Last week a client came to me and asked if there was anything I could do to expedite his lawsuit. He wanted to go to trial ASAP, come hell or high water, and he wouldn’t take no for an answer. I told him that in order to get a trial that soon, he’d have to go rob a UDF.
Okay. So the above exchange never happened. However, the preeminence of the criminal docket within the Court of Common Pleas is no secret. The Common Pleas Court, generally, has jurisdiction over criminal felonies and civil disputes in excess of $15,000. By most accounts, criminal matters occupy about 75% of a judge’s time. Furthermore, because criminal defendants have a constitutional right to a speedy trial (lousy Sixth Amendment), criminal cases always preempt commercial ones, no matter how significant.
It was in response to this issue that, in 2009, the Franklin County Court of Common Pleas adopted a commercial docket in concert with a statewide pilot program. This program was spearheaded by late Chief Justice of the Ohio Supreme Court Thomas J. Moyer with the goal of expediting the resolution of commercial disputes to ultimately improve Ohio’s overall business climate.
More august legal minds than this bare-knuckled litigator have weighed in on the commercial docket’s subsequent demise—the judges terminated it in 2012 by a 9-8 vote. Since then, it seems that every time a new class of judges takes the bench, the issue is revisited, weighed, voted upon…and dropped. Many judges didn’t—and still don’t—like the commercial docket, even if many commercial litigators did.
So what happened? How did we in Franklin County “lose the moment” to host a commercial “rocket docket” in the make of Delaware’s renowned Court of Chancery, which presides over some of the largest commercial disputes in the country? Was our commercial docket a solution to a problem that didn’t exist? Was it poorly implemented because it didn’t go far enough in separating itself from the day-to-day exigencies of the criminal docket? In short, is there any way to revive the commercial docket in a way that is not only palatable to the nine judges who voted against it, but that works better than its previous iteration?
Some claim that the judges who voted against the commercial docket did so as a matter of “ego,” as if they don’t appreciate being told that they somehow aren’t “qualified” to preside over commercial cases. My reaction to this accusation is, in the words of the immortal Bill Hicks: Yeah? And? So? What? The reality is that most commercial cases aren’t terribly complicated. I’d have to question the sanity of any legal system in which the same judge who presides over murder trials is somehow not “up to snuff” to wrap his mind around an LLC shareholder dispute.
At the same time, there is a problem when commercial litigants, regardless of the significance or complexity of the underlying disputes, constantly find themselves kicked to the back of the line behind a criminal docket that shows no signs of slowing down. There also are instances of complex, multi-party commercial litigation that can absolutely decimate a judge’s docket if he or she is not sufficiently seasoned in the subject matter. Some degree of specialization may be required. Therefore, while there is no Sixth Amendment right to a speedy commercial trial, can we at least throw a bone to the entrepreneurs, risk-takers, and job creators among us? A commercial docket to resolve their disputes expeditiously and competently. Not necessarily as a matter of specialization, but of priority.
To be sure, the old commercial docket had its issues. The criteria to qualify for the docket was overbroad. As Judge Schneider said, “Just because two corporations are suing each other does not make it complex litigation.” Commercial Docket Had Plenty of Drawbacks, Columbus Dispatch (Mar. 21, 2015). Also, because a case could be moved to the commercial docket at any time, by any party, it opened the door for “judge shopping.” But these should be easily curable issues, not a reason to scrap the program altogether.
Earlier this month, I was listening to a candidate for the Common Pleas Court give his “elevator” speech as to why he is running and what he is passionate about. He discussed the specialty drug court in Hocking County as an example we could follow here. He talked about his background in defending the criminally accused. All good stuff…except there wasn’t a word about civil disputes. It actually gave me some hope. Perhaps with the proliferation of specialty dockets throughout Ohio (drug, mental health, veterans, etc.), the judges can view the commercial docket as a mechanism to follow their own personal interests, not because they aren’t qualified to preside over commercial cases, but because they don’t want to. It’s not why they ran for the bench in the first place. If elected, let the specialty drug court candidate have his drug docket. Let a judge with a civil litigation interest pick up the slack on the civil end. Sounds pretty simple to me.