OCBA UPDATE: Oakland County's Business Court

By Peter Alter After much deliberation and careful analysis, the Oakland County Circuit Court recently issued an administrative order establishing its Specialized Business Docket ("business court"). Subject to the approval by the State Court Administrative Office, the business court will commence its pilot project on April 1, 2012, and it will continue through December 31, 2014. As the court's administrative order makes clear, the pilot project is being established to study the effectiveness of implementing a specialized case management system for the handling of significant business-related litigation of certain types. The court will monitor the effectiveness of the pilot project and report on its progress from time to time, as appropriate. Oakland County's business court will not be a mirror image of the pilot projects adopted in Macomb County or Kent County--and it will not strictly follow the recommendations of the State Bar of Michigan's Business Impact Committee of the Judicial Crossroads Taskforce. Not every business-related litigation will be part of the business court. Rather, damages sought or expected must exceed a $500,000 threshold in order to qualify for the business court.1 While traditional business disputes and governance matters will be included as part of the business court docket, cases excluded from the business court docket include actions by consumers against businesses and by businesses against consumers, occupational health and safety matters, personal injury and wrongful death, medical malpractice, commercial landlord versus consumer tenant and non-commercial real estate matters. There also are discretionary eligibility criteria which, under appropriate circumstances, would allow a case that "substantially complies" with the eligibility criteria to be included as part of the business court docket. While other circuit courts have designated a single judge to handle their respective business court dockets, this method was not adopted by Oakland County Circuit Court. Instead, during the pilot project, all Civil/Criminal Division judges also will be deemed to be business court judges and each will have a business court docket. The business court cases will be assigned a separate docket code that will be used for tracking purposes and statistical analyses. However, when a case is assigned to the business court docket, the court will issue a different scheduling order that will contain the following provisions, among others: (a) The parties will be required to make initial pre-trial disclosures within the later of (i) 42 days after the filing of the answer to the complaint, counterclaim or crossclaim (whichever is the last filed); (ii) 28 days after the rendering of a decision on a motion for summary disposition that has been filed as the first responsive pleading; or (iii) 28 days after the case is assigned to the business court docket. These pre-trial disclosures will require identification of information substantially similar to that required under Rule 26 of the Federal Rules of Civil Procedure. (b) A joint pre-trial report will be required to be filed approximately 28 days after the initial pre-trial disclosures. The joint pre-trial report also will include information that is substantially similar to that required under Rule 26. (c) An initial court conference will be held approximately 21 days after the filing of the joint pre-trial report. (d) After the initial court conference, the judge will prepare a final scheduling order, including requirements for interim pre-trial reports by counsel and status conferences with the court, if appropriate. It seems that the court's purpose and intention in establishing this procedural framework for the business court docket is to make sure that those cases are given sufficient additional attention so that they can proceed in an orderly and prompt manner, but without disrupting the very substantial other civil and criminal matters that must be attended to and decided by the judges of the Circuit Court. Further, Oakland County's business court proposal is intended to minimize, if not eliminate, any additional costs that could be involved in operating a business court in Oakland County. Given Oakland County's budgetary constraints and the fact that the Circuit Court has dramatically reduced its budget by many millions of dollars during the last several years, such fiscal prudence seems quite appropriate. Here are some additional provisions of the administrative order regarding the business court. For each of the business court cases in Oakland County, judges will be required to issue a written or oral opinion on any motion for summary disposition filed and heard, and each judge is strongly encouraged to issue written or oral opinions on other material rulings that may be of interest to the bench, bar and public. Such written opinions and transcripts of oral opinions must be posted on the court's website. At the same time, the court will take steps not to reveal personal identifiers, corporate trade secrets or other proprietary/confidential information in accordance with guidelines and protective orders that may have been issued. Finally, the court intends to appoint an advisory committee, consisting of circuit court judges, circuit court administrators and attorneys actively involved in business court cases, to meet at appropriate intervals to discuss and assess the progress of Oakland County's business court. In addition, upon the closing of each business court case, all parties and/or attorneys will be invited to respond to a survey to determine their satisfaction with the process, including specifically addressing the quality, savings, attention and overall efficiency of the business court. Unsung Hero The OCBA's "Unsung Hero" for this month is Cynthia Smith, a young attorney who has handled a significant matter for FLAP. Ms. Smith's client, it appears, had suffered domestic abuse for the entire five-year period of her marriage. The husband and wife finally separated when the client's 7-year-old daughter called the police after a brutal incident of violence. The husband had grabbed Cynthia's client and knocked her head into the wall and threatened to kill her. Ms. Smith, working closely with her mentor, Jamie Warrow, really learned the ropes on her first-ever family law case, spending a total of 44 hours on it. Due to all of her hard work, Cynthia achieved a very satisfactory result, one that included obtaining a divorce and providing safety for her client and the client's child. Kudos to Cynthia Smith! As always, please feel free to give Lisa Stadig Elliot, our executive director, a telephone call or send her an email and let her know that you would like to find a way to get involved in one of our pro bono programs. It will be a rewarding and gratifying experience. ---------------- Footnote 1 Procedures will be established to permit cases to be added to and/or removed from the Business Court docket in appropriate circumstances. ---------------- Peter M. Alter, a partner in the Southfield office of Jaffe, Raitt, Heuer, & Weiss, is the 79th president of the Oakland County Bar Association. Published: Thu, Mar 29, 2012

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