New Business Docket to Help Resolve Business Disputes
May 15, 2017

By T. Wickham Schmidt

Wisconsin may tweak the way its courts handle business disputes. Beginning July 1, a Commercial Court Docket, or “business docket,” will undergo a three-year trial period in Waukesha County and the Eighth Judicial District (which comprises Brown, Door, Kewaunee, Marinette, Oconto, Outagamie, and Waupaca Counties). After that, the Wisconsin Supreme Court will consider whether to broaden the docket to the entire state.

Which cases will go on the business docket? Many business disputes involve federal law, or a party from another state, and those cases generally end up in federal court. That will not change. However, where the parties cannot or choose not to litigate in federal court, cases involving intellectual property rights, dealership and franchise disputes, shareholder/member disputes, allegations of unfair competition, and mergers and acquisitions, will now go on the business docket. Cases arising under the Uniform Commercial Code will also go on the business docket if the amount in controversy exceeds $100,000. Importantly, personal injury cases, civil rights cases, disputes over consumer transactions, and insurance coverage disputes will not qualify for business docket, even where one party is a business. Nor will cases in small claims court.

Some commentators have predicted that the business docket will resolve business disputes faster. That is doubtful , because the parties, not the courts, primarily determine the pace of litigation. For every party who wants a quick resolution, there is another who would prefer to slow the case down, and businesses do not differ from other litigants in this regard.

What the business docket should do is resolve business disputes more efficiently—i.e., with less wasted effort by counsel, which means lower legal fees for clients on both sides of the case. In many cases, the parties dispute no material facts, but differ only in their understanding of the law, or their interpretation of the terms of a contract. The presiding judge can and should resolve such disputes with a definitive ruling. Lawyers spend considerable time, and their clients spend considerable money, in presenting such cases to the court for a ruling. Unfortunately there are occasions when the presiding judge either lacks confident command of the law or the time necessary to wade through the materials presented, and lawyers’ work (and clients’ money) is wasted. This should occur less frequently—ideally, never—with a dedicated business docket.

The business docket will almost certainly resolve cases more predictably as well, if only because it will limit the number of judges to whom such cases will be assigned. Waukesha County has twelve circuit judges, only three of whom will serve on the business docket. The seven counties comprising the Eighth Judicial District have twenty-five circuit judges, only four of whom will serve on the business docket. Fewer judges means less variability in results, and makes it easier for lawyers to advise clients on the likely outcomes of their cases.

Finally, the business docket should improve substantive outcomes in business disputes. As Justice Louis Brandeis said, “in most matters it is more important that the applicable rule of law be settled than that it be settled right.” Nevertheless, judges having greater familiarity with the applicable law will be more likely to resolve business disputes correctly, in terms of applying that law the way it ought to be applied. That is the overall goal of our court system, even if one party to any particular case may dislike it.

As mentioned above, the business docket will begin as a three-year trial. Who and what will most strongly impact the success of the docket in the first three years? Judges, lawyers, and politics.

Putting the right judges on the business docket will prove critical to its success or failure. Assigning judges who have learned how to handle complex civil litigation, either as attorneys in private practice or by presiding over such cases as judges, will give the business docket a chance to succeed. The order creating the business docket tasks Chief Justice Patience Drake Roggensack with selecting the judges for the docket.

Lawyers will serve a critical role in the success of the business docket as well. Determining whether a case belongs on the business docket will fall initially to plaintiff’s counsel, who will need to determine the appropriate designation at the time of filing. Defense counsel may challenge the designation as needed, but if such challenges become commonplace, they will quickly erode the very efficiency that the business docket seeks to provide.

Finally, politics could impact the success of the business docket. If the business docket acquires a reputation as a “pro-business” court, it may become politically toxic. Notably, the Supreme Court’s procedural order creating the docket was not unanimous; the justices split 5-2, in the same predictable left-right divide that has characterized so many of the Court’s rulings in recent years. The judges who will serve on the business docket will need to mitigate this risk.

T. Wickham (Wick) Schmidt is a member of Davis & Kuelthau’s litigation team in the firm’s Green Bay office. His practice primarily focuses on complex business disputes including class actions, shareholder derivative litigation, patent infringement cases and construction disputes. Mr. Schmidt can be reached at wschmidt@dkattorneys.com or 920.431.2226.

This article appeared in the May 2017 edition of The Business News.

 

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