I was recently re-reading one of the earliest reports on creating a business court, and thought it would make for interesting reading. This report was issued in July of 2000, as part of the Colorado Governor’s Task Force on Civil Justice Reform. The Task force recommended a pilot business court in Denver.
While no business court was created in Colorado, the report remains of interest. A copy of the report can be found here.
It has particular points of focus on specialization; consistent judicial assignments; published opinions by knowledgeable judges to provide guidance to the business community; and streamlined decision making or resolution through savvy judicial case management, special masters, and the use of technology.
Here are some quotes from this report:
“As noted above, members of the business community are frustrated by the unpredictability of litigation results. Inconsistent decisions can be caused by a trial judge’s lack of familiarity with the substantive area of law applicable to the commercial case. Specialization, on the other hand, allows judges to gain experience with particular kinds of cases and thereby develop expertise in that field. This enables judges who specialize to perform their functions more proficiently than judges who hear a wide range of cases.”
“In addition, pending the development of published appellate authority, trial judges are often called upon to develop common law rules without previous experience with an issue. When judges are thoroughly familiar with a particular area of law, they can quickly focus on the important factual issues. Moreover, a specialized judge is more attuned to how a particular case disposition fits within the context of the substantive area and can apply the law to that case accordingly. As a result, the quality and consistency of decisions in commercial cases would improve.”
“Trial judges with specialized expertise have an intrinsic feel for moving complex cases along by setting and enforcing appropriate pretrial preparation deadlines, supervising disclosure and discovery, ruling on summary judgment and other dispositive motions. Trial judges are frequently called upon to rule verbally, with little time for research or consultation. A judge with substantial experience in complex cases can set a realistic course for the case and make the necessary decisions with less research and reflection than a judge unfamiliar with the area of law. Thus, creating a business court with judges who devote all of their efforts to processing commercial cases will lead to more efficient case management.”
“Creating a business court could also provide an opportunity to develop a body of common law for commercial cases because a business court would present a natural repository of commercial case decisions. The business court could publish those decisions in a written publication … and could also provide access to its decisions through the Internet. Business lawyers and their clients could then base their litigation and related business decisions on a more informed assessment of the likely outcome of litigation. A database of business court decisions would also enhance the development of common law interpretation of new business statutes.”
There were subsequent experiments with business courts in Colorado, including what came to be known as the Public Impact Docket in Colorado’s Fourth Judicial District, which began as the Commercial Docket in 2006. That program ended in or around 2014.
In a more elaborate four district wide pilot program, in 2011 the Colorado Supreme Court authorized the Civil Access Pilot Project Applicable to Business Actions in District Court (CAPP). That pilot program operated from 2012 through mid-2015. A detailed report and analysis on CAPP, carried out by the University of Denver’s Institute for the Advancement of the American Legal System (IAALS) can be found here. Some lessons learned from the CAPP experiment have carried forward into Colorado’s civil rules, though the specialized business program concept has not.
The CAPP Rules and Rule Appendices can be found here. While no longer in effect, they can certainly provide a resource to those studying business, or implementing/adapting rules and practices in business courts.