Hayley Fowler of Law360 has written an excellent article on the founding of North Carolina’s Business Court, Judge Ben F. Tennille’s foundational role in its creation and development, the court’s pioneering use of technology, and how this business court has become a model for success. I am honored to be quoted in this excellent article, and deeply appreciate its grasp of a central proposition that business courts have significant potential as a non-partisan/bi-partisan source for some common ground in our divisive times.
For Law360 subscribers, here is a link to that June 5, 2023 article.
I have recently been going over my bibliography on business courts, and some older business court studies and reports. These are rich with North Carolina Business Court history. So, I’ll add a few thoughts to this excellent new article.
Judge Ben F. Tennille
The North Carolina Business Court was created in 1995 and became operational in 1996. The original Business Court Judge, the Honorable Ben F. Tennille, played a critical role in not only getting the N.C. Business Court off the ground, but as a business court pioneer in the United States. Ms. Fowler’s article provides a great summary of Judge Tennille’s role in developing the N.C. Business Court, and I cannot improve on that.
Along with business court pioneer attorney Robert L. Haig in New York, Judge Tennille is one of the two central figures in the creation of business courts nationally. In additional to his 15 years of service on the court, for over twenty years he has given his time, both nationally and internationally, to those seeking to create or improve business courts. By way of just two examples, he was a keynote speaker in connection with the creation of West Virginia’s Business Case Division. See Supreme Court of Appeals State of West Virginia News, Business Court Committee holds public information forum (Nov. 12, 2010). On the other side of the world, he addressed a conference in Dubai concerning commercial courts in Iraq, along with Maryland business court judge Stephen I. Platt. See Commercial Law Development Program, Office of General Counsel U.S. Department of Commerce, Iraq: Judicial Consultations on Commercial Courts (April 22-26, 2012).
Among many other things, Judge Tennille inspired creation and development of the American College of Business Court Judges, now in its 18th year. Judge Tennille also served as chair of the ABA’s National Conference of State Trial Judges’ Business and Commercial Court Judges Committee. He served as an advisor to the ABA’s Section of Business Law and was the first judicial co-chair of its Judges Initiative Committee.
As described in a 2020 Business Lawyer article, “Judge Tennille became the first, and most important, liaison between the Section [of Business Law] and the judges involved in the burgeoning business-court movement. Judge Tennille encouraged the Section to undertake initiatives aimed at increasing judicial involvement, which blossomed into the Judges Initiative Committee, the Business Court Representative program, and the enduring commitment of the Business and Corporate Litigation Committee …. to find new leadership roles for Business Court Representatives upon the completion of their two-year terms.” Hon. Christopher P. Yates, The ABA’s Contribution to the Development of Business Courts in the United States, 75 Bus. Law 2077, 2079 (2020).
It is no small thing that North Carolina’s Business Court has continued to grow and flourish as a highly respected institution since Judge Tennille retired in 2011 (which had already been occurring before he retired). I was interviewed at the time, and had this to say twelve years ago about the North Carolina Business Court: “One of the signs of a successful institution is that it continues to survive with different people functioning in important roles …. I have little doubt [the North Carolina Business Court] will continue to flourish. It’s no longer Judge Tennille in a courtroom with a computer. It’s an institution.” Diana Smith, NC Business Court enters a new era as its founding judge retires, North Carolina Lawyers Weekly (Mar. 11, 2011).
The NC Business Court’s Excellent Bench and Their Broader Effects
Four other North Carolina Business Court Judges now have served as Business Court Representatives to the ABA’s Section of Business Law: Judges Louis A. Bledsoe, III, Albert Diaz, Julianna Theall Earp, and James L. Gale. Judge Diaz now serves on the United States Court of Appeals for the Fourth Circuit, and Judge Bledsoe is the current Chief Judge of the NC Business Court.
