Expertise as a public good

Neither secret or unprecedented, business dispute docket helps all Wisconsinites

By Patrick McIlheran | April 28, 2022

Jim Morrison, a circuit court judge in Marinette County, explains the stakes of certain cases by relating a story about a colleague, a judge in Appleton.

One Fox Valley hospital sued another hospital in a January dispute concerning emergency staffing. The judge got the case on a Friday. He ignored media pressure to decide it instantly and instead used a restraining order to get the hospitals to reach a deal satisfactory to the law and to the staffers caught in the middle.

The matter was resolved the following Monday.

In between, Morrison got a text from the judge, who was stuck in weekend traffic jammed up by a crash. A medevac helicopter coming to the rescue of the crash victims bore the name of one of the disputing hospitals – a reminder, says Morrison, of how urgent and important such disputes can be.

“I’m glad that helicopter was in the sky that day,” says Morrison, and it was in the sky in part because a colleague with sufficient background in arcane business disputes kept such a dispute from tying up two hospitals and hindering the work they do.

Resolving businesses’ legal fights swiftly is clearly good for businesses themselves. But proponents of Wisconsin’s relatively new Commercial Docket Pilot Project - the state’s effort to develop swifter, better-informed resolutions of specified business-vs.-business disputes – say it is also a public good.  

Not everyone agrees.

In an essay by a retired Dane County judge, Richard Niess, which appeared in several news outlets, the author states that the project is beset by “secrecy” and creates a “two-tiered court system.” In the essay, in filings with the state Supreme Court, and in response to questions from the Badger Institute, Niess argues that unless businesses’ disputes wait in line with every other case and are liable to judged by anyone elected to the bench, it isn’t fair. Though only business-vs.-business disputes can be heard on the docket – no labor, consumer and regulatory cases – Niess laments that unions and anti-business activists weren’t asked their opinion.  

Pat Roggensack, then chief justice of the Wisconsin Supreme Court, launched the pilot in 2017 after Gov. Scott Walker sought improvement in how courts handle complex business disputes. Lon Roberts of Wausau, appointed by Walker to head the Department of Financial Institutions in 2016, says that legislation to launch a specialty business court such as those now active in about 30 states, most famously in Delaware, was on his desk when he took the job. He suggested that Wisconsin’s court system have a chance to try a pilot project first.

The point, says Roberts (who is a supporter of the Badger Institute), was to ensure that particular sorts of business-on-business cases would be handled by judges with some experience in business law. Critics claim that any judge is perfectly capable of handling any business-related case, but Roberts points out that circuit court judges typically have a background in criminal law. A former prosecutor or public defender no doubt is smart and hard-working, but too often, he says, “they wouldn’t know a reverse triangular merger from a bull in a china cabinet.” The lack of background can delay justice.

Since Roggensack launched it in Waukesha County and in Brown, Outagamie, and some other northeastern counties, the project has been extended once and expanded to 26 counties in all, including Dane. Regularly elected circuit court judges are named by the chief justice on the advice of regional chief judges, such as Morrison in northeastern Wisconsin, to a rotation ready to handle the commercial docket in addition to their other work.

Businesses don’t pick their own judges, says Morrison, but take the next judge up on the docket’s rotation. Those judges take training in specialty subjects that come up in disputes. They’re able to consult with each other, and they have the experience to push back on parties’ unreasonable demands that can delay cases.

None of this is secret, Morrison says. Anyone can read about it on the state judiciary’s website. Its outlines were hashed out in an open hearing, with advice the Supreme Court solicited from 168 interest groups. The cases are public, the opinions published.

Nor does a specialty docket for commercial disputes differ, he points out, from the approximately 100 Wisconsin courts specializing in drunken driving cases, mental health cases, domestic violence cases, veterans’ cases. Juvenile-court judges must understand Adverse Child Experience (ACE) scores and trauma, Morrison says. Drug court judges need to understand addiction. So, too, does Wisconsin need judges who have the background to swiftly understand franchisor-franchisee claims or tortious business activity. That isn’t two-tier justice any more than separating divorces from OWIs is.

The concerns raised by Niess and others, who seem to be concentrated on the Dane County bench – you can read them here; none of this is “shadowy” – are markedly similar to objections from former Supreme Court Justice Shirley Abrahamson in 2017 at the project’s launch. And they are at odds with evidence that is piling up as the Supreme Court considers extending the program beyond June 30.

That evidence now, after five years, includes surveys of all the businesses whose disputes were handled in the pilot project. Did the business court do a better job than traditional civil courts in limiting delays? Ninety-four percent of the contending parties said yes. Did it do better at lowering legal costs? Eighty-six percent said true. Did the judge do better at moving the case to trial or settlement? Ninety-four percent said yes. Should the business court be made permanent? Ninety-six percent said yes, 58% strongly so.

The surveys are of both the winners and the losers in cases, illustrating that what disputants need, win or lose, is a prompt answer.

The real winners include not just one party or another but Wisconsin as a whole. Depending on businesses are networks of employees, customers and vendors. All these Wisconsinites – everyone who works for, buys from or sells to a business – are hurt when disputes drag on or when uncertainty over getting to a resolution simply chases an employer, a supplier or a buyer off to some state with a more favorable legal climate.

Morrison puts it this way: A lawsuit over who in a family inherits Grandma’s antique watch is deeply important to the heirs, who deserve a timely and informed resolution. But lawsuits involving businesses have much wider and more urgent repercussions.

“I’m not saying Grandma’s watch isn’t important to the family,” says Morrison. “But a business employing 500 people in a town of 800 isn’t likely to close over Grandma’s watch.”

Patrick McIlheran is the Director of Policy at the Badger Institute. Permission to reprint is granted as long as the author and Badger Institute are properly cited.