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Bar News - December 13, 2013

Business Law & Business Litigation: New Hampshire’s Business Court Turns 4


Presiding Judge Offers Perspective and Practice Tips

Hon. Richard McNamara
Established by state law four years ago, the Business and Commercial Dispute Docket of the New Hampshire Superior Court is part of a growing national movement to create dedicated courts for deciding complex and often high-stakes commercial disputes.

Business courts have developed rapidly in the last 20 years. The growth of modern business courts corresponds to the rapidly increasing complexity and globalization of business, which has driven the demand for efficient dispute resolution. State business courts were established in response to a concern that existing state trial courts were unable to address commercial and business disputes expeditiously, consistently, and reliably. The goal of the business court movement was well stated by Lee Applebaum of the National Center for State Courts in his 2011 report, Future Trends in State Courts:

“[t]hat a decision would be made in a reasonable time and that the decision would have an articulated core of legal principles shaping the court’s ruling. Such express judicial reasoning would not only promote confidence in the process, Delaware’s Chancery Court being the aspirational model, but also provide future guidance for conducting ongoing business practices outside the courtroom. Theoretically, a business might look favorably on a city, region, or state with courts that could engender such confidence.”

Currently, there are functioning business courts of some type in more than 20 states, including Maine, Massachusetts, New Jersey, New York, and Rhode Island. A few other states, such as Arizona, California, Connecticut and Oregon, have dedicated complex-litigation programs that accommodate business and commercial cases, among other types of complex cases. Additionally, various forms of commercial courts have been created or expanded in much of the world over the past two decades.

Bringing an Action

Case Requirements
NH RSA 491:7-a established the following requirements for BCDD cases:
(a) The parties must consent to the jurisdiction of the business and commercial dispute docket by agreement or stipulation.
(b) At least one party must be a “business entity” as defined by statute.
(c) No party may be a “consumer” as defined by statute.
(d) The amount in controversy must exceed $50,000.
In New Hampshire, institution of actions in the BCDD is governed by Superior Court Rule 214. Under Rule 214(b), if a party believes that a case meets the requirements for acceptance into the BCDD, a motion must be filed in the court where the action is pending. The motion must provide the basis for jurisdiction and a statement that the parties assent to the filing. The motion must be decided by the justice of the BCDD.

Often business litigation involves the need for temporary or preliminary injunctive relief. Under these circumstances, if a plaintiff believes a case meets the requirements for acceptance into the BCDD, the plaintiff may file the action in the Merrimack County Superior Court, along with a brief statement articulating the reasons why the case should be accepted into the BCDD. The complaint and brief statement is immediately brought to the attention of the presiding justice, who makes a preliminary determination of whether the case meets the requirements of the BCDD, other than the requirement of consent by all parties. If the court determines that the case meets the requirements, the case may be scheduled for a hearing on the request for temporary or preliminary relief. Prior to the time of the hearing, any adverse party may object as of right to the case being heard by the BCDD, and the case will then be transferred to a superior court where venue is proper.

Standing Orders

The BCDD seeks to fulfill the purpose articulated by the National Center on State Courts: providing decisions, within a reasonable time, that articulate legal principles to provide guidance for conducting ongoing business practices outside the court. One guiding principle informs the practice of the BCDD: access to the court for early rulings on critical issues and prompt resolution of discovery issues is likely to reduce the expense of litigation and enhance the likelihood of a prompt and just result. To that end, standing orders have been created and can be found on the BCDD website. Perhaps the most significant standing order is Standing Order 9, which allows parties to ask for an informal status conference at any time.

Discovery is a critical part of business litigation. But business litigation is often difficult and expensive because of the volume of discovery materials and the expense in producing it. The issues can be complicated when parties are forced to file lengthy motions and memoranda to resolve the dispute. Standing Order 9 provides that a party may, at any time, request a status conference to informally discuss discovery issues without the issue being fully briefed. The court encourages parties to file letter briefs in advance of any conference. If the parties are unable to resolve their dispute after an informal conference, they remain free to file any discovery motion they wish.

This procedure has proved to be of enormous value in facilitating discovery, without undue expense. Experience has shown that status conferences in advance of filing lengthy discovery motions often eliminate the need for the discovery motion. Most lawyers find that engaging in a frank conversation with the court and opposing counsel about what documents are needed, and whether and how they should be provided, is of great aid in expeditiously resolving litigation.

Other orders exist to facilitate litigation. For example, Standing Order 7 authorizes the deposition of a corporation or other entity. In a notice of deposition or subpoena, a party may name as the deponent a public or private corporation or other entity, and describe subjects upon which the entity must answer. The person or persons designated must testify about any information known or reasonably available to the organization. This rule is a cognate of Federal Rule of Civil Procedure 30(b)(6) and is of immeasurable aid in business litigation.

Standing Order 10 provides that a party may, at its own expense, use a certified stenographic reporter in order to obtain a real-time transcript. Most business court trials are lengthy and jury-waived, and the existence of a searchable transcript is of great assistance to counsel and the court in framing post-hearing memoranda and orders, respectively.

The court attempts to accommodate parties in scheduling matters promptly, and in the four years of operation, experience has shown that most cases are reached when scheduled. The court encourages lawyers to seek early rulings on key issues, and, once discovery is complete, summary judgment.

BCDD Orders

Shortly after the BCDD was established, the Business Litigation Section of the New Hampshire Bar Association requested that significant BCDD orders be disseminated. Accordingly, a BCDD page was established on the New Hampshire Superior Court website, and all significant orders are posted.

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