The Times West Virginian

September 30, 2012

Experts: State’s Business Court Division will be positive for judicial system

By Jessica Borders
Times West Virginian

FAIRMONT — Experts believe West Virginia’s new Business Court Division will be positive for the judicial system in the state.

Supreme Court Justice Robin Jean Davis explained that in 2010 the Legislature passed House Bill 4352, which mandated that the Supreme Court of Appeals of West Virginia make trial court rules for a business court. A Business Court Committee, consisting of several circuit judges, was then formed and worked to write the preliminary rules.

Some of the more progressive courts across the country have adopted a Business Court Division, she said. The panel of circuit judges from West Virginia visited states like Delaware and North Carolina to review the processes and rules that they had in effect. Public hearings were held, and the proposed rules were sent out for public comment.

The Supreme Court asked Davis, who has been serving on the court for almost 16 years and is currently running for re-election, to be in charge of the final edit and implementation of the business court rule. On Sept. 11 of this year, the Supreme Court passed an addition to Trial Court Rule 29 by a 5-0 vote, which established a Business Court Division in West Virginia. The business court will be headquartered in the Eastern Panhandle and will open on Oct. 10.

Davis said this is a specialized court that deals with complex cases involving a business versus a business. The rule specifically excludes certain types of litigation from the court, such as consumer litigation, products liability, personal injury, wrongful death, consumer class actions, and those dealing with the West Virginia Consumer Credit Act.

The state has had some very complicated business litigation cases in the past, she said. These cases often involve very technical language.

“Sometimes these complex cases get bogged down in the circuit courts,” Davis said.

Unless there are extenuating circumstances, business litigation in the Business Court Division will be concluded in a very timely fashion — within 10 months of the case management order, she said.

Davis said the Business Court Division is divided into seven regions, based on the Legislature’s population

requirement of 60,000 people and geographically located together. Right now, four circuit judges have been appointed to the business court, and up to three more judges can be added if necessary.

The division chair is Judge Christopher Wilkes from the 23rd Judicial Circuit, which covers Berkeley, Jefferson and Morgan counties. Judge James Rowe from the 11th Judicial Circuit — Greenbrier and Pocahontas counties — and Judge Donald Cookman from the 22nd Judicial Circuit — Hampshire, Hardy and Pendleton counties — will begin their terms on Oct. 10 with Wilkes. These three individuals were all part of the Business Court Committee.

Judge James Young Jr. from the 24th Judicial Circuit, which encompasses Wayne County, will start his term on Jan. 1, 2013.

Davis said these individuals are taking on extra responsibilities with no additional pay. They will go for training to give them specialized expertise and knowledge when these technical business cases are filed before them.

“I think businesses will be very satisfied because they’re going to get their cases through the court system very quickly,” she said.

Also, the fact that West Virginia has a court designated to handle complex business matters should encourage businesses to come to the state. The Business Court Division has been established with little if any cost to taxpayers in West Virginia, Davis said.

“I think it’s a win-win for the state and the businesses of the state,” she said.

Davis said she is delighted that the Supreme Court of Appeals of West Virginia has been so progressive and responded very quickly to the Legislature mandate. She believes the new Business Court Division will be very successful.

“We’re lucky in West Virginia to have the Supreme Court that we have,” Judge Wilkes said.

He commented that the Supreme Court was very forward-thinking to put the Business Court Committee together. As Wilkes and his colleagues on the committee were studying the business court idea and the states that have these courts, they recognized that it would really be of benefit to West Virginia and its court system.

“Specialized courts is an evolution going on throughout the nation,” he said, and West Virginia’s Supreme Court has done a good job of rapidly responding to those ongoing trends.

Many states have a system similar to the Mass Litigation Panel that West Virginia currently has. This panel deals more with class action and larger types of cases with many parties. Business cases may just have two parties, but are often complicated and need a quick resolution, Wilkes said.

Circuit court judges handle all kinds of cases, and criminal issues and those involving abuse and neglect take priority, he said. Business cases often can’t be seen quickly because of their status on the crowded dockets.

With a Business Court Division, those patent, trademark dispute or other business cases can be seen more quickly and by specially trained judges. With all of the technology advances that are happening, there has been a substantial rise in business versus business litigation, Wilkes said.

“Oftentimes the financial aspect of delay in getting a dispute between two corporations settled can literally make or break a company,” he said. “Having a court where these cases can be taken off the general docket and handled is very advantageous.”

Wilkes said either party in a case can file a motion during a certain period of time to have the case heard by a Business Court Division judge. Also, at any time during the case, the presiding judge can file a motion to refer the case to the division. The chief justice makes the decision, or can request that a member of the business court panel hold a hearing to develop evidence of the complexity of the case.

Many other states undertook studies of business courts for years before implementing anything, but West Virginia was able to establish its Business Court Division in a comparatively short amount of time, he said.

The majority of states that have developed business courts have seen a rise in business development. These states tout the fact that they have a business court when trying to promote themselves to companies looking to move their headquarters or new businesses starting up, Wilkes said.

He said a Business Court Division gives the overall impression that the state recognizes that businesses have problems that are different from the typical legal problems and is making efforts to address those. The reception from the business community in West Virginia has been very good, and the state is well on its way to creating something very beneficial, Wilkes said.

The West Virginia Chamber of Commerce has been a proponent of the idea of establishing a business court in the state for many years. Steve Roberts, president of the organization, said he was very pleased that the Legislature passed a resolution to study business courts and that the Supreme Court acted and created this new division.

“If you’re in the High Tech Corridor, if you are doing any kind of new economy kind of business, then it’s very likely that you have highly complex issues,” he said. “Having a court that really is familiar with these kinds of issues and that focuses on these big things makes a great deal of sense.” 

Businesses in West Virginia often have to deal with complicated issues related to tax, international trade, copyright and regulations, Roberts said.

“This is really more of what is needed to modernize West Virginia’s judicial structure,” he said. “Adding the business court helps move us a little more into the mainstream and helps make us a little bit more like most other states.”

Email Jessica Borders at jborders@timeswv.com or follow her on Twitter @JBordersTWV.