Re-Open for Business, 0115 SCBJ, SC Lawyer, January 2015, #36

Author:Carmen Harper Thomas, J.

Re-Open for Business

Vol. 26 Issue 4 Pg. 36

South Carolina BAR Journal

January, 2015

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0South Carolina's Business Court Expands Statewide

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Carmen Harper Thomas, J.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The South Carolina Business Court Pilot Program grew and improved in 2014 to accommodate the rising demand for the specialized court. In 2014, the Business Court was expanded to all South Carolina counties, five new judges were added to accommodate the increase in cases, and the procedures for moving for Business Court assignment were refined. More opinions from Business Court cases were made available online. These developments continue the effort to make the Business Court an efficient and effective tool for resolving business, corporate and commercial disputes.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0On January 3, 2014, Chief Justice Jean H. Toal ordered that the Business Court, previously only available to cases filed in or transferred to Charleston, Greenville or Richland counties, is open for cases in every county1 On July 29, 2014, Chief Justice Toal ordered parties to use a revised motion form.2 On August 8, 2014, another order added five new judges to the Business Court roster.3 On September 17, 2014, the order that serves as the foundation of the Business Court was extended to provide a different procedure for Business Court assignment motions to accommodate the new venues and additional judges.4

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0This article explains how the Business Court operates under these orders, as well as additional procedures recently developed for the clerks of court and the preferences of the Business Court judges. The article also analyzes several of the opinions issued from the Business Court. The article also provides insight into the background of the Business Court to explain why it was created and describes the experiences to date.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Business Court background

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0After extensive study of business and commercial courts nationwide, in August 2007 the South Carolina Bar's Task Force on Courts recommended creation of a business court pilot program.5 According to the task force's report:

[t]he efficient organization and operation of those businesses [in South Carolina] requires predictability with respect to the law, so businesses may plan and organize for the future and more accurately assess the effects of potential litigation. To achieve this predictability, c ourts must develop expertise with respect to the applicable statutes and particular business disputes.6

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The task force identified the best practices in business courts across the United States and incorporated those practices into its recommendation. Those best practices include assigning a single judge to the case, developing a body of case law from written opinions, managing the business court through a single gatekeeper, and promoting the use of technology in court.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Based on the task force's work, the Bar petitioned the Supreme Court to create a pilot program "to handle complex business, corporate, and commercial matters,"7 and the South Carolina Business Court Pilot Program was created on September 7, 2007, by Chief Justice Toal in Order 2007-09-07-01. Because it initially was a two-year pilot program, the Business Court has been extended for two years each by Orders 2009-10-13-01, 2011-11-30-01 and 2014-01-03-02, and again by Order No. 2014-09-17-03 that was effective September 18, 2014.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Prior to the expiration of the 2007 order, Chief Justice Toal appointed an evaluation committee to study the pilot program and determine whether it "should cease, continue, or be made permanent."8 The evaluation committee studied the cases in which motions for Business Court assignment had been filed, conducted surveys of lawyers who had moved for assignment and members of the S.C. Association of Justice, and interviewed the three Business Court judges. The committee then presented a report to Chief Justice Toal on September 8, 2009. At that time, two years into the pilot, 46 motions for Business Court assignment had been filed, and 42 had been granted. According to records kept by the S.C. Supreme Court, as of September 19, 2014,169 motions for assignment have been filed since the program was created in 2007, and 145 have been granted. Since the order expanding the pilot to all counties was entered on January 3, 2014, 35 motions were filed as of September 19, 2014, although 11 of those motions ultimately were consolidated.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Based on the surveys of lawyers who had moved for Business Court assignment, the 2009 evaluation committee reported "that lawyers perceive the greatest benefit of the Business Courts is having a single judge assigned to the case, followed by the judges' experience with business issues."9 The committee also examined whether lawyers felt that the Business Court may be biased in favor of business interests, which can be a common criticism of business courts. Generally, souin Carolina lawyers wno naa moved for Business Court assignment thought the Business Court was a fair option for a non-business party (46 percent agreed, 33 percent were neutral and no one disagreed) Among members of the S.C. Association for Justice who responded to a similar survey for the 2009 evaluation, 67 percent thought the Business Court would be as fair to a non-business party as a business party (24 percent were neutral and eight percent disagreed).

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The continued participation in the program shows that South Carolina lawyers and their clients have become more comfortable...

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