WEST VIRGINIA RECORD

MARTINSBURG – Attorneys who have taken cases to the West Virginia Business Court Division say the new venue provides their clients with a more practical and productive alternative to resolving complex commercial disputes.

Berkeley Circuit Judge Christopher Wilkes, who chairs the Business Court Division, cited a recent survey that shows 84 percent of participating attorneys were either very satisfied or satisfied with the division. The survey showed 8 percent were neutral and 8 percent with dissatisfied.

“When you run a business in which there is a winner and a loser, and you come up above 50 percent in satisfaction, I’m happy,” Wilkes said.

The survey also asked attorneys whether they viewed the Business Court Division as a valuable resource that should continue into the future. Wilkes said nearly 90 percent found practicing before a business court judge beneficial and would recommend that their clients apply to the division in appropriate cases.

“We are seeing repeat applications by individuals, which shows me they are satisfied,” Wilkes said. “They have a need that is being filled.”

In 2012, the state Supreme Court approved Trial Court Rule 29, establishing the practice and procedures for the Business Court Division. The chief justice receives applications from business owners, and then either refers those applications to the division or denies them. Six appointed judges travel around the state to hear the referred cases for no additional pay.

According to Business Court Division Executive Director Carol Miller, as of Oct. 31, the business court has received a total of 60 applications from 22 of the state’s counties. Of those, 41 have been referred to the division.

John McCuskey, a managing partner and co-founder of Shuman, McCuskey & Slicer PLLC in Charleston who also served on the state Supreme Court, represented an accounting firm that was sued by a development authority in a case at the Business Court Division.

From his perspective, the Business Court Division already has accomplished one of its primary goals: cases are handled by judges who not only have an interest, but significant experience, in business-related matters. He said these judges and the resources of the division make complex commercial litigation run smoother than it might in the traditional circuit court system.

“I think it works out to the advantage of both litigants to have a judge as well as a support system that is geared toward trying to understand and resolve business disputes,” McCuskey said.

Kenneth Webb Jr., a partner at Bowles Rice LLP in Charleston, has had several cases – including shareholder disputes, LLC member disputes and mining equipment disputes – in the Business Court Division. He said so far, they have all been successfully resolved, which he also attributes to the judges and their unique ability to handle these types of cases.

Webb explained that in the Business Court Division, every case is assigned a presiding judge who hears motions and tries the case if necessary, and a resolution judge who facilitates mediation, arbitration or some type of “hybrid mediation-arbitration.”

Outside of the Business Court Division, parties must select and pay a mediator to conduct a private mediation, Webb said. But in this venue, parties know who their resolution judge is and work with him early in the process, he said.

“Essentially, you get a free mediation in the case by an experienced business court judge,” he said.

Additionally, the resolution judge can offer parties binding arbitration. This benefits business owners who may only be left with a trial if their mediation fails in the circuit court system, Webb said.

“My impression is that the resolution judge offers you resolution options beyond mediation, which include arbitration, and it is wide open,” Webb said. “The resolution judge will let the parties fashion the kind of arbitration they want. It’s either some kind of expedited arbitration with limited presentation of evidence or full-blown presentation of evidence.”

John Meadows, who is of counsel at Steptoe & Johnson PLLC in Charleston and practices business and energy litigation, has also succeeded in using the Business Court Division as an alternative to circuit court.

Like McCuskey and Webb, he credited judges who know how to handle business lawyers and their clients. In his experience, he added, those judges seem to make excellent mediators.

“It’s good sometimes to have your mediator be a person who is wearing a robe for the rest of his day,” Meadows said. “It helps with dealing with clients, and it helps with dealing with opposing counsel. That judge has immediate credibility, and that judge has a great wealth of legal knowledge and expertise.”

Providing parties with resolution judges makes sense, particularly in the Business Court Division, where “all-or-nothing kind of decisions” are rare, he added.

“I think that’s part of the spirit of the business court,” Meadows said. “It recognizes that businesses are more focused on looking at the bottom line and at where they can save real money, which often has nothing to do with going to trial but with figuring out real compromise.”

McCuskey agreed that since the Business Court Division offers an active mediation process, most of its cases are settled before they go to trial. However, in his case, the parties had several mediations but could never agree to a compromise.

While trials are rare, they also move faster in the Business Court Division, he said. His case was originally filed in circuit court in 2012, but moved to the division in May 2013. It went to trial in May 2014.

“The process of the trial with a judge who had some experience with business cases probably made that trial go incredibly more smoothly than it would have if it was a complicated business dispute being tried by a circuit judge who had a full load of cases on his plate or her plate already,” McCuskey said.