Judge Gale served as Chief Judge of the NC Business Court for three years, and in 2016, North Carolina’s General Assembly created the position of Senior Business Court Judge to which he was named. He also served as the Business Courts chapter editor for the ABA publication, Recent Developments in Business and Corporate Law, as judicial co-Chair of the Section of Business Law’s Business Courts Subcommittee, and is a Director of the American College of Business Court Judges. He has received numerous honors, including Elon University School of Law’s 2021-2022 Leadership in the Law Award. Judge Gale has advised in other jurisdictions on the creation of business courts, e.g., Kentucky.
NC Business Court’s Influence in Other Jurisdictions
In this 2002-2003 North Carolina Business Court Report, there is a section entitled “Replication,” stating:
From inception, the [North Carolina] Business Court has been designed so that it could be easily replicated by other states interested in specialized courts for complex litigation. Use of the technology and the web page were meant to encourage others to use the developments and learn from our experience. For example, the North Carolina Bar Association assisted the court in drafting a comprehensive set of local rules which are posted on the website for others to use. Those rules govern not only complex litigation but also the challenges created by use of the emerging technologies. Any court adopting new technologies will benefit from the work that has already gone into the local rules.
One way to consider North Carolina’s impact on other jurisdictions is to look at other states’ studies carried out before creating a business court, and to see which studies examined the North Carolina Business Court. At a minimum, the following studies reflect consideration of North Carolina’s Business Court in whether or how to create a business court:
Aequitas, Georgia Business Court Feasibility Study – The Way Forward and Best Practices in Other States (2002). [The authors of this study later wrote, Tim Dibble & Geoff Gallas, Best Practices in U.S. Business Courts, Court Manager (Vol. 19, Issue 2, 2004)]
The Business Litigation Session in Massachusetts Superior Court: A Status Report (2003)
Texans for Lawsuit Reform Foundation, Recommendations for Reform, The Texas Judicial System (2007)
A Survey of the Structure of Business Courts by State or Local Jurisdiction, Mississippi Secretary of State Division of Policy and Research (2008)
Special Committee on [Delaware] Superior Court Business/Complex Litigation Report and Recommendation (2009)
Judge Christopher C. Wilkes, West Virginia’s New Business Court Division (2012)
Iowa Civil Justice Reform Task Force, Reforming the Iowa Civil Justice System, Report of the Iowa Civil Justice Reform Task Force (Jan. 30, 2012) Business (Specialty) Courts, pages 93-107
Report on Business Courts, Recent Developments and Related Issues, prepared for Prof. Michelle Harner, Director, University of Maryland Carey Law Business Law Program (2015)
Final Report and Proposed Recommendations Maryland Business and Technology Case Management Program (2017)
The MSBA-UB Business Law Clerkship Fellows under the auspices of Professor Barbara Ann White, Report, The Maryland Business and Technology Case Management Program: Evolution and Current Functioning (2017)[The Maryland business court model derives in part from North Carolina’s original model. Cf. Maryland Rule 16-308(c), formerly Rule 16-205(c) (effective Jan. 1, 2003), and North Carolina Rule of Practice for Superior and District Courts 2.1(d) (Aug. 28, 1995).]
Kentucky Civil Justice Reform Commission Outlines (2018)
The Case for Specialized Business Courts in Texas (2023)
Innovative ADR Practices and Business Courts
In his October 2003 article, The Use of Mediation in the North Carolina Business Court, Judge Tennille offers some insights on innovations in ADR and related litigation components, as practiced in the North Carolina Business Court. For example, his case management practice had required counsel to estimate total litigation costs in connection with the initial case management conference, and that the actual parties or party representatives with authority attend the initial case management conference. This early interaction between the court and all sides included detailed discussions and serious exploration of ADR as a means to resolve cases early on.
