By Jeremy Nobile

Crain’s Cleveland Business Staff

Next month will mark a year since Cuyahoga County Common Pleas Court judges disbanded the generally popular commercial docket, but the movement to restore the specialty business court continues.

“It may appear to be dormant, but it’s not dead,” said Bruce Hearey, former president of the Cleveland Metropolitan Bar Association who has been leading the committee of litigators working to see the docket restored. “People should not interpret a lack of news as a lack of activity.”

Attorneys are currently finishing a proposal for changes to the docket they expect to submit to judges before year’s end, Hearey said. He declined to speak to what changes could be in there since the proposal isn’t completed yet.

A commercial docket’s intent is to resolve business-to-business disputes faster and establish both consistency in the legal process and expertise among judges who would hear those kinds of cases, which include liquidations, trade-secret disputes, noncompete contracts and shareholder disagreements.

Hearey was president of the Cleveland bar when the docket was eliminated in January, a decision that followed the disqualification of Judge Cassandra Collier-Williams from the docket by the Ohio Supreme Court’s Commercial Docket Subcommittee, which affirms the appointment of judges to the specialty court in a process unique to the business court.

Hearey intends to keep involved with the initiative until the issue is settled.

Judges will review potential solutions with the attorneys once the latter group submits its suggestions. The next steps will be considered from there.

Administrative and presiding Judge John J. Russo said there’s no hard timeline imposed anywhere in the process, though.

“That proposal-writing process has been slower than expected as members of that subcommittee have been busy in court and because there are a lot of cooks in the kitchen,”
– said Phillip Ciano, principal at Ciano & Goldwasser who is leading that proposal subcommittee.

Lawyers simply want to see the docket restored, and they’re pitching solutions they think judges could be open to.

Meanwhile, exactly what judges want from the docket remains murky at this point. Russo declined to speak to what judges desire considering where the process currently stands.

“We are still looking at what might be feasible and necessary,” Russo said. “We have some thoughts … But we are waiting to see what the bar recommends.”

That proposal-writing process has been slower than expected as members of that subcommittee have been busy in court and because “there are a lot of cooks in the kitchen,” said Phillip Ciano, principal at Ciano & Goldwasser who is leading that proposal subcommittee.

The last 11 months have been a quiet back-and-forth between judges who seem to want more autonomy over how the commercial docket would operate, including the selection of judges, and lawyers who never wanted the docket to go away. Commercial litigators generally appreciated everything the docket set out to do, which is why they continue to pursue the issue, Ciano said.

“I think our main objective is to create a cooperative procedural process that makes sense for the business owners in Cuyahoga County, that makes sense for practitioners and makes sense for the judiciary,” he said.

Jumping through hoops

Ultimately, there are only three possible outcomes.

The first two are intuitive. Either the docket stays dead and all business-to-business cases continue to be assigned to the full bench of 34 attorneys, or it’s restored under the parameters of the Supreme Court.

The county court’s other option is to create what is essentially a special track for business cases.

That technically wouldn’t be considered a commercial docket as defined by Ohio’s high court, though. And it couldn’t actually be called a commercial docket.

In that case, there would be no direct oversight by the chief justice. It’s not an uncommon process, as that’s the way most other specialty courts are operated, but it would be a special solution in this case. Hamilton and Lucas counties are the only ones in Ohio right now with true commercial dockets.

There are some potential downsides to taking that alternative route, particularly in terms of case flow.

Bret Crow, director of communications for the Supreme Court of Ohio, explained that under the high court’s commercial docket, a judge on the docket assigned a commercial dispute moves another non-business case to someone else to keep the total workload in check. The timeline for dispositive motions is also automatically reduced.

The Supreme Court, naturally, promotes its model to encourage uniformity across the state. So the court itself and Chief Justice Maureen O’Connor have been paying attention to what happens next in Cleveland. The high court, however, declined to comment on its position regarding what the local common pleas court does simply because it’s “premature,” Crow said.

Joe Roman, CEO of the Greater Cleveland Partnership, has praised the docket as a positive for the business community.

And even though it’s been a year without the commercial docket, which was formally adopted in Cuyahoga County in 2013 following a three-year pilot program, Ciano said it’s not been enough time to determine if it’s truly had a measurably negative impact on clients or business for practitioners.

But that doesn’t diminish the lawyers’ efforts, he said.

“We want to craft a compromise that makes sense and works for everybody,” Ciano said.

“Our hope would be (to resolve this) in 2016, but there will be several hoops to jump through, and this is the first step to getting to something we all agree on at a local level.”