problems
cannot be avoided by good case management alone. They must be
addressed by the bifurcation of the process discussed above for
designating “complex business” cases, as well as in the General
Rules of Practice. Finally, the jurisdiction of the Business
Court should continue to be statewide and nonexclusive and
should not be limited by an amount in controversy requirement.
The Supreme Court has the authority under G.S. § 7A-34 to

adopt and revise Rules 2.1 and 2.2 and the proposed new Rule
2.1.1, as discussed above, without any legislative action.
These recommendations will define the jurisdiction of the
Business Court more specifically. They will also officially
denominate the Special Superior Court Judges designated to hear
and decide complex business cases as Business Court Judges and
the court in which they preside as the Business Court. The
Commission recognizes that the concept of designating special
judges to hear and decide complex cases may at some time in the
future be expanded to cover other types of complex cases such
as, for example, tax cases.
The Commission believes that the enactment of a statutory

provision explicitly recognizing and confirming the concept of
Business Court Judges deciding cases in the Business Court,
although not necessary, will enhance the status of that
arrangement and clarify its validity for persons not familiar
with the constitutional and statutory structure of our judicial
system.
In light of the above considerations, the Commission

recommends that the General Assembly adopt the following
jurisdictional statute for the Business Court:
G.S. § 7A-45.3. Superior Court Judges Designated for

Special Classes of Complex Cases.
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The Chief Justice of the Supreme Court may exercise
the authority under rules of practice prescribed
pursuant to G.S. § 7A-34 to designate one or more
special superior court judges to hear and decide
complex cases in one or more special classes of cases
that may be described by the rules of practice.
Precedential Value of Business Court Decisions
Under existing law, the decisions of a North Carolina trial

court do not have precedential value with respect to any other
trial court in the State. To promote the desired stability and
predictability in complex business disputes, however, the
Commission recommends that the Supreme Court take measures to
ensure the internal precedential value of decisions within the
North Carolina Business Court. Accordingly, the Commission
recommends that a Business Court opinion should constitute
precedential authority in all subsequent complex business cases
unless and until that opinion is legislatively overturned or
reversed on appeal.
Judicial Tenure
Under current practice as authorized by the General

Assembly in G.S. § 7A-45.1, the Business Court Judge is
appointed by the Governor to serve a five-year term as a Special
Superior Court Judge and designated by the Chief Justice of the
North Carolina Supreme Court to hear and decide complex business
cases during that time period. At the expiration of that term,
a Business Court Judge may be reappointed/redesignated for
additional five-year terms. Based upon a review of other states
that have developed a reputation for excellence in the
administration of complex business litigation, the Commission
recommends that the initial term for a Business Court Judge
remain five years, but that the term be lengthened to ten years
on reappointment /redesignation. Longer terms are beneficial in
that they promote stability and consistency within the Business
Court and are more attractive to judges and lawyers who might be
suitable for such an appointment. The nationally preeminent
Delaware Court of Chancery, for example, provides for a twelve-
year term for its judges. On the other hand, a shorter initial
appointment/ designation period gives the General Assembly,
Governor, Chief Justice, and interested parties in the business
community an opportunity to evaluate the competence, demeanor
and temperament, and character and integrity of a new Business
Court Judge. The Commission believes that an initial five-year
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term followed by ten-year terms on reappointment/redesignation
strikes an appropriate balance among these important
considerations.
Appeals Process
Cases arising in the North Carolina Business Court

typically present complex legal issues for which there is often
little North Carolina precedent. In addition, very few complex
business cases have been appealed to date. For example, between
1 January 2000 and 1 March 2004, only eighteen cases had been
appealed from the Business Court, three of which were withdrawn
or dismissed and two of which are still pending. Thus, the
Court of Appeals currently handles an average of 4.3 appeals
from the Business Court per year. Although few in number, these
cases tend to be extremely complex, involving voluminous
exhibits and difficult legal issues. The Commission believes
that the development of a sound body of appellate jurisprudence
in the business field will significantly enhance North
Carolina’s stature as a forum for the resolution of business
disputes. Indeed, the Commission believes that North Carolina
will be viewed as a preferred forum for the resolution of
business disputes only if the special expertise being cultivated
at the trial court level in the Business Court is complemented
in the appellate division.
To encourage this result, the Commission recommends that

the Chief Judge of the North Carolina Court of Appeals adopt the
practice of assigning appeals from the Business Court to panels
of appellate judges consisting of at least two Court of Appeals
judges who have volunteered to receive special training in the
substantive areas of law likely to arise in Business Court
cases. In so recommending, however, the Commission does not
propose any limitation on the authority or discretion of the
Chief Judge under G.S. § 7A-16 to assign judges to a panel. The
Chief Judge can and should make such determinations based on his
or her assessment of the needs of each particular case.
The Commission further recommends that the Chief Judge of

the North Carolina Court of Appeals identify at least six to
eight appellate judges who will volunteer to receive specialized
training. The Commission emphasizes that each judge’s
participation in this endeavor would be entirely voluntary, and
a judge’s “designation” to hear appeals from the Business Court
would simply constitute a formal recognition of that judge’s
voluntary commitment to hear such cases and to receive
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specialized training. The substantive areas of law to be
included in this training include, but are not necessarily
limited to, the following:
• Claims arising under state and federal securities law

• Claims arising under the North Carolina statutes
governing corporations, partnerships, and limited
liability companies
• Corporate governance disputes
• The fiduciary duties of corporate officers and
directors
• Antitrust laws
• Intellectual property law, including, but not limited
to, software licensing disputes.
• The Internet, electronic commerce, and
biotechnology.
Mindful of the budgetary constraints under which our court

system operates, the Commission recommends that existing
resources be utilized to provide the special training to the
designated judges of the Court of Appeals. Continuing legal
education (CLE) for volunteer appellate judges could be provided
through various law school CLE programs and/or the North
Carolina Bar Association’s CLE program. Provided they are also
open to other members of the North Carolina Bar, these programs
could be made available to North Carolina judges at no personal
expense.
The Commission considered whether to recommend

modifications to the North Carolina Rules of Appellate Procedure
to provide for the expedited appeal of decisions from the
Business Court. The Commission concludes that existing rules,
statutes, and case law in North Carolina provide sufficient
authority for expediting appeals in those cases that require
expedited treatment. For example, the Court of Appeals may
accept interlocutory appeals that affect a “substantial right”
pursuant to time-tested procedures set forth in G.S. § 7A-27(d).
Pursuant to Rule 21, either appellate court may also issue a
writ of certiorari to review judgments and orders of the trial
court where the right to prosecute an appeal has been lost by
failure to take timely action, or when no right of appeal from
an interlocutory order exists. In addition, Rules 22 and 23
provide for the issuance of extraordinary writs to compel or
prohibit judicial action or stay the execution or enforcement of
a judgment or order of the trial court pending appellate review.
As a matter of operating procedure, the Court of Appeals
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convenes a “petitions panel” on each business day for the
express purpose of evaluating petitions and applications for
extraordinary writs. After an appeal has been docketed, there
are several provisions in the Rules that are designed to permit
the parties or the court to expedite an appeal, including
provisions that permit the court to give an appeal a peremptory
setting or otherwise vary the normal calendar. In addition,
both courts of the appellate division retain broad authority
under Rule 2 to suspend or vary the requirements or provisions
of the Rules in order to expedite decision in the public
interest. In light of this comprehensive scheme, the Commission
does not believe it is necessary to establish special rules to
expedite appeals of cases handled by the Business Court.
As a corollary to recommendations concerning the creation

of a group of specially trained appellate judges to hear appeals
from the Business Court, the Commission strongly recommends that
all such appeals should be the subject of published opinions.
When the General Assembly and Supreme Court established the
Business Court, a leading objective was the development of a
body of North Carolina law to which the practicing bar, the
bench, and the public could look for guidance. Without
publication of written appellate decisions, the bench, bar, and
business community would be deprived of the stability and
predictability that results from a well-developed body of
precedent. The Commission recommends the procedures outlined
above be implemented for a period of two years, at which time
their utility will be reviewed by the Chief Judge or his or her
designee.
The Commission’s recommendations regarding the appeals

process for complex business cases will help secure the
fundamental goals of the North Carolina Business Court in
several respects. First, the promotion of expertise at the
appellate level will evidence a genuine commitment to the
special concerns of the business community. Second, the
recommended procedures will concentrate the delivery of Business
Court cases to a smaller subset of judges, thereby expanding
upon the expertise gained from specialized training. Third, the
use of designated judges to hear Business Court appeals will
promote prompt disposition of appeals while preserving needed
flexibility for the Chief Judge in the assignment of appellate
cases and in the overall management of the Court of Appeals’
docket.
Alternative Dispute Resolution

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Alternative dispute resolution (ADR) has become an
increasingly popular method of resolving business disputes. As
a cost-effective and efficient alternative to litigation, the
availability of ADR mechanisms focuses business executives on
the risks, potential rewards, and time commitment involved in
litigation before filing suit. It also serves to narrow
contested issues and promote practical solutions to business
disputes through negotiation and accommodation.
Court-sponsored mediation is currently the most popular,

familiar, and effective ADR mechanism for resolving cases before
the Business Court. Under the Business Court’s Local Rule 17,
all cases pending in the Business Court are “subject to the
Rules Implementing Statewide Mediated Settlement Conferences in
Superior Court Civil Actions and such other Rules or Orders
consistent therewith as may be established or entered by the
Business Court.” Rule 1C(2) of the Rules Implementing Statewide
Mediated Settlement Conferences provides that mediation is the
default ADR mechanism in all civil cases. The parties may,
however, move for an alternative settlement procedure “as
allowed by these rules or by local rule.” Currently authorized
alternative procedures include binding and non-binding
arbitration, early neutral evaluations, and summary trials.
The Commission initially examined the practicality of

expanding the Business Court to become a forum for and provider
of ADR services. Constitutional “case or controversy”
limitations, however, may prohibit this discretion.
Accordingly, the Commission recommends that the Business Court
become a repository of business expertise in providing ADR
services only within the context of “cases” before the Business
Court.
Having examined current practices and canvassed the views

of North Carolina attorneys, the Commission believes that there
is a general awareness of mediation procedures and that the
current mediation program is successful and does not require
improvement. There is currently no Business Court mechanism in
place, however, to facilitate the use of alternative forms of
dispute resolution which may be uniquely suited for business
disputes, such as arbitration, early neutral evaluations,
judicial arbitration, the use of retired judges, and summary
trials. To foster awareness of these alternative methods and to
facilitate their use, the Commission makes the following
recommendations:
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• Roster of Neutrals and Retired Judges. The Business
Court should maintain a roster of neutrals and retired
judges with relevant experience in complex business matters
who may be available to serve as arbitrators, mediators,
early evaluation neutrals, judicial arbitrators, or
facilitators. The list should indicate which neutrals are
trained and certified in their respective fields and which
retired judges have experience in complex business
litigation. The Business Court may wish to partner with
ADR providers or the North Carolina Bar Association in
compiling such a list. The Business Court may also wish to
partner with CLE providers to offer training in non-
mediation ADR mechanisms for neutrals. Finally, the
Commission recommends that the Business Court reach out to
educate the North Carolina Bar on the range of ADR
alternatives available for business disputes.
• Judicial Arbitration as Delineated in Rule 12.0 of the

Local Rules for the Eighteenth Judicial District. Prior to
the institution of court-ordered mediation, Judge James M.
Long employed an ad hoc procedure for judicial arbitration
that permitted the parties and their attorneys to sign a
stipulation allowing him to arbitrate cases in a summary
fashion. Each party was given a set time, e.g., two hours,
to present its side of the case. Because of the summary
nature of this form of ADR, the Rules of Evidence were
suspended, and evidence could be narrated by counsel in
summary form. At the end of the allotted period, Judge
Long would render a judgment. The stipulation included a
waiver of the right to appeal the judgment. This procedure
is explained in Rule 12.0 of the Local Rules of Court for
the 18th Judicial District.
• Early presentation of ADR alternatives. When a case

management report is tendered to the Business Court, the
parties should inform the Business Court of any ADR
mechanisms utilized before the action was filed. The
parties should also advise the Business Court as to which
ADR mechanisms would, in their view, best suit that
particular case. The full range of ADR alternatives should
be made available and explained to litigants before
discovery and as early as possible in litigation. Early
presentation of various ADR alternatives will help foster
resolution of disputes before litigation positions become
fixed, thus avoiding unnecessary litigation costs.
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Finally, the Business Court should require parties to
report cases that are settled by means of ADR mechanisms.
• Legislative consideration of ADR referrals. Canon 5E of

the Judicial Code of Conduct prohibits Business Court
Judges from acting as arbitrators. In light of this
prohibition, the Commission recommends that the General
Assembly examine the utility of allowing parties to convert
or submit arbitration claims to the Business Court for
referral to neutrals or retired judges for arbitration or
other forms of ADR. Although the Delaware Court of
Chancery currently allows its judges to mediate, the
Commission believes this option may not be practical in
North Carolina, given the limited number of Business Court
judges and the parties’ rights to judicial review of
arbitral judgments.
Revenue/Funding
In conjunction with Judge Tennille of the North Carolina

