New England Biz Law Update
As a team of judges prepares to lead the Massachusetts Superior Court’s Business Litigation Session when its current administrative judge steps down later this year, some skeptics of the BLS remain skeptical, if not outright critical.
In the spring of 2000, as the Boston Bar Association mulled the establishment of a Superior Court session in Suffolk County devoted to the processing of complex business cases – the goals being to improve efficiency and provide predictability for litigants in those cases – others in the bar were voicing reservations.
“What is so special about business litigation per se that it should get separate, better treatment in the courts?” asked Boston attorney Joanne D’Alcomo, a member of the BBA Civil Litigation Section at the time. “What about the injured plaintiff who needs a judgment to pay for health care, or the terminated employee in his late 50s who can’t get a job and needs a quick resolution of his case?”
Seven years later, D’Alcomo remains opposed “in principle [to] a specialized court like that” because “I represent individuals and small businesses with cases that don’t qualify for the business session – serious personal injuries where the person has been injured and is awaiting compensation and needing compensation because they can’t work anymore.”
Like D’Alcomo, Worcester attorney James D. O’Brien Jr., then president of the Worcester County Bar Association, also was concerned about the plan for a BLS in Suffolk County.
“My reservations were not so much substantive as they were parochial, as I recall,” O’Brien said. “I didn’t disagree with the concept of the BLS, but rather whether it should be located in counties other than Suffolk.”
A major shift in demographics in communities west of Boston since 2000 has O’Brien thinking Worcester County, more than ever, might be a suitable location for a BLS now.
“Traditionally, there has been a concentration of business that would avail itself of a Business Litigation Session within Route 128, [but] that barrier has now shifted westward toward [Route] 495 where there is a significant concentration of industry that might benefit from having a session in Worcester County,” O’Brien said.
‘Not business judges’
Judge Ralph D. Gants, named by Superior Court Chief Justice Barbara J. Rouse as successor to Judge Allan van Gestel, who is retiring at the end of this year, acknowledged the BLS has been and continues to be criticized. But he defended the session for its impact on other sessions of the court that might otherwise have been burdened by weighty business cases.
“I’m aware of those criticisms,” Gants said. “But it has become clear that the [BLS] more than holds its own in terms of the quantity of the work that it handles. It has relieved the time standards sessions of a fair number of commercial litigation cases, which are difficult for them to resolve because of the number of discovery disputes and the type of issues being addressed.”
As for the suggestion the BLS represents “elite justice,” Gants offered this response: “We view ourselves as judges who handle business cases, not business judges.”
He added: “There’s been a recognition that complex business litigation cases require a degree of continuity and the commitment of time, both in court and out of court, which many of the other cases in the time standards sessions do not require. But we’ve always sought to provide courts that fit the needs of litigants. And the legal community which handled complex litigation cases had expressed concern that we were not meeting their needs, so now we are.”
In announcing Gants’ appointment as BLS1 administrative judge and the assignment of Superior Court judges Margot Botsford and Judith Fabricant to what is referred to as BLS2, Rouse said that a newly named Business Litigation Session Advisory Committee will be asked to consider whether the jurisdiction of the BLS should be expanded to other counties.
Gants, too, said the views of committee members will be solicited “so we can see what is their concern about a Boston-based situation [and whether it is] hurting their ability to represent their clients. We’ll find out if that concern is substantial.”
Rouse said cases from counties beyond Suffolk, including Middlesex, Essex and Norfolk, have been accepted in the BLS in Boston.
“The issue on expansion would be what, if any, counties to bring in,” she said.
‘Just about the money’
D’Alcomo admitted to having been successful recently in seeking to move the case of one of her clients from Norfolk County Superior Court to the BLS and to using the session frequently. Nonetheless, she does not seem mollified by the favorable reviews the BLS receives from other lawyers who use it.
“It’s not the survival of a business or the viability of a business that gets the special attention” in the session, she said. “It’s just about the money.”
Lawyers, she continued, “have an obligation to consider the civil justice system and the functioning of the civil justice system as a whole. As a whole, is it really fair to give this special [BLS] treatment to only business-related cases? I think the answer is ‘no.’”
Even as the session remains a lightning rod for criticism from some quarters, Boston attorney Holly M. Polglase, whose practice takes her into federal court on a regular basis, believes the BLS could experience newfound popularity in the wake of recently imposed requirements governing electronic discovery in federal litigation.
“The requirements are new, and it’s unclear to many practitioners how onerous they are going to be. They certainly, on their face, impose significant burdens on corporate clients who utilize electronic storage for their data,” said Polglase, a past president of the Massachusetts chapter of the Federal Bar Association.
Because no such discovery rule currently applies in state court, the BLS, Polglase said, might be viewed as “an alternative for those business practitioners seeking to avoid the burdens of the electronic disclosure requirements.”
‘Valuable tool’
For members of the Massachusetts Bar Association, which originally was guarded in its receptivity to the BLS, the specialized session appears to have proven its worth over the years.
“The MBA’s thinking on the Business Litigation Session has developed a great extent since our earlier concerns,” MBA General Counsel Martin W. Healy said. “The MBA membership has embraced the session as a valuable tool where these complex cases can be dealt with in a deliberate fashion by the court.”
Still, the association continues to have “lingering concerns” about proposals to create specialized trial-court sessions, Healy added.
“The court coffers are not flush with revenue or with budgetary allocations from the Legislature. But there are certain areas that lend themselves to particular attention, and the BLS is certainly one of them.”
