Legal community backs state business court

BANGOR – It takes businesses almost as long to settle disputes in Maine courts as it takes to bring a murderer to justice.

That’s because Maine’s court system is not keeping pace with the speed at which today’s business world must move, state supreme court Chief Justice Leigh I. Saufley said earlier this month when she called for the creation of a business court.

Lawyers and judges around the state have expressed support for the idea.

Bangor lawyer Stephen Smith said recently that business cases could be dealt with more quickly in a specialized court. Now it can take a year or more to be resolved if “they are fully litigated” and proceed to trial – about the same amount of time it takes for a murder case to proceed to trial.

Smith said that Maine should look to Delaware for a good example of how a business court can have a positive impact on a state’s economy.

“A business court creates a fast track for business disputes, and there are economic benefits because cases get heard more quickly,” he said. “Business can be somewhat specialized, kind of like family law. Having a business court and a body of business law creates more [legal] certainty for business, which is a valuable thing.”

In her State of the Judiciary address to the Legislature on Feb. 1, Saufley asked lawmakers to allocate an additional $1 million, a portion of which would pay for two judges to preside over small claims courts and more complex business cases in superior courts.

Maine Superior Court Justice Andrew Mead, who is based in Bangor, agreed Monday that a business court is needed.

“There are a number of cases right now … that take priority on docket,” he said, “and the commercial community doesn’t have any access to a priority treatment. As a consequence of that, they often get shuffled off to the last on the list requiring attention.

“It’s got to create a hardship on these people. They are the economic lifeblood of the community and I just don’t think the courts are adequately serving them.

“Across the country,” he continued, “there’s a real movement to specialized courts, and they serve their respective communities so much better than trying to make [the court] into one size fits all.”

George Burns, a Portland lawyer who testified last week before the Legislature’s Appropriations Committee in favor of the proposal, outlined Monday three reasons why the state needs a business court.

“Other states have been doing it,” he said in a telephone interview, “and we’re losing a competitive edge by not offering it to the business community. Two, it’s a net gainer for everyone because it uncrowds the docket in noncommercial matters. Three, we need to create a body of predictable case law, which will cut down on the number of cases filed.”

Over the past few years, according to Burns, the use of private arbitration to settle business disputes has grown. Decisions in those cases do not set legal precedents on which judges can base future decisions. Having judges who specialize in business matters also would allow cases to move quickly in a manner similar to the way the family courts have lessened the amount of time in which cases are resolved.

The business court idea is not a new one. Saufley’s predecessor, Daniel Wathen, floated it four years ago, but the concept was put on hold because of budgetary constraints. Since being sworn in as chief justice in December 2001, Saufley has talked about the need for a business court but had not sought funding until this year.

A business court would not require separate courtrooms, but would utilize existing facilities around the state, with business court judges traveling to courthouses, James T. “Ted” Glessner, court administrator, said last week after Saufley’s address.

He said that the judges would use a “specialized docket” and schedule cases on a more regular basis. Currently, criminal cases, family matters and domestic violence cases take precedence over small claims and other civil cases

“Small claims cases, a necessity to small businesses, cannot be heard quickly enough,” Saufley said in her report to the Legislature. “The numbers of filings are actually falling, I believe, because we are failing to provide prompt access to justice in small business matters. … We have also been unable to provide prompt access to regulatory dispute resolution and complex business cases.”

The number of small claims filed in district courts around the state fell from 10,495 in fiscal year 2002 to 8,884 in the fiscal year that ended on June 30, 2004, according to figures provided by Glessner.

While budget constraints ultimately will determine whether a business court is implemented, Burns said Monday that he expected that it would be cost-effective.

“Whatever form it takes,” he said, “it will be lean and efficient like the other [specialty courts] are.”