Business Court and the North Carolina Administrative Office of
the Courts (AOC), the Commission has compiled estimates for the
costs of the recommended geographic expansion and technological
modernization of the North Carolina Business Court. Itemized
cost estimates, which reflect both initial “start-up” and
recurring costs for each business court installation, are
compiled in the table below. These estimates also reflect the
costs of acquiring additional technology to enable the
Greensboro installation to serve as the primary data collection
and distribution point for all three Business Courts.
The Commission firmly believes that these costs are

reasonable in light of the substantial gains to North Carolina
that would result from an expansion of its Business Court
program into Wake and Mecklenburg Counties and the long-overdue
upgrade of its existing technologies. Accordingly, the
Commission recommends that the General Assembly allocate funds
in these amounts to allow the Business Court to meet the demands
of its ever-increasing docket and to keep North Carolina
competitive in its efforts to attract business and industry to
the State.
Notably, the Commission believes that the recommended

expansion of the Business Court into Wake and Mecklenburg
Counties will not require any increase in funds allotted for
judicial salaries in North Carolina. Given the large number of
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cases that can and should be designated as “complex business
cases,” two judges currently serving at Superior Court can be
“transferred” to the Business Court without adversely affecting
the case flow in the Superior Courts. In other words, the
number of cases that can and should be designated as “complex
business cases” more than justifies the allocation of three
trial court judges to the Business Court program. Indeed, Judge
Stephens believes that one specially trained Business Court
Judge can accomplish nearly double the disposition rate of a
hypothetical Superior Court Judge whose docket consisted solely
of complex business matters. Thus, the “transfer” of two
Special Superior Court Judges to the Business Court will improve
administrative efficiency in the court system without
necessitating the hiring of new judges. These cost savings
should be borne in mind alongside the expenses necessitated by
geographical expansion.
Absent from the estimated costs of expansion is the cost of

renting courtroom and office space in each of the three
locations. The Greensboro location of the Business Court
formerly belonged to the United States Bankruptcy Court for the
Middle District of North Carolina and is ideal for its present
purposes. The Commission recommends that the existing lease for
that facility be renewed as needed. With the pending completion
of a new courthouse in Mecklenburg County, there will be
courtroom and office space available for use by the Business
Court without any additional expense. Because of space
limitations in the Wake County Courthouse, however, expansion
into Wake County will likely necessitate the renting of office
and courtroom space in downtown Raleigh or nearby Research
Triangle Park. Because the cost of renting such a space is
highly contingent on fluctuations in the real estate market, the
Commission has not included such a cost in its itemized
estimate. The necessity of incurring such costs should be
considered, however, against the significant advantages that
expansion into Wake County would bring.
Following is an itemization of the anticipated costs of the

expansion and upgrade of the North Carolina Business Court, not
including the costs of renting courtroom and office space in
Wake County.
General Expenses
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Initial Cost Recurring Cost2
Training video 20,000.00 0.00
Total: $20,000.00 $0.00
Greensboro Upgrade3
Initial Cost Recurring Cost
Server (Windows 2003) 10,000.00 0.00

Database Server (Windows 2000 11,000.00 0.00
with MS-Sql Server)
Wireless Laptop or Desktop 10,500.00 0.00
Computers
Printer (color laser) 2,600.00 supplies only
Scanners 2,500.00 supplies only
Wireless Routers with 1,500.00 0.00
Additional Gain Antennas
CXn Case Management Licensing 0.00 0.00
Software Maintenance 20,000.00 20,000.00
Agreement4
2
Recurring costs are annual estimates of maintaining
systems. Estimates exclude T&E.
3
This proposal covers upgrading the aging existing
equipment of the North Carolina Business Court and acquiring the
additional equipment needed to enable the Greensboro
installation to serve as the primary data collection and
distribution point for all three Business Courts.
4
Software maintenance covers general telephone technical
support for all CXn systems users and e-filers and should be
considered a recurring cost of maintaining the court system.
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Hardware Maintenance 0.00 10,000.00
Agreement5
Telco (T1 Access with web 10,000.00 10,000.00
access)6
Total: $68,100.00 $40,000.00
Wake County Installation7
Server (Windows 2003) 10,000.00 0.00

Computers
Software Maintenance Agreement 20,000.00 20,000.00
Telco (T1 Access with web 0.00 10,000.00
access
5
Hardware maintenance covers the routine maintenance of new
equipment and should be considered a recurring cost of
maintaining the court’s computer systems. Hardware maintenance
includes travel and on-site support. The Greensboro location is
currently under contract. This estimate assumes AOC maintenance
at the Wake and Mecklenburg sites.
6
The Greensboro site is currently under contract for web
services and Internet access. Expansion of bandwidth is
required due to increases in the number and size of electronic
filings. The recurring cost listed replaces the costs of the
current contract. This estimate assumes AOC provision of
bandwidth to the Wake County and Mecklenburg sites.
7
Cost estimates include and reflect installation charges.
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Research Assistant Salary8 0.00 39,000.00
Staff Training9 2,500.00 0.00
Total: $48,100.00 $69,000.00
8
The services of a law clerk are indispensable for proper
functioning of a Business Court installation. Due to the
extremely complex and technical nature of complex business
litigation, it is not possible for a single judge to manage a
caseload similar to that managed by Judge Tennille without the
assistance of a qualified research assistant.
9
This estimate reflects projected costs for the training
all courtroom staff, including judge and law clerk, over the
first two years of the new installation’s operation.
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Mecklenburg County Installation10
Server (Windows 2003) 10,000.00 0.00

Computers
Software Maintenance Agreement 20,000.00 20,000.00
Research Assistant Salary11 0.00 39,000.00
Staff Training12 2,500.00 0.00
Total: $48,100.00 $59,000.00
10
Cost estimates include and reflect installation charges.
11
The services of a law clerk are indispensable for proper
functioning of the Business Court. Due to the extremely complex
and technical nature of complex business litigation, it is not
possible for a single judge to manage a caseload comparable to
that managed by Judge Tennille without the assistance of a
qualified Research Assistant.
12
This estimate reflects projected costs for the training
all courtroom staff, including judge and law clerk, over the
first two years of the new installation’s operation.
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Total Costs
Combined costs for Greensboro $184,300.00 $168,000.00

upgrade and Wake County and
Mecklenburg County
installations
Conclusion
Once a national leader in recognizing the importance of

judicial specialization in matters of complex business
litigation, North Carolina has, in recent years, begun to fall
behind. Aging technology and geographic restrictions have
impaired the ability of the North Carolina Business Court to
meet the demands of the future, even as businesses increasingly
turn to that Court as the preferred forum for the resolution of
complex business disputes. Although the North Carolina Business
Court has made remarkable strides in facilitating the efficient
and timely disposition of business disputes, the Court’s
mounting caseload has made it virtually impossible for a single
judge to continue to meet the statewide demands of North
Carolina’s growing economy. Faced with similar concerns, every
other state with a specialized business court has expanded its
program by appointing new judges and installing new branches in
new counties. The proposed administrative changes will do much
to improve the efficiency and efficacy of the Business Court.
Ultimately, however, the future success of the Business Court
depends upon a commitment to reasonable growth and expansion.
If North Carolina is to remain competitive in attracting new
business, it is imperative that the State demonstrate its
ongoing commitment to maintaining its Business Court as one of
the finest in the nation.
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ATTACHMENT
CHIEF JUSTICE’S COMMISSION ON THE FUTURE OF

THE NORTH CAROLINA BUSINESS COURT
Franklin R. Anderson Clifford P. Layman

Catharine Biggs Arrowood Justice Mark Martin, Chair
Mitchell S. Bigel Representative David M. Miner
Judge Forrest D. Bridges Frances Perez
Senator Daniel G. Clodfelter J. Norfleet Pruden, III
Larry J. Dagenhart Paul C. Ridgeway
Richard W. Ellis William L. Rikard, Jr.
Frank E. Emory, Jr. Russell M. Robinson, II
Judge Shirley L. Fulton Larry B. Sitton
John L. W. Garrou Judge Sanford L. Steelman, Jr.
Representative Richard B. Glazier Judge Donald W. Stephens
Senator Kay R. Hagan Senator Richard Yates Stevens
Representative R. Phillip Haire Judge Quentin T. Sumner
Hada V. Haulsee Donald H. Tucker, Jr.
Judge Robert H. Hobgood Judge Ralph A. Walker
Robert N. Hunter, Jr. John R. Wester
Reef C. Ivey, II James T. Williams, Jr.
Ben Jenkins H. Grady Barnhill, Bar Liaison
Judge Robert P. Johnston Don Cowan, Bar Liaison
W. Winburne King, III Judge Ben F. Tennille, Ex-Officio
{00055053;v1}
-27-
REPORT OF THE OFFICE OF COURT ADMINISTRATION REPORT OF THE OFFICE OF COURT ADMINISTRATION
to the CHIEF JUDGE to the CHIEF JUDGE
on the on the
COMMERCIAL DIVISION FOCUS GROUPS COMMERCIAL DIVISION FOCUS GROUPS
J U LY 2 0 0 6 J U LY 2 0 0 6
THE C OMMERCIAL D IVISION of the S UPREME C OURT THE C OMMERCIAL D IVISION of the S UPREME C OURT
of the STATE of NEW YORK of the STATE of NEW YORK
TA B L E O F C O N T E N T S
PART I: Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
PART II: A Brief History of the Commercial Division . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
PART III: The Commercial Division Focus Group Project . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
PART IV: What the Focus Groups Revealed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
PART V: Ideas for Exportation to Other Parts of the Court System . . . . . . . . . . . . . . . . . . . . . .8
A. Use of TROs on Notice Except in Extraordinary Circumstances . . . . . . . . . . . . . .8

B. Address Electronic Discovery Issues Before They Become Problems . . . . . . . . . .9
C. Issue Stays of Discovery Upon Dispositive Motions on a Case-By-Case Basis . .10
D. Proactive Involvement of Judges in Settlement and Creative Use of ADR . . . . . .11
E. Support the Use of Technology at Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
F. Proactive, Hands On, But Adaptable Case Management . . . . . . . . . . . . . . . . . . . .14
G. Optional Statements of Material Fact on Summary Judgment Motions . . . . . . . .14
H. Require Page Limitations on Motion Papers . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
I. Use Uniform Rules to Enhance Predictability and Transparency . . . . . . . . . . . . .16
J. Increase Use of In Limine Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
K. Increase Use of E-Filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
L. Pre-Motion Conferences for Discovery Motions . . . . . . . . . . . . . . . . . . . . . . . . . .18
PART VI: The Focus Groups’ Recommendations for the Commercial Division . . . . . . . . . . . .19
A. Permit Expert Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

B. Provide Additional Judicial Support for the Commercial Division . . . . . . . . . . . .20
C. Implement Online Scheduling Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
D. Update Jury Instructions Applicable to Commercial Cases . . . . . . . . . . . . . . . . . .21
E. Make Accommodations for Commercial Matters
in the Appellate Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
APPENDIX A: List of Commercial Division Justices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
APPENDIX B: Invitation Letter to Focus Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
APPENDIX C: List of Topics – Commercial Division Focus Groups . . . . . . . . . . . . . . . . . . . . . . . .25
APPENDIX D: Uniform Commercial Division Rules [22 NYCRR 202.70] . . . . . . . . . . . . . . . . . . .27
1
I
EXECUTIVE SUMMARY
T he Commercial Division is functioning well and provides many practices and innovations worthy of
consideration for use in other parts of the New York State court system. That is the clear-cut conclu-
sion of this Report of the Office of Court Administration to the Chief Judge on the Commercial Division
Focus Groups.*
The Focus Groups, conducted in five locations throughout the State between December 2005 and
February 2006, brought together current and retired judges, prominent commercial litigators and in-house
counsel of major corporations for a meaningful dialogue about the Commercial Division. Their discussions
generated a list of ideas that might work well elsewhere. This was not the only purpose of the Focus Groups.
Consistent with their charge, they also identified areas of the Commercial Division and commercial prac-
tice in New York State that could be improved.
The Focus Groups additionally demonstrated that they are a good tool for the court system to gather
and analyze information. Thus, one recommendation of this Report is to expand the focus group informa-
tion-gathering model to other areas in the court system.
The Focus Groups identified a dozen features of the Commercial Division that might be useful in
other courts, including:
require notice of applications for temporary restraining orders (“TROs”), except in extraordinary
circumstances;
address electronic discovery issues at an early conference;
encourage judges to exercise discretion whether or not to stay discovery, in whole or in part, on
the making of a dispositive motion;
encourage more proactive involvement of judges in settlement and alternative dispute resolution
(“ADR”);
improve support for use of outside technology in courtrooms;
encourage proactive, hands on, but adaptable case management;
give courts discretion to require a statement of uncontroverted material facts in support of (or in
opposition to) a motion for summary judgment;
impose page limits on motion papers;
establish uniform rules for other courts;
increase the use of in limine motions;
increase the use of e-filing; and
require pre-motion conferences prior to the filing of discovery motions.
These twelve items are the subject of Part V of this Report. The Focus Groups’ ideas targeted more
specifically at improving the Commercial Division and commercial practice generally in New York State
are treated in Part VI of this Report.
* For the preparation of this report we are especially grateful to Robert L. Haig, Esq. of Kelley Drye & Warren LLP, and Jeremy R. Feinberg,
Esq. and Gretchen Walsh, Esq. of the Office of Court Administration.
REPORT OF THE OFFICE OF COURT ADMINISTRATION to the CHIEF JUDGE on the COMMERCIAL DIVISION FOCUS GROUPS 3
II
A BRIEF HISTORY OF THE COMMERCIAL DIVISION
T he Commercial Division evolved from an experiment that began on January 1, 1993, when four Justices
of the Supreme Court were assigned to hear commercial cases in New York County. Their courtrooms
were called Commercial Parts and the Justices were assigned cases involving contracts, corporations, insur-
ance, the Uniform Commercial Code, business torts, bank transactions, complex real estate matters and
other commercial law issues.
This experiment involved significant collaboration between the Bench and Bar. Indeed, the idea
behind a permanent Commercial Division came from the State Bar Association’s Commercial and Federal
Litigation Section. Its comprehensive 1995 report studied the Commercial Parts initiative, deemed it high-
ly successful and recommended that it be institutionalized Statewide. The 1995 report advanced several
reasons supporting the creation of a separate division to handle commercial matters, including New York’s
role as a center of commerce, which the Section believed a commercial court would enhance, and the
unique attributes and complexity of commercial cases, which warrant specialized judicial treatment. Such
a court could combat a disturbing trend: businesses were increasingly resorting to other forums such as
Federal District Court, Delaware Chancery Court and private ADR methods to avoid what had been per-
ceived as New York’s overburdened state court system.
In response to the 1995 report, Chief Judge Judith S. Kaye created the Commercial Courts Task Force,
co-chaired by Hon. E. Leo Milonas and Robert L. Haig, Esq., to examine the Section’s report and develop
a blueprint for its implementation. The Task Force called for establishing a Commercial Division of the
Supreme Court in areas of the State with significant commercial litigation. On November 6, 1995, the
Commercial Division officially opened its doors in New York and Monroe Counties. Since then, the
Division has expanded to Albany, Erie, Kings, Nassau, Queens, Suffolk and Westchester Counties, and
throughout the Seventh Judicial District. Current Justices of the Division are listed in Appendix A to this
Report. The Commercial Division Law Report, issued four times per year in hard copy and electronically
on the Commercial Division website, contains summaries of recent leading opinions of the Commercial
Division Justices. The Commercial Division website can be found at www.nycourts.gov/comdiv.
The State’s business community, the commercial bar as a whole, and the Commercial and Federal
Litigation Section in particular, have all responded enthusiastically to the Commercial Division. The
Section referred to the Division as “a case study in successful judicial administration.” Business and legal
publications throughout the United States have commented favorably on the Commercial Division. At the
time of its inception, the Wall Street Journal stated “[w]hile several other States have been pushing for trial
courts devoted exclusively to business litigation, New York is the first in which a general trial court has
implemented such a program.” The National Law Journal touted the Commercial Division Justices for their
rigorous management of cases through “rapid disposition of motion practice, realistic and practical sched-
uling, and [the early setting of] trial dates…to promote efficiency.” The Division has also received excel-
lent reviews from business leaders and groups like the New York State Business Council. For example, in
1999, Peter I. Bijur, Chairman of The Business Council of New York State, remarked “We have now gone
in four years’ time from a court system that often evoked frustration among businesses, to a business court
that is the envy of other states.”
4 THE C O M M E R C I A L D I V I S I O N of the S U P R E M E C O U RT of the S TAT E of N E W Y O R K

