New Courts Must Balance State's Business Reputation With Law Enforcement

Jun 9, 2015

The state has branded itself as one that'll cater to businesses. But what will that mean when businesses get their own courts?
Credit Indiana Economic Development Corporation

A group of nearly 20 lawyers and judges will convene this summer to establish parameters for a new type of court in Indiana. The state already has specialty courts that try drug cases or those involving veterans – but most of those are criminal cases.

The newest courts will hear complex civil cases brought between businesses. Commercial courts exist in almost two dozen other states and help to clear cases which would otherwise bog down a docket. They’re designed to be “business friendly” – but what that means for a state is a bit of a gray area.

Isn't EVERYONE "business friendly"?

Let’s get one thing out of the way right at the start: ALL states try to position themselves as “business friendly”. But the Mike Pence administration has doubled down on it. The Indiana Economic Development Corporation has a whole page on its website explaining how the state is, as the banner headline says, “business friendly”. The state has coined a phrase, “a state that works,” which it has plastered on buildings in downtown Indianapolis in one-story high lettering.

For the court system, Indiana Chief Justice Loretta Rush says business friendliness is about expediency…

“What we want to do, and our responsibility, is to make sure we have an attractive environment for business litigation," Rush says. "And if you want to get your case moved, you can get your case moved.”

But others say that doesn’t mean an unequal application of the law.

“Well, when you say ‘business friendly,’ keep in mind both parties are businesses,” says Ohio Chief Justice Maureen O’Connor. Her state has had business courts for almost a decade.

“So you’re not favoring a business over an individual or tipping the scales and [saying] ‘I want to be business friendly, so I’m going to rule in favor of the business party as opposed to the individual private person,’” she says.

It's a business v. business world

That main reason that wouldn’t happen, both women say, is that the cases don’t involve individuals. In many cases, says working group member and State Sen. John Broden (D-South Bend), the cases involve multiple business parties, all of whom want to know what to expect when they take a case to court.

“What businesses like, as I’ve always understood about one, the American legal system – and I think the Indiana legal system holds true to this notion – is consistency, knowing the lay of the land, knowing what you can expect, knowing what you can plan on,” Broden says.

Problems with business cases

Right now, it’s hard to know even when a case will be heard. Chief Justice Rush says some cases languish for years before they go before a judge. Indiana Supreme Court Justice Steven David, who will also sit on the piloting committee, says the state wants to ensure that dockets move more smoothly and predictably. If the commercial courts don’t do that, he says, they may be scrapped.

“This would be an option, so obviously if it doesn’t prove to be more efficient, more effective for those that would utilize it, we won’t continue the pilot project. We feel very strongly it has worked in other states and the model will work here in Indiana. And it will be good for all litigants and it will be good for business here in Indiana and I think that’s good for everybody.”

But there’s that phrase again – “good for business”. Ohio Supreme Court Chief Justice Maureen O’Connor says some of the county business courts there have folded because judges objected to the whole notion businesses – or any group – would be treated differently under the law.

“There are judges who have the philosophy that there should be no such thing as a specialized docket," O'Connor says. "That if you’re elected to be a judge, that you are competent to handle any case that comes before you and no party should be given preferential treatment. They view specialized dockets as preferential treatment.”

Judges get involved early and often

Indiana, it’s worth noting, already does this for drug cases and for veterans. Most legal scholars agree it’s not an infringement of the Constitution’s Fourteenth Amendment guarantee to equal protections. And O’Connor says in Ohio, business courts have worked the same way specialty courts in Indiana do – with judges becoming an integral part of resolving potential litigation – often, before it starts in earnest.

“The judge literally rolls up his or her sleeves and gets involved in this case early on, sets the discovery schedule and the vast majority of these cases settle,” she says.

O’Connor and Broden both say they think more specialization is the way law is trending. Steven David says establishing business courts will help local judges whose resources might be especially taxed by trying such complex cases.

“It’s not unusual for the small town trial judge to occasionally have the complex commercial litigation," he says. "Maybe not as frequently as the urban judge, but it’s happening right now, And that’s the impetus behind: would we be more effective, would we support our trial judges better, could we improve the system by establishing a commercial court or a commercial specialty docket?”

Chief Justice Rush says she doesn’t think it’s likely each Indiana county will have its own commercial court. Instead, she envisions a regional system where several neighboring counties share jurisdiction over the business cases in their area.