Court specialization has become more and more accepted throughout the country.
Wisconsin took a significant step in 2017 to join a growing number of states that, in connection with the judicial administration of litigation, have established a specialized business court to better achieve efficient judicial process and more consistent outcomes in commercial cases, as well as to provide support to Wisconsin’s existing work to retain, attract and generally increase commercial activity and jobs for its citizens.
In April 2017, the Wisconsin Supreme Court approved the pilot project, authorizing dedicated circuit court judicial dockets for large-claim commercial cases. The program started in Waukesha County and the circuit courts of the Eighth Judicial Administrative District, which includes Green Bay and a number of other counties in Northeastern Wisconsin. The program began on July 1, 2017, and the Supreme Court’s order mandated that the program would be reviewed at the end of three years and that there would be intermittent progress reports. The Chief Justice of the Wisconsin Supreme Court oversaw the selection of circuit court judges to be assigned to the commercial court docket.
Although the core subject matter is extensive, most of the cases that the commercial docket has encountered fall into two categories:
• prohibited business activity, such as unfair competition, antitrust claims, or disputes concerning non-compete and confidentiality agreements; and
• internal disputes in business organizations, including shareholder claims, claims against officers or directors, or claims involving the interpretation of rights.
The program had early success in efficiently resolving commercial cases. In its first year, the program took on 32 cases. Of those, 12 closed within the same year and 20 were pending at the one-year mark. By December 2019, the program had taken on close to 80 cases, a majority of cases in Waukesha County, and over half of them are resolved. Of the 41 cases resolved, 26 were closed within six months, and another nine were closed within 12 months.
In February 2020, the Wisconsin Supreme Court extended the program for two additional years and expanded the program to two additional sets of courts. The expanded program includes the circuit courts of the Second Judicial Administrative District (Racine, Kenosha, and Walworth Counties) and Tenth Judicial Administrative Districts (Northwestern Wisconsin). Approximately one month later the Supreme Court added Dane County to the program. The program was further expanded by allowing parties throughout Wisconsin to use it by jointly petitioning to have their case heard on the commercial docket.
Although the program has been successful and is experiencing growth, there have been some obstacles along the way. Some challenges it has faced include an initial lack of recognition by the bar that the commercial docket was a mandatory docket. Additionally, attorneys were sometimes slow to recognize cases that were ripe for the special docket. A number of cases were placed into the commercial docket by the clerk of court or judges, not by the parties. In addition to these obstacles, some judges initially pushed back on the program. They were concerned that setting up a special docket would send a message that “circuit court judges are not capable of handling complex civil cases and that business, above all, deserves the fastest, most cost-effective, most predictable and fairest disposition of cases.” Other judges raised issues concerning a two-tiered system – one for the privileged few and one for the rest of the citizenry.
The early results, contrary to the concerns initially raised, show that, although the pilot program did set up a separate system for commercial disputes, it did not offer a tiered system or a new court. Instead the program presented, within the existing court structure, a system that could better handle commercial cases in a way that mirrored other specialized courts in Wisconsin, such as drug court, mental health court, or veteran’s court. The pilot program was designed to put the commercial cases in the hands of judges with business experience and an appreciation of the needs of prompt intervention, early resolution, and considerations surrounding the larger effect on the community as a whole. The goals of the program include but are not limited to improving the quality and predictability of justice in connection with business disputes and making Wisconsin a desirable forum for resolving business disputes.
Wisconsin is not the only state to have a program like this—close to 30 other states have specialized courts dedicated to commercial issues. Wisconsin’s Business Court judges have worked to coordinate consistent practices and obtained specialized training from the American College of Business Court Judges.
Thanks to the support of Supreme Court and the Wisconsin judiciary, the pilot program has achieved its objectives and performed beyond expectations. The makeup of the court and our state’s judiciary can, as we all understand, change over time, and support for a pilot program can ebb and flow. Wisconsin’s Business Court is too important to be subject to those risks, and it is time that the commercial docket be made a permanent part of the Wisconsin judicial system. Legislative action to enact the Wisconsin Business Court as a part of Wisconsin statutes, unlike a Supreme Court rule, will ensure that our citizens can invest and engage in our commercial economy knowing that Wisconsin has a system permanently in place to efficiently resolve and settle any future business disputes as they arise.
Lon Roberts is of counsel to Ruder Ware, where he practiced business law for almost 40 years, and is the former Secretary of the Wisconsin Department of Financial Institutions. Roberts is also chair of the Wisconsin Public Service Commission and the State of Wisconsin Investment Board.
Matthew Rowe is a shareholder at Ruder Ware, where he has practiced business law for more than 20 years. Rowe is a member of the firm’s Board of Directors and a former chair of the Wisconsin State Bar’s Business Law Section.