Ten and a half years after formally opening its doors, the Commercial Division has improved all
aspects of commercial litigation, achieving several goals set by Chief Judge Kaye at the time of its creation:
providing litigants with a justice system commensurate with New York’s status as a world commercial and
finance center and its historical role as an innovator in commercial law; enhancing the State’s business cli-
mate; and creating a laboratory for new courtroom technologies and innovative practices that could be used
elsewhere in the court system. All of the successes of the Commercial Division have led to a much greater
volume of cases. In 2005, there were an estimated 6,657 cases filed or brought in the Commercial Division
Statewide. That number grew nearly ten percent from an estimated 6,095 cases in 2004. Based on early
returns from the first half of 2006, it appears that a similar rate of growth can be expected for this year as
well. Further information about the Commercial Division as well as numerous other aspects of commercial
litigation in state courts is available in the comprehensive five volume treatise entitled Commercial
Litigation in New York State Courts, Second Edition (Robert L. Haig ed.) (West & New York County
Lawyers’ Association 2005).
III
THE COMMERCIAL DIVISION FOCUS GROUP PROJECT
A common strategic planning tool in the private sector, focus groups are unusual in our court system.
Nonetheless, the Commercial Division Focus Groups were envisioned as a means of promoting can-
did dialogue among judges, lawyers and clients to generate new ideas, identify potential areas of improve-
ment, and assess application of “best practices” that have evolved in the Commercial Division to the court
system as a whole.
The Focus Groups were structured to ensure that the discussions would remain on point and key sub-
jects would be addressed, while allowing for a range of views and frank discussion. Each session was lim-
ited to between twelve and eighteen participants, balanced among experienced litigators, in-house counsel
from major corporations, and active and retired judges. Invitations – sent by letter by Chief Administrative
Judge Jonathan Lippman – included a pre-set list of topics such as Commercial Division rules, the role of
the judge and court staff, ADR, technology and general performance evaluation. A sample invitation letter
is annexed as Appendix B, and the list of Focus Group topics is annexed as Appendix C.
Each session was moderated by an experienced commercial litigator, Robert L. Haig, who in addition
to serving as Co-Chair of the Commercial Courts Task Force, has from the start had substantial involve-
ment in the expansion and refinement of the Commercial Division. Participants were assured that commen-
tary would be kept confidential; stenographic transcriptions of each Focus Group session referred to par-
ticipants by number, rather than name.
The Focus Groups took place in five locations over three months. The first two sessions were held in
December 2005 in New York and Nassau Counties. At the time, the Uniform Commercial Division Rules
(22 NYCRR 202.70) had not yet been adopted, and discussion included the varied practices that were in
effect at that time as well as the proposed uniform rules, which had already been the subject of public com-
ment. The new rules, effective in January 2006, provided fertile ground for discussion at the subsequent
sessions in Monroe in January, and in Albany and Onondaga Counties in February. A copy of the Uniform
Commercial Division Rules is annexed as Appendix D to this Report.
Onondaga County, the only location that did not have a Commercial Division, was chosen because it
is a candidate for Commercial Division expansion. Indeed, as one attorney at the Onondaga Focus Group
recognized, the Fifth Judicial District is the only one with a major metropolitan area (Syracuse) without a
Commercial Division. Despite the presence of multiple Federal District and Magistrate Judges with court-
rooms and chambers in Syracuse, in-house litigation counsel from the area indicated that they would be
pleased to have a state court alternative for commercial disputes in Syracuse.
The use of the Focus Groups to gather feedback about the Commercial Division was a successful
experiment that bodes well for the model’s continued use throughout the court system. The Commercial
Division was envisioned as only the first of several areas in which frank discussion through Focus Groups
could lead to useful feedback. The New York court system had no past experience from which to draw upon
in designing and implementing this new means of research, however, leading to a number of concerns that
ultimately proved unfounded.
One concern had been whether people would actually attend and participate. In fact, they did, taking
time out of their days, whether they were lawyers, clients or judges. Some even traveled substantial dis-
tances to participate in Focus Groups well outside their home counties. Including judges in the Focus
Groups raised two other concerns: would other participants be intimidated, and would judges dominate the
discussion? Neither concern proved to be a problem. All speakers appeared to be open and free with their
comments. The moderator kept discussion flowing, and no particular speaker or group of speakers domi-
nated. Another concern that did not materialize was that participants would simply air complaints rather
than provide constructive feedback and comments. Although participants had ample opportunity, they did
not criticize the Commercial Division significantly and their remarks were largely positive and construc-
tive.
Clearly, the court system should embrace focus groups as an information-gathering tool for use in
other areas.
IV
W H AT T H E F O C U S G R O U P S R E V E A L E D
M any common themes emerged. Chief among these was that the Commercial Division has achieved
ia great deal of success and is viewed as a positive development in which the court system can and
should take pride. Among many illustrative comments is this one from a commercial litigator participant:
The only comment I would make is that, by and large, the members of the bar are very happy with the
commercial parts. I think, by and large, people are very happy and appreciate the fact that OCA did estab-
lish it…. But I think the certainty and the regularity have been a real incentive just to bring cases in the
Commercial Division.

Indeed, enhanced predictability has made the Commercial Division a popular choice. As another com-
mercial litigator stated:
It’s two things. I think that, one, when you go in, the judges are going to be familiar with, say, the rules
regarding restrictive covenants so you’re not explaining something for the first time.
I think the second thing is there is an expectation that the court is going to give you time, if you need it,
to sit down and hammer through, say, a contested TRO or something where the business is being jeop-
ardized.
And so, while you can’t predict the result, you can at least say to the client, “I’m going to go in and I’ll
be able to present the information and we should get a reasonable result,” which is not necessarily the
case in an ordinary IAS part, where there are a million things going on.
So, when I look at predictability, it’s that the judges are familiar with the general issues in commercial
practice and they will give you the time if you need it.
A senior in-house litigation counsel noted that the Commercial Division is particularly sensitive to the
difficulties of litigation involving business strategies, trade secrets and other confidential information,
which if made public could cause more difficulty than the underlying litigation itself:
The other factor that we appreciate in the Commercial Division is the appreciation or the perceived appre-
ciation from the judges in that area of the proprietary nature of some of the issues that may come up, and
there’s some concern that absent a Commercial Division that those issues may not be appreciated across
the board but particularly when you’re dealing with sensitive business strategy issues and those sort of
things that are not clearly IP issues but have some proprietary concerns that we want redacted from
records and such.
Even participants who have taken a skeptical view of specialized courts had kind words for the
Commercial Division. As a former judge stated:
I have been opposed to specialized parts and specialized divisions as a matter of principle, because I real-
ly believe in the merger of the courts. But having said that I have to concede the Commercial Division
seems to be working well where we have it. I’m not sure it is exportable to the smaller counties, but it
certainly is working well where we have had it. So I have to put a little asterisk next to my “merge the
court” in those specialized courts for this court here.
The Focus Groups were seeking not only feedback on the Commercial Division as a whole but also
reaction to certain aspects of its operation and practice. The next section of this Report will address suc-
cesses identified as worthy of consideration for use in other areas of the court system. These are not ranked
in terms of priority or degree of consensus, because the participants were asked not to attempt any rank-
ings. The output from the Focus Groups is exactly what was hoped for: a list of good ideas that may bene-
fit other courts, judges, lawyers and litigants.
There seems to be no doubt that the recently adopted uniform rules will significantly change current
practice in the Commercial Division. Indeed, much of the discussion in the final three Focus Groups cen-
tered on the new rules. Focus Group participants had many other suggestions as to how to improve the
Commercial Division, which are addressed in Part VI of this Report.
V
I DEAS FOR EXPORTATION TO OTH ER PARTS OF TH E COU RT SYSTEM
A. Use of TROs on Notice Except in Extraordinary Circumstances

The Focus Groups overwhelmingly supported wider usage of the Commercial Division Rule requir-
ing notice to the adversary in applications seeking Temporary Restraining Orders, absent unusual circum-
stances. Although the Focus Groups generally did not “vote” on any of their suggestions, whenever the
moderator asked if there was anyone opposed to this proposition, no one dissented.
Uniform Commercial Division Rule 20 requires that unless the moving party, “can demonstrate that
there will be significant prejudice by reason of giving notice,” applications for TROs should only be made
with notice to the adversary. As one upstate practitioner noted, the “significant prejudice” required would
be very rare, with the burden falling squarely on the moving party:
[O]ne, it is impractical because you just don’t have time. Literally, you just heard somebody is doing
something and you have to run and get the judge and you can’t take the time to try to track down the attor-
ney, which is a very small number of cases. Two, when you tell your adversary that you are going to do
something, your adversary takes the action in anticipation of the TRO. Other than those two circum-
stances, I can’t imagine a situation in which you shouldn’t give notice to your adversary.
Although Uniform Commercial Division Rule 20 codifies the practice that has long existed in the
Commercial Division, and in many other courts, participants raised a variety of potential problems that
could ensue unless the practice was followed in all courts. Some noted that litigants might engage in forum
shopping, refuse to bring cases in the Commercial Division, or disguise commercial matters in the hope of
litigating in other courts where they could seek TROs without notice.
Another major concern was incongruous results in the granting and denial of TROs. Participants
shared “war stories” of different judges treating multiple TRO applications in the same case inconsistently
and of procedural “nightmares” in which one losing party appealed and another losing party instead sought
relief in the court that issued the TRO. These problems, it was agreed, could be avoided if TROs normally
would be available only on notice, allowing the parties and the court to coordinate.
Requiring notice to the adversary on TRO applications would also have some positive side effects
according to the Focus Groups. Several judges, relying on their experience, recognized that requiring notice
might obviate the need for the TRO entirely. Appearing in chambers and working with the court, the par-
ties might be able to resolve their differences sufficiently by stipulation and prepare for a preliminary
injunction hearing. Another participant commented that requiring notice in all but the rarest of cases not
only fosters fairness but also helps speed resolutions:
That is particularly of interest to the business person who wants to get to the business courts, as some of
our clients call it, because they believe they’re going to get a more expeditious resolution, when we spend
the first month and a half of the case dealing with whether or not notice should have been given or
shouldn’t have been given up to the Appellate Division, back down to the trial Court. Notice is fairness.
Accordingly, the Focus Groups’ loud and clear recommendation is to export the requirement of notice
for TRO applications to the rest of the New York court system.

