Many business courts make their judicial opinions available on publicly accessible websites, either on the business court’s own webpages or on a statewide court administration webpage. I recently reviewed the number of opinions posted to these publicly available websites in 2022. I’ve set out some results below, after a brief commentary on how to look at these numbers, and some other thoughts on business court opinions and history.
Factors to consider in comparing opinion output
There are sufficient distinctions between business courts that give each its own unique character. This makes opinion writing output comparisons not only apples to oranges, but more like apples to oranges to bananas to grapes, etc.
Myriad factors affecting business courts opinion output include some very basic and obvious differences, as well as subtler distinctions. Most obviously, some courts will have more cases on their dockets because of the size of the state, city, or county where they sit. Some business courts may only be in a single city or county, some may be in multiple districts or counties, and some may be statewide.
Further, variations in jurisdictional standards control the number of cases a business court has on its docket. For example, some business courts’ jurisdictional standards require that cases not only involve business or commercial issues, but that they also be “complex”. Other business courts will automatically include all cases falling into certain categories of business/commercial disputes that exceed a jurisdictional minimum amount-in-controversy, regardless of complexity and without the need for a gatekeeper’s discretion. Some business courts automatically include certain case types regardless of any minimum amount-in-controversy.
Another obvious differentiating factor in total opinion output is the number of judges sitting on each business court. Maybe less obvious, however, is the availability of law clerks or staff attorneys to assist the judges. Thus, e.g., one judge with two available law clerks/staff attorneys may be able to write more opinions than two judges with little or no clerical staff support.
Courts that are well established are likely to produce more opinions than a newly established business court or pilot business court; though this is not necessarily the case. For example, take the first two years of Philadelphia’s Commerce Case Management Program (Commerce Court). Between March and December 2000, its first year of operation, Philadelphia’s two Commerce Court judges (Judge John W. Herron and the late Judge Albert W. Sheppard, Jr.) posted 53 publicly available opinions, many of them lengthy; and in 2001, posted 137 opinions. In later years, after working to establish this body of case law early on, that court actually decided it was not necessary to post as many opinions, or as many lengthy opinions. Thus, these first two years of publicly posted opinions account for nearly 13% of the Commerce Court’s publicly posted opinions over a twenty-three year period, even though the Commerce Court had expanded to three judges for most of those later years.
In 2018, toward the end of the Indiana Commercial Court’s pilot period, the Commercial Court Working Group reported, “The numbers across all Commercial Courts reflect the Commercial Courts’ ability to issue substantive orders in an expedited manner. Parties seeking orders on preliminary injunctions, motions to dismiss, and summary judgment motions can expect thoroughly researched opinions that are typically returned by, and often in advance of the 30-day deadlines set forth in the Indiana Trial Rules. The orders generally contain thorough legal analyses explaining the Court’s reasoning.” A copy of that report can be found here.” (Indiana’s Commercial Court was made permanent as of June 1, 2019, see this post, and has since expanded into 4 additional county superior courts as of January 1, 2021, see this post.)
Searching the Commercial Court opinion website, I counted 17 Commercial Court opinions issued in 2022, principally by Judge Heather Welsh in Indianapolis. (Judge Welsh is an officer of the American College of Business Court Judges.)
While having a positive opinion writing experience, Indiana’s Commercial Court has a significant jurisdictional limitation. It is a full party consent jurisdiction, see Indiana Commercial Court Rule 4, here, which has the limitations discussed immediately below.
A few business courts require that all parties consent to the business court’s jurisdiction for the case to remain in the business court. This most likely reduces those courts’ docket volumes when compared to mandatory jurisdiction courts, or where one party can obtain access within the gatekeeper’s discretion. See our previous post on full party consent jurisdictions, here.
Courts that successfully include ADR as part of case management in every case will likely have less opportunities to issue opinions than courts with cases where the parties do not participate in some form of ADR in every case. By way of one example, since its inception, Philadelphia’s Commerce Court has included a mandatory settlement conference in every case, conducted by experienced commercial litigators with ADR training and/or ADR experience, acting as Judges Pro Tempore. These JPTs are listed on this business court’s webpages. For a more general discussion of ADR in business courts, see this article.
