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Bar News - November 13, 2009

Judge McNamara: Business Court to Open Soon


New Superior Court Associate Justice Richard McNamara being sworn in by Governor John Lynch at the State House in Concord as his family looks on.
In line with the constituency he soon will serve, Judge Richard B. McNamara wants to move quickly, save money, and adopt new technologies in opening New Hampshire’s first business court.

McNamara, sworn in on Oct.12, has been on a whirlwind in his first month as a judge. The first three weeks he shadowed sitting judges to learn the job. He also squeezed in meetings and conversations with court officials and attorneys to lay the groundwork for the Business and Commercial Dispute Docket of the Superior Court, authorized by RSA 491:7a. On Nov. 12, he was to begin hearing a regular calendar of cases in Merrimack County Superior Court, where he is assigned as associate justice, while continuing work on the launch of the business docket, also to be headquartered there.

In a brief interview with Bar News, he discussed an early implementation outline of the business docket process and reiterated why dedicating resources to business-to-business cases is good for the system even when court resources are stretched thin.

"There are business cases already in the courts," McNamara said. "Putting the business cases in one location to be handled more expeditiously, will help all litigation move along."

As governed by RSA 491:7a, the business court will hear cases in which at least one party is a business entity and none are consumers, as defined by the statute. There is a $50,000 minimum for damages at issue, though this limit could be increased by court rule. All of the parties in a case must consent to its transfer to the business docket, and the court decides if the dispute fits the statutory jurisdiction.

The court will be based at the Merrimack County Superior Court and, thanks to the generosity of the US District Court; it may use the Rudman courthouse facilities when needed.

McNamara plans to meet next with the NHBA Business Litigation Section on Nov. 18 to gather input on how the court can handle business disputes. McNamara, a longtime business litigator at the Wiggin & Nourie law firm before his appointment, has some ideas already about how to speed these matters along, but he wants to "bring the practicing bar into the process of creating best practices" and avoiding unnecessary procedures or rules.

By fortunate coincidence, McNamara is working alongside Judge Larry Smukler, presiding justice of the Merrimack County Superior Court, who has an avid interest in technology and the courts. Smukler is helping McNamara explore ways to enable litigants with cases in the business docket to file or exchange documents electronically.

The installation of the Judicial Branch’s case management system, Odyssey, at Merrimack Superior Court, scheduled now for March, paves the way for business court litigants to file documents electronically there. McNamara says that in these cash-strapped times, electronic filing for large, document-intensive cases easily pays for itself and will be an attraction for business litigants.

McNamara hopes that a temporary court rule will be in place by Dec. 1 that would enable business dispute cases now in the superior court to transfer to the business docket. Until his docket fills up with either new or transferred business cases, however, McNamara will be hearing the general array of superior court cases.

Backers of the business court promoted its creation as a way to advance economic development in the state by providing a low-cost forum for dispute resolution, and they point to the existence of such courts in 20 jurisdictions, including the Business Session of the Suffolk County Superior Court.

Some Bar members, however, have criticized the timing of this initiative, saying that the business court will divert resources that should be devoted to cases and litigants who have no other place to go. While many business disputes now go to private arbitrators, McNamara said the courts need to hold onto these kinds of cases. Business court can be good for business, good for the state, and good for the legal system because these disputes will be resolved in public, creating precedent that will make business litigation more predictable. And, McNamara asserts, sounding a theme he emphasized when he served as NHBA President from 2006 to 2007, the existence and success of a business court "combats the perception that the courts and lawyers are an impediment to business. Instead it will illustrate just how important courts are to the economy," McNamara said.

Read the statute.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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