Attorneys say commercial courts offer predictability

“Predictability” is the one word attorneys and business leaders use most often to describe Indiana’s commercial courts.

Since launching as a pilot in 2016 before becoming a permanent program a few years later, Indiana’s business court system has seen steady growth in both the number of cases filed and the number of specialized judges appointed to preside over disputes. A decade later, several attorneys and business advocates who The Indiana Lawyer spoke with say the program has been successful in attracting businesses because of the legal certainty it provides.

“Uncertainty in business is probably one of the hardest things to overcome,” said Eric Scroggins, vice president, general counsel and secretary of Allison Transmission Inc. “Commercial courts give quicker certainty on outcomes.”

Getting started

In 2013, the Indiana Supreme Court assigned the Indiana Judicial Conference’s Problem-Solving Courts Committee the task of evaluating whether the state should consider implementing business or commercial courts.

Judges Heather Welch and Craig Bobay among others attended the Great Lakes States Complex Commercial/Business Court Seminar in Dearborn, Michigan, where they learned commercial dockets had been created in about half of states nationwide. According to the judiciary, proponents claim that by establishing commercial courts, states help attract corporations and other entities to their states.

A year later, Welch and Bobay recruited several Marion and Allen County commercial business litigation attorneys and other state and local bar representatives to form the commercial courts working group, which gathered input and refined a possible pilot project.

On Jan. 20, 2016, following the then-expanded working group’s research, the Indiana Supreme Court authorized a three-year commercial courts pilot Project, which began on June 1, 2016.

The court found a 77% increase in the number of cases filed in the commercial courts’ docket from 2016 to 2018.

The Supreme Court determined the project to be successful in advancing its benchmarks and goals, which included improving court efficiency and boosting predictability in judicial decisions in commercial-based cases.

So on May 16, 2019, the Supreme Court permanently established the Indiana commercial courts. The system went into effect on June 1, 2019, in six counties: Allen, Elkhart, Vanderburgh, Floyd, Lake and Marion.

Although the system is called the commercial courts, Indiana Supreme Court Justice Derek Molter emphasized that it is technically a docket within existing courts, not a separate court.

“These dockets are overseen by judges who are already on the bench, already have courts and also have other dockets,” Molter said.

Since its establishment, the commercial courts have seen steady growth.

From 2019 to 2025, the number of cases filed in the docket increased by 77%, from 284 to 504. So far this year (as of April 13, the latest data available), 114 cases have been filed in the system, according to the commercial courts committee’s April 17 agenda, which Molter provided to The Lawyer.

In total, there have been just more than 3,000 cases filed in the system since the pilot project began.

For Molter, the number of case filings is the most reliable tell that the system is working.

“That’s the market speaking to us,” he said. “That’s the lawyers telling us this is worthwhile, and more and more of us are becoming convinced of that.”

But another aspect of growth for the commercial courts has been their geographic expansion. In 2020, the Supreme Court appointed four judges to preside over commercial court cases in St. Joseph, Madison, Hamilton and Vigo Counties.

And last year, the Supreme Court made Tippecanoe County the 11th commercial court venue.

To Molter, even if activity in the commercial courts plateaus, the program would still be successful.

“But what I’m hoping is that more than just remain steady — that it grow,” he said.

Speed and efficiency

One of the major tenets of the commercial courts program is that it provides swiftness not as readily available in a standard civil docket.

Several attorneys familiar with the commercial courts said that because the judges are uniquely trained and knowledgeable of the complex business matters at hand — and because they see similar disputes day in and day out creating a familiarity judges in standard civil court might not experience — they can ensure parties cut to the chase and discuss the issues that matter most.

According to the Indiana Supreme Court, commercial court judges use a limited discovery standard that is “proportional to case needs.”

Each of the 11 venues with a commercial court has a judge serving it. The commercial courts also have a dedicated law clerk who can assist the judges.

Scroggins, the general counsel at Allison Transmission, said the company insists on the commercial court being its exclusive venue.

“Quite often in commercial disputes, time is really of the essence,” he said. “The implications of not having a timely resolution can be pretty significant.”

In Allison’s case, supply chain disruptions can wreak havoc on the whole operation — assembly lines may shut down, and people may be laid off.

In those instances, emergency temporary restraining orders are often the legal method at hand, and by filing in the commercial courts, companies can appear before a judge much sooner than they might in a standard civil docket.

“This is designed to be more of the kind of fast lane,” said Drew Miroff, a partner at Ice Miller who has handled litigation cases for Allison. “The [commercial courts] judges get involved very early, and they force the people to kind of say, ‘OK, what do you think you need? How do you need it?’ And then from there kind of guide you through that process.”

According to 2022 Indiana Supreme Court data, the average time for an order on summary judgment in a commercial courts case was 29 days; for a motion to dismiss, 24 days; and for an order on a motion for preliminary injunction or temporary restraining order, 13 days.

Miroff said that he believes the commercial courts program has become what the judiciary hoped: a trusted place for resolving business disputes in Indiana.