B. Address Electronic Discovery Issues Before They Become Problems
The Focus Groups revealed that issues of electronic discovery are emerging throughout New York
State courts, and in the Commercial Division in particular. Some jurisdictions have thus far had relatively
little experience with electronic discovery, while others have seen electronic discovery issues become so
hotly contested that they overshadow the entire case. That range of experience did not prevent the Focus
Groups from reaching a general consensus that electronic discovery issues were only going to grow in mag-
nitude and frequency and that they were not going to go away any time soon. Participants recognized that
“everybody has a computer,” that there has been “an exponential explosion of evidentiary material,” and
that there is a “delicious and wonderful feeling” to be able to get damning evidence from a computer that
might otherwise not have been available. As one senior litigator from New York County lamented:
It is going to affect every one of the rules. It is going to affect how you litigate and whether you can lit-
igate any complex litigation; and, of course, it starts with the question of how do you handle discovery
and then the next question is if you ever get [through] discovery, how do you handle trials.
In an attempt to address this powerful new force in litigation, Uniform Commercial Division Rule 8(b)
requires the parties to consult about nine enumerated electronic discovery issues in advance of the prelim-
inary conference, and then address them with the court at that conference. Even at Focus Group sessions
preceding promulgation of Uniform Commercial Division Rule 8(b), participants generally favored its
approach. They suggested that although some types of cases (e.g., automobile accidents and medical mal-
practice) might not present the same magnitude of electronic discovery issues as commercial cases, it
would be worth considering sharing this practice with other courts (particularly in those counties without
Commercial Divisions, but with equally complex cases).
Those preliminary conferences can head off many electronic discovery issues. Spoliation motions
have become tactical weapons in litigation, and electronic discovery a “gotcha game,” where litigators are
sometimes more interested in obtaining adverse inference instructions than in obtaining the documents
demanded by their discovery requests. As participants noted, those scenarios can be minimized through
preliminary conferences when the court can also address any unfair financial burdens of electronic discov-
ery or even stay discovery (as discussed in the next section) pending a dispositive motion.
Although some participants were concerned that addressing electronic discovery issues at an initial
conference risked filling every case with battles over electronic evidence, the consensus was that these
issues were likely to arise anyway, with more disruptive effects, later in the litigation. The view was that
the disruptions could be minimized if the parties and the court worked to resolve them early in the case.
The rationale for addressing electronic discovery up front was neatly summarized by one upstate
Commercial Division Justice, who commented:
I guess it’s here to stay and we are going to have to learn to deal with it and that’s the way it is, and all of
us judges are going to have to accommodate ourselves to it and everybody else. Electronic life is a fun-
damental reality and we have to learn to deal with it.
Using the preliminary conference to address electronic discovery issues is one way to “learn to deal
with it.” It should be among the Commercial Division practices considered for use elsewhere in the New
York courts, particularly as these issues inevitably continue to grow in size and frequency.
C. Issue Stays of Discovery Upon Dispositive Motions on a Case-By-Case Basis
The effect of a dispositive motion on discovery also generated substantial discussion. Three different
rules have existed in New York, along with a multitude of judicial opinions about them, many of which were
addressed in the Focus Group sessions. Pursuant to CPLR 3214(b), discovery is stayed pending resolution
of a dispositive motion “unless the court orders otherwise.” Until recently, a rule of some downstate
Division Justices had the practical effect of creating the opposite presumption – that discovery is not stayed
“unless the Justice directs.” Uniform Commercial Division Rule 11(d) eliminates any presumption and pro-
vides that the Justice has discretion in each case whether or not discovery should go forward.
With that backdrop, the participants recognized that a party’s role as plaintiff or defendant would like-
ly control its view of the stay. Plaintiffs seeking to get to trial as quickly as possible or gain settlement lever-
age would generally oppose the stay, while defense counsel, seeking to dispose of meritless or flawed cases
as inexpensively as possible, would want the stay. Several participants commented that with the rising costs
and burdens of electronic discovery, even a stay of only that type of disclosure could be of substantial ben-
efit. As one practitioner explained:
I’ll say it, for the people who we are representing, our customers, who say they want to get to a court-
house where they believe there will be an ability to resolve the case across the courtroom table as though
it was right across the board room table. That’s the atmosphere we need to create. And I believe by stay-
ing discovery while the motion is pending, saving the business person money, and having the opportuni-
ty for the business person to see what the other side has to say about their case…will help us resolve the
case.
Participants also recognized that different cases have different needs. To some upstate practitioners,
stays should usually be ordered as they allow cases to “take a breath” and prevent disproportionate amounts
of money from being spent by clients up front, especially in cases involving questionable merits. Due to
the more limited litigation budgets of smaller corporations, practitioners expressed the concern that allow-
ing discovery to proceed could have the detrimental effect of extracting premature settlements (or abandon-
ment of otherwise viable cases) simply to avoid the huge expense associated with discovery. In contrast,
other practitioners and judges recognized that limited discovery could be quite useful in some cases even
with a motion pending. If there are questions of witness availability, or other evidence where timing is
important, the court should have the ability to stay some, but not all, discovery. Similarly, if focused dis-
covery would help resolve a pending motion, it should take place.
The consensus favored a case-by-case approach on stays. As one Division Justice stated:
What concerns me about the stay of discovery is sometimes it’s a very tactical motion to do just that, stay
discovery. Not because you really think you have the likelihood of success on the merits. So having the
discretion to evaluate that case and deal with that case appropriately I think would be very useful.
The Division Justices who addressed this approach commented that they believed it would not be dif-
ficult, from reading the motion papers and hearing argument, to determine whether and to what extent a
stay should issue. Participants generally felt that getting the court involved, through early discussions of the
motion and a potential stay, might have the additional benefit of helping the court resolve the motion faster
(obviating the need for a stay), or establishing protocols to help the court and the parties jointly manage the
case more efficiently if it proceeds.
Thus, participants were generally of the view that judges in other New York courts should be encour-

aged to exercise their discretion to decide whether or not to allow a stay upon a dispositive motion.
Nevertheless, participants also noted two issues that should be weighed. First, although not inconsistent
with CPLR 3214(b), which allows the court to direct that there shall be no stay, it may be necessary to con-
sider legislative action to implement the discretionary rule on a broader basis. Second, participants recog-
nized that deciding stays on a case-by-case basis places an added burden on the courts’ already congested
dockets.
D. Proactive Involvement of Judges in Settlement and Creative Use of ADR

Discussion of settlement approaches and ADR practices in the Commercial Division generated some
particularly innovative ideas. Litigators and in-house counsel who spoke about settlement, although quite
complimentary of the Commercial Division’s ability to resolve matters, were eager to have the Justices
more involved in settlement negotiations. They routinely commented that judicial involvement can make a
huge difference in resolving matters or, at a minimum, precipitate further meaningful discussions between
the parties that ultimately leads to settlement. For example, at the New York County Focus Group, an in-
house counsel commented:
Any time a judge will get involved, where we think a settlement makes sense and we get the help, we can
usually settle it. It’s an enormous savings for us, because when I was in private practice, I liked to liti-
gate. When I went “in house,” we’re a back office expense and it makes no sense if you can be business-
like. Also, plaintiff’s counsel needs to feel that a judge has said what they did is reasonable, because they
are worried about malpractice or they are worried about not being tough. And if the judge actually says
that your case is not meritorious, or this part of it is not meritorious, or they say that “this witness is going
to kill you,” that actually makes a huge impact.
Although all of the Division Justices were willing to help settle matters, several expressed some con-
cern that it might not be appropriate for the court to handle settlement talks in cases involving a bench trial.
As one Justice explained:
The first problem is that the judge says things in the course of the settlement discussion that may give
the litigants a view of what the judge’s thinking is, and that’s not appropriate until you’ve heard all the
case. I think that’s wrong.
You may say something that you might change your mind about, and that might influence the outcome
of the settlement negotiations, and that’s not fair.
The second is that I’m trying a case in which there are different amounts involved and people make
offers, and I have to determine what is a fair amount of compensation in a particular case. I’ve now deter-
mined what the defendant is prepared to pay. I’m certainly not going to – the tendency is that I’m not
going to find less than that amount.
The participants also identified a related problem: although consent of the parties and their lawyers
could cure much of the perceived difficulties in matters to be tried by the court, obtaining that consent
could be “illusory.” Lawyers might be reluctant to tell a judge that they do not want him or her to handle
settlement talks, rendering their consent less than meaningful.
Recognizing that different judges might have different comfort levels, and indeed different levels of
success in settling cases, the Focus Groups addressed other approaches of the Commercial Division that
could be adapted and used in other New York courts. First, the courts could use a consent form for parties
to prepare should they wish, at any time, to have the judge who is to preside over a bench trial oversee and
direct settlement talks. The judge would not need to ask for consent, and the parties could approve the judi-
cial involvement without the risk of feeling pressured to do so. The consent form could also ensure that the
parties would not use the judge’s involvement in settlement as the basis for a later recusal motion.
Second, participants commented that additional resources should be available to judges in settling
cases, such as other judicial or quasi-judicial officers or alternative dispute resolution methods. The
Commercial Division has used such resources to varying degrees throughout the State. Although Division
Justices had varying views of the effectiveness of each of those options, they generally agreed that being
able to use any of them in a specific case would help. The Focus Groups agreed that individual cases might
be more or less susceptible to resolution through various different means, but that having court attorney
referees, Judicial Hearing Officers, lists of neutrals or even other judges from the same court available for
referral, could make a big difference.
Third, the Focus Groups noted with approval the new Uniform Commercial Division Rule 3, permit-
ting Justices to order that the parties attend free mediation through a court referral. The genesis of this rule
was the ADR program implemented in New York County where Division Justices have had the ability to
send cases to uncompensated mediators for the purpose of resolving all or some of the issues presented.
These mediators are lawyers who have attended training sessions focused on mediating commercial mat-
ters and who have agreed to volunteer their time to mediate Commercial Division cases. The new Uniform
Commercial Division Rule 3 provided a framework for discussion. Those in the New York County Focus
Group, where the essence of the rule had been in practice for a long time, gave their practical views and
suggestions on how other counties with Commercial Divisions, and indeed other courts, might take advan-
tage of similar practices. Those participants in other Focus Groups, applauding the new rule, offered their
respective experiences with ADR outside the New York courts, and offered similarly helpful suggestions
on how to make use of this good idea such as (1) avoiding interruptions during mediation since there is a
natural momentum that is lost if the parties are free to leave before the matter has been resolved, (2) requir-
ing that the corporate executive responsible for approving the legal bills be present at the mediation, and
(3) setting the proper mindset for the parties to a mediation (i.e., each party should be prepared to make a
major move and avoid trying to convince the other side of the weaknesses in its case).
Participants acknowledged that many cases, with the right mediator and involvement of the decision-
making parties, could reach settlement quickly and effectively through mediation. For example, one in-
house counsel at the New York County Focus Group commented “I believe if mediation is orderly and the
discussion process begins early, we are more likely ultimately to get a settlement.” He also commented that
even failed mediations were a good thing because they “began the process.” Other participants echoed this
sentiment by stating that even if the matters did not settle immediately, mediation could open a fruitful dia-
logue between business people on each side.
With regard to timing, in response to a Division Justice’s comment that he relies on counsel to advise
him whether mediation would be most appropriate before or after discovery, an in-house counsel quipped:
The only thing I would say…is that I wouldn’t assume that outside lawyers are giving you fully accurate
answers to those questions. I think if you talk to some of us on this side of the table, you would find that,
as a general matter, we’re ready sooner than the lawyers are.
The Focus Groups’ approval of the new rule, however, was tempered by a recognition that mediation
should not be forced on parties who are not ready. Some participants complained that even preparing for

mediation in a large complex matter could be costly. Others, including one participant who regularly serves
as a mediator, noted that the process simply does not work if the parties are not willing to engage in the
effort in good faith:
People who have mediated I’m sure say the same thing that I have in the opening conference. I make it
very clear that both sides are there with the idea of actively participating in settlement discussions and
working with the mediator with the purpose of resolving the dispute. If they aren’t, we might as well quit
right now, go home. Because I’m not going to go any farther because you can’t — you cannot force peo-
ple into mediation. So I think compulsory mediation, basically, is difficult.
Other useful comments emanating from the discussions included providing consistently “user-
friendly” mediator lists that would include, in addition to the mediators’ names in alphabetical order,
detailed information concerning the mediators’ backgrounds (e.g., admissions, education and professional
experience) and permitting the parties to choose their mediator rather than having one selected for them by
the judge. Some proposed encouraging the parties to agree in advance that after a certain time period of
volunteer mediation, the parties will share the expense of compensating the mediator should they wish to
continue the process. Additional suggestions included developing an anonymous method for parties to
declare their desire to participate in mediation so that they do not appear weak in open court; limiting
mandatory mediation to certain types of cases (e.g., promissory notes) or monetary limits (e.g., cases
involving ad damnum clauses of $ X or less); and calling on the Bar to provide feedback on their experi-
ences with the mediators so that ineffective mediators are taken off the list.
Expansion of the Commercial Division’s settlement practices and ADR methods to other parts of the
court system should bear these suggestions in mind.
E. Support the Use of Technology at Trial

The complex trials that have taken place in the Commercial Division have led to technological inno-
vations as well. The establishment of Courtroom 2000 in New York County (later named the “Courtroom
of the Future”) allowed jurors to view documents on individual monitors and provided a degree of techno-
logical support then unparalleled in the New York courts. Use of the Courtroom’s technology has decreased,
however, in favor of litigants using their own technology and support teams.
The Focus Groups’ discussions left no doubt that supporting litigants’ use of technology at trial, and
particularly a jury trial, was favored and should be considered for use outside the Commercial Division.
Many participants related “war stories” about how trials could never have succeeded without the use of
technology. As one practitioner noted:
You don’t need paper. In a commercial case it is death to have jurors try to read seven pieces of corre-
spondence and put it up on the screen. So I think as a goal for our Division would be to look for those
techniques which make it easier for those cases.
Being able to use PowerPoint presentations (which one upstate participant called “the toy of the pres-
ent”), or employing large screens to place highlighted portions of key documents before the trier of fact,
seems to make a big difference. Some participants suggested that the court decide in the early conferences
whether use of technology at trial should be mandatory. In smaller cases, involving fewer documents, tech-
nology might still be helpful: having a large screen in the courtroom to display documents or play back por-
tions of deposition videos could be of great benefit.
Focus Group participants were concerned, however, that the parties work together and not choose tech-
nological trial support vendors using conflicting systems. The immense benefits of avoiding a paper trial
can quickly diminish if the court is required, at the eleventh hour, to resolve disputes about logistical issues
in these situations. One possible solution is to have the parties choose their vendors and then have the ven-
dors jointly select a third party to provide equipment they can all use.
F. Proactive, Hands On, But Adaptable Case Management

One of the hallmarks of the Commercial Division has been the involvement of the Justices in shaping
the cases before them from the beginning. Through the use of proactive, hands on, adaptable case manage-
ment, the Commercial Division has left litigants and their lawyers with a sense that they have had their day
in court, and that they have received the judicial attention their matters needed.
Focus Group participants recognized that not every case in the New York state courts needs this degree
of judicial involvement, and not every court within the system has the resources to provide it. But there was
consensus that spending time at the beginning of a case, setting ground rules, demonstrating interest and
energy in resolving a dispute, could pay great dividends for the parties and the court later in the case. There
was also a strong consensus that certain aspects of the Commercial Division’s flexible and adaptable
approach ought to be emphasized, if this approach were to be shared with other parts of the court system.
First, participants noted that it is very important to allow lawyers to work together and agree on real-
istic deadlines for discovery, motion practice and other scheduling matters. If the court interferes with the
lawyers’ agreed-to reasonable timetables, hoping to move the case faster, the case can become overly com-
pressed, making it even more expensive and difficult to litigate efficiently. As one lawyer explained, con-
trasting the Commercial Division with the “rocket docket” in the Eastern District of Virginia:
I think the [Commercial Division] does a great job. There are some cases in the federal court in Virginia
and I think it is a waste of money. The schedules are so tight they don’t leave time for reflection or time
for consideration. They don’t leave time for settlement discussion. I think this court has it mixed pretty
right.
Although the participants did not want their cases moved too quickly, they also did not want them to
languish. Some judges and lawyers contrasted Commercial Division matters with cases that might never
move forward without court involvement. Other participants lamented what happens when a case has a
“hiatus.” The lawyers, no longer focusing on the matter due to the lack of realistic deadlines they know will
be enforced, have to “relearn” the matter quickly, often inefficiently and at great expense, once it restarts.
Courts should do what they can to prevent such lulls.
Finally, a number of participants spoke about how useful telephone conferences could be. Division
Justices observed that it is simply more cost-effective and efficient for certain conferences to be conduct-
ed by telephone rather than in person. This could help combat the inevitable delays in calendar calls, and
attendant time waiting in courtrooms. Practitioners – particularly in upstate New York where some have
significant travel burdens to reach the court – agreed that being able to “appear” by telephone would be
beneficial.
G. Optional Statements of Material Fact on Summary Judgment Motions

