Cuyahoga County commercial docket could have life

Crain's Cleveland | December 11, 2016
Jeremy Nobile

Cuyahoga County’s commercial docket may be dead, but it won’t lie down.

Nearly two years have passed since Cuyahoga County Common Pleas Court judges disbanded the commercial docket, yet it remains unclear whether the tool universally appreciated by commercial litigators, and their business clients, could be restored in some form.

More developments could come in early 2017, though.

The review process is in the hands of the Ohio Supreme Court, which oversees the state’s specialty courts. Any changes would affect how the court operates in any Ohio common pleas court that wants one.

The fate of the docket in Cleveland has been in question since it was eliminated in January 2015.

The most recent developments transpired over the summer, when the Ohio Supreme Court, which oversees the state’s specialty dockets, requested public commentary on some proposed rule changes, many of which were posited by a team of Cleveland attorneys and judges.

Some of those proposals include changes in how judges are selected. Other give more discretion to local judges on how and what commercial cases are assigned to the specialty court, which is designed to expedite complex business-to-business cases such as liquidations, trade-secret disputes, noncompete contracts and shareholder disagreements.

A tool like that makes the court and the region it serves seem more business-friendly by giving those cases priority.

A special docket also would help build experience for sitting judges and foster more predictability for attorneys working cases.

In general, judges seem to want more autonomy over how the docket operates, including the selection of judges. Attorneys, meanwhile, just want what they saw as a useful tool back at their disposal.

The high court highlighted some of the proposed changes when it requested public commentary.

One key proposed amendment would give local judges more discretion over what actually constitutes an appropriate commercial case.

Another would shift the responsibility of appointing sitting judges at each common pleas court from the chief justice to the general division common pleas court judges.

That’s significant considering the motivation for dissolving the docket in Cleveland came in January 2015 with the rejection of Judge Cassandra Collier-Williams from the specialty court by the Supreme Court’s Commercial Docket Subcommittee, whose chairman said Collier-Williams was not qualified for the position — a move that seemed to miff Cleveland judges.

Phillip Ciano, principal at Ciano & Goldwasser and a leader of that local team, said he’s heard of no updates from the Supreme Court since commentary on the changes was solicited this summer.

However, a spokesman for the Supreme Court told Crain’s last week the issue will be revisited after two new justices officially join the court in the new year.

That was welcomed news to Ciano.

“It’s not surprising that the process, which is quasi-legislative, is going to take its due course to run,” Ciano said. “But I’m encouraged to know that at least it will be reviewed when the new term starts in January.”

He added that the subcommittee he leads is “ready and willing to provide whatever support and feedback we can provide to see if there’s a form of the commercial docket, or commercial track as we suggested, that could be reinstated in Cuyahoga County.”

Those who commented on the proposed changes generally supported the bulk of them, including members of the Lucas County Common Pleas Court, which is one of the courts that participated in a pilot program for the docket (like Cuyahoga County) and continues to operate a commercial docket today.

“The proposal to allow the local court to make the selection of the commercial docket judges is the biggest, and most welcomed, change to the rules,” wrote Lucas County administrative judge Gary Cook. “The judges on the local court are in a better position to assess the qualities and abilities of the judges to take on the challenge of the commercial docket.”

Members of the Cincinnati law firm Keating Muething & Klekamp PLL, for example, wrote to oppose a change in how judges on a docket are considered that would limit candidates to judges with at least three consecutive years of service on a general division court in the past six years, which would “unnecessarily (limit) a large pool of potentially qualified candidates,” they argued.

Paul Harris, co-chair of the business litigation practice group at Ulmer & Berne LLP, was among the many who voiced personal support for the changes, conveying a sentiment that attorneys simply want to see the docket restored in some form.

“My understanding is that the new proposed rules are meant, at least in part, to address some of the concerns that led to the suspension of the commercial docket in Cuyahoga County,” he wrote. ” … I’ve heard favorable opinions of and experiences with the commercial docket in Cuyahoga County, and I was personally disappointed to see it go.”

Ciano said it’s hard to say whether fewer cases have actually been filed since the local docket dissolved.

“And I wouldn’t say it’s more difficult to practice without more predictability of a commercial docket,” he said. “But I would say that having a commercial docket makes for a more predictable and effective litigation process for businesses. That’s the primary reason we’d like to see it back in some form or fashion.”

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