[Under current North Carolina Business Court Rule 9.3, this practice is not mandatory, but the concept continues: “The Court may require representatives of each party, in addition to counsel, to attend any Case Management Conference.” This concept is not unique, but it is not common. For example, U.S. District Judge Mark Kearney, who began his career clerking for Delaware Chancery Court Vice Chancellor Maurice A. Hartnett, III, includes in his practices and procedures, “Lead trial counsel shall be prepared to discuss settlement at the initial [Rule 16] conference, including having full authority from clients on settlement. Counsel may not claim lack of authority to discuss settlement with opposing counsel and Judge Kearney unless the client or carrier representative with full authority is present at the initial [Rule 16] conference.”]
In this mediation article, Judge Tennille also addresses increasing the use of non-lawyer/non-judge business executives as mediators in business disputes, and how these people may bring an added dimension that lawyers and judges cannot bring to the negotiating table.
Mediation is mandatory in North Carolina. See, e.g., current N.C. Business Court Rule 11.1. Under current Rule 11.2, parties are encouraged to select a mediator jointly, but if they cannot agree, the court appoints the mediator from a list certified by the North Carolina Dispute Resolution Commission. A search of the Commission’s list of mediators reveals the use of non-lawyer mediators continues (though the vast majority remain people with law degrees). For example, 3 of 15 mediators identified as specializing in accountant disputes are non-lawyers, and 3 of 21 mediators identified as specializing in TechnologyIT disputes are non-lawyers.
[Rhode Island Superior Court Business Calendar Associate Justice Michael Silverstein also pioneered the use of non-lawyer mediators in business courts. See Mitchell L. Bach and Lee Applebaum, A History of the Creation of and Jurisdiction of Business Courts in the Last Decade, 60 Bus. Law. 147, 189 (2004). Judge Silverstein “referred mediation matters to accountants and retired business people who may be particularly suited to helping the parties resolve their differences. He has found some substantial success in using these non-lawyers in the proper case, e.g., in a shareholder valuation dispute.”
New York’s Commercial Division has had a complex history in experimenting with mediation and settlement conferences, as to which I am not fully knowledgeable. It is clear, however, that the New York County Commercial Division has historically approved the use of non-lawyer mediators in relation to its ADR programs, e.g., under Rule 2 of the New York Commercial Division’s 2011 Rules of the Alternative Dispute Resolution Program: “A mediator must (i) have a minimum of ten years of experience in the practice of commercial law or be an accountant or business professional with a comparable level of experience….” The same can be found in Rule 2 of the 2017 version of these rules.]
In his 2003 article summary, Judge Tennille states: “Mediation is an integral part of the disputes resolution process in the Business Court. It should be more effective in business cases than in other types of cases. The parties choose the mediator in the Business Court, but do not have a choice about whether to mediate. The court is flexible with respect to the timing of mediation. Expertise in business issues, particularly knowledge of the industry, is helpful, but not required to mediate business disputes.”
North Carolina Business Court and Opinion Writing
Many business courts appear to struggle with issuing readily available online opinions. The North Carolina Business Court has maintained a rich tradition of opinion writing which began at its inception. This opinion writing has been so prolific as to engender disputes over how to treat those opinions, i.e. as precedential or persuasive. As summarized in this February 2023 blog post, for all of 2022, there appear to be no more than 6-8 business courts nationally that issued over 50 publicly available opinions (and/or orders with explanations); and only 3-4 business courts that issued over 100 publicly available opinions and orders with explanations during 2022, including North Carolina.
North Carolina’s website makes recent opinions and orders of significance readily available, akin to the Delaware Court of Chancery website. The Delaware Superior Court’s Complex Commercial Litigation Division’s opinions can be readily found here, with 36 opinions issued to date in 2023. The New York Supreme Court’s Commercial Division also has a website of recently issued decisions, here, but these appear to be selected opinions and short form opinions, and not all written opinions from each of the 11 Commercial Division courts. Philadelphia’s Commerce Court has a long history of publicly posting opinions, though the volume has changed over time. Michigan’s multi-circuit Business Court has issued thousands of opinions over the last decade, which are readily searchable on its website, here. (Searching the “contract” heading alone returns nearly 2,800 Michigan Business Court opinions since August 2013)
North Carolina’s Business Court sends out a frequent email of alerts for newly filed opinions and orders of significance, with links to them, for those who wish to subscribe to that service. This appears to be unique among business courts, and reflects this court’s long-standing comfort with technology as an adjunct to the court’s meeting its operational goals.