New Uniform Commercial Division Rule 19-a permits, but does not require, Division Justices to

direct attorneys filing a motion for summary judgment to provide a “short and concise statement, in num-
bered paragraphs, of the material facts as to which the moving party contends that there is no genuine issue
to be tried.” The other party has the opportunity to submit a corresponding statement demonstrating how
and why there are issues of fact that should lead to denial of the motion. When such statements of materi-
al fact (“SMF”) are used, each side is to include citations to evidentiary materials that support (or counter)
the assertions that the facts are undisputed.
Participants expressed a wide range of views about the use of SMFs. The general consensus support-
ed the rule’s making SMFs permissive rather than mandatory. Some recognized that not every case, and not
every Division Justice, would benefit from using SMFs. There was recognition that SMFs are useful if the
parties coordinate with each other, perhaps after a conference with the court. If they follow the same for-
mat in preparing their papers and ensure that supporting evidence is properly cited, SMFs can be a cost-
and time-saving benefit, that can aid in analyzing complex factual matters. Additionally, as one judicial par-
ticipant noted, an SMF can also force the attorneys to focus on issues, earlier in the case, that they might
not ordinarily focus on until later, if at all.
The biggest benefit, however, may be to the clients whose interests are most directly affected by
Commercial Division litigation. As one practitioner noted:
And our customers, the people to whom we provide the service, they all say that to me “I thought you
said summary judgment, you’d narrow the proof, and I cannot figure out what this guy’s saying about my
case.” But if there was a statement of uncontested material facts to which the other side must deny and
then provide the contrary statement of facts, that would go a long way to assist in the adjudication of jus-
tice and satisfy the folks we serve.
The Focus Groups also identified a number of reasons why the court should retain discretion not to
use SMFs in a given case. Certain matters, as some judges noted, are simple enough that good questioning
at oral argument can get to the heart of the issues without the need for added papers, time or expense. In
other matters, where the parties have disparate resources, one party could misuse the SMF to force the other
side to respond, paragraph by paragraph, to an unwieldy and lengthy SMF. And in some matters where the
attorneys are already quite good at focusing their arguments and engaging each other (and the court) in
their briefing, this added tool would not have the same benefit.
For all of these reasons, participants thought it was appropriate to consider SMFs in other parts of the
court system, so long as the court has discretion to decide whether they are appropriate in a given case.
H. Require Page Limitations on Motion Papers

Another common theme of discussion in the Focus Groups was that finding ways to decrease the mas-
sive mountain of motion papers that passes through the Commercial Division would be a good thing. That
volume of paper overburdens judicial resources and only underscores the benefit of new Uniform
Commercial Division Rule 17, limiting main and reply briefs to 25 and 15 pages respectively, and affidavits
to 25 pages.
Focus Group participants generally favored exporting this simple rule outside the Commercial Division,
with two caveats. Among the benefits of the rule, participants commented that limitations protect judges and
their staffs from loquacious litigants and unwieldy legal arguments and force attorneys to be more concise
in their positions. As one Justice noted, if coupled with statements of material facts, attorneys could remove
most or all of the facts from their briefs and use the saved space for additional legal arguments.
Participants did warn, however, of a potential risk of “sideshow” litigation over the length of briefs. A
motion to strike the brief or affidavit for exceeding or circumventing space limitations could require more
time and effort than would be saved by a shorter document. At a minimum, there might be an increase in
applications seeking (and opposing) court approval to exceed the page limit. Elsewhere, a practitioner
noted that pro se litigants present special problems for this type of rule since they may need greater lati-
tude in presenting their arguments to the court.
Any consideration of page limits should keep these concerns in mind.
I. Use Uniform Rules to Enhance Predictability and Transparency

Particularly in those Focus Group sessions occurring after the January 17, 2006 adoption of the
Uniform Commercial Division Rules, many participants weighed in on whether similar statewide uniform
rules would be appropriate for other areas of the court system. It became clear that because of the nuances
of practice in different geographic areas of the State not every rule can or should be uniform.
Nonetheless, the general consensus favored uniform rules. Some practitioners and in-house lawyers
noted that attorneys should not have to relearn the rules applicable to each court where they practice. The
resulting inefficiency, both in attorney time and client money, of having to adjust to each court’s specific
guidelines, could easily be avoided if uniform rules were established across types of courts to simplify
practice in those forums. One Division Justice pointed out that uniformity – in instances where recusal of
a Division Justice is necessary – makes clear that the rules of litigation are not going to drastically change
because the case is being reassigned to another judge who does not ordinarily sit in the Commercial
Division:
[I]f the case is assigned to another jurist in [my] county, will the commercial rules apply? It was impor-
tant to the practitioner to know that the commercial rules would apply in a case that was going to be trans-
ferred out of my part to another jurist because of recusal. That tells me that the bar can work with the
rules, wants to work with the rules and wants to make sure when they litigate a case that those rules are
going to be complied with no matter what jurist is handling the case. I thought that was a significant plus
for the rules that we have in place.
Practitioners did offer a pair of caveats about adopting additional uniform rules, which are instructive,
however. First, participants recognized that uniformity is particularly helpful because everyone knows
where to find uniform rules. Thus, a uniform format would be a potential first step. Commenting on how
easy it is to find the uniform rules, another practitioner stated:
What I think the advantage is, as I look at these rules, is that if somebody needed to look them up, they
would know where to find them. Where for the rest of the practice throughout the districts if you tried to
look at the uniform rules in one district, summary judgment motions may be in 200, another one they
might be under 540 so I guess you want uniform format of the rules….
But as one upstate practitioner noted, uniformity only works if all of the courts operating under the uniform
rules embrace them:
[U]niformity and uniform rules means uniform across the state. And if the court system can do anything
to help the practitioner it would be to make sure that all the judges understand that uniform means uni-
form and that no one should have their own individual rules, to trump the uniform rules.

J. Increase Use of In Limine Motions
Perhaps more than any other trial court in New York, the Commercial Division receives in limine
motions in which lawyers attempt to persuade the court to rule in advance of trial on evidence, expert wit-
nesses and, in some matters, even theories of the case. There seem to be substantial reason, based on the dis-
cussions of the Focus Groups, why in limine motions should be encouraged throughout the New York courts.
Among other benefits, participants noted that judges appreciate the opportunity to resolve evidentiary
issues before trial, rather than in the midst of testimony. This, of course, allows the court to give thought-
ful consideration to the issues presented and, in a jury trial, prevents delay and waste of jurors’ time. Other
participants cited the potential benefit that resolving in limine motions early could have in aiding case res-
olution. Particularly under Uniform Commercial Division Rule 27, requiring in limine motions to be made
at least 10 days in advance of the pre-trial conference, a court’s ruling on a disputed evidentiary matter
could, in appropriate cases, foster case resolution (or at least additional settlement talks). At a minimum,
as still other participants noted, early resolution of in limine motions saves the court, lawyers and litigants
time and resources, to the extent the motions can clarify (if not minimize) the dimensions of the case, and
the need for proof.
K. Increase Use of E-Filing

The use of Filing By Electronic Means (or e-filing), has become a staple of Federal practice. New York
State also has an e-filing program in the Commercial Division (as well as certain other types of matters) in
selected counties throughout the State. Within the Focus Groups opinions differed on the use of e-filing in
the Commercial Division and its potential expansion. Just as there were impassioned pleas not to make e-
filing mandatory (as it is in Federal courts), there were practitioners who recognized that it needs to have
a place in the court system. As one upstate lawyer remarked:
The whole idea of New York as being the world’s center of litigation, means we have to get with it. As
attorneys get used to making the filings in federal court and as all other things get done electronically in
the commercial world, you just can’t justify not doing it if you are the world center of commercial litiga-
tion. You just can’t justify it. It is a ridiculous anachronism. We might as well wear wigs.
In support of e-filing, participants from both the Bench and Bar cited the ease of handling materials
containing trade secrets or other confidential information. They also noted that e-filing could spare attor-
neys the time and effort, and their clients the cost, of having to re-submit prior pleadings from the case ref-
erenced in later motion papers. Attorneys and clients who e-file would have the added benefit of easier
tracking of court filings and case progress through the program’s computerized docketing system.
Conversely, some participants raised concerns about the inability, or unwillingness, of practition-
ers to rely on computers to file papers. Some noted that small firm or solo practitioners, or those who are
not computer savvy, would be at a distinct disadvantage to the extent that e-filings received preferential
treatment, or were otherwise encouraged by the court. Others commented that if e-filing extended the dead-
line for filing papers from the close of business (i.e., while the courthouse was open), until midnight of that
day (i.e., before the computer’s time stamp changed to the next day), there would be potential for abuse.
Attorneys would have to check for notification from the e-filing system well after normal business hours
to see whether their adversary’s papers had been filed and determine what response, if any, would be
needed.
On balance, the Focus Groups suggested that e-filing be expanded, so long as it is not made manda-
tory and those concerns are kept in mind. At a minimum, legislative action will be necessary to make this
a system-wide reality. Those cautioning against a rapid expansion also noted the need for additional train-
ing and lawyer assistance.
L. Pre-Motion Conferences for Discovery Motions

Among the most active and vigorous discussion in the Focus Groups was over new Uniform
Commercial Division Rule 24, which generally requires parties seeking to make certain motions to file a
two-page letter in support of a proposed motion or cross-motion, followed by a telephone or in-court con-
ference with the judge. One of the benefits of this rule is to clarify or narrow the issues involved in the
motion or, in appropriate cases, obviate the need for the motion, by addressing the merits and possibly nar-
rowing the issues to be briefed. Although the rule was not promulgated to stop parties from making motions
but instead to help the court control its docket and work with the attorneys to avoid unnecessary motions,
numerous participants in the Focus Groups expressed concern over the new Rule’s potential effects.
In some Focus Groups, judicial participants commented that, no matter how gently the court might
suggest that a lawyer reconsider the merits of a proposed motion, the court could be perceived as signaling
how the motion would be received (i.e., an automatic denial regardless of the motion’s merits). Numerous
participants identified the added cost of pre-motion practice as an unfair burden on lawyers and clients.
Practitioners noted that in smaller counties, with fewer judges and lawyers, reputation was a more effective
deterrent to frivolous or wasteful motion practice than any pre-motion letter or conference. Finally, partic-
ipants cited concerns about revealing their theory of the motion in advance, either causing the court to pre-
judge the issues on an incomplete record, or divulging more to their adversary than they would otherwise
wish.
Time will tell what impact the rule will have on statewide practice. Participants generally expressed
the view that, due to the experience of the Commercial Division judges and the complexity of the cases,
the rule is more beneficial in the Division than elsewhere. Participants were virtually unanimous in sug-
gesting that a Rule 24-like procedure, both in the Commercial Division and elsewhere, would be an effec-
tive way to limit the number of discovery motions. Even those expressing doubts about Rule 24 were sup-
portive of its use in the discovery context. As one upstate participant noted:
Discovery is different. Let me be clear on that. I am very much in favor of eliminating discovery motions
altogether. I mean, I think the idea of writing a letter and asking for a conference with the Court on the
discovery issue is the way to go because we waste way too much time on motions to compel.
Indeed, judicial participants said that the courts would benefit from a rule that would help curtail dis-
covery motions, which are often counterproductive. One Division Justice said:
They’re very hard to decide on papers, because I’m going to boil it down to, I ask them for everything,
they gave me nothing, we gave them everything they asked for. And that’s not what we get. But for us to
go through it and figure out exactly what it is will take hours or days, whereas I can say to counsel, refine
it down, tell me what’s missing, in a conversation. We can get through that far more quickly than if I sit
there with the motion, the opposition, the reply, and I try and figure out what is it this interrogatory…
that’s why we would prefer to have the opportunity to deal with those discovery issues. And a lot of times
the solution is not going to be the request or the opposition, it’s going to be the middle ground that, you
know, through the conversation we figured out.

