Although opposition to the creation of a separate business court has apparently doomed that initiative, a New Jersey Supreme Court committee has proposed an alternative means of achieving much the same end. The Working Group on Business Litigation recommends expanding a pilot project throughout the state and designating an experienced judge in each vicinage to handle complex commercial cases.
The proposal has the support of the business community and commercial litigators who see it as a means of reducing the uncertainties and delays in complex commercial cases. It is not uncommon for commercial cases to languish for several years without a trial date. That is due to the protracted discovery in such cases, and partly because there are relatively few state court judges with experience in such matters who are available to manage and try such matters. New Jersey trial level judges are often drawn from practicing lawyers who have personal injury, municipal law, or criminal practices, or have mainly worked in the public sector. In addition, the judges are routinely rotated through the criminal, family and civil parts when they are first appointed, giving many newer judges no time to gain commercial case experience.
Legislation to create a separate business court has repeatedly been derailed by concerns that such legislation would violate the separation of powers under the state constitution, giving the legislature control over what has always been the prerogative of the court system. The new proposal would avoid these problems because it would not require legislation or any authorization of new funding. Instead, it would identify experienced judges with an expertise in handling complex commercial cases and designate them as responsible for handling any such cases. Rather than have the parties or their attorneys self-qualify their cases as "complex commercial," the proposal would set a threshold amount of $200,000, subject to the parties’ right to move to include other matters below that threshold. It is estimated that there are fewer than 500 cases per year that would meet the $200,000 threshold. Judges in the program would be required to write two commercial opinions each year. Cases that qualify as "complex commercial" would not be subject to presumptive mediation or arbitration (required for most other civil cases) but the case management judge would encourage the parties to mediate and to select their own mediator.
Assuming Chief Justice Rabner is willing to consider expansion of the current pilot program on a statewide basis, it may result in the de facto establishment of a separate business court within the New Jersey court system.