After four years, the 4th Judicial District is re-examining the case for a commercial docket.
After a four-year experiment, many think it’s time to judge the success of the Fourth Judicial District’s commercial docket.
The only program of its kind in the nation, it has been praised for its expeditious nature and fair-minded approach.
But some legal minds fear it could serve as a way for attorneys to venue shop.
The commercial docket is a special court designed to hear business cases that affect a wide number of people in the community.
The cases are handled differently than regular civil cases by the two judges who preside over the court, Judge David Prince and Judge Larry Schwartz. Between them, they have seen dozens of cases involving millions of dollars.
The idea was the brainchild of a committee of several civil lawyers and judges who wanted to experiment with getting business cases through the justice system more efficiently.
The group searched for a model on which to base the docket, but found specialty courts focused too much on fast-tracking cases through the court system. So, the group developed their own hybrid, which became the only commercial docket in the nation.
Attorney Ed Gleason is a believer.
When he had a pair of complex real estate cases involving dueling allegations and Colorado’s complex water law, he turned to the commercial docket. He said he found quick resolution and room for negotiation.
“I think it’s worked very, very well,” Gleason said. “The judges are involved in directing the cases, there’s less need to file paperwork, and you get a courtroom when you need one.”
But for other attorneys, the jury’s still out.
“I think it’s time to sit down and try to figure out if it’s worked or not,” said Murray Weiner, a local civil attorney who has had several cases in the commercial docket and a hand in helping create it. “I think, on balance, it’s been a good thing. But there are some concerns.”
Judge-shopping is the biggest worry, he said.
Attorneys who don’t like the judge they’re assigned in a normal civil case might apply to have it heard in the commercial docket.
“That’s simply unethical, and we have to be careful that it doesn’t happen,” Weiner said. “Attorneys can’t use it to make sure they get Judge Prince or Judge Schwartz.”
Prince, however believes it has little to do with who’s sitting on the bench and more to do with leverage and teamwork.
“We have to leverage all the resources,” he said. “People are on the same team, just with different perspectives and different goals. If you all work together, the process is more efficient, and that’s one of the goals.”
But while efficiency is important, the intent isn’t to fast-track cases, either, he said.
“We looked at Virginia’s ‘rocket docket’ — famous among attorneys,” he said. Virginia has a docket that serves solely to expedite cases as quickly as possible. “We don’t want to be faster, we want to be more efficient. Above all, we want a just result.”
Cases make their way to the commercial docket after a lawyer petitions to have the case moved. Then, the judges review it to make sure it meets the criteria. If it does, the judge gives it his stamp of approval.
“It could be that the result only affects two people, but the mere fact there is a court case puts life on hold for many — lenders, subcontractors, lenders to the subcontractors, other tenants in the building,” Prince said. “If it affects people, then we want to get it on this docket.”
Prince believes that lessons gleaned from the commercial docket can be applied to other business and civil cases.
“Criminal law can pretty much be put on autopilot,” he said. “And other business courts try to do that — provide a set of rules to expedite a case. That’s not what this is about. This is about working together to find the two or three main issues that keep it from a resolution.”
Prince said he initially thought the commercial docket would appeal only to a certain type of lawyer, the type that is more collaborative and less combative.
“But I’ve been surprised,” he said. “Every lawyer that’s used the commercial docket has been on board with the idea of finding early on what the main issues are and working from there. It’s more efficient, and uses less of the very scarce judicial resources.”
There are two fundamental things make the commercial docket different — and better, Prince said.
One is that the court creates a “critical path management” for each case that determines the major issues and when they will be addressed. The concept is borrowed from the construction industry, in which major contractors determine immediately what needs to be done to complete a project.
The other is that judges are readily available, are hands-on and show flexibility from case to case.
“We come in, and we discuss what we need to get to go where we want to be,” he said. “Do we need discovery? Do we need information from a third party? Is it going to be hard to get? Would it be better to ask now, or wait? Is there a statute of limitations? (We ask) those kinds of questions, and then we find out quickly the major barriers to resolving the case. Once those barriers are out of the way, we find the rest of the case resolves quickly.”
One might think all that front-end analysis would add to the time it takes to resolve the case.
But Prince hasn’t found that.
“It’s never taken longer,” he said. “Somehow — for whatever reasons of human behavior — once you identify and resolve the major issue, then the case resolves. That major issue could be personal, it could be legal or it could be factual. Civil cases are always different.”
Weiner also worries that the success of the court has been solely because of Prince’s personal style — assertive and hands-on.
Prince doesn’t think so, and instead believes it’s time to expand the docket with another judge.
“We’ve done a very impressive thing here,” he said. “I’m quite proud of it. There’s nothing like it anywhere in the country. And I think we might consider taking the lessons learned and even expand it to include all civil cases.”
Weiner agrees that the time is ripe for a longer look at the commercial docket by other judges and the El Paso County Bar.
“It’s certainly been a fantastic experiment, but a whole-hearted success? I don’t think I can say that,” he said.
Gleason, however, remains enthusiastic.
“I had one case that was filed in February and ended in November 2008,” he said. “That’s quick. That’s very quick.”
For Prince, the beauty of the commercial docket is wrapped up in the judicial system itself. Instead of attorneys spending time filing paperwork and waiting for the case to appear on the docket, it allows for up-front meetings that allow both sides to work through the main points in the case.
“Attorneys are expensive,” he said. “And judicial resources are very scarce. This is a way to make sure we’re getting a just result in a very efficient manner.”
Soon, local civil attorneys and judges will serve as the jury for the commercial docket — deciding whether to expand it, or find it totally without merit.