A few participants noted that some counties, some parts and even some courts might lack sufficient
support resources to successfully implement a rule like Uniform Commercial Division Rule 24 for discov-
ery motions. Others noted that whatever the temporary strain on resources the rule would create, this bur-
den would be easily outweighed by the ultimate time savings court staff would achieve through reduction
of unnecessary motions.
VI
T H E F O C U S G R O U P S ’ R E CO M M E N DAT I O N S F O R T H E
CO M M E R C I A L D I V I S I O N
O ne of the goals of the Focus Groups was to identify those areas of the Commercial Division’s prac-
tices and procedures that might be exported for use elsewhere within the court system – the preced-
ing sections identify many possible candidates. Another purpose of the Focus Groups was development of
ideas for improvement of the Commercial Division itself, to which this Report next turns.
The newly-adopted Uniform Commercial Division Rules significantly changed practice within the
Commercial Division and were themselves the subject of extensive discussion before they were adopted.
The new rules ensure consistency regarding rules of practice throughout the State. They address key
aspects of commercial litigation, including motion practice, electronic discovery, pre-trial conferences,
temporary restraining orders and trial scheduling. They also delineate definitive requirements governing
the cases that may be heard in the Commercial Division, including monetary thresholds throughout the
State. While the new rules also generated substantial discussion within the Focus Groups, the suggestions
below are independent of them. Needless to say, these suggestions for change within the Commercial
Division may themselves also be candidates for later expansion to other areas of the New York State courts.
A. Permit Expert Discovery

In discussions about the costs and benefits of bringing and defending actions in the Commercial
Division, the Federal courts or elsewhere, commercial litigators and in-house counsel consistently
described their decision-making process as a balancing test. Some viewed the availability of interlocutory
appeals in New York, and therefore the ability to appeal an adverse summary judgment or other ruling
immediately, as a strong reason to choose the Commercial Division. Indeed, one practitioner referred to this
as “one of [New York’s] biggest attractions.” On the other hand, several participants cited the lack of expert
discovery as a reason to use other forums. Some practitioners commented that it was of interest to their
clients to be able to conduct meaningful and appropriate expert discovery.
Article 31 of the CPLR does not provide nearly the same degree of expert disclosure that the Federal
Rules of Civil Procedure contemplate. However, participants believed that Commercial Division cases
could benefit from more expert discovery. By their nature, commercial cases tend to have complex issues
that need particularly knowledgeable experts. Expert paper disclosure and even expert depositions may
well assist the court, the lawyers and the parties to clarify and narrow the issues.
B. Provide Additional Judicial Support for the Commercial Division
Throughout the Focus Groups, participants agreed that it would be helpful to have additional judges
involved in the Commercial Division, particularly in those counties with only one or two judges currently
involved. Judges expressed the concern, echoing the comments regarding settlement practices described
above, that they would like to have another judge to whom they could refer a case for settlement discus-
sions (or trial) if the matter is a bench trial. They also recognized that there will be times when vacations
or other scheduling conflicts would mean that a single judge (or even both judges in a two-judge county)
may not be available. One judge noted that practitioners may be justified in their concern that the
Commercial Division rules and practices might be disregarded by a substitute judge lacking knowledge and
experience with them.
Practitioners raised the separate concern that reliance on a single judge to cover all Commercial
Division matters in one Judicial District could be problematic for practitioners who have had a bad expe-
rience with that judge. As one lawyer stated:
[I]t does seem that the concept of a commercial part would be more attractive to many practitioners if
they knew that their fate in that Division would not rest in the hands, as its been touched upon, by a
single judge with whom they get along, don’t get along or whatever, but for many practitioners perhaps
to have their role in the commercial system in the hands of one predesignated jurist might seem very
formidable. It would be almost the difference between practicing in Supreme Court and Surrogate’s
Court….
Relatedly, other participants noted that limiting the Commercial Division to a single judge would have
the unintended (if not undesirable) result of excluding excellent judges with both the interest and aptitude
in commercial matters from helping resolve the cases and furthering the Commercial Division’s mission.
The additional judicial support for the Commercial Division need not, however, be a judge assigned
to the Division. It could be designating other Supreme Court Justices or even Judicial Hearing Officers,
whether on an ongoing or one-time basis, to handle settlement discussions, trials or even overflow of
motions, as the needs of the court require. This practice has informally developed in several counties (New
York, Suffolk, and Kings), and it may be worthy of continuation and expansion to other counties in the
future.
C. Implement Online Scheduling Orders

All Focus Group participants viewed the Commercial Division’s proactive case management
approaches as positive. Some participants, however, offered suggestions for making the conferencing sys-
tem, and the preliminary conference in particular, even more efficient. Implementing online scheduling
orders, which could be made available on the Commercial Division’s website (www.nycourts.gov/comdiv),
could have multiple benefits. It would allow attorneys and clients to have a realistic sense of the areas the
court expected to cover and resolve in the conference. It would facilitate discussion, and perhaps even res-
olution, of some issues before the court even got involved. And, perhaps most importantly, it would pro-
vide an easy means for the parties to submit any agreed-upon terms to the court, allowing them to be “so
ordered.” This, in itself, could save both the court and attorneys the time spent conferencing certain sched-
uling matters in person.

D. Update Jury Instructions Applicable to Commercial Cases
More than one judge, as well as practitioners, noted that the jury instructions available for commer-
cial matters, particularly contracts, needed updating. As one judge stated:
If the goal is to make New York courts a nationwide model in commercial litigation, then we can’t have
[jury instructions] that are this outdated. It’s just, you know, because that’s the intellectual foundation for
everything else you do, not just for judges, for lawyers. That’s where it really all starts. We need to have
them updated.
Focus Group participants specifically identified a need for attention to such topics as spoliation, elec-
tronic discovery and modern business transactions – subjects that have undergone great change recently.
Several participants volunteered to serve as a resource for revising instructions.
E. Make Accommodations for Commercial Matters in the Appellate Process

New York’s role as the business and commercial center of the United States is bolstered by the devel-
opment of commercial law in its appellate courts as well as in its Commercial Division. Issues of vital inter-
est to the community – including those relating to commercial disputes – should be winding their way
through the intermediate appellate courts for final resolution in the New York Court of Appeals. Yet ques-
tion has been raised regarding why so few commercial cases (as compared to vast number of commercial
cases found at the trial court level) are appealed to the Appellate Division and the Court of Appeals.
Focus Group participants advanced several explanations for the relatively small number of commer-
cial appeals, in addition to the obvious factor of the economics of settlement. First, there are times that the
appeals have become mooted when the trial judge and the Appellate Division have refused to grant a stay
of the trial pending appeal. This experience seems to be reflected in a comment made by one Commercial
Division Justice that, although the number of appeals emanating from Commercial Divisions is equal to the
number of appeals emanating from other parts, his experience was that a much lower number is actually
perfected and argued. Second, a commercial litigator suggested that the reason so few cases make their way
to the Court of Appeals is the concern that the Court will not grant leave; the statistics are discouraging.
A third factor weighing against appeals was the risk of broader consequences an appellate decision
might have for the litigant, beyond the particular case. It was noted that the last thing a corporation wants
is to be saddled with “bad law” from its perspective for collateral estoppel purposes. The decision whether
to pursue an appeal rested both on “internal” factors (has the case been fully evaluated in-house?) and
external factors (will the appeal receive the attention from the court it deserves?). There was a range of
views about the current treatment of commercial appeals, particularly among the litigators and clients.
Despite the variety of opinions, the participants raised several constructive suggestions. Some said that
because commercial matters, by their nature, tend to be more complex, the appellate courts should allow
more time for oral argument and longer briefs. Others called upon the bar to be more active in educating
the appellate courts about the more esoteric issues involved in commercial matters today, perhaps through
amicus briefs or even CLE programs. Another suggestion was for bar associations to actively support com-
mercially savvy appellate judges in judicial screening panels.
Finally, some expressed the concern that because of finite resources and a huge volume of appeals
found in certain Appellate Division Departments, it is difficult, if not impossible, for those courts to play
a vital role in developing commercial law. Overwhelmingly, cases are necessarily resolved by those courts
in memoranda, which are often one or two paragraphs in length, instead of full decisions. Greater resources
directed at these cases could assist in the development of commercial law.
Several Commercial Division Justices expressed concern that, although interlocutory appeals were
generally viewed as a positive feature by practitioners and clients, the passage of time while cases were on
appeal still counted against the court’s standards and goals statistics. They suggested that the Office of
Court Administration include a tolling provision to address this. Other participants suggested that it might
be worthwhile for OCA to study the percentage of Commercial Division cases that are reversed in the
Appellate Division. Finally, there was a suggestion that the Commercial Division itself be expanded to
other parts of the State – the more trial courts there are with a specialty in commercial matters, the more
commercial law will develop.

A P P E N D I X A : List of Commercial Division Justices
JUSTICES OF THE COMMERCIAL DIVISION

OF T H E S U P R E M E C O U RT O F T H E S TAT E O F N E W Y O R K
A L B A N Y CO U N T Y
Hon. William E. McCarthy
E R I E CO U N T Y
Hon. Eugene M. Fahey
K I N G S CO U N T Y
Hon. Carolyn E. Demarest

Hon. Ann T. Pfau
M O N R O E CO U N T Y a n d S E V E N T H J U D I C I A L D I ST R I C T
Hon. Kenneth R. Fisher
N A S S AU CO U N T Y
Hon. Leonard B. Austin

Hon. Ira B. Warshawsky
Hon. Stephen A. Bucaria
N E W YO R K CO U N T Y
Hon. Herman Cahn

Hon. Helen E. Freedman
Hon. Bernard J. Fried
Hon. Ira Gammerman
Hon. Richard B. Lowe III
Hon. Karla Moskowitz
Hon. Charles E. Ramos
Q U E E N S CO U N T Y
Hon. Marguerite A. Grays

Hon. Orin R. Kitzes
S U F F O L K CO U N T Y
Hon. Elizabeth Hazlitt Emerson

Hon. Sandra L. Sgroi
W E STC H E ST E R CO U N T Y
Hon. Kenneth W. Rudolph
A P P E N D I X B : Invitation Letter to Focus Groups
State of New York

140 Grand Street, Suite 704
White Plains, N.Y. 10601
(914) 997-7980
Jonathan Lippman
Chief Administrative Judge
and
Justice of the Supreme Court November 2, 2005
XXXXX
XXXXXXXXXX
XXXXXXXXXXXX
Dear ____________:
As a regular practitioner of the Commercial Division, I am writing to request your participation in

a focus group panel designed to identify areas in which the operations, rules and procedures of the
Commercial Division can be improved. We hope to use the information obtained: (1) to identify gaps in
services and generate ideas for future improvements; and (2) to assess the feasibility of transferring
the “best practices” of the Commercial Division to other areas within our court system.
The focus group will consist of commercial litigators, Chief Litigation Counsel of major corpora-
tions, and justices from the Commercial Division, New York County. We believe your expertise and
insights would be very beneficial to this project, which is of particular interest to Chief Judge Judith
Kaye in the 10th Anniversary year of the establishment of the Commercial Division. The focus group
will be facilitated by Robert Haig, Esq. of Kelley Drye & Warren, LLP, and Co-Chair of the Commercial
Courts Task Force, which was established by Chief Judge Kaye to create and refine the Commercial
Division.
During this session, which is expected to last 2 1/2 hours, Mr. Haig will be engaging you in a dis-
cussion concerning a variety of topics (a copy of the list of discussion topics is enclosed for your
review). All focus group discussions will remain confidential. The session will be tape recorded and
transcribed. All focus group participants’ comments included in the final report will be reported anony-
mously.
The focus group is scheduled to take place on Thursday, December 1, 2005 at 2 p.m. at the New
York County Supreme Court, 60 Centre Street, 7th Floor Conference Room. Please contact my
Principal Law Clerk, Gretchen Walsh (914) 997-7980, no later than November 14, 2005, regarding
your availability to attend the focus group session. I hope you will be able to participate in this impor-
tant effort.
Very truly yours,

A P P E N D I X C : List of Topics – Commercial Division Focus Groups
I. Rules
A. Should changes be made to the current Guidelines for assignment of cases to the Commercial Division?
If so, what changes are needed most? These questions encompass the definition of a commercial case
in the Guidelines as well as the procedures for assignment of a case to the Commercial Division at the
inception of the case and for subsequently transferring cases into and out of the Commercial Division.
B. Should changes to be made to the current Rules of Practice in the Commercial Division? If so, what
changes are needed most?
C. Should the Guidelines, Rules and procedures in the Commercial Division be uniform throughout New
York State (or at least within particular counties or Judicial Departments)? Is uniformity appropriate
for some Guidelines, Rules and procedures and inappropriate for others? If so, which ones?
D. Does the Commercial Division have appropriate procedures for requesting adjournments? Does the
Commercial Division respond appropriately to such requests?
E. What are your views on the following Commercial Division innovations?
1. New York Rule 12 providing that a motion to dismiss or for summary judgment shall not stay
disclosure unless the Justice directs.
2. The requirement of statements of undisputed facts in connection with summary judgment
motions.
3. The requirement of notice to the opposing party prior to an application for a temporary restraining
order.
4. The use of pre-motion conferences.
II. The Role of the Judge

A. Does the Commercial Division do a good job of facilitating settlement of cases? What improvements
should be made in the Commercial Division’s approach to settlement?
B. Should the Judges in the Commercial Division be more proactive or less proactive in case management?
In what respects?
C. Does the Commercial Division make effective use of preliminary conferences? What improvements
should be made?
D. What changes, if any, should be made in the way the Commercial Division handles motions? Why?
E. What changes, if any, should be made in the way the Commercial Division manages disclosure? Why?
F. What changes, if any, should be made to the Commercial Division’s pre-trial conferences and other pre-
trial procedures? This question focuses on conferences and procedures after disclosure is completed.
G. What improvements, if any, should be made to trials in the Commercial Division?
III. Alternative Dispute Resolution

A. What role should alternative dispute resolution play in the Commercial Division? Are improvements
needed in the current use of ADR in the Commercial Division and, if so, what improvements are
needed most? Should use of ADR be mandatory in more cases or fewer? Why? What kinds of ADR
should be used in Commercial Division cases under various circumstances?
IV. Technology
A. Is the Commercial Division using technology effectively to achieve its objectives? What improvements
should be made in the Commercial Division’s use of technology? In particular, please discuss electronic
filing of cases and other papers as well as technology provided by the Commercial Division for use dur-
ing trials, case management technology, and file storage and access technology.
V. General Evaluation
A. Does the Commercial Division dispose of cases too fast or too slow? What is the rationale for your
answer?
B. If you had a choice in commencing a case either in the Commercial Division or in other courts or
dispute resolution facilities, what would cause you to select an alternative to the Commercial
Division? Please consider, in particular, federal courts, other state courts such as the Delaware
Chancery Court, and private arbitration.
C. Are the decisions of the Commercial Division sufficiently predictable to enable businesses to
develop reliable business and litigation strategies? If not, what can and should the Commercial
Division do to increase predictability of its decisions?
D. Is the Commercial Division a cost-effective way to resolve commercial disputes? How can its cost-
effectiveness be improved?
E. What are your feelings about the ways in which the Judges, non-judicial personnel, litigators, and
clients interact and relate to each other in the Commercial Division?
F. Are any changes needed either in the non-judicial personnel assigned to the Commercial Division
or in the jobs to which they are assigned or in the way they do their jobs? If so, what specific
changes would you recommend?
G. Should the Commercial Division be doing more to educate the bar and the business community
about the operations and procedures of the Commercial Division? If so, what specific types of edu-
cation would be most effective and most useful?