There may also be local practices in a legal community’s culture affecting opinion output. In some jurisdictions, there may be a longstanding custom of issuing opinions, explanatory memorandums, or even “footnote opinions” (i.e., a short order with a lengthy footnote giving the parties a basic, but reasoned, explanation for the order). Jurisdictions issuing shorter opinions may be able to produce more opinions than those writing opinions along the lines one would expect from an appellate court or U.S. District Court. On the other hand, other jurisdictions may have a sparse history of opinion writing, doing so infrequently and/or because of some necessity, e.g., the trial judge must write an opinion because an appeal has been taken.
I’m sure there are other factors affecting opinion output, but the last one I’ll mention is the Covid effect over the last three years.
Parameters of this review
As mentioned, I only reviewed business court webpages with publicly available opinions. Even there, it is possible that some business court opinions do not make their way onto those public sites. (By contrast, Michigan requires that all business court opinions be posted on an indexed website, within a delineated format. A February 2020 directive from Michigan’s Supreme Court, found here, states: “All written opinions in business court cases shall be made available on an indexed website.” Further, pursuant to Administrative Order 2013-6, business court opinions shall be transmitted to the State Court Administrative Office (SCAO) within seven days after the court enters the opinion. These opinions must meet the following requirements ….”)
Not all business courts have webpages making their opinions publicly available in one place, even though their judges are writing opinions. Thus, e.g., the 30 year-old Circuit Court of Cook County Commercial Calendar, which has 8 judges, could be writing a significant number of opinions, but that program has no opinion webpage from which to readily find these opinions as a whole. Nor are Commercial Calendar opinions part of the Westlaw database. (Some business court opinions can be found on Westlaw or Lexis, but this is far from uniform or complete.)
Metro Atlanta Business Case Division opinions are collected by the Georgia State University College of Law, and made publicly available, so this was included in my review. A link to that Georgia State University list is on the court’s website.
Massachusetts Business Litigation Session
The Suffolk Superior Court (Boston) includes the over two decade old Business Litigation Session (BLS). We have previously posted on some aspects of BLS history, here.
Since the early days in late 2000 when Judge Allan van Gestel helmed the BLS single-handedly, the BLS has produced opinions. See the discussion at page 180-182 of The History of the Creation and Jurisdiction of Business Courts in the Last Decade (TBL 2004), found here. As stated on those pages, the BLS issued 300 opinions in just its first four years, including two years during which Judge van Gestel was the only BLS judge.
These opinions are available, however, only through a subscription service with the Social Law Library. Thus, I am not including the BLS in my review below of publicly accessible opinions found on court websites, which is a basic criteria for the method used to determine opinion numbers for this post.
That being said, Westlaw searches in the Massachusetts state trial court database for the term “Business Litigation Session” from the most recent pre-Covid years, returned lists of 88 opinions for 2019, 97 opinions for 2018, and 93 for 2017. The 2022 Westlaw results did not seem consistent with recent history, for reasons unknown to me, but in 2021, the same Westlaw search returned a list of 54 opinions, and returned a 100 opinion list for 2020.
(While preparing this post, I received an email notice of a new blog post on JDSupra, summarizing this November 30, 2022 BLS opinion. This opinion is not in Westlaw’s Massachusetts trial court database. A few other examples of 2020 BLS opinions can be found here, in the ABA Business Law Section’s 2021 publication, Recent Developments in Business and Corporate Litigation.)
2022 Opinions on Publicly Available Websites
The following is a list of business courts issuing approximately 50 or more publicly available opinions in 2022. The court names (in most instances) are hyperlinked to the source websites where I located the opinions.
Business court opinions do not only involve case dispositive issues on the merits. For example, they could address discovery disputes, motions to dismiss that do not address all of the plaintiff’s causes of action, filing under seal, jurisdiction, motions to disqualify counsel, i.e., business court opinions address the full gamut of possibilities arising during litigation.
(1) New York Commercial Division (over 600)
These online opinions are not easily searched in one place, but all can be found through publicly available webpages. There is a webpage entitled New York Commercial Division Recent Decisions, which has approximately 120 opinions listed for 2022. However, doing statewide opinion searches by the judge’s name appears to cast a much broader net for capturing Commercial Division opinions.
