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Bar News - December 14, 2012

A Conversation with Judge McNamara: Business Court Streamlines Commercial Cases with Standing Orders, Online Rulings

NH Business Court Judge Richard McNamara.
Three years ago, renowned business litigator Richard McNamara, who made a name for himself representing car dealers against American Honda, was appointed to a Merrimack County Superior Court judgeship, with the added responsibility of hearing cases on the newly created Business and Commercial Dispute Docket. The business court is a voluntary venue for cases involving commercial parties where $50,000 or more is in dispute.

Bar News recently sat down with Judge McNamara, who served as NH Bar president from 2006 to 2007, to get his thoughts on the business court and its cases, the role of attorneys in making the court user-friendly, and on being a judge. What follows is a condensed and edited version of that conversation:

BN: Can you describe the caseload and the types of cases you are hearing on the business and commercial docket?

RM: The caseload is about where we thought it would be. When I was appointed, we thought the business cases would take about 50 percent of my time, and it probably takes about 30-35 percent of my time. There might be a misperception out there that thatís all I do. Iím also a regular superior court judge.

We have an awful lot of trade secret disputes, claims of fiduciary, partnership resolutions. A lot of state agency cases between businesses and quasi-businessesÖ There are some very interesting cases involving trade secret law, non-competes, nondisclosure agreements, and thatís the meat and potatoes of high tech.

BN: Overall, how is the business court model working out for New Hampshire?

RM: I think itís going very well. Weíre reaching cases, and that was the goal. When the business court was set up, the concept was that business litigation is different; there tends to be more discovery and motions and fewer jury trials. In the three years Iíve been a business court judge, I think Iíve seen three jury trials. Oftentimes, theyíre settling or thereís a bench trial. In other courts, these cases go to the bottom, so by [having them on a separate docket], you free up other judges to hear other cases.

The standing orders have been productive and helpful, and we also have certified stenograph reporters in the courtroom to create a real-time transcript, if the parties are willing to pay for it.

BN: Do you feel it has enhanced the business climate in the state?

RM: I donít know. I hope so. I know thatís one of the reasons for a business courtÖ What businesses need is predictability and certainty, and thatís what a business court tries to do. Itís like Woody Allenís great saying: 85 percent of life is showing up. If we set a case for trial, it gets heard. Iíd like to think it has a positive influence, but thatís hard to say.

BN: Has the business court made commercial litigation more efficient?

RM: Yes, to the extent that we get the cases here and manage them. There are standing orders in the business court, so that if you have a discovery dispute, you donít have to file a motion; you can just call the court and ask for a conference. Thatís the critical standing order. One of the other very important standing orders allows depositions to be taken to obtain information from a corporation, in much the same way as Federal rule of Civil Procedure 30(b)(6).

We are trying to make the court more lawyer-friendly. I learned from some lawyers in a case before me that the Federal Rules of Civil Procedure regarding discovery of expert witnesses have been modified, and most lawyers are in favor of the modification. Because expert discovery is governed by statute, I cannot create a standing order, but I have asked the judicial branch to explore legislation to modify our statute.

BN: What is the scheduling like? How quickly do you decide cases?

RM: We try to get orders out on significant motions within 60 days, and I donít think Iíve ever missed.

BN: Do you have any advice for business litigators, or is there anything members of the bar can do to help expedite the resolution of cases?

RM: I really ask that when someone files a motion in the business court, that they file two extra copies, because I like to take things home and work on them. I also think that rather than a pleading with a number of paragraphs, [a business litigator should] write, "I want x," and then give me a memorandum of law explaining why you want it

Ö I like oral argument on any motion. I think itís very valuable. Some lawyers file motions and they really donít want that. But sometimes, oral argument really illuminates what the issues are in the case and can be really helpful.

BN: Have you received any feedback from litigators about the business court model or procedures?

RM: The first thing I did was meet with the bar and the business section to ask, "What can we do to make this court work for you?" Because I strongly believe that lawyers are a real aid to the court, so we have a real cooperative working relationship with the lawyers. One of the things we did was we created the website for posting orders, which has worked out wellÖ

Itís a small bar, and Iíve tried to say that if the business litigation section has ideas, Iím eager to hear them. And Iím very willing to listen, because lawyers are absolutely critical to a functioning court system. They make things understandable. I think people donít know the economic value of lawyers, because people could come into a courtroom and go on forever, because they arenít trained to know what the important issues are.

BN: Do you miss being a lawyer?

RM: Yes. But I tell people when they ask me that question that I was a lawyer for 34 years, and I really liked it, and Iíve been a judge for three years, and I really like it. Iím easily amused.

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