A P P E N D I X D : Uniform Commercial Division Rules [22 NYCRR 202.70]
§202.70 Rules of the Commercial Division of the Supreme Court
(a) Monetary thresholds

Except as set forth in subdivision (b), the monetary thresholds of the Commercial Division, exclusive of
punitive damages, interests, costs, disbursements and counsel fees claimed, is established as follows:
Albany County . . . . . . . . . . .$25,000
Erie County . . . . . . . . . . . . . .$25,000
Kings County . . . . . . . . . . . .$50,000
Nassau County . . . . . . . . . . .$75,000
New York County . . . . . . . .$100,000
Queens County . . . . . . . . . .$50,000
Seventh Judicial District . .$25,000
Suffolk County . . . . . . . . . . .$25,000
Westchester County . . . . .$100,000
(b) Commercial cases

Actions in which the principal claims involve or consist of the following will be heard in the Commercial
Division provided that the monetary threshold is met or equitable or declaratory relief is sought:
(1) Breach of contract or fiduciary duty, fraud, misrepresentation, business tort (e.g., unfair competition),
or statutory and/or common law violation where the breach or violation is alleged to arise out of busi-
ness dealings (e.g., sales of assets or securities; corporate restructuring; partnership, shareholder, joint
venture, and other business agreements; trade secrets; restrictive covenants; and employment agree-
ments not including claims that principally involve alleged discriminatory practices);
(2) Transactions governed by the Uniform Commercial Code (exclusive of those concerning individual
cooperative or condominium units);
(3) Transactions involving commercial real property, including Yellowstone injunctions and excluding
actions for the payment of rent only;
(4) Shareholder derivative actions — without consideration of the monetary threshold;
(5) Commercial class actions — without consideration of the monetary threshold;
(6) Business transactions involving or arising out of dealings with commercial banks and other financial
institutions;
(7) Internal affairs of business organizations;
(8) Malpractice by accountants or actuaries, and legal malpractice arising out of representation in
commercial matters;
(9) Environmental insurance coverage;
(10) Commercial insurance coverage (e.g. directors and officers, errors and omissions, and business inter-
ruption coverage);
(11) Dissolution of corporations, partnerships, limited liability companies, limited liability partnerships
and joint ventures — without consideration of the monetary threshold; and
(12) Applications to stay or compel arbitration and affirm or disaffirm arbitration awards and related
injunctive relief pursuant to CPLR Article 75 involving any of the foregoing enumerated commercial
issues — without consideration of the monetary threshold.
(c) Non-commercial cases

The following will not be heard in the Commercial Division even if the monetary threshold is met:

(2) Cases seeking a declaratory judgment as to insurance coverage for personal injury or property damage;
(3) Residential real estate disputes, including landlord-tenant matters, and commercial real estate disputes
involving the payment of rent only;
(4) Proceedings to enforce a judgment regardless of the nature of the underlying case;
(5) First-party insurance claims and actions by insurers to collect premiums or rescind non-commercial
policies; and
(6) Attorney malpractice actions except as otherwise provided in paragraph (b)(8).
(d) Assignment to the Commercial Division

(1) A party seeking assignment of a case to the Commercial Division shall indicate on the Request for
Judicial Intervention (RJI) that the case is “commercial.” A party seeking a designation of a special
proceeding as a commercial case shall check the “other commercial” box on the RJI, not the “special
proceedings” box.
(2) The party shall submit with the RJI a brief signed statement justifying the Commercial Division desig-
nation, together with a copy of the proceedings.
(e) Transfer into the Commercial Division

If a case is assigned to a non-commercial part because the filing party did not designate the case as “com-

mercial” on the RJI, any other party may apply by letter application (with a copy to all parties) to the
Administrative Judge, within ten days after receipt of a copy of the RJI, for a transfer of the case into the
Commercial Division. The determination of the Administrative Judge shall be final and subject to no fur-
ther administrative review or appeal.
(f) Transfer from the Commercial Division

(1) In the discretion of the Commercial Division justice assigned, if a case does not fall within the jurisdic-
tion of the Commercial Division as set forth in this section, it shall be transferred to a non-commercial
part of the court.
(2) Any party aggrieved by a transfer of a case to a non-commercial part may seek review by letter appli-
cation (with a copy to all parties) to the Administrative Judge within ten days of receipt of the designa-
tion of the case to a non-commercial part. The determination of the Administrative Judge shall be final
and subject to no further administrative review or appeal.
(g) Rules of practice for the Commercial Division

Unless these rules of practice for the Commercial Division provide specifically to the contrary, the rules of
Part 202 also shall apply to the Commercial Division, except that Rules 7 through 15 shall supersede sec-
tion 202.12 (Preliminary Conference) and Rules 16 through 24 shall supersede section 202.8 (Motion
Procedure).
Rule 1. Appearance by Counsel with Knowledge and Authority. Counsel who appear in the
Commercial Division must be fully familiar with the case in regard to which they appear and fully
authorized to enter into agreements, both substantive and procedural, on behalf of their clients. Counsel
should also be prepared to discuss any motions that have been submitted and are outstanding. Failure
to comply with this rule may be regarded as a default and dealt with appropriately. See Rule 12. It is
important that counsel be on time for all scheduled appearances.
Rule 2. Settlements and Discontinuances. If an action is settled, discontinued, or otherwise disposed

of, counsel shall immediately inform the court by submission of a copy of the stipulation or a letter
directed to the clerk of the part along with notice to chambers via telephone or e-mail. This notifica-
tion shall be made in addition to the filing of a stipulation with the County Clerk.
Rule 3. Alternative Dispute Resolution (ADR). At any stage of the matter, the court may direct or coun-
sel may seek the appointment of an uncompensated mediator for the purpose of mediating a resolution
of all or some of the issues presented in the litigation.
Rule 4. Electronic Submission of Papers.

(a) Papers and correspondence by fax. Papers and correspondence filed by fax should comply with the
requirements of section 202.5-a except that papers shall not be submitted to the court by fax without
advance approval of the justice assigned. Correspondence sent by fax should not be followed by hard
copy unless requested.
(b) Papers submitted in digital format. In cases not pending in the court's Filing by Electronic Means
System, the court may permit counsel to communicate with the court and each other by e-mail. In the
court's discretion, counsel may be requested to submit memoranda of law by e-mail or on a computer
disk along with an original and courtesy copy.
Rule 5. (This rule shall apply only in the First and Second Judicial Departments) Information on
Cases. Information on future court appearances can be found at the court system's future appearance
site (www.nycourts.gov/ecourts). Decisions can be found on the Commercial Division home page of
the Unified Court System's internet website: www.courts.state.ny.us/comdiv or in the New York Law
Journal. The clerk of the part can also provide information about scheduling in the part (trials, confer-
ences, and arguments on motions). Where circumstances require exceptional notice, it will be fur-
nished directly by chambers.
Rule 6. Form of Papers. All papers submitted to the Commercial Division shall comply with CPLR 2101
and section 202.5(a). Papers shall be double-spaced and contain print no smaller than twelve-point, or
8 1/2 x 11 inch paper, bearing margins no smaller than one inch. The print size of footnotes shall be no
smaller than ten-point. Papers also shall comply with Part 130 of the Rules of the Chief Administrator.
Rule 7. Preliminary Conference; Request. A preliminary conference shall be held within 45 days of
assignment of the case to a Commercial Division justice, or as soon thereafter as is practicable. Except
for good cause shown, no preliminary conference shall be adjourned more than once or for more than
30 days. If a Request for Judicial Intervention is accompanied by a dispositive motion, the preliminary
conference shall take place within 30 days following the decision of such motion (if not rendered moot)
or at such earlier date as scheduled by the justice presiding. Notice of the preliminary conference date
will be sent by the court at least five days prior thereto.
Rule 8. Consultation prior to Preliminary and Compliance Conferences.

(a) Counsel for all parties shall consult prior to a preliminary or compliance conference about (i) res-
olution of the case, in whole or in part; (ii) discovery and any other issues to be discussed at the con-
ference; and (iii) the use of alternate dispute resolution to resolve all or some issues in the litigation.
Counsel shall make a good faith effort to reach agreement on these matters in advance of the confer-
ence.
(b) Prior to the preliminary conference, counsel shall confer with regard to anticipated electronic dis-
covery issues. Such issues shall be addressed with the court at the preliminary conference and shall
include but not be limited to (i) implementation of a data preservation plan; (ii) identification of rele-
vant data; (iii) the scope, extent and form of production; (iv) anticipated cost of data recovery and pro-
posed initial allocation of such cost; (v) disclosure of the programs and manner in which the data is
maintained; (vi) identification of computer system(s) utilized; (vii) identification of the individual(s)
responsible for data preservation; (viii) confidentiality and privilege issues; and (ix) designation of
experts.

Rule 9. (Reserved)
Rule 10. Submission of Information. At the preliminary conference, counsel shall be prepared to furnish
the court with the following: (i) a complete caption, including the index number; (ii) the name, address,
telephone number, e-mail address and fax number of all counsel; (iii) the dates the action was com-
menced and issue joined; (iv) a statement as to what motions, if any, are anticipated; and (v) copies of
any decisions previously rendered in the case.
Rule 11. Discovery

(a) The preliminary conference will result in the issuance by the court of a preliminary conference
order. Where appropriate, the order will contain specific provisions for means of early disposition of
the case, such as (i) directions for submission to the alternative dispute resolution program; (ii) a sched-
ule of limited-issue discovery in aid of early dispositive motions or settlement; and/or (iii) a schedule
for dispositive motions before disclosure or after limited-issue disclosure.
(b) The order will also contain a comprehensive disclosure schedule, including dates for the service of
third-party pleadings, discovery, motion practice, a compliance conference, if needed, a date for filing
the note of issue, a date for a pre-trial conference and a trial date.
(c) The preliminary conference order may provide for such limitations of interrogatories and other dis-
covery as may be necessary to the circumstances of the case.
(d) The court will determine, upon application of counsel, whether discovery will be stayed, pursuant
to CPLR 3214(b), pending the determination of any dispositive motion.
Rule 12. Non-Appearance at Conference. The failure of counsel to appear for a conference may result
in a sanction authorized by section 130.2.1 of the Rules of the Chief Administrator or section 202.27,
including dismissal, the striking of an answer, an inquest or direction for judgment, or other appropri-
ate sanction.
Rule 13. Adherence to Discovery Schedule

(a) Parties shall strictly comply with discovery obligations by the dates set forth in all case scheduling
orders. Such deadlines, however, may be modified upon the consent of all parties, provided that all dis-
covery shall be completed by the discovery cutoff date set forth in the preliminary conference order.
Applications for extension of a discovery deadline shall be made as soon as practicable and prior to the
expiration of such deadline. Non-compliance with such an order may result in the imposition of an
appropriate sanction against that party pursuant to CPLR 3126.
(b) If a party seeks documents as a condition precedent to a deposition and the documents are not pro-
duced by the date fixed, the party seeking disclosure may ask the court to preclude the non-producing
party from introducing such demanded documents at trial.
Rule 14. Disclosure Disputes. Counsel must consult with one another in a good faith effort to resolve all
disputes about disclosure. See section 202.7. Except as provided in Rule 24 hereof, if counsel are
unable to resolve any disclosure dispute in this fashion, the aggrieved party shall contact the court to
arrange a conference as soon as practicable to avoid exceeding the discovery cutoff date. Counsel
should request a conference by telephone if that would be more convenient and efficient than an appear-
ance in court.
Rule 15. Adjournments of Conferences. Adjournments on consent are permitted with the approval of the
court for good cause where notice of the request is given to all parties. Adjournment of a conference
will not change any subsequent date in the preliminary conference order, unless otherwise directed by
the court.
Rule 16. Motions in General.

(a) Form of Motion Papers. The movant shall specify in the notice of motion, order to show cause,
and in a concluding section of a memorandum of law, the exact relief sought. Counsel must attach
copies of all pleadings and other documents as required by the CPLR and as necessary for an informed
decision on the motion (especially on motions pursuant to CPLR 3211 and 3212). Counsel should use
tabs when submitting papers containing exhibits. Copies must be legible. If a document to be annexed
to an affidavit or affirmation is voluminous and only discrete portions are relevant to the motion, coun-
sel shall attach excerpts and submit the full exhibit separately. Documents in a foreign language shall
be properly translated. CPLR 2101(b). Whenever reliance is placed upon a decision or other authority
not readily available to the court, a copy of the case or of pertinent portions of the authority shall be
submitted with the motion papers.
(b) Proposed Orders. When appropriate, proposed orders should be submitted with motions, e.g.,
motions to be relieved, pro hac vice admissions, open commissions, etc. No proposed order should be
submitted with motion papers on a dispositive motion.
(c) Adjournment of Motions. Dispositive motions (made pursuant to CPLR 3211, 3212 or 3213) may
be adjourned only with the court's consent. Non-dispositive motions may be adjourned on consent no
more than three times for a total of no more than 60 days unless otherwise directed by the court.
Rule 17. Length of Papers. Unless otherwise permitted by the court: (i) briefs or memoranda of law shall
be limited to 25 pages each; (ii) reply memoranda shall be no more than 15 pages and shall not contain
any arguments that do not respond or relate to those made in the memoranda in chief; (iii) affidavits
and affirmations shall be limited to 25 pages each.
Rule 18. Sur-Reply and Post-Submission Papers. Absent express permission in advance, sur-reply
papers, including correspondence, addressing the merits of a motion are not permitted, except that
counsel may inform the court by letter of the citation of any post-submission court decision that is rel-
evant to the pending issues, but there shall be no additional argument. Materials submitted in violation
hereof will not be read or considered. Opposing counsel who receives a copy of materials submitted in
violation of this Rule shall not respond in kind.

