Getting Down to Business… The Business of Business Courts, That Is

What’s the first word that comes to mind when you hear the word “litigation?” Expensive? Inefficient? Unpredictable?

Effective October 17, 2012, Michigan’s Public Act 333 (“Act”) was designed to respond to these common concerns. The Act requires circuit courts (i.e., state courts that hear civil claims involving disputes of over $25,000) with three or more judges to create a specialized business court docket. Any case involving a “business or commercial dispute” (as defined in the Act) must be placed on the business docket, even if the case also contains non-business claims. One or more judges are designated to handle each circuit court’s business case docket.

According to the Act, the purpose of the business court is to:

  1. Establish judicial structures that will help all court users by improving the efficiency of the courts.
  2. Allow business or commercial disputes to be resolved with the expertise, technology, and efficiency required by the information age economy.
  3. Enhance the accuracy, consistency, and predictability of decisions in business and commercial cases.

In other words, business courts are intended to promote an active case management structure to facilitate a more timely, efficient and predictable resolution of complex business cases. Accordingly, business court judges are empowered to implement procedures to streamline cases and to encourage the parties to settle disputes. For instance, business court judges commonly require litigants to attend an initial court conference and to explore the possibility of early settlement. Non-binding, court-ordered facilitation – conducted by a neutral third-party – has become an increasingly common process in these cases. Likewise, mandatory settlement conferences – sometimes presided over by the judge – force parties to explore potential business resolutions in a face-to-face setting. Where early settlement is not feasible, it is not uncommon for a business court judge to “push up” case dates to encourage a more timely resolution of the case. Additionally, business court opinions are accessible online, thus promoting transparency, consistency and predictability.

Business court dockets have now been created in 16 counties in Michigan. With the specialized business court dockets still in their relative infancy, questions remain as to how the process will evolve from here. Given the flexibility afforded to business court judges to find creative and efficient solutions for business disputes, the future for potential litigants looks hopeful.