BLS expansion urged

It could be business litigation as usual in the Massachusetts Superior Court session devoted to that area of practice if recent comments by Judge Ralph D. Gants, who recently took over the session, are any indication.
But business law practitioners in the Worcester, Mass. area are hoping for one major change – the expansion of the session’s jurisdiction to their city, the second largest in New England after Boston.
Established in Boston’s Suffolk County Courthouse in 2000, the Business Litigation Session (BLS) has won kudos from many in the bar for providing efficiency and predictability in the processing of complex business cases. Given its reputation, Gants has signaled that the session is unlikely to change significantly from what it was under recently retired Judge Allen van Gestel.
“There are going to be efforts to change it around the edges,” Gants said, “but the session will continue, we hope, in a seamless transition.”
Still, the BLS’s jurisdiction has been limited to Suffolk County and contiguous counties, sparking discussion for a push to expand its reach.
That such a prospect is being discussed became apparent when Worcester attorney James C. Donnelly Jr., a panelist at the Massachusetts Bar Association’s annual seminar for in-house counsel, recently urged his audience to press for expansion of the BLS into Worcester County. In interviews since, other Worcester lawyers have joined in the call for a session in their county.

‘Balance needs to be struck’
A member of an eight-member Business Litigation Session Advisory Committee appointed last summer by Superior Court Chief Justice Barbara J. Rouse, Donnelly has emphasized in follow-up remarks that his views on a possible expansion of the BLS to Worcester are his own, not those of the committee.
“As a personal matter, I would support and encourage others to support an expansion,” Donnelly said. “As a Worcester County lawyer, I think there’s clearly a balance that needs to be struck between geographic accessibility and the benefits the court has to offer. And right now the court only sits in Boston, and right now Worcester is outside of its scope.”
Meanwhile, Worcester and its surrounding communities, especially those in the Route 495 belt, are booming with new business, according to Donnelly.
“[Route] 495 is a big factor, and also right in Worcester, there’s a lot of academic research, a lot of biomedical research,” he said, “so there are a lot of important business disputes that occur here. There’s a very important biotech industry that’s doing research and licensing technology and commercializing it” at the Worcester-based University of Massachusetts Medical School.
And at Worcester Polytechnic Institute, he said, “in addition to its normal academic programs, they’re active promoters of research with other colleges and the commercialization of that research.”
Business litigants in Worcester, Donnelly noted, can take their disputes to the BLS in Boston – but only if both parties to a case consent to do so. Otherwise, he said, “they go into [Worcester] Superior Court with all the others. Many judges do a good job of expediting them, but it’s hard to do that in a busy court, especially one in Worcester where [courthouse] facilities have been only recently expanded.” (A spacious, state-of-the-science Worcester Trial Courthouse opened in October 2007.)
While acknowledging that “it is premature for me to say where [discussion of a Worcester BLS] may go,” Donnelly recalled that Rouse, in convening the BLS Advisory Committee, had asked its members “to consider ways to improve the court and make it more responsive to the needs of lawyers and litigants all across the state.”

‘A great idea’
Worcester business litigator Kurt L. Binder, co-chairman of the Worcester County Bar Association’s Commercial/Corporate Law Section, joined in the chorus calling for an expansion of the BLS into Worcester.
“What happens is complicated business cases are often being heard here in Worcester, and oftentimes the judges are just not familiar with the business issues,” Binder said. “It seems that having a specialist in the field would be very helpful and would also move the cases quicker.”
James G. Reardon Jr., president of the 1,200-member WCBA, also expects that the pace would quicken under the guidance of a BLS judge.
“We have very busy trial sessions here, and complicated business litigation cases would be harder to schedule in the normal course of events because they tend to be lengthy and [because] the criminal business will take precedence,” said Reardon, a general practitioner.
The business cases, he continued, “can tend to go to the back of the line,” or the attorneys involved “have to be persistent in getting a firm trial date.”
Mindful of the business growth occurring in and around Worcester and the litigation it has generated, Reardon cited those developments as reason for giving consideration to a local BLS.
“There are more complicated business matters here than people might at first assume,” he said, “so I think the area would support a business session.”
EMC Corp.’s Paul T. Dacier, executive vice president and general counsel for the Hopkinton, Mass.-based information-storage company, said he would “not be adverse” to an expansion of the BLS to Worcester County and even to Hampden County, with its seat in Springfield. But he acknowledged that financial constraints on the judiciary likely would prevent such an expansion at this time.
Meanwhile, Dacier said, “the current process and procedures [in the BLS in Suffolk] seem to be working fine.” He noted that EMC Corp., even with facilities in Middlesex and Worcester counties, has had cases in the Suffolk BLS on occasion, “and I’ve always taken comfort in the fact that parties can waive any venue requirements and stay in Suffolk. By far and away, most litigants have been reasonable in this regard. I don’t think there’s a huge hurdle in ending up in Suffolk.”

‘We do not have the resources’
Boston attorney Robert J. Muldoon Jr., chairman of the BLS Advisory Committee, said other counties, beyond Worcester, should be considered in any discussion of whether the BLS should be expanded.
“I think the question is: Where in the state does it appear that this kind of a session would be useful? I think that’s a concern that could arise in many, if not all counties,” Muldoon said.
“If that is the conversation,” he added, “I think it shows the value that the session has accrued over the years.”
Citing budget limitations, Gants scotched the notion of a BLS expansion at this time. “We don’t have any immediate plans [to expand], in large part because we don’t have the resources seriously to contemplate beyond what we have,” he said.
Rouse confirmed as much. “There are no present plans to expand,” she said. “It is something that we consider on an ongoing basis, and the [BLS advisory] committee certainly has discussed it. Even if we decide to do it, we do not have the resources to do it.”

Proactive communication
Jurisdictional expansion aside, Gants has moved on a few fronts to implement some changes in the session. He has issued memoranda of formal guidance on confidentiality agreements and motions for reconsideration and two procedural orders on privilege logs and reply memoranda.
Gants further indicated that lawyers using the BLS can expect its judges to maintain “judge-case continuity.”
Also, an effort is under way to recruit a senior law clerk to work with the session judges, who include Gants in BLS I and judges Judith Fabricant and Stephen E. Neel rotating every three months in BLS II.
“Ideally, we’re looking for a mid-level associate who is terrific at research and writing, who may be looking for a lifestyle change and be willing to leave a law firm to come work with us,” Gants said.
The BLS’ new administration, Gants continued, is also seeking to communicate with the bar “proactively” – with a BLS link on the Superior Court’s website.
“We’re attempting to communicate with the bar in some methodical fashion,” he said, “instead of just at bar events.”