“When I talk to my clients, I say, ‘I can’t guarantee you a result. What I can guarantee you is there will be a fair process and a judge with experience with these type of cases and these type of issues, guiding our case, making decisions,’” Miroff said. “It’s not that you can’t get that or you won’t get that in other civil courts, but … you have confidence because of how these are designed, you’re definitely going to get that [in the commercial court].”

Business attractiveness

Another of the judiciary’s initial goals outlined in the commercial courts’ pilot project was to enhance economic development in Indiana.

“I think we have a very hospitable legal system towards businesses,” said Josh Hollingsworth, co-chair of Barnes & Thornburg LLP’s mergers and acquisitions department and a member of the Commercial Court Committee. “I think we want to promote the formation of businesses. We want businesses to grow in Indiana.”

The U.S. Chamber of Commerce’s Lawsuit Climate Surveys, which gathered information from in-house general counsel, senior litigators or attorneys and other senior executives at companies with at least $100 million in annual revenue, showed that from 2015 to 2017, Indiana rose from the 18th to the 15th best court system for business litigants in the country. The survey examined several categories, including venue requirements, treatment of tort litigation and judges’ characteristics, such as fairness and competence.

But in 2019, the last year the U.S. Chamber conducted the survey, Indiana fell to 31st place in the ranking — a decrease of about 16 percentage points from 2017.

Even still, business advocates and those familiar with the commercial courts say the system is attractive for businesses, even if it is not a company’s main consideration.

“I won’t say the [Indiana Economic Development Corp.]’s lead pitch is, ‘We’ve got commercial courts,’ but that’s another arrow in our quiver,” said Kevin Brinegar, former longtime president of the Indiana Chamber of Commerce. “It goes into the equation of: Do I want to be here, and do I want to stay here?”

Brinegar was a member of the larger 2015 Commercial Court Working Group and served on the Commercial Court Committee for several years before he retired from the Indiana Chamber in 2023. Brinegar said Indiana Supreme Court Chief Justice Loretta Rush invited him to serve on the task force because she wanted formal representation from the business community.

“[Rush] knew we needed representation from the business community to provide input on how we proceed with putting these commercial courts together,” Brinegar said.

The Indiana Chamber is a broad-based business advocacy group that represents companies of varying sizes and industries.

At the time, Brinegar said the Chamber supported commercial courts because it wanted to see consistency and more certainty in the judiciary.

The business community and the Chamber’s search for a more streamlined judicial system seems to be coming to fruition. Although he did not specify the case, Brinegar said he is aware of a recent situation in which companies filed litigation in the commercial court and got responses back to their motions in as little as two weeks.

“When I heard that, I was like, ‘Yes, it’s working in the way it was envisioned to work,’” Brinegar said. “It kind of warmed my heart, made me feel good that there was … an example of the court working exactly the way it was envisioned.”

What about individuals?

While the commercial courts often deal with disputes between business, individuals do find themselves in the system, which raises some concern among employee advocates.

Commercial courts proponents say the model is business-specific but not necessarily business-friendly.

Tae Sture, president of the National Employment Lawyers Association of Indiana, called that line of thinking a “distinction without a difference.”

Although Sture recognized the benefit the system offers in business-to-business disputes, he said the commercial courts tend to favor commercial enterprises in individual-to-business matters — such as non-competes or breach of employment contracts. But Sture acknowledged that NELA’s members don’t often deal with the commercial courts.

“The commercial court, conceptually, is a great thing, but it should not include, to my mind, individual employee defendants,” Sture said. “It’s certainly great for business-to-business, but not for individual Hoosier defendants.”

“The business has far more resources to take somebody to commercial court, whereas the individual doesn’t,” he added. “The individual that cannot afford an attorney, they lose by default.”

Hollingsworth, the Barnes & Thornburg attorney on the Commercial Court Committee, does not share Sture’s concerns about bias toward businesses over individuals.

“There’s no distinction really between individuals and major corporations or entities in the commercial court,” Hollingsworth said. “It’s really more geared toward the substance of the disputes that they typically handle.”

Justice Molter also emphasized that the commercial courts rules require parties to agree to move their matter from a standard civil docket to a commercial docket.

“If either party doesn’t want to be a part of the commercial court, then the case is not part of the commercial court docket,” Molter said.

Brinegar, the former Indiana Chamber president, said he had argued in the past that all cases clearly involving business matters, such as non-competes and trademark issues, should automatically be moved from a standard civil docket to the commercial docket for “consistency” in precedent.

“Perhaps they’ll get to that someday,” Brinegar said.

Education, looking forward

One of the biggest headwinds to the commercial courts’ growth has been educating lawyers about it, Justice Molter said.

“If you haven’t done it before, there’s a fear slash confusion that this is going to be more complicated, that this is going to be really unfamiliar,” Molter continued.

Molter emphasized that navigating the commercial courts has been made as easy as possible. The courts have just eight rules, and the committee has provided about 25 pages of commentary to make those rules “even easier” to understand.

“I think any lawyer in Indiana who is comfortable litigating business disputes outside of commercial courts are going to be at least as equally comfortable litigating inside the commercial court docket,” Molter said.

For now, the Commercial Courts Committee is in constant dialogue about how to improve the system, including expanding educational outreach and refining data analytics.•