CLE highlights benefits of commercial courts

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This map from 2021 shows the expansion of Indiana's commercial courts into four new counties.

At the conclusion of the three-hour CLE in downtown Indianapolis, presenting judges and attorneys from across the state came to similar conclusions regarding the Indiana Commercial Courts: They’ve improved efficiency and lowered costs, but more lawyers and businesses should take advantage of them.

The Indiana Supreme Court held a panel-style event at the Columbia Club on Wednesday, when general counsel from Indiana businesses, lawyers, lawyer-legislators and other business leaders were invited to learn about the benefits of the unique court model.

Indiana’s commercial courts were first introduced as a pilot project in 2016 after the Indiana Supreme Court assigned the Problem-Solving Courts Committee of the Indiana Judicial Conference to evaluate the need for them. The task was assigned to a newly created Business Courts Subcommittee in 2013, consisting of Judge Heather Welch of Marion Superior Court, Judge Craig Bobay of Allen Superior Court and staff attorney Julie McDonald.

A working group led by Welch and Bobay — which also included members such as former Justices Steven David and Frank Sullivan — in 2018 filed a 71-page final report recommending that the commercial courts be permanently established after concluding they would help court efficiency; resolve commercial cases better with expertise and technology; and enhance accuracy, consistency and predictability, among other benefits.

In 2019, the Indiana Supreme Court made the commercial courts permanent.

According to the Supreme Court, there have been 1,496 cases filed in commercial courts, with 610 searchable orders available online to the public via a database.

There are currently 10 commercial courts in Indiana, permanently established in Allen, Elkhart, Floyd, Hamilton, Lake, Madison, Marion, St. Joseph, Vanderburgh and Vigo counties. The 10 judges share four dedicated law clerks.

Following opening remarks by Indiana Chief Justice Loretta Rush, Welch led the first panel on Wednesday consisting of seven of the commercial court judges. Welch is the commercial court judge in Marion County.

The commercial courts have specialized rules aimed at speeding up cases, and multiple judges on the panel said they wanted more cases on their commercial court dockets. The judges emphasized that some cases that would take three or four years in a traditional trial court setting can be concluded in half the time or sooner by utilizing the commercial courts.

One of the other benefits the judges noted was that a case from any county can be filed in any commercial court without adhering to venue rules.

With an online database of cases now available, which is designed like, attorneys and judges also have precedent to rely on to move cases quickly. The judges also emphasized the benefit of the dedicated law clerks.

The commercial court judges volunteered to participate and have extensive — in many cases multidecade — backgrounds in business law.

“What you get is interested and devoted judges,” Madison Circuit Judge Mark Dudley said. “… I volunteered for this because I enjoyed this …  I want these; please file with my county.”

Bobay said a major benefit of the commercial courts is that judges are seeing similar cases with more frequency. In some counties, he said, a judge may only see a certain type of complex business litigation every five years, but commercial court judges have likely seen the same issue more recently.

Vanderburgh Superior Judge Thomas Massey said there have been efforts recently in Evansville, such as CLEs, to educate attorneys on the specialized courts.

“The promotion side, being from Evansville, I think it’s different than what we’re doing here today,” Massey said. “Because here today we have commercial litigators and in-house counsel who are familiar with the commercial courts more than anywhere else in the state.”

A lack of knowledge about the commercial courts among attorneys was a consistent theme for the rest of the event.

The second half of the CLE featured a panel of lawyers that work in commercial, contractual, transactional and employment law, among other business law areas, as well as an in-house counsel representative for Elkhart-based Patrick Industries. Indiana Supreme Court Justice Derek Molter, Supreme Court liaison to the commercial courts, moderated the discussion.

Jim Casey of Ziemer Stayman Weitzel & Shoulders, who is a member of the Labor and Employment Law Section of the American Bar Association and who has also served on the council of the Employment, Labor & Benefits Law and ADR sections of the Indiana State Bar Association, said he’s found the commercial courts to be much faster and more cost-effective than ADR. Casey said he hasn’t had a case go to trial through the commercial courts.

Despite the efficiency of the commercial courts, some lawyers are hesitant to go that route, panelists said.

“More often than not, when I talk with other lawyers and I suggest that they try the commercial court, I say call the other lawyer and see if you can get in there,” Megan Craig, of Craig & Craig, said. “They call back four minutes later and it’s immediately a ‘no’ — they don’t know anything about it and it’s automatically presumed that there’s some reason that you are picking the commercial court. … There’s more information that needs to be out there about what these courts can do.”

Casey and Craig predicted that as more cases go to commercial court, and as more attorneys and businesses become familiar with the process, it will be used more frequently.

“My selling point on commercial courts is it’s like the federal court with an expeditious docket but with a softer landing,” Craig said. “… I have found the judges in the commercial court to be much more equitable, taking more time to decide that ‘this is what fits this case,’ whereas I feel the federal court is a one-size-fits-all … .”

John LaDue, of SouthBank Legal: LaDue Curran Kuehn, complimented the judges and their work and echoed the belief that commercial courts are often a better alternative to ADR.

“Commercial court … gives us judges who have probably seen these issues before, judges who are motivated to help us, set realistic deadlines and help us with proportionality,” LaDue said. “A lot of times in arbitration you don’t get that sense … .”

LaDue also said there hasn’t necessarily been pushback to commercial courts in his experience, but there has been some confusion as to what they are and why cases are being heard by judges in other counties.

Joel Duthie, executive vice president and chief legal counsel at Patrick Industries, offered the perspective of an in-house counsel using the commercial courts.

“My CEO will ask me, ‘What’s the disruption going to be for our business? How many people are going to be impacted in order to defend this action? How long is it going to take?’ We have those conversations about the case long before we talk about the cost to the company in terms of defense, and then we also land upon, ‘What’s the likely outcome? Is that predictable?’” Duthie said.

“Having a vehicle such as the commercial courts provides some predictability,” he continued, “and provides some control over, from my vantage point, discovery and provides some control over who will be available, what documents to produce. That all goes a long way … .”

Rush asked the attorneys if any non-commercial court judges have suggested that a case go to a commercial court. The attorneys told the chief justice they haven’t experienced that yet but suggested it could be helpful due to the influence the judges have on a case.

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