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    Wisconsin Lawyer
    February 09, 2022

    As I See It
    Why the Current Business Court Needs Reform

    Members of the bench and the bar, as the trustees and guardians of the rule of law in Wisconsin, should publicly advocate for business court reform.

    Richard G. Niess


    Upon her recent appointment to the Wisconsin Court of Appeals, Attorney Lori Kornblum emphasized a cardinal principle of our court system. “Everyone should be treated equally when they step into a courtroom.”

    I don’t know a single lawyer or judge who thinks otherwise.

    So, then, why do the members of the Wisconsin bar and judiciary sit silently while our current business court and commercial docket violates this principle by premeditated design? This “Pilot Project” grants commercial interests outsized influence over the chief justice, who then selects the limited number of judges to sit on their cases and receive targeted training out of state by special interests aligned with big businesses.

    No other litigants enjoy these advantages in our court system, and for good reason. The privileges accorded to commercial litigants corrupt the equal-treatment principle articulated by Judge Kornblum, degrade judicial independence, and upend the democratic structure of our circuit courts.

    Problems with the Current Business Court

    Under the Wisconsin Constitution and statutes, circuit courts in this state have general jurisdiction over all matters criminal and civil, including business cases. Circuit judges are elected by the voters in each county to carry out this mission, including the handling of all commercial disputes. To eliminate the perception that any litigant might achieve an unfair advantage over other litigants through judicial assignment, all civil cases in Dane County (including commercial disputes) used to be randomly assigned among seven experienced civil division judges, with a smattering assigned to four judges in the juvenile division with civil experience. In the 13 years I served as presiding judge of the Dane County civil division, I never heard a complaint about the speed, efficiency, or quality of the justice achieved in any commercial case.

    Richard G. NiessRichard G. Niess, Duke Univ. 1978, served as a Dane County Circuit Court judge from 2004 to 2020 and was the presiding judge of the court’s civil division for 13 years. He served on the Wisconsin Judicial College faculty for five years, annually teaching civil litigation case management to new and experienced judges. Before taking the bench, Niess was a board-certified civil trial lawyer, representing individuals and corporations in federal and state courts throughout Wisconsin for 26 years. He was inducted as a Fellow into the American College of Trial Lawyers in 1995. His practice is currently limited to mediating and arbitrating complex civil cases, including commercial disputes.

    Unfortunately, two years ago the chief justice, sua sponte and without warning, ordered that Dane County’s commercial litigation would be handled by only three judges she personally selected with input from her business court advisory committee. Those selected were to be trained at the Antonin Scalia School of Law at Virginia’s George Mason University. 

    So, why the change? Why do businesses alone among civil litigants need their own limited number of exclusive judges handpicked by the chief justice and trained by out-of-state entities? Why do they alone deserve to bypass the constitutional and statutory scheme that grants Wisconsin voters, not interstate big business, ultimate control over the judiciary?

    The rationales, all unpersuasive, have varied in whack-a-mole fashion. They boil down to mere cheerleading by the business interests and handpicked judges. The proponents argue that selected judges are more willing and better situated by experience to handle these cases than those judges elected by their counties’ voters to do so (nonsense) and that the cases are more specialized and difficult than other civil litigation (also nonsense). No data support that the cases are better handled by these handpicked judges (nor, by the way, do I argue that they are handled any worse, except for the unethical underpinnings).

    More to the point, no data establish that there was any problem that needed fixing in the first place.

    No data bolster the whole-cloth assertion that businesses are more likely to relocate to Wisconsin, or remain here, if they can have their own judges. Nor do they support the most recent argument that these handpicked business judges can protect against the speculative damage to innocent parties caught up in business litigation better than the judges elected in the county where the business operates.

    Finally, comparisons to treatment courts are inapt, as Judge John Markson has detailed previously in this magazine.

    So, if the current business court has been forced on us for no good reason – if it currently serves no purpose other than to grant commercial interests their own special deal in the courts (as if they truly need a leg up) – why are we sacrificing fundamental court values to make it happen?

