This post originally appeared at https://www.badgerinstitute.org/lock-up-the-tortfeasors/

And other slogans that will never win you a judicial election

An explanation of why Wisconsin needs business courts

As of last August, there were 261 circuit court judges in Wisconsin, most of whom stood for election at one point and the rest of whom – if they decide to stay on the bench – were appointed but will be on a ballot sometime relatively soon.

I’m guessing not a one will campaign on the slogan, “Particularly well-versed in the nuances of arcane insurance litigation!”

Or, “Quite an expert when it comes to breach of contract!”

This is not a screed against elected judges’ lack of savvy in business law. The appointed ones are often no better.

Of the 22 circuit court judges Ballotpedia lists as having been appointed since September 2019, very few have any commercial or business litigation background.

As I pointed out in testimony submitted to the Wisconsin Senate Committee on the Judiciary and Public Safety earlier this week, most worked previously and predominantly as public defenders or assistant district attorneys or in a government position. Two were long-time politicians. At least two worked for Legal Action. Another two worked in county corporation counsel’s offices. Some had experience in private practice, but at most a handful, and perhaps only three, appear to have had any substantial experience in business law.

A new bill, SB275, would allow for the creation of specialized business courts. Judges with business expertise or interest could volunteer to hear those sorts of cases while still handling some other types of litigation. Complex civil cases would move along more quickly, freeing time for criminal cases and other matters.

The state has had a business court pilot project for some time. We wrote about it last spring, and it’s been a big success.   

As we wrote then:

The evidence, after five years, includes surveys of all the businesses whose disputes were handled in the pilot project. Did the business court do a better job than traditional civil courts in limiting delays? Ninety-four percent of the contending parties said yes. Did it do better at lowering legal costs? Eighty-six percent said true. Did the judge do better at moving the case to trial or settlement? Ninety-four percent said yes. Should the business court be made permanent? Ninety-six percent said yes, 58% strongly so.

Here’s what the survey didn’t say.

The very top graduates from the best law schools – these are kids in their mid- to late-20s – can make as much as $200,000 as a first-year associate at a big firm that handles a lot of civil business work. They’re not usually the ones taking a $50,000- or $55,000-a-year gig as a state public defender or assistant district attorney, particularly if they have six figures of law school debt.

A decade later, a partner at a firm like that isn’t likely to want to descend to the bench – and isn’t likely to fare well in an election anyway:

“Sick and tired of tortious interference with business relationships? I’m your judge!”  

You can do a lot of good as a public defender or a prosecutor, to be sure, and you might even feel more fulfilled. But your background will be on the criminal side, you’re unlikely to become an expert in business law, and you’re a lot more likely to aspire to the bench than the bookworm who took the gig at the white shoe law firm.

Factor in the fact that the public understandably cares more about criminal cases than civil ones, and you get a system where the commercial or business docket often gets short shrift.

Business disputes are important, needless to say. It’s not unusual to have millions of dollars and tons of jobs at stake. You don’t want to be an employee at a company trying to fend off a competitor and walk into a courtroom with a judge who’s peeved because she has to read 1,000 pages of complex briefs.  

Some judges are like that; some counties just have better judges. Waukesha County, for instance, has a reputation for good judges who are adept at handling business disputes. There are other places where judges might be smart, maybe, but just don’t have the resources or the background.

There are courts all around the country at both the state and federal level that specialize in tax issues or drunk driving or intellectual property disputes. Judges, lawyers, businesses and all the people who work for them – not to mention taxpayers – will be better off if the state sets up a formal way to litigate business matters in front of judges who really understand and care about them.

Mike Nichols is the President of the Badger Institute. Permission to reprint is granted as long as the author and Badger Institute are properly cited.

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