🔒Funding revives state’s business court

Rumors of the demise of Maine's business court have been exaggerated.

Launched in 2007, the Business and Consumer Court had just hit its stride when the tumultuous economic climate struck in 2008. A shortage of state funding reduced the court's staffing at the Portland court for more than a year, slowing down its work. But thanks to recently restored funding, the court is back to full operations as it enters its fifth year, with two new clerks and a third judge in the rotation.

Revived by the added resources, the business court judges are spreading the word to bring in more cases, recently plugging the business court's benefits at a Maine Bar Association meeting. "We are now back into almost a PR mode, to make people aware of our presence and to let them know we're here, and I think there has been an increase in our filings and new cases, which is great, and we're going to continue to push that," says Superior Court

Chief Justice Thomas Humphrey, who helped establish the business court.

Hobbled by funding cuts, the court's work slowed precipitously, prompting Supreme Court Chief Justice Leigh Saufley to characterize the court as being on hiatus in a recent conversation with Mal Leary of Capitol News Servvice and a columnist with Mainebiz. Saufley says the court continued to operate, but for about 12-18 months "had been floundering. It was definitely in grave difficulty…but it didn't actually completely shut down," she says.

Over the three or four years prior to 2011, the judicial branch's budget was cut by $1 million, forcing it to leave as many as 50 positions vacant, including a full-time clerk's position at the business court. This year, the Legislature and Gov. Paul LePage restored the judiciary to its baseline budget, allowing it to fill empty positions, says Saufley.

Humphrey emphasized the court's continuing, albeit lagging, operations during the down period. "While it's true we've been suffering under a serious lack of resources for quite some time, and there was a dip in what we consider our effectiveness for a period of about a year, we were never shut down," he says. "We were always in operation, and we struggled — and I think in many respects successfully — to give the appearance that we were still in business as usual."

Humphrey acknowledges that some of the lawyers and others who utilize the court "noticed a little bit of a change in some of the efficiencies as we tried to work around those. But as far as the cases that we had, we were still pushing them along."

During the period of reduced funding, the court's full-time clerk transferred to another job and the position was left vacant. An assistant clerk remained, but was unable to keep up with the amount of work; a clerk must be in the courtroom during proceedings, leaving office functions unstaffed.

A key feature of the court is its constant communication with attorneys and other parties, says Humphrey, and the court previously had prioritized same-day responses. Having only one clerk made that challenging, says Superior Court Justice John Nivison, who also handles business court cases. "For that year period, gradually, we saw some deterioration in our ability to manage the cases to the standard, frankly, that I think we had established in the Bar and the public had come to expect."

The court now has two clerks, hired in the spring, and this year added judge Justice Andrew Horton. All three judges spend half their time in the business court and the other half working on other dockets or on administrative functions (Horton handles cases at Sagadahoc County Superior Court; Nivison at Kennebec County Superior Court). Last year, the court also relocated from Sagadahoc County Superior Court in West Bath to Portland. As of November, the court had handled 95 cases in 2011.

Special attention

One of the advantages of the business court is its responsiveness, say the judges. Every case — like contractual disputes, tax appeals and malpractice claims — brought to the court gets a case management conference to establish a timeline and set a trial date (though many cases settle before that date). "I think the biggest benefit is the case management, and the ability to give consistently timely attention to a case that enables it to be resolved in a timely way," says Horton. Freeing businesses up from lengthy legal disputes allows them to better plan for the future, he says.

Though it's not a requirement, many cases transferred from other dockets to the business court are complex; the number of parties can reach into the 20s. Resolution can take a year or more, though the median time for all cases handled by the court is seven-and-a-half months, which reflects the time from when they are referred to the court until the trial ends or the case is settled. In fiscal year 2011, the median case time was a little under five months.

David McConnell, chair of the litigation department at Perkins Thompson in Portland, considers whether every case he has would be best served by the business court. "I don't know if the decisions are made more quickly than in other courts, but I would say each case gets more judicial touches," he says. "And though he had noticed a slowdown in the court's responsiveness, "one thing that hasn't changed is the court's commitment to dealing with cases efficiently and appropriately."

He also lauds its electronic filing system, the first in the state's courts, although Humphrey calls it a "poor man's" e-filing system. The court encourages parties to submit documents via email for faster attention. Should resources become available, the court will establish a proper e-filing system to be used as a pilot for the rest of the state's courts, says Humphrey.