WEST VIRGINIA RECORD

MARTINSBURG – The West Virginia Supreme Court has responded to calls for changes to the Business Court Division, implementing several since first approving Trial Court Rule 29 and establishing the procedures for the special forum.

In June, the court passed an amendment that added into the rules the definition of a resolution judge, who works separately from the presiding judge to facilitate a mediation or arbitration if parties opt for a faster conclusion.

The amendment also changed the procedure for referring cases to the Business Court Division, allowing parties to file their applications directly with the Supreme Court chief justice instead of with the local circuit court judge. The chief justice refers those applications to the division or denies them.

“After a year-and-a-half of operation, we were hearing comments that the original application procedure was too cumbersome and took too long,” said Berkeley Circuit Judge Christopher Wilkes, who chairs the Business Court Division.

“So the judges got together and we proposed an amendment, a rewrite to certain aspects of rule 29. The Supreme Court approved it.”

John Meadows, who is of counsel at Steptoe & Johnson PLLC in Charleston and practices business and energy litigation, has had several cases referred to the Business Court Division since it opened in September 2012. He agreed that the recent changes make the Business Court Division even more sophisticated.

“They are trying to make it more streamlined, and I think they work even faster,” he said.

Kenneth Webb Jr., a partner at Bowles Rice LLP in Charleston, who has also had several cases at the Business Court Division, agreed with Meadows.

“I think the resolution judge was a great improvement on the original set of rules, and now that it’s codified, I feel good about that,” he said.

Meadows added that even though the Business Court Division’s rules are clearly spelled out, attorneys have already started exploring their boundaries. He said he represented a county commission in one of his cases and opposed the referral to the business court because he felt the client did not meet the party terms.

While the West Virginia Supreme Court sided with him, the court allowed a case with a development authority to proceed to the Business Court Division in another county.

“Even in the first couple of years of this being in existence, we’ve begun to draw lines in the sand about who gets to go to business court and who doesn’t, and how to interpret some of the important language in the creation,” Meadows said.

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. Forty-one of those have been referred to the division.

The Business Court Division opened with three judges, but now has six who travel around the state to hear the referred cases for no additional pay. In addition to Wilkes, they are Greenbrier Circuit Judge James Rowe, Jackson Circuit Judge Thomas Evans, Wayne Circuit Judge James Young Jr., Monongalia Circuit Judge Russell Clawges and Cabell Circuit Judge Paul Farrell.

Wilkes pointed out that since Trial Court Rule 29 allows for no more than seven judges, they still have one spot that could be filled by the Supreme Court. He said the business court judges haven’t decided they need an additional judge, but that could change in the coming year.

“We’re still handling the cases well, but I anticipate in the future that if we continue to grow at this pace, we will probably be approaching the court at some point to put in the full complement of judges,” he said.

The Business Court Division will see several other changes next year, including the addition of a law clerk who will be solely dedicated to the division. Wilkes explained that each business court judge works with their own law clerks, but the new law clerk will serve as a single contact person for attorneys and judges in the division.

Wilkes added that the new law clerk — who will start around Jan. 1 and be based in the Business Court Division headquarters in Martinsburg — will help develop and foster institutional knowledge about the business court cases.

The Business Court Division plans to increase its use of video conferencing for hearings. Last week, Wilkes held a hearing that was streamed via WebEx to his law clerk, who followed the arguments and helped prepare the order for that motion.

Wilkes said by continuing to expand and offer web-based video conferences for certain proceedings, the division will increase flexibility and reduce expenses for everyone involved, particularly out-of-state counsel. He added that while West Virginia was the first to offer video conferencing in every courtroom in the state, it is a closed system that requires viewers to log in at the courthouse.

“To make it work in a business court scenario, we have to allow people to log in over the web from wherever they are,” Wilkes said. “That way, they can do it from their office if they have a laptop with a microphone and a camera.”

The Business Court Division will also soon implement a digital document retention system so judges can perform a web-based review of files. Wilkes explained that it would save time and cut more costs if judges could review their case documents from anywhere.

“It wouldn’t change the fact that the documents have to be filed in the county where the case is pending,” he said. “It just would allow us to get electronic copies and have them available to the judges and clerks who are working on the cases.”

Wilkes added that pre-suit mediation is another concept that could work for the Business Court Division in the future. He said a few other states like Delaware have created a system where parties can ask a judge to conduct a mediation or arbitration prior to filing a lawsuit.

“It could go a long way to saving companies and businesses money when they have disputes,” Wilkes said. “We’re just looking at this and discussing it to see how we could make it work in a state that doesn’t have any statutory or constitutional authority that’s apparent to get it going.”

Wilkes said the business court judges will continue to share what they learn from specialized training and work to implement those new ideas in the division.