High court to launch trial run specializing in civil commercial litigation

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By July, Wisconsin officials plan to be testing out special courts set aside solely for business matters.

If the trial run proves a success, Wisconsin may well join the ranks of 29 other states that have adopted a full-blown system of business courts.

Robert Gegios, a longtime business attorney at Kohner Mann & Kailas in Milwaukee, could not be more enthusiastic about that prospect.

Gegios worked with the American Bar Association in the early 1990s to encourage states to set up business courts.

Year after year since then, Gegios has watched as other states established their own system of courts dedicated to business litigation. Now he’s happy to see his own state finally get the ball rolling.

“I’m very enthusiastic about this step,” he said. “It follows everything the ABA has been trying to promote and it comes in the wake of so many success stories in many states.”

Chief Justice Pat Roggensack convened a committee in the fall to investigate the possible benefits of having state business courts. The committee consulted officials in other places, such as Georgia, Ohio and South Carolina, where these alternative court systems have been around for years.

The committee, which included judges, attorneys and the secretary of the state Department of Financial Institutions. brought forth its recommendations by filing a petition for a rule change to the Wisconsin Supreme Court Rules. The justices approved it in November.

According to the plans the justices then gave their blessing to, business courts will first be tested in Waukesha County and the Eighth Judicial District, which encompasses Marinette, Oconto, Door, Kewaunee, Brown, Outagamie and Waupaca counties. The trial run is scheduled to end in July 2020.

Gegios said he thinks business courts will be an asset not because judges have proved incapable of overseeing these sorts of cases but because they are generally more efficient and reliable at handling business matters than standard courts.

According to the approved plans, Waukesha County would have two judges who, in addition to their regular duties, would devote part of their time to hearing business court cases. In the Eighth Judicial District, five judges would handle the business court’s docket.

One goal for trying to have only certain judges oversee business cases is to produce more predictable, consistent decisions for litigants. Less time in court will also mean less expense of taxpayer money, say Gegios and Mitchell Bach, one of the attorneys that led a subcommittee of the ABA’s business law section that helped states create dockets dedicated to business litigation.

“It’s not that we’re not getting solid judging, but it would make it easier for everyone,” Gegios said. Wisconsin’s test run does not include rules mandating how business court judges must manage cases. But it does provide guidelines calling on judges to consider when alternative dispute resolution should be invoked. Judges will also be asked to keep strong control of electronic discovery to manage costs and to use standardized stipulation and protective orders.

One essential step in establishing business courts is to carefully define what sorts of cases they might be asked to take up, said Bach, a business litigator who also helped form a business court in Philadelphia in 2000.

“Commercial litigation encompasses many, many kinds of cases, and we felt it was really important to find exactly what cases went in and made a list of what cases should not,” he said.

Roggensack’s committee is so far proposing that Wisconsin’s business courts be allowed to handle only cases arising between two business entities. These might include disputes over intellectual property rights, internal affairs and securities. Excluded would be cases involving small-claims consumers, labor organizations, landlords and tenants, residential foreclosures, the government and similar matters.

Bach said that business courts have not always been embraced by judges and lawyers. Some critics contend the specialized courts favor big businesses or are elitist.

“I don’t know of that being true anywhere,” he said. “I‘ve never seen that, though I’ve heard some very intelligent people make that accusation.”

The justices will hold a public hearing in February to let attorneys and other stakeholders weigh in on the trial run.