Editorial Advisory Board: Md. still needs a business and technology court

In June, we wrote about the problems with the state’s Business and Technology Track Courts. The headline said it was “time to get serious.” Perhaps we should have said, “Is anyone listening?”

Maryland still has a problem due to not having a business court that can act with consistency and sophistication to take care of businesses. So we are running our last editorial one more time. We strongly believe that if businesses cannot have faith in resolutions to their most important disputes, they will not locate or stay in Maryland.

Sometimes we need to bang the drum to get attention, and once again we do so to direct attention to the Business and Technology Court track. If Maryland is to be “open for (and to) business,” as Gov. Larry Hogan desires, Maryland needs a better Business and Technology Court track.

Maryland has a good and intelligent Judiciary, and some jurists believe that any judge can handle a business or technology case. But handling a case does not necessarily mean only reaching a conclusion. The result must be correct for the right reasons. These cases often involve complex issues of accounting and finance or require interpretation of complex agreements containing terms of art in the business or technology industry involved. Knowledge and specific experience is often required to fully understand and appreciate the issues and their nuances. Many cases also require that a judge devote significant attention to the matter, without distraction of the demand of his or her daily docket.

Business people require confidence in the ability to predict a result when the law is applied to specific circumstances, particularly in important cases that will affect the future or solvency of the business. Confidence comes from a belief that a court will fairly adjudicate business issues with understanding of the issues, and will draw from an available and clear body of law that can be relied upon by lawyers for guidance before and after a case is filed.

Recognizing the value

For almost 15 years, Maryland has recognized the value of having a Business and Technology Court. In 2000, the General Assembly created the Maryland Business and Technology Case Program Task Force to consider implementation of a business court in Maryland. In 2003, the Business and Technology Case Management Program was created based upon these recommendations:

• That access to the court be available in all Maryland jurisdictions.
• That the judges be individuals familiar with business issues and business litigation and understand business and technology issues, and that training in these matters be available
• That the judges would issue written opinions of their findings and awards.

Although the BTCMP began with great promise, it has disappointed many lawyers. The case management program can and should do better.

Concerns about the program’s effectiveness prompted the Business Law Section of the Maryland State Bar Association to create an ad hoc task force to review the BTCMP. The task force’s final report was issued in January and observed:

“Since its implementation in 2003, the BTCMP has addressed some important issues in managing complex business and technology law cases. Nevertheless, several key factors have limited the effectiveness of the program. These factors include:

• Non-uniformity in the program as administered in the various circuits;
• Inconsistency in forms and case management procedures;
• Lack of coordination of, and accessibility to, information;
• Lack of coordination of, and accessibility to, opinions; and
• Lack of coordination of, and accessibility to, resources.

Opinions, results

We agree with the ad hoc task force and stress the need for review and change is sufficient as to require the Maryland Court of Appeals to step in and revamp this important program, with help from the governor and legislature if need be.

The original goals of the Maryland Business and Technology Case Program Task Force of creating equal access to the BTCMP by all Maryland jurisdictions and providing trained, knowledgeable judges are of paramount importance. With the availability of electronic filing, a central BTCMP program can effectively handle matters arising in all jurisdictions, so long as any litigant has the right to have trials and hearings involving witnesses held in the original county of filing, principle recognized by the ad hoc task force.

We also believe that the judges selected should have not just a desire to handle business cases, or a level of seniority, but also the relevant background and experience in business and technology matters. Annual subject area training is essential.

Finally, and this may be the most important aspect, the BTCMP judges should handle only BTCMP cases. This is important not just to enhance the knowledge, skill and efficiency of the judges and the program, but also to achieve and fulfill one of the most important promises of the BTCMP: written opinions and consistent results. Standard judicial dockets are crushing, with staffing not adequate to allow judges to handle their basic work and the additional BTCMP cases. Their ability to create thoughtful written opinions is, in essence, eliminated. We think a judge who fails to fulfil the written opinion requirement should be removed from BTCMP, because a “library” of written opinions is essential.

This is admittedly a difficult issue. One solution is the creation of a new trial court known as the Business and Technology Court, with judges with fixed terms, subject to retention elections. Judges would be appointed by the governor on the recommendation of a Business and Technology Court Judicial Nominating Commission that can focus on identifying and recommending candidates with strong business and technology practice backgrounds.

Maryland businesses need a safe legal environment; they do not have it now. They need a great Business and Technology Case Management System, one that works and achieves the original goals proposed and promised. Sophisticated businesses won’t relocate here without one. Now is the time to act and we urge all to do so to make this happen.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

John Bainbridge Jr.

Wesley D. Blakeslee

Martha Ertman

Arthur F. Fergenson

Susan Francis

Marcella A. Holland

David Jaros

Ericka King

Stephen Meehan

C. William Michaels

Angela W. Russell

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the Board attempt to develop consensus on issues of importance to the Bench, Bar and public. When their minds meet, unsigned opinions will result. When they differ, majority views and signed rebuttals will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.

Find out more about the members of the Editorial Advisory Board.