South Carolina Lawyer
SC Lawyer, May 2008, #1.
South Carolina's Business Court Pilot Program
South Carolina LawyerMay 2008South Carolina's Business Court Pilot ProgramBy Pamela J. Roberts, Carmen Harper Thomas and Cory E. ManningOn September 7, 2007, Chief Justice Jean Hoefer Toal issued an administrative order creating a Business Court Pilot Program in South Carolina's circuit court system. South Carolina joins at least 14 other states in addressing the needs of litigants and the judiciary in managing matters involving business issues through the creation of these courts. To enable lawyers and the public to take advantage of the pilot program, this article will address what a business court is and why South Carolina wants a business court. It also will examine how the pilot program was created. Finally, it will evaluate what cases are appropriate for the business court and how cases get into the business court. This discussion will allow lawyers to consider whether they and their client should take advantage of the business court.
Business court defined
Before explaining why South Carolina wants a business court, it is necessary to understand what a business court is. The term "business court" refers generally to a division or program within a court system that is dedicated to hearing business or commercial disputes. South Carolina's pilot program meets this definition because it is a program within the existing state circuit court system with jurisdiction over cases involving business issues.
The business court programs that currently exist in 15 states, including South Carolina's pilot program, vary widely in their format and operation. See the box on page __ for a list of those states. For example, in Georgia, the business court program is limited to Fulton County, and the amount in controversy must exceed $1 million, in addition to substantive requirements. See Superior Court of Fulton County, Business Court, Project Overview, http://www.fultoncourt.org/superiorcourt/business_po.php (last visited March 5, 2008). In Illinois, the business court program is limited to Cook County, and judges hear contract, tort or any other cases involving commercial relationships. See Circuit Court of Cook County, State of Illinois, Commercial Calendars, http://www.cookcountycourt.org/divisions/index.html, select Law, then select Commercial (last visited March 5, 2008). The variety of formats reflects the different needs of the litigants and courts in those jurisdictions.
Chief Justice Toal's order creates a pilot program in South Carolina by establishing a business court in the state circuit courts to manage certain business, corporate and commercial matters. The pilot program will last for two years and applies to "civil matters properly filed and subject to jurisdiction and venue in Charleston, Greenville, and Richland Counties, or properly transferred to one of those counties pursuant to § 15-7-100." Administrative Order Regarding Business Court Pilot Program, No. 2007-09-07-01 (S.C. Sept. 7, 2007), available at www.sccourts.org. A judge from each of the selected counties has been assigned to the program, and they will issue written orders on Rule 12 motions to dismiss and Rule 56 motions for summary judgment that will be publicly available online at the Judicial Department's Web site, www.sccourts.org. Consistent with Chief Justice Toal's efforts to utilize technology in the judicial system, the pilot program also includes a strong encouragement for the use of technology in business court matters. A notable element of South Carolina's pilot program is that parties are not required to waive their right to a jury trial, which is a shared trait of all successful business court programs created in the past 15 years. South Carolina's pilot program incorporates proven methods from other jurisdictions while allowing participants to experiment in the nature of a pilot program.
Why South Carolina wants a business court
A business court program can provide predictability, experience and efficiency for litigants and the judiciary. The complex relationships among businesses, suppliers, customers and everyone who depends on businesses create needs for sophisticated dispute resolution. South Carolina's pilot program takes advantage of existing judicial resources to address these needs.
Establishing specialized courts to address the needs of a certain type of case is not a new concept. The federal system has bankruptcy courts, tax courts, claims court and the Court of International Trade. South Carolina already has specialized courts to address the particular needs of parties and the judicial system: family court and probate court. As noted by the ABA's Ad Hoc Committee on Business Courts in Business Courts: Towards a More Efficient Judiciary, 52 Bus. Law. 947, 950 (May 1997), "[g]iven the success of these specialized courts, the question perhaps should be: 'why not business courts?'"
The business court can...