Collaboration with Law Schools
In light of the Business Court’s original itinerant history, combined with its early use of technology in case management, it is not surprising that this innovative court has partnered with North Carolina law schools in locating courtrooms within the law schools themselves.
As stated in a 2010 National Center for State Courts article, Developments at the North Carolina Business Court, written by Judge Tennille and then law clerk Corrine B. Jones:
In 2006 Elon University School of Law opened its doors to students and the North Carolina Business Court. Elon offered the business court a high-tech courtroom and office space at significant savings. With this move, the Greensboro Division of the North Carolina Business Court became the first trial court in the country to be housed in a law school. Campbell University School of Law extended a similar invitation in 2009 when its campus relocated to Raleigh. The Raleigh Division of the North Carolina Business Court moved its courtroom and offices to Campbell’s new campus in fall of 2009.
Law school facilities present an attractive alternative to overcrowded courthouses. This type of housing arrangement allows judges greater flexibility in scheduling hearings and access to on-site technology support staff and a large legal library. The school receives value as well. Housing specialized courts in law schools presents students with regular opportunities to observe a working court in action.
Elon Law School is located in Greensboro, where Judge Julianna Theall Earp currently presides over Business Court cases. While it appears that cases overseen in Raleigh are no longer located at Campbell Law School, but are heard in the Wake County Courthouse by Business Court Judge Mark Davis, in 2016, Business Court Judge Michael Robinson joined the court, and has his chambers at Wake Forest University’s Law School in Winston-Salem.
Readily Available Public Reports on Business Court Activities
The North Carolina Business Court has been publishing Business Court specific annual reports (and sometimes semi-annual reports) online since 2009. All of these reports are readily available on its website. Even before that, the Business Court was producing reports and studies covering the years 1996-2008 (which are no longer quite as easy to obtain).
There is no other business court that has this lengthy history of producing readily available separate business court specific reports on an annual basis, though a few other courts include an annual business court report within their overall court system’s readily available annual reports. For example, Pennsylvania’s First Judicial District annual reports have included a section on Philadelphia’s Commerce Case Management Program going back over 20 years, to its 2001-2002 annual report. These are readily available on the Philadelphia Court of Common Pleas website. West Virginia’s Business Case Division has issued annual reports since its inception, going back to 2013, which are likewise readily available on its website.
Blogs on N.C. Business Court
There are a number of blogs dedicated to the North Carolina Business Courts. This reflects the fact that North Carolina lawyers believe the court’s activities and decisions are important enough to generate broad interest. Only New York appears to have as many, or more, blogs addressing its business court (the Commercial Division).
The North Carolina Business Court blogs include:
North Carolina Business Court Report
North Carolina Business Litigation Report
Articles on North Carolina Business Courts
The North Carolina Business Court has been the subject of articles in law reviews, specialized legal journals and periodicals, and in the general media.
