[Note: This post was updated on March 2, 2015, to add the name of the Chair of the Business Court Advisory Committee, David Rosenbaum. I mean, I forgot the Chair! I’m sorry for the omission.]

A pilot program that creates a new superior court venue for commercial disputes was established by the Arizona Supreme Court this month. The three-year program will launch in July and function in Maricopa County.

The program’s details are set out in Administrative Order 2015-15, issued on February 18, and it followed on the work of a Business Court Advisory Committee, created by the Supreme Court in May 2014. This Administrative Order also adopts new Rule of Civil Procedure 8.1 and two new forms that practitioners and the court would use (included as an attachment to the order).

The three judges named to the new program for the pilot period are Judges Dawn Bergin, Roger Brodman and Christopher Whitten.

Rules 8.1(b), (c) and (d), included in the order (which you can read here), set out the case types that could be (and could not be) handled by the new venue.

Not to be lost amid the new development is the hard work and creativity of the original Court-created committee. You can read all their names and affiliations in Appendix A to A.O. 2014-48. But just to make it easier for you, congratulations and thanks to (alphabetically): Chair David Rosenbaum, Michael Arkfeld, Ray Billotte, Judge Kyle Bryson, Andrew Federhar, Glenn Hamer, Bill Klain, Mark Larson, Lisa Loo, Judge Scott Rash (appointed in A.O. 2014-58), Judge John Rea, Trish Refo, Marcus Reinkensmeyer, Mark Rogers, Nicole Stanton, Steve Tully, Steven Weinberger and Judge Christopher Whitten (appointed in A.O. 2014-58).

And here is a release from the Court:

“Civil commercial disputes may soon be handled in a new venue thanks to an Administrative Order by the Arizona Supreme Court that was signed this week. In May 2014, the Supreme Court established an 18-member advisory committee to study the feasibility of establishing a special venue within the Superior Courts to address the unique needs of businesses engaged in commercial civil litigation. The Superior Court in Maricopa County is in the process of launching a three-year pilot Commercial Court program.”

“‘This court recognizes that disputes between companies or involving the internal governance of businesses often raise issues that require specialized knowledge and that implicate potentially expensive discovery. By appointing experienced judges and establishing processes shaped for commercial civil litigation, we hope to show that these disputes can be resolved more efficiently and economically,’ Chief Justice Scott Bales explained.”

“The advisory committee cited several reasons that a Commercial Court would be beneficial to Arizona, including:

  • To make Arizona a more favorable forum for resolving business disputes;
  • To improve the business community’s access to justice;
  • To expeditiously resolve business cases and reduce litigation costs;
  • To improve the quality of justice; and
  • To gain the business community’s support for the State of Arizona’s dispute resolution system.”

“The pilot program is slated to begin July 1, 2015, giving the Superior Court in Maricopa County time to re-assign workload as necessary and implement other administrative steps in advance of taking on its first docket of cases.”

“The establishment of a Commercial Court is budget neutral and will be achieved through the use of existing judges and resources that are currently in place at the trial court level. Judges Dawn Bergin, Roger Brodman and Christopher Whitten are the three judges who will hear Commercial Court cases.”

“Once a case is assigned to Commercial Court, there will be a mandatory early scheduling conference to help address discovery issues and adopt an effective and efficient schedule for progress of the case.”

On July 27, I attended a panel discussion that aimed to give insight into judges’ thinking. And that’s something that most lawyers find of interest.

The event was sponsored by the Directors Roundtable, based out of Los Angeles. The title was “Recognizing America’s Judiciary: A Dialogue with Chief Justices on Key Issues for Leaders of Business & the Community.”

In my editor’s column for the September issue of Arizona Attorney Magazine (on press now), I wrote about the event. (A preview of that column is at right and printed below.)

The roundtable was enjoyable, even if some of the topics are pretty well-worn. For even if we have heard quite a bit already about, say, merit selection of judges, it’s still a wake-up call to hear how vehemently the Arizona Chief Justice speaks about it.

I’ve covered merit-selection developments before (as in this March panel discussion). And in the coming year’s run-up to a voter referendum on altering judicial selection, I’ll cover the continuing dialogue and debate—assuming readers find it compelling.

(Before I get to the column, I have to apologize in advance for the abysmal photography. Whenever an event is slated for the Sandra Day O’Connor Federal Courthouse, I sigh and seethe, knowing that getting a decent camera into the edifice is akin to smuggling a file in a homemade cake—even when you have permission. I secured permission for my camera through the event organizers, who then apparently failed to tell the only people who mattered—the guards at security. So please bear with the cellphone shots below.)

Here’s my column:

Choosing Our Judges

Those of you who just tumbled to Earth—or even to Arizona—from Mars may be forgiven your misunderstanding.

Chief Justice Rebecca White Berch, July 27, 2011

You may be laboring under the Mars-y notion that the way we select our judges is likely noncontroversial and straightforward.

Kind of like raising the debt ceiling.

From whatever galaxy they hailed, attendees at a July event had that impulse checked. Sponsored by the California-based Directors Roundtable Institute, the panel of judges and lawyers provided a dialogue on “Key Issues for Leaders of Business & the Community.

Participants were Arizona Supreme Court Chief Justice Rebecca White Berch, Hon. Roslyn Silver, Chief U.S. District Judge for Arizona, David Rosenbaum of Osborn Maledon, and Shane Swindle of Perkins Coie. Jack Friedman of the Institute moderated.

The dialogue by the panelists ranged far and wide, from commentary on media coverage, to crushing caseloads and security issues, to e-discovery. But the topic of how we select judges came up numerous times.

Perhaps it’s the black robes that give away little, or the judicial silence that typically repays public scorn heaped on that branch. Whatever it is, the courts have been in critics’ crosshairs for quite awhile.

David Rosenbaum, July 27, 2011

“Courts are the only branch not identified with the political process,” said moderator Jack Friedman. “But if you look at the media, we think that judges get up in the morning and say, ‘I can’t wait to get to the office to impose my views on everyone else.’”

Chief Justice Berch may not be “identified” with the political process, but she can see it from her porch. And though she shared news about court advances in technology and education, she also described the political challenges “to give a flavor of what the courts face.”

She recounted nine bills that the Legislature has considered that would alter—for the worse, in her thinking—the operation of the judicial branch. Worst of all, she said, those bills appear to solve problems that don’t exist.

If the Chief’s words treaded carefully on the matter, those of lawyer David Rosenbaum spoke more plainly.

Five years ago, he said, a similar roundtable featured then-Chief Justice Ruth McGregor and Justice Scott Bales, both of whom talked about attacks on the judiciary.

“The winds are blowing as strong now,” said Rosenbaum. “If not stronger.”

He described recent U.S. Supreme Court cases that have affected court operation and judicial selection, including Citizens United and Massey Coal. And statistics show that expenditures in judicial elections have more than doubled from the decade of the 1990s, when it came in at $84 million, to the 2000s, when it hit almost $207 million.

Here in Arizona, he and others said, we have a merit-selection system in at least a few counties. But it’s a system that’s been under fire.

A solution may lie in a ballot referendum that passed out of the Legislature in April. It will be on the general ballot in November 2012 (the State Bar has a good explanation of the legislation here).

This was a compromise among the Bar, the Court, the Arizona Judges Association, as well as the House and Senate.

Rosenbaum raised questions about the referendum: Without it, would far more harm be done to merit selection? Is it an effective compromise?

On page 76, Clint Bolick asserts his agreement with the State Bar that the compromise does its job well.

As we get closer to the 2012 election, we’ll hear from Arizona lawyers on the topic’s pros and cons. Write to me with your thoughts at