Budget cuts could cripple Maine's business court | The state's new business and consumer court speeds due process, but budget cuts might apply the judicial brakes
Photo/David A. Rodgers
Pierce Atwood Attorney Eric Wycoff says he's gotten a positive response from his clients on the time and money the Business and Consumer Docket saves them
Unhappy contractors, unhappy subcontractors. There were nearly a dozen people all headed for a trial that Chief Justice Thomas Humphrey guessed would last at least six weeks.
That is, if he could even find a room in Maine’s Superior Court network big enough to hold them all.
“We didn’t have a court facility that could accommodate that many parties and that many attorneys,” Humphrey remembered.
That trial date loomed. But before it could commence, attorneys and another judge hashed out a settlement over one long, 13-hour day. Trial averted, time saved.
The contractors case was one of the 39 cases resolved without a trial since Maine’s new Business and Consumer Docket was launched last year. Humphrey, who presides over the court with Justice John Nivison, estimates the BCD has saved roughly 142 court days — that’s thousands of dollars in saved legal and court fees — an efficiency that now may be threatened by state budget cuts.
David Herzer Jr., an attorney at Norman, Hanson and DeTroy in Portland, would hate to see that happen.
Before the BCD existed, “there were times we had to wait over a month to conduct a conference with a judge over a very small issue that basically had the case at a standstill … just because the general superior court was overwhelmed,” said Herzer, who has presented a number of cases there involving contractors.
One case in particular stands out. Between pretrial expenses, expert witness fees and exhibit costs, Herzer estimates his client saved $90,000 by resolving the dispute in the BCD rather than pursuing a trial in superior court. That case was originally filed in September 2004. After years in the system, it was settled 11 months after moving to the new business docket.
Had the case stayed in the superior court network, “it would probably still be there,” Herzer said.
Streamlining justice
Since the court started in June 2007 to give business in Maine fast, efficient service and help unclog the judicial system at large, five cases have ended with a trial. Some 65 or so are in the wings. The docket and the judges move from court to court to extend the BCD throughout the state.
Humphrey said some advantages to the system are evident already. Attorneys who’ve had multiple cases on the docket cite the newfound convenience in the regular use of e-mail, more personal attention and consistency, fewer extensions, less stress and two experienced men at the helm.
“The judges have been very flexible in scheduling the initial meetings at convenient locations throughout the state and are more than willing to conduct these and other hearings or conferences by telephone or video conference, which cuts down on travel time and costs for clients,” said attorney Daniel Nuzzi at Brann & Isaacson in Lewiston.
While Humphrey hopes the coming year brings more cases, a tightening state budget will challenge the way the court does business. Once cases are accepted to the BCD, either after a request from one party in a lawsuit or at the recommendation of another judge, both sides sit down with either Humphrey or Nivison. They get a trial date right then, something that’s not done on the regular docket.
Humphrey thinks it brings issues into focus more quickly, providing incentive to talk. The rub: With 50 or so open staff positions in the court system, there aren’t enough clerks and security personnel to go around.
“We have had to cancel court dates or reschedule them,” he said. “The real problem is if you have an empty threat. (That trial date) is pretty hollow if everybody knows you don’t have a court to try it in.”
That situation might only get worse.
Supreme Court Chief Justice Leigh Saufley said she has real concerns the new docket won’t see the end of 2009. She intends to address the Legislature to keep the court going. It costs about $400,000 per year for two dedicated business judges and two clerks, she said. Of late, they’ve already become less dedicated. All four spend half of their time filling in on other cases because of vacancies in the judicial system.
The first week of November, Saufley said she heard from Gov. John Baldacci, who asked the courts to cut $3 million from its budget over the next seven months.
“It is entirely possible that we will lose the capacity to run the Business and Consumer Docket as we go into next year,” she said. “The business court was beginning to set the right tone of how cases could be done.
“It’s a terrible concern of mine that this wonderful and obviously successful experiment, if we’re not careful, may end up being eliminated. It would be a very sad thing,” she said.
A different sort of court
The BCD was designed for complex lawsuits and has already seen an eclectic mix.
In one case, auto body shop owners in Gorham and Portland sued seven giants in the auto industry — one was based in the Netherlands, another Germany — and accused them of scheming to keep refinishing paint prices artificially high, according to records kept at the West Bath District Court.
A settlement, with no admitted wrongdoing, resulted in $6,000 for each man, lawyers’ fees and an $89,000 award to charity.
Mechanics Savings Bank used the court to sue a Windham man for a delinquent loan and recovered one-third of the amount owed. The owner of a South Portland consignment shop sued over a lease termination and won a favorable order against the building’s owner.
Herzer, who’s had several construction-related suits, has a case in front of the court right now representing the owner of a dog that allegedly killed a flock of sheep.
Eric Wycoff, an attorney at Pierce Atwood LLP in Portland, has used the BCD for several breach-of- contract cases.
“I think the clients are pretty positive about it because they know the quality of the judges,” he said, pointing out that it’s possible that clients will save money because of the streamlining — and they’re aware of that.
Despite its dual name, the docket has seen many more business than consumer cases, according to Humphrey. Attorneys aren’t required in the process but most people choose to have them present.
One intended result that hasn’t happened yet is developing a body of law for contractual matters. In that sense, there haven’t been enough trials, Humphrey said.
The BCD also hasn’t gone to all-electronic filings, which was an early goal. Saufley, who spoke to the Legislature almost three years ago about the pressing need for a business court, said there weren’t technology funds to pull that off.
That’s not likely to change anytime soon, given the state of the state’s finances. But greater use of electronic filings in the BCD would help speed the process, which is already faster than most general court business. As it stands, simply being able to send business court clerks files in an e-mail attachment instead of dealing with the traditional mail, is “very convenient and very useful,” Wycoff said. Conversely, the potential loss of the BCD would just gum up the proceedings further if those cases re-enter the regular court system.
Nuzzi said it would be unfortunate if the BCD doesn’t survive cuts, but that some of its lessons could be adopted by superior courts without additional expense, and maybe even with savings. Others aren’t so optimistic.
“Now that we’ve had the benefit … I think it would hurt tremendously,” said Herzer. “If the goal is to resolve cases in an expeditious fashion, with fair results, fair decisions, the business and consumer docket was the answer.”
Kathryn Skelton, a writer in Litchfield, can be reached at editorial@mainebiz.biz
For the record
Since the Business and Consumer Docket started June 1, 2007:
177 Total number of cases presented
109 Total number of cases accepted
155 Number of plaintiffs/defendants who’ve requested a case be heard there
88 Number of plaintiffs/defendants whose cases have been accepted
22 Number of cases referred by another justice or judge
21 Number of cases accepted from another justice or judge
Most Recent
Most Recent
Comments