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Editorial Advisory Board: Business community needs better access to justice

Maryland has taken great strides to improve access to courts to many classes of litigants perceived to be denied justice. Strides have included speedy trials for criminal defendants, expedited resolution of guardianships and child welfare cases, and a District Court system that attempts to fast track civil cases and provide for pro se litigants. It is time to formulate serious reforms to improve access to justice for Maryland’s business and technology litigants, who can get bogged down in the courts that are not well-suited to handle these issues.

Gov. Larry Hogan says he was reelected in part because he has reopened Maryland for business. Promoting government incentives and bureaucratic efficiencies may be good press fodder, but it goes only so far to create the confidence for business investment. Gov. Hogan ignores the distressing value proposition dilemma that plagues Maryland: lack of an effective business court in which “bet the farm” cases may be heard.

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 matters 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.

Maryland has an intelligent judiciary, and some jurists believe that any judge can handle any type of matter, including a complex business or technology case. 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 agreements containing terms of art in the business or technology industry involved. Many cases also require that a judge devote significant attention to the matter, without distraction of the demands of his or her daily docket. As well, written opinions are extremely helpful and judges serving on the business and technology track of their courts do so in addition to all of their other duties that leave so little time.

The parochial structure of Maryland’s circuit courts is excellent for ensuring local representation on the bench but does not lend itself to creating a highly experienced cadre of business- and technology-track judges who can serve litigants throughout the state, including smaller jurisdictions that seek economic development but whose judges may lack any commercial experience.

We propose, again, a new, independent business and technology court that would provide business litigants with access to expedited justice by waiving a jury trial and opting into a resolution process with expedited discovery, motions and trial before a judge appointed because of his or her business and technology experience. Judges can be appointed from regions by the governor and confirmed by the Senate to 10-year terms from a pool of qualified business and technology attorneys from throughout the state, rather than limited to a single county. This new court must be required to issue written opinions, provide prompt en banc review and be authorized to publish nisi prius opinions to help build a Maryland business decisional library available to the balance of the Maryland trial judges and litigants.

The economic benefits of the court to litigants will justify sizable filing fees. The economic benefits to the state would justify state investment. Creating a reliable business court system will only improve Maryland business climate value proposition.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Martha Ertman (on sabbatical)

Arthur F. Fergenson

Nancy Forster

Susan Francis

Michael Hayes

Ericka King

Stephen Meehan

William Michaels

Angela W. Russell

Debra G. Schubert

Mark Stichel

Vanessa Vescio

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, or if a conflict exists, majority views and the names of members who do not participate 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.