This is a non-exhaustive list of articles on North Carolina’s Business Court, in chronological order:
Mason Peters, Court Showing N. C. is Serious About Business, Official Says, The Virginian-Pilot & Ledger Star (Norfolk Sept. 6, 1995)
Court for Business Disputes, Wall Street Journal (Oct. 11, 1995)
Jacqueline Bueno, North Carolina to Establish Business Court, Wall St. J. (Oct. 25, 1995)
Justice Mitchell Sounds Alarm, North Carolina Lawyers Weekly (Oct. 30, 1995)
Complex Business Issues to Be Heard in North Carolina Business Court, B.N.A. Corp. Couns. Daily (Jan. 30, 1996)
States Move to Establish Specialized Business Courts in Effort to Streamline Cases, Heighten Bench Expertise, B.N.A. Corp. Couns. Daily (Mar. 19, 1996)
Business Court Succeeding But Lacks Resources, North Carolina Lawyers Weekly (Mar. 10, 1997)
Jack Scism, Judgment Daze – State officials left a lot of things hanging when they created one of the nation’s first business courts, Business North Carolina (June 1997)
Business Court Drafting Rules, North Carolina Lawyers Weekly (Dec. 13, 1999)
North Carolina Business Court – A Look Back and A Look Ahead, North Carolina Lawyers Weekly (Mar. 5, 2001)
Carrie A. O’Brien, The North Carolina Business Court: North Carolina’s Special Superior Court for Complex Business Cases, 6 N.C. Banking Inst. 367 (2002)
Lijun K. Yang, First Union v. Suntrust Banks: The Fight For Wachovia And Its Impact On North Carolina Corporate Law, 6 N.C. Banking Inst. 335 (April 2002)
Hon. Ben F. Tennille, The Use of Mediation in the North Carolina Business Court, 18 Dispute Resolution 1 (N.C. Bar Association Oct. 2003)
Michael Dayton, Tennille Reflects On Role Of State Business Court, North Carolina Lawyers Weekly (Mar. 22, 2004)
Michael Dayton, Trend: Specialty Courts on the Rise, North Carolina Lawyers Weekly (Mar. 22, 2004)
Clifton Barnes, Big Headache – Business law remains a complex subject, but recent changes reduce some of the pain, North Carolina Citizens for Business and Industry (April 17, 2004)
Mike Dayton, Specialty Commercial Courts On The Rise In Region, Atlantic Coast In-House (May 21, 2004)
Judge Sees Bright Future For Business Courts, Atlantic Coast In-House (May 21, 2004) (interview with Judge Tennille)
Ertel Berry, Future Of The Business Court – More Judges Needed To Keep Pace with Increased Caseload, North Carolina Lawyers Weekly (Jan. 17, 2005)
Ertel Berry, Lawyers Debate Keeping Consumer Actions On Docket, North Carolina Lawyers Weekly (Jan. 17, 2005)
Chief Justice Expands Business Court, North Carolina Lawyers Weekly (Sept. 12, 2005)
Judge Helps Design High-Tech Business Courtroom, North Carolina Lawyers Weekly (Nov. 7, 2005)
Ertel Berry, Electronic-Discovery Okayed in Business Court Case, North Carolina Lawyers Weekly (Nov. 20, 2006)
Hon. Albert Diaz and A. Jordan Sykes, The New North Carolina Business Court, N.C. State Bar Journal (Spring 2008)
Hon. Ben F. Tennille & Corrine B. Jones, Developments at the North Carolina Business Court, in Future Trends in State Courts (National Center for State Courts, 2010)
Diana Smith, NC Business Court enters new era as its founding judge retires, North Carolina Lawyers Weekly (Mar. 11, 2011)
Richard Craver, Judge Tennille set the bar for state business courts, Winston-Salem Journal (March 13, 2011)
Andrew Jones, Toward a Stronger Economic Future for North Carolina: Precedent and Opinions of the North Carolina Business Court, 6 Elon L. Rev. 189 (2014)
ADR in the North Carolina Business Court, Chapter 16, in Alternative Dispute Resolution in North Carolina A New Civil Procedure, pages 233-236, Elizabeth P. Manley, ed. (2d ed. 2012)
Gregory Day, Revisiting the North Carolina Business Court After Twenty Years, 37 Campbell L. Rev. 277 (2015)
Edward J. Coyne, III, The North Carolina Business Court Evolves: Three Things You Need to Know to Be Up to Date, The National Law Review (Mar. 3, 2017)
Hayley Fowler, How A Real-Life ‘Lincoln Lawyer’ Hatched NC’s Business Court, Law360 (June 5, 2023)