    And where is the outrage from the bench and bar?

    Don’t get me wrong. I want businesses to thrive in this state. Improving how circuit courts handle business litigation in a manner that protects the integrity of the courts is an important piece of this. The current business court, however, falls fundamentally short of this goal by design.

    The Solution

    Here are five steps essential to removing the ethical warts that plague this current business court model without compromising the court system’s efficient, professional handling of commercial cases.

    1) Stop allowing the chief justice to handpick the judges who will hear commercial cases, whether in collaboration with the steering committee and business advocates or otherwise. No other docket in Wisconsin does this. The current practice degrades judicial independence and mocks the principle of equal treatment in our courts.

    2) Stop spending taxpayer money to send these select judges out of state or by Zoom or other videoconferencing to be “educated” by partisan interests. Instead, redirect the funds to the Wisconsin Judicial College to create for-credit commercial docket judicial seminars for all judges in this state. The training could be the focus of either freestanding seminars or the annual three-day Judicial Conference, which is constantly looking for relevant programming. Use Wisconsin-based nonpartisan business academics, owners, lawyers, leaders, and other experts as faculty. This type of judicial education is already done successfully for all other types of litigation in this state and can be done just as effectively for circuit court commercial litigation.

    One focus of the training should be the docket-management protocols the current business court employs. These procedural case-management tools, although more cumbersome than necessary, are no more difficult to apply than those governing other complex litigation in Wisconsin. Indeed, little contained in these protocols, other than some unnecessary paperwork, is different from how commercial litigation has been handled in Dane County for years.

    If efficient, expert judicial disposition of commercial cases is truly the goal, the more well-trained judges handling this docket, the better.

    3) Stop limiting the number of judges who hear these cases. Properly trained (see above), every judge in every county can and should handle these cases as they were elected to do, subject to local-court case-assignment and judicial-rotation rules. If efficient, expert judicial disposition of commercial cases is truly the goal, the more well-trained judges handling this docket, the better.

    4) Keep the cases in the venue where filed, subject to the same venue requirements and judicial-substitution rules as in all other civil cases. If a judge cannot for some reason hear the case, select a new judge in the same manner as substitutions and conflicts are handled.

    5) Stop mandating that commercial cases be handled using the commercial docket case-management protocols. Instead, the protocols should be guidelines that are effectively taught and encouraged but modifiable at each judge’s informed discretion as appropriate to each particular case and in collaboration with counsel. Commercial litigators almost always know more about a case and the best way to expeditiously resolve it successfully than the judge does. Rigid adherence to the protocols erroneously presumes otherwise.

    Call to Action

    The current business court model should alarm anyone concerned about judicial independence and equal access to justice in Wisconsin courts. If for no other reason, a court so at odds with our judicial system’s fundamental integrity is unworthy of the public’s trust. Worse, it is a slippery slope to a Pandora’s box full of potential specialty courts unfairly influenced by special-interest litigants rather than, more appropriately, controlled by Wisconsin voters.

    Thankfully this business court can be fixed – but only if we act now before it becomes a permanent fixture of our judiciary by Supreme Court rule.

    I call on members of the bench and bar, as the trustees and guardians of the rule of law in Wisconsin, to publicly advocate for business court reform, as many have done privately with me. Some judges are publicly reticent because they are superintended by the Wisconsin Supreme Court and do not want to ruffle their superiors’ feathers. Similarly situated are many counsel who have cases before the court and have expressed reluctance to speak out for fear of jeopardizing their clients’ causes.

    But our duties to our court system are no less crucial to the delivery of justice than are our duties to our clients. Indeed where, as here, the core principles of the court are compromised, they are even more compelling.

    Please send your comments to the Business Court Advisory Committee c/o Attorney Laura Brenner at Atty. Brenner, a member of the committee, has been designated to receive comments on the Commercial Court Pilot Program.

    And please spread the word to your colleagues to do the same.

    » Cite this article: 95 Wis. Law. 42-45 (February 2022).

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