The Times West Virginian

January 13, 2013

State Business Court Division getting positive reception

By Jessica Borders
Times West Virginian

FAIRMONT — In its first few months of operation, West Virginia’s new Business Court Division is getting a positive reception from the business community.

On Sept. 11, 2012, the Supreme Court of Appeals of West Virginia passed an addition to Trial Court Rule 29 by a 5-0 vote, which established a Business Court Division in the state. The business court opened on Oct. 10 and is headquartered in the Berkeley County Judicial Center in Martinsburg.

“The Supreme Court, I commend them in their willingness to support the Business Court Division,” said division chair Judge Christopher Wilkes from the 23rd Judicial Circuit, which covers Berkeley, Jefferson, and Morgan counties.

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.

“West Virginia is blessed with a great caliber of circuit judges, and the business court doesn’t mean that the routine business versus business litigation can’t be handled or shouldn’t be handled at the circuit court level,” Wilkes said.

He said the Business Court Division is meant for complex contractual cases or other matters that wouldn’t be considered routine because of the number of parties, the unique subject matter, or the complicated nature of the discovery.

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.

“Specialization courts are becoming more prevalent throughout America,” Wilkes said. “A business court is just a necessary step in the evolution of our court process. It benefits the state wonderfully. It utilizes talents that certain of the judges have by way of their experiences before they took the bench and knowledge that they have learned since they have been on the bench.”

The Business Court Division is divided into seven regions. Four circuit judges have been appointed, and up to three more judges can be added if necessary. Their appointments are staggered.

In addition to Wilkes, the other judges are Judge James Rowe from the 11th Judicial Circuit — Greenbrier and Pocahontas counties; Judge Donald Cookman from the 22 Judicial Circuit — Hampshire, Hardy, and Pendleton counties; and Judge James Young Jr. from the 24th Judicial Circuit, which encompasses Wayne County.

“It’s really a great group of judges,” Wilkes said. “We work well together.”

Supreme Court Justice Robin Jean Davis, who was in charge of the final edit and implementation of the business court rule, said these four judges were very willing to get involved and were logical choices for the appointments. Each of them has an interest and background in business litigation, and they are taking on this additional obligation with no extra pay.

The decision on adding more judges to the Business Court Division rests exclusively with the Supreme Court, Wilkes said.

“I would anticipate some appointments at some time this year,” he said. “The court recognizes and anticipates expansion of it in due course.”

Wilkes said one unique aspect of West Virginia’s business court is the fact that two judges get assigned to a case — the trial judge and also a resolution judge who works to arbitrate the case early.

“We use any form of resolution that the parties may want,” he said. “That seems to be something that judges welcome in their litigation.”

The parties involved in the case often have ongoing business relations while their lawsuit is under way. If they can appear in front of a trained judge to get the case resolved, then they can return to their business operations, which is the key, Wilkes said.

Davis added that companies need prompt resolution of business litigation because while they’re trying to run their operations, they’re also paying legal fees and losing business. Unless there are extenuating circumstances, business litigation in the Business Court Division will be resolved within 10 months of the case management order, she said.

Davis said people are anxious to begin utilizing the Business Court Division and get the process moving.

“I’m just delighted that we started off in a positive way in regard to the business courts,” she said.

The business court judges have been undertaking various trainings, Wilkes said. Three of the judges went to the American College of Business Court Judges educational conference, hosted by George Mason University School of Law.

The judges also recently completed a complex mediation training, and some of them will go to an intensive training in southern California this summer. In addition, they are waiting to hear whether they have been accepted into the National Judicial College’s new scholarship program for handling complex business litigation, Wilkes said.

The first assignment of orders for the judges went out last week, he said.

The chief justice has designated one case from Kanawha County to the business court, and Judges Young and Rowe have been assigned. Another case didn’t meet the criteria, so the chief did not designate it to the division. Some other cases are pending ruling by the presiding circuit court judges as to whether they will be sent to the chief for designation or review, Wilkes said.

“We’re in business,” he said of the Business Court Division. “It’s been a good acceptance by the (West Virginia State Bar), but like any program, there’s some trepidation.”

Wilkes explained that there is always a period of apprehension until the State Bar gets to know the judges better and the workings of the court. He said it’s important that the State Bar is knowledgeable about what the business court offers so attorneys can advise their clients accordingly.

The business court judges are involved in a program to educate the Bar and the public. As part of those efforts, Wilkes will be discussing the mechanism of the court and the pros and cons of it during meetings with different lawyer organizations.

 “I just think it is an opportunity that we hope the Bar and businesses in West Virginia recognize and take advantage of, and I’m fairly confident that they’ll be pleased with the resolution and operations of the court,” he said.

Davis said having the Business Court Division in place should be very positive for West Virginia and its judicial system and for potential companies looking to come to the state to do business.

The West Virginia Chamber of Commerce has been a proponent of the idea of establishing a business court in the state for many years.

“We really applaud the Legislature and the West Virginia Supreme Court of Appeals for working together to create this new division of courts,” said Steve Roberts, president of the chamber. “Some business issues that end up going to court are very complex, and having some judges who specialize in those issues that are sort of unique to business ... we think will help cases to be heard faster and also be heard by judges who are more familiar really with the terminology of what’s being discussed and the details of what’s at stake.”

With faster trials and judges well-versed in business issues, this will help improve West Virginia’s challenging legal reputation, he said. The chamber also hopes that the new court will help attract more business to the state.

The Chamber of Commerce is holding a Business Court Symposium on Jan. 22 at the Charleston offices of Jackson Kelly PLLC. The event will explore how the business court functions, what kinds of cases will be heard and the timelines, and provide an opportunity for questions and answers, Roberts said.

All of the business court judges are planning to participate, which will allow attendees to hear from those who know the most about the court and are completely involved, he said. Justice Davis will serve as the keynote speaker.

The symposium has generated a great deal of interest, as the available space has already been filled up. But the chamber is now keeping a waiting list for people who are interested. The cost to attend is $30 per person.

For more information on the symposium, contact Kim Nelson at or 304-342-1115.

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