Using that second method, I did individual searches for each of the eight judges currently listed as serving in the Manhattan (New York County) Commercial Division. This yields considerably more than 120 Commercial Division opinions in 2022 for New York County alone, and does not include 2022 Commercial Division opinions publicly available in the other ten counties or districts with Commercial Divisions outside of Manhattan. (The New York Commercial Division is not in every New York county or judicial district.)
I found the following number of 2022 opinions per individual New York County Commercial Division judge. These are judges currently listed on the Commercial Division’s webpages, though there may have been others serving in Manhattan’s Commercial Division in 2022 who are no longer listed, as to whom I have no knowledge.
Judge Borrok (127)
Judge Chan (77)
Judge Joel Cohen (125-130 approximately)
Judge Crane (64)
Judge Masley (134)
Judge Ostrager (41)
Judge Reed (62)
Judge Schechter (15)
Finally, I did quick searches for each listed Commercial Division judge in the remaining ten counties or districts. Outside of New York County, the number of judicial opinions was far less than New York County, with only one non-Manhattan Commercial Division judge issuing over twenty opinions in 2022. This was Judge Knipel of the Brooklyn/Kings County Commercial Division, who issued 59 opinions in 2022. Some of the other judges had less than 10 listed opinions, and some had between 10 and 20.
(2) Delaware Court of Chancery (337) The Chancery Court is a court of general equity jurisdiction, so its docket is not limited to business disputes; or commercial disputes of an equitable nature, e.g., addressing non-compete, non-solicitation or non-disclosure disputes. Thus, it is unlikely all of these 337 Chancery opinions involve business or commercial disputes. For example, a recent 2023 opinion dealt with a special use permit to establish a fraternity house, another dealt with a will dispute, and another addressed title to land.
I did not review all 337 opinions posted for 2022 (which include those issued by the Chancellor, Vice Chancellors, and Masters), but did look at the last 20-25 opinions issued in 2022. While the majority of these opinions addressed business or commercial type disputes, it was not a vast majority. Projecting that very rough sampling over the entire year, it seems possible that business and commercial disputes constituted between 150-200 of the posted opinions. I will have to leave it to others, however, for a closer analysis.
(3) Michigan Business Courts (over 190) Michigan has business courts in 17 of its 83 counties.
(4) North Carolina Business Court (154)This includes: (1) Business Court Opinions, and (2) Business Court Orders of Significance. North Carolina’s General Rules of Practice for the Superior Court, which includes the Business Court, provides in Rule 2.1(b) that “Every complex business case shall be assigned to a special superior court judge for complex business cases, designated by the Chief Justice under Rule 2.2, who shall issue a written opinion upon final disposition of the case.” Thus, while North Carolina Business Court judges write opinions on many subjects, they must write an opinion on case dispositive matters. Such express mandates that business and commercial court judges write opinions is the exception, not the rule. Most business courts’ rules or enabling acts or orders appear to be silent on the subject.
(5) Delaware Superior Court Complex Commercial Litigation Division (61) The CCLD’s protocols provide that, “Any case that includes a claim asserted by any party (direct or declaratory judgment) with an amount in controversy of $1 Million or more (designated in the pleadings for either jury or non-jury trials), or involves an exclusive choice of court agreement or a judgment resulting from an exclusive choice of court agreement, or is so designated by the President Judge, qualifies for assignment to the CCLD.”
(6) Rhode Island Business Calendar (approximately 50 based on opinion searches for the three Business Calendar judges, i.e., Judges Licht, Stern, and Taft-Carter.)
A bit closer review of the subject matter of these opinions shows these Business Calendar judges handling cases that would not typically be considered business or commercial cases. This would indicate a program with a hybrid business and complex litigation docket, such as can be found in Pittsburgh’s Commerce and Complex Litigation Center, Ft. Lauderdale’s Complex Litigation Unit which has business and tort subdivisions, or the Arizona Complex Litigation program and its Commercial Court, which share two judges in common.)