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May/June 2016 – BizVoice/Indiana Chamber
15
When Frank Sullivan, Jr., an
Indiana Supreme Court Justice
for 19 years and currently a
professor at the Indiana University
Robert H. McKinney School of
Law, speaks about courts, it’s a
good idea to pay close attention.
Asked about the importance of the new
commercial court pilot project that begins
June 1, Sullivan pauses, offering, “States that
have the best functioning judicial systems
have business or commercial courts of one
kind or another. There’s some general
consensus around the country that businesses,
all other things being equal, are attracted to
states that have a well-developed business or
commercial court.”
The purpose of the commercial courts
(officially outlined by an Indiana Supreme
Court order on January 20 of this year; see
box on this page) is to achieve fast, consistent
and reliable resolution of commercial
disputes. In the more than 20 states that have
adopted a form of such courts since 1993,
those results help bring “confidence and
predictability” to the business community.
Ron Christian, executive vice president
and chief legal & external affairs officer for
Evansville-based Vectren, understands the
sometimes unavoidable court delays but also
outlines the potential damage for companies
caught in that situation.
“The problem from the business perspective
is that if it’s a material piece of litigation, it just
casts a cloud over the business,” he articulates.
“For a public company, that uncertainty can
translate into a reduction of shareholder
value, cause investors to take their capital
elsewhere. It’s a serious problem and this a
great first step toward addressing it.”
The terms “confidence” and “predictability”
also make this an economic development
issue. Judges, both in the state of Indiana and
beyond, readily acknowledge and embrace
that role.
Maria Granger, Floyd Superior Court 3,
will be one of the six judges in the
commercial court pilot project. “The idea of
getting just and efficient determination of
commercial disputes is something that is
hopefully going to cause businesses to want to
locate in Indiana because they know they’re
going to get consistent decision-making that
they can rely on. I look at more judicial
efficiency as an asset to the corporate and
economic development arena in Indiana.”
Elizabeth Gonzalez, a justice in the
Eighth Judicial District Court in Las Vegas,
has been working in Nevada’s redesigned
business courts for the past decade. If her
caseload is a good indicator, the more
efficient and effective courts have been a
factor in economic growth.
“I don’t know the data,” she admits. “I’m
not sure of increases in incorporation, but
given the large number of cases that I have that
are international businesses, I have to believe
someone was marketing business courts as
part of the reason to incorporate in Nevada.
In a lot of cases, international companies set
up a single-purpose entity in Nevada.”
Timeliness is everything
Time, or lack of it, quickly becomes a
liability for business disputes and judges who
are trying to manage often out-of-control
caseloads. Steven David, a trial court judge in
Boone County for 15 years before being
chosen for the Indiana Supreme Court in
2010, says it’s not unusual for a court to have
1,000 to 1,500 cases pending. Many, criminal
and juvenile to name two types, have strict
deadlines on when they must be decided.
Michael Wukmer, a member of the
Indiana Commercial Court Working Group
with David, Indiana Chamber President Kevin
Brinegar and 16 others, practices in the
Indiana Vision 2025
: Attractive Business Climate
Order Establishing Indiana
Commercial Court Pilot Project
The purpose of commercial courts is to:
(1) establish judicial structures that will help all court users by improving court efficiency;
(2) allow business and commercial disputes to be resolved with expertise, technology, and
efficiency;
(3) enhance the accuracy, consistency, and predictability of decisions in business and
commercial cases;
(4) enhance economic development in Indiana by furthering the efficient, predictable
resolution of business and commercial law disputes; and
(5) employ and encourage electronic information technologies, such as e-filing, e-discovery,
telephone/video conferencing, and also employ early alternative dispute resolution
interventions, as consistent with Indiana law.
“We will be developing a much greater
body of corporate and commercial
precedent here in Indiana than we
have at present to consult. Almost
without exception, the decisions of
Indiana state courts are really ‘one-
offs’ – made only for the lawyers or
litigants in that particular case.”
Frank Sullivan, Jr.
Indiana University law professor