Rule 19. Orders to Show Cause. Motions shall be brought on by order to show cause only when there is
genuine urgency (e.g., applications for provisional relief), a stay is required or a statute mandates so
proceeding. See Rule 20. Absent advance permission, reply papers shall not be submitted on orders to
show cause.
Rule 19-a. Motions for Summary Judgment; Statements of Material Facts.

(a) Upon any motion for summary judgment, other than a motion made pursuant to CPLR 3213, the
court may direct that there shall be annexed to the notice of motion a separate, short and concise state-
ment, in numbered paragraphs, of the material facts as to which the moving party contends there is no
genuine issue to be tried.
(b) In such a case, the papers opposing a motion for summary judgment shall include a corresponding-
ly numbered paragraph responding to each numbered paragraph in the statement of the moving party
and, if necessary, additional paragraphs containing a separate short and concise statement of the mate-
rial facts as to which it is contended that there exists a genuine issue to be tried.
(c) Each numbered paragraph in the statement of material facts required to be served by the moving
party will be deemed to be admitted for purposes of the motion unless specifically controverted by a
correspondingly numbered paragraph in the statement required to be served by the opposing party.
(d) Each statement of material fact by the movant or opponent pursuant to subdivision (a) or (b),
including each statement controverting any statement of material fact, must be followed by citation to
evidence submitted in support of or in opposition to the motion.
Rule 20. Temporary Restraining Orders. Unless the moving party can demonstrate that there will be sig-
nificant prejudice by reason of giving notice, a temporary restraining order will not be issued. The
applicant must give notice to the opposing parties sufficient to permit them an opportunity to appear
and contest the application.
Rule 21. Courtesy Copies. Courtesy copies should not be submitted unless requested or as herein
provided. However, courtesy copies of all motion papers and proposed orders shall be submitted in
cases in the court's Filing by Electronic Means System.
Rule 22. Oral Argument. Any party may request oral argument on the face of its papers or in an accom-
panying letter. Except in cases before justices who require oral argument on all motions, the court will
determine, on a case-by-case basis, whether oral argument will be heard and, if so, when counsel shall
appear. Notice of the date selected by the court shall be given, if practicable, at least 14 days before the
scheduled oral argument. At that time, counsel shall be prepared to argue the motion, discuss resolu-
tion of the issue(s) presented and/or schedule a trial or hearing.
Rule 23. 60-Day Rule. If 60 days have elapsed after a motion has been finally submitted or oral argument
held, whichever was later, and no decision has been issued by the court, counsel for the movant shall
send the court a letter alerting it to this fact with copies to all parties to the motion.
Rule 24. Advance Notice of Motions
(a) Nothing in this rule shall be construed to prevent or limit counsel from making any motion deemed
appropriate to best represent a party's interests. However, in order to permit the court the opportunity
to resolve issues before motion practice ensues, and to control its calendar in the context of the discov-
ery and trial schedule, pre-motion conferences in accordance herewith must be held. The failure of
counsel to comply with this rule may result in the motion being held in abeyance until the court has an
opportunity to conference the matter.
(b) This rule shall not apply to disclosure disputes covered by Rule 14 nor to dispositive motions pur-
suant to CPLR 3211, 3212 or 3213 made at the time of the filing of the Request for Judicial
Intervention or after discovery is complete. Nor shall the rule apply to motions to be relieved as coun-
sel, for pro hac vice admission, for reargument or in limine.
(c) Prior to the making or filing of a motion, counsel for the moving party shall advise the Court in
writing (no more than two pages) on notice to opposing counsel outlining the issue(s) in dispute and
requesting a telephone conference. If a cross-motion is contemplated, a similar motion notice letter
shall be forwarded to the court and counsel. Such correspondence shall not be considered by the court
in reaching its decision on the merits of the motion.
(d) Upon review of the motion notice letter, the court will schedule a telephone or in-court conference
with counsel. Counsel fully familiar with the matter and with authority to bind their client must be
available to participate in the conference. The unavailability of counsel for the scheduled conference,
except for good cause shown, may result in granting of the application without opposition and/or the
imposition of sanctions.
(e) If the matter can be resolved during the conference, an order consistent with such resolution may
be issued or counsel will be directed to forward a letter confirming the resolution to be “so ordered.”
At the discretion of the court, the conference may be held on the record.
(f) If the matter cannot be resolved, the parties shall set a briefing schedule for the motion which shall
be approved by the court. Except for good cause shown, the failure to comply with the briefing sched-
ule may result in the submission of the motion unopposed or the dismissal of the motion, as may be
appropriate.
(g) On the face of all notices of motion and orders to show cause, there shall be a statement that there
has been compliance with this rule.
(h) Where a motion must be made within a certain time pursuant to the CPLR, the submission of a
motion notice letter, as provided in subdivision (a), within the prescribed time shall be deemed the time-
ly making of the motion. This subdivision shall not be construed to extend any jurisdictional limita-
tions period.
Rule 25. Trial Schedule. Counsel are expected to be ready to proceed either to select a jury or to begin
presentation of proof on the scheduled trial date. Once a trial date is set, counsel shall immediately
determine the availability of witnesses. If, for any reason, counsel are not prepared to proceed on the
scheduled date, the court is to be notified within ten days of the date on which counsel are given the

trial date or, in extraordinary circumstances, as soon as reasonably practicable. Failure of counsel to
provide such notification will be deemed a waiver of any application to adjourn the trial because of the
unavailability of a witness. Witnesses are to be scheduled so that trials proceed without interruption.
Trials shall commence each court day promptly at such times as the court directs. Failure of counsel to
attend the trial at the time scheduled without good cause shall constitute a waiver of the right of that
attorney and his or her client to participate in the trial for the period of counsel's absence. There shall
be no adjournment of a trial except for good cause shown. With respect to trials scheduled more than
60 days in advance, section 125.1(g) of the Rules of the Chief Administrator shall apply and the actu-
al engagement of trial counsel in another matter will not be recognized as an acceptable basis for an
adjournment of the trial.
Rule 26. Estimated Length of Trial. At least ten days prior to trial or such other time as the court may
set, the parties, after considering the expected testimony of and, if necessary, consulting with their wit-
nesses, shall furnish the court with a realistic estimate of the length of the trial.
Rule 27. Motions in Limine. The parties shall make all motions in limine no later than ten days prior to
the scheduled pre-trial conference date, and the motions shall be returnable on the date of the pre-trial
conference, unless otherwise directed by the court.
Rule 28. Pre-Marking of Exhibits. Counsel for the parties shall consult prior to the pre-trial conference
and shall in good faith attempt to agree upon the exhibits that will be offered into evidence without
objection. At the pre-trial conference date, each side shall then mark its exhibits into evidence as to
those to which no objection has been made. All exhibits not consented to shall be marked for identifi-
cation only. If the trial exhibits are voluminous, counsel shall consult the clerk of the part for guidance.
The court will rule upon the objections to the contested exhibits at the earliest possible time. Exhibits
not previously demanded which are to be used solely for credibility or rebuttal need not be pre-marked.
Rule 29. Identification of Deposition Testimony. Counsel for the parties shall consult prior to trial and
shall in good faith attempt to agree upon the portions of deposition testimony to be offered into
evidence without objection. The parties shall delete from the testimony to be read questions and
answers that are irrelevant to the point for which the deposition testimony is offered. Each party shall
prepare a list of deposition testimony to be offered by it as to which objection has not been made and,
identified separately, a list of deposition testimony as to which objection has been made. At least ten
days prior to trial or such other time as the court may set, each party shall submit its list to the court
and other counsel, together with a copy of the portions of the deposition testimony as to which objec-
tion has been made. The court will rule upon the objections at the earliest possible time after consul-
tation with counsel.
Rule 30. Settlement and Pretrial Conferences.

(a) Settlement Conference. At the time of certification of the matter as ready for trial or at any time
after the discovery cut-off date, the court may schedule a settlement conference which shall be
attended by counsel and the parties, who are expected to be fully prepared to discuss the settlement of
the matter.
(b) Pre-trial Conference. Prior to the pretrial conference, counsel shall confer in a good faith effort to
identify matters not in contention, resolve disputed questions without need for court intervention and
further discuss settlement of the case. At the pre-trial conference, counsel shall be prepared to discuss
all matters as to which there is disagreement between the parties, including those identified in Rules
27-29, and settlement of the matter. At or before the pre-trial conference, the court may require the par-
ties to prepare a written stipulation of undisputed facts.
Rule 31. Pre-Trial Memoranda, Exhibit Book and Requests for Jury Instructions
(a) Counsel shall submit pre-trial memoranda at the pre-trial conference, or such other time as the court
may set. Counsel shall comply with CPLR 2103(e). A single memorandum no longer than 25 pages
shall be submitted by each side. No memoranda in response shall be submitted.
(b) At the pre-trial conference or at such other time as the court may set, counsel shall submit an
indexed binder or notebook of trial exhibits for the court's use. A copy for each attorney on trial and
the originals in a similar binder or notebook for the witnesses shall be prepared and submitted.
Plaintiff's exhibits shall be numerically tabbed and defendant's exhibits shall be tabbed alphabetically.
(c) Where the trial is by jury, counsel shall, on the pre-trial conference date or such other time as the
court may set, provide the court with case-specific requests to charge and proposed jury interrogato-
ries. Where the requested charge is from the New York Pattern Jury Instructions - Civil, a reference to
the PJI number will suffice. Submissions should be by hard copy and disk or e-mail attachment in
WordPerfect 12 format, as directed by the court.
Rule 32. Scheduling of witnesses. At the pre-trial conference or at such time as the court may direct,
each party shall identify in writing for the court the witnesses it intends to call, the order in which they
shall testify and the estimated length of their testimony, and shall provide a copy of such witness list to
opposing counsel. Counsel shall separately identify for the court only a list of the witnesses who may
be called solely for rebuttal or with regard to credibility.
Rule 33. Preclusion. Failure to comply with Rules 28, 29, 31 and 32 may result in preclusion pursuant to
CPLR 3126.

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BUSINESS AND CORPORATE LITIGATION COMMITTEE FORUM:

AN INTRODUCTION TO BUSINESS COURTS AND COMPLEX

2. Florida Business Courts

3. Georgia - Business Case Division of the Fulton Superior Court – Order

4. Illinois – Circuit Court of Cook County – Standing Order

6. State of Maryland - Business and Technology Court Task Force Report

7. State of New York – Administrative Order

9. Philadelphia Commerce Case Management Program – Procedure for Disposition of

11. Websites and Links

BUSINESS COURT WEBSITES OR RELATED LINKS

Atlanta, Fulton County Superior Court Business Case Division,

Chicago, Circuit Court of Cook County Commercial Calendars,

Delaware Court of Chancery,

Las Vegas, Eighth Judicial District Court of Nevada, Business Court,

Maine, Business and Consumer Docket

Maryland, Business and Technology Case Management Program,

Massachusetts, Business Litigation Session

Miami, Eleventh Judicial Circuit Complex Business Litigation Section,

New York, Supreme Court Commercial Division, http://www.nycourts.gov/comdiv/

North Carolina Business Court, http://www.ncbusinesscourt.net/

Oregon, Lane County Circuit Court Commercial Court Program,

Orlando, Ninth Judicial Circuit Complex Business Litigation Court,

Philadelphia, Court of Common Pleas Commerce Case Management Program,

Rhode Island, Superior Court Business Calendar,

Tampa, Thirteenth Judicial Circuit Complex Business Litigation Division,

COMPLEX LITIGATION PROGRAM WEBSITES OR RELATED LINKS1

California, Alameda County Superior Court, Complex Civil,

California, Los Angeles Superior Court, Complex Civil,

California, Orange County Superior Court, Complex Civil,

California, San Francisco Superior Court, Complex Civil,

California, Santa Clara County Superior Court, Complex Civil,

Connecticut, Superior Court, Complex Litigation Docket,

Philadelphia, Court of Common Pleas Complex Litigation Center,

Pittsburgh, Court of Common Pleas of Allegheny County, Complex Case Judge

National Center for State Courts

(a) Complex Litigation Resource Guide,

(b) Business Courts Resource Guide,

(c) State Links for Business Courts and Complex Litigation,

Journal of Business and Technology Law, University of Maryland School of Law,

Florida State Courts, Task Force on Management on Cases Involving Complex

I. WHAT IS A BUSINESS COURT?

II. CREATING A BUSINESS COURT

A. MECHANISMS FOR CREATING BUSINESS COURTS

B. PERSONS AND ENTITIES WHO MAY BE INVOLVED

C. STUDY AND RESEARCH

D. CONSIDER ALL PERSPECTIVES

E. FINANCIAL AND RESOURCE CONSIDERATIONS

III. COURT OPERATION

IV. JURISDICTIONS WITH BUSINESS COURTS

A. DELAWARE COURT OF CHANCERY

B. NEW YORK SUPREME COURT COMMERCIAL DIVISION

C. CIRCUIT COURT OF COOK COUNTY (CHICAGO)

D. NORTH CAROLINA BUSINESS COURT

F. PHILADELPHIA’S COMMERCE CASE MANAGEMENT PROGRAM

G. SUFFOLK SUPERIOR COURT (BOSTON), BUSINESS LITIGATION

H. LAS VEGAS AND RENO, NEVADA BUSINESS COURTS

I. RHODE ISLAND SUPERIOR COURT BUSINESS CALENDAR

J. MARYLAND’S BUSINESS AND TECHNOLOGY CASE MANAGEMENT

K. FLORIDA’S NINTH JUDICIAL CIRCUIT (ORLANDO) COMPLEX

M. HAWAII, FIRST CIRCUIT COURT (HONOLULU)

N. OREGON, LANE COUNTY (EUGENE) CIRCUIT COURT COMMERCIAL

O. FLORIDA’S ELEVENTH JUDICIAL CIRCUIT (MIAMI) COMPLEX

P. FLORIDA’S THIRTEENTH JUDICIAL CIRCUIT (TAMPA) COMPLEX