Fulton County Business Court: a Specialized Solution for the Modern Business Community

• Jurisdiction: United States,Federal,Georgia
• Publication year: 2014
• Citation: Vol. 30 No. 4

Fulton County Business Court: A Specialized Solution for the Modern Business Community

Megan K. Johnson
megan@founderslegal.com

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FULTON COUNTY BUSINESS COURT: A SPECIALIZED SOLUTION FOR THE MODERN BUSINESS COMMUNITY

Megan K. Johnson^*

Table of Contents

Introduction.......................................................................1027

I. History of Business Courts.........................................1029

II. History of Fulton County Business Court..............1031

III. Fulton County Business Court—Jurisdiction and Procedure.....................................................................1032

IV. Fulton County Business Court—Continued Growth.........................................................................1033

V. Measuring Performance—New Confidence in State Courts............................................................................1034

Introduction

The American justice system is ambitious in its promise to provide a reliable and efficient forum in which to adjudicate disputes, and along the way, it has had to implement certain innovations in order to deliver on its stated mission. In the past few decades, one important trend is the creation of specialized or specialty courts, both civil and criminal, into which certain types of cases are routed for more customized judicial attention.¹

The idea of specialty courts—or courts of limited jurisdiction—is not new. Indeed, specialization has always persisted to some degree in our modern court structure. Courts of limited jurisdiction, such as

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bankruptcy and small claims courts, are hallmarks of our current judicial atmosphere.²

But specialty or "boutique" courts are now emerging as a solution to a wide range of modern dilemmas.³ On the criminal side, specialty courts, such as drug courts, mental health courts, community courts and veterans courts rely on a holistic approach to criminal justice that draws from both social work and the law to tailor appropriate solutions to a particular type of offender.⁴ Rather than the one-size-fits all resort to incarceration, specialty courts in the criminal arena have access to professional services for assistance with diagnostic, screening, and rehabilitation services not provided through the general court system.⁵

On the civil side, specialty courts have become a popular method to streamline the administration of certain types of cases into divisions specifically equipped to address unique issues that arise in those cases.⁶ For example, family divisions merge the resources relevant to the administration of family disputes in one place for faster, more consistent service.⁷ More importantly, a unified division allows a single judicial team to process all cases involving one family, for a more comprehensive approach to case administration.⁸

Business courts or complex commercial divisions are also growing in popularity as an effective tool to channel the most complex civil cases into one place before experienced judges with the background and training necessary to resolve the sophisticated issues often presented in those cases.⁹ According to North Carolina Business Court Judge Ben F. Tennille, one of the first judicial advocates of the business court model, the evolution of specialty business courts is a

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necessary response to "'the rapidly increasing complexity, rate of change and globalization of business.'"¹⁰ In 2005, Fulton County Superior Court launched a Business Case Division ("Fulton Business Court") to better serve the business litigants within its district.¹¹ In the past eight years, the Fulton Business Court has demonstrated that, through specialization, the judicial system can evolve to fit the demands of the modern business community.

I. History of Business Courts

Beginning in the early 1990s, the business court trend first emerged in response to perceived weaknesses in the general trial court's ability to competently address business litigation.¹² Litigants feared that trial courts of general jurisdiction, with dockets burdened by an overwhelming number of lawsuits sounding in every type of law, were simply not amenable to the needs of highly complex and procedurally dense business cases.¹³ Considering the constitutional priority afforded to criminal cases, civil litigants in courts of general jurisdiction are already at a disadvantage when jockeying with the criminal docket for judicial attention.¹⁴ Doris L. Downs, former Chief Judge of Fulton County Superior Court, explained the dilemma as follows: "Typically, it takes three days to a week to try just one felony case, and we get about 100 a month . . . We're not able to give [business cases] as much time as we'd like because of the overwhelming felony caseload."¹⁵

Faced with the reality of litigating on a general trial docket, the business community and bar showed reluctance to pursuing litigation in state forums, where business cases were lumped with the tidal wave

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of criminal, family, and civil matters that compete for judicial time.¹⁶ One attorney complained that it was "'unlikely that a business litigant . . . would have elected to litigate in the state courts in New York. Most such litigants preferred the federal courts, the courts of other states like Delaware, and private [alternative dispute resolution (ADR)].'"¹⁷

Likewise in Georgia, attorneys and officers of major local companies admitted their preference for other forums, such as private arbitration or states that had dedicated business courts. Commenting on the negative impact this litigation drain was having on the Georgia legal market, Bill Barwick, former president of the State Bar of Georgia shared: "'We flat out lost a significant amount of legal business to a neighboring state . . . [t]here would have been a lot of lawyers involved [in Georgia] if the litigation had stayed here.'"¹⁸

In an effort to restore business litigants' confidence in the state trial court system, states began to create specialized business dockets.¹⁹ New York established what is credited as the first pilot program in New York County's (Manhattan) Supreme Court, and the program featured a dedicated judicial team to whom all business and commercial cases were assigned in order to foster judicial expertise in such cases.²⁰ The New York program also introduced an active judicial role in case management to better facilitate the resolution of its business docket.²¹ The program was a success.²² The three judges assigned only business cases were credited with administering the caseload of more than four judges tasked with a general docket.²³

Other states began to take notice of the success of the early adopters, and the business court trend has expanded greatly since the early

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1990s.²⁴ Currently, more than twenty states have established business or complex commercial dockets in their jurisdictions.²⁵

II. History of Fulton County Business Court

Georgia's business court aspirations can be traced back to 2001, when Ray Fortin, General Counsel of SunTrust Banks, Inc., first encountered a business court through his experience litigating a case in North Carolina.²⁶ Although Mr. Fortin was not on the side of a favorable ruling in that case, his experience in the North Carolina Business Court left a lasting impression. When he returned to Georgia, he "set out on a one-man mission to interest the legal and business communities in a business court."²⁷

Four years later, in 2005, Fulton County Superior Court launched the...