In the October 9, 2013 edition of the Daily Record, The Editorial Advisory Board of this newspaper editorialized that “the time has come for a committee made up of lawyers, judges and academics to be convened to examine … “our experience along with that of other states in the implementation of the concept of a Business and Technology Case Management Program” in Maryland.

Indeed it has! As the Editorial Advisory Board pointed out it has been over thirteen years since The Maryland General Assembly by Joint Resolution created the Maryland Business and Technology (B&T) Court Task Force in 2000 and over ten years since now retired Chief Judge Bell adopted by enacting Maryland Rule 16-205, the recommendation of the “Implementation Committee” he established to structure the operations of this then unique program.

This writer had the honor of serving the Vice-Chair of the legislatively created Task Force and the Chair of Implementation Committee established by the Judiciary to implement the Task Force Recommendations.  So I arguably have a more detailed memory and nuanced perception of the operations of both to contribute to the discussion which hopefully will commence shortly about how the Program can be improved.  Furthermore I am aware of the compromises and concessions both political and administrative that were made in some cases necessarily to satisfy various stakeholders in the development of The Program.  These stakeholders included judges and lawyers representing a broad range of specialties and interests including litigators, as well as the organized Bar, specifically The MSBA Business Law Section and the Litigation Section.

As this newspaper’s Editorial Advisory Board pointed out and as both the Maryland Task Force and the Implementation Committee acknowledged the consensus idea was and is that “litigation involving sophisticated business, commercial or technology matters should be handled by judges with some expertise in those matters, that advanced case management techniques should be available to judges handling B&T matters and that those judges would issue opinions helpful to other business litigants and judges.”

That concept, as again the Editorial Board stated, is “simple.”  Yet, its circuit based implementation has been at best inconsistent.  Part of the reason for that is the fact that a decision was made to administer the Program through the various circuits rather than through a more controlled central governance structure.  This has impacted all aspects of the Program including the number of B&T Judges, their selection, and assignment procedures.  The stark contrast in the level of efficiency as well as the scale of the Program from circuit to circuit clearly results from geography and the varying levels of enthusiasm of the Designated Judges individually and collectively in each circuit.  It also accounts for what the Editorial Advisory Board described as the Bar being “unhappy with some experiences using the B&T Courts.”  This discontent, I suspect, is principally caused by the inconsistencies in their operations and rulings and the lack of predictability which results from those deficiencies.

I must here confess my bias.  Although I was the Vice-Chair of the legislatively created Task Force and the Chair of the Implementation Committee presiding over the deliberations, compromises, and concessions that led to the current circuit based structure and governance of the Program, I was not then and am not now in favor of it.  I would not be deserving of the title and office of “Judge,” retired/recalled or otherwise, if I could not keep an open mind if the issues which drove that decision were revisited.  But our experience in Maryland as well as the models in other states should be critically examined with the goal of determining the best structure and method of governance for the Maryland Business and Technology Case Management Program.

We should of course be mindful of the inspiration for and history of the Program in Maryland when studying it.  The Business Law Section of the Maryland State Bar Association both inspired and prodded the MSBA Board of Governors, the Governor of Maryland, the leadership of the General Assembly as well as the Chief Judge of the Court of Appeals to move the idea for the Maryland Business Technology Case Management Program forward.   The MSBA Litigation Section also played a positive role.  The current Lieutenant Governor of the state was a working member of the legislatively created Task Force.

As a result of their efforts The Maryland Business and Technology Case Management Program which emerged has over the past decade been cited as a model for the nation in articles appearing in The Business Lawyer, a publication of the Section of Business Law of the American Bar Association, in Case in Point, the periodical of the National Judicial College and in the Maryland Bar Journal.  Notwithstanding those accolades, there is substantial room for improvement.

As we look at other states and their different models for their “Business Courts,” we should start with our neighbor Delaware’s Chancery Court which was and still is the first and justifiably the most deserving model to examine if not to emulate to the extent possible.  Coincidentally as Maryland examines its ten year old Business and Technology Case Management Program, The Chief Judge of the Delaware Supreme Court, a former Chancellor of their Chancery Court, the Honorable Myron Steele, has announced his retirement.  The appointment of his replacement is providing the political and public policy context for Delaware’s own review of the Chancery Court’s operations and personnel with a view to insuring the continued outsized influence of their Chancery Court and the Delaware Supreme Court on not just Delaware law but the development of corporate and other business organization and governance law in all of the states as well as internationally.

Query— Why does Delaware continue to play that role and why can’t Maryland at least aspire to it?

The answer to Part I of this Query is Delaware’s Chancery Court has highly qualified judges because they are selected statewide based on their background, education and training.  The Chancellors are highly respected by the Delaware Bar, their business community, their legislative and executive branches of government as well as those of other states because they are selected based on these factors from qualified applicants drawn from a statewide pool.  They are also looked to nationally and even internationally because they are proactive in articulating and protecting the image of Delaware law as the forum best able to address cutting-edge business law issues in a thoughtful manner.

The answer to Part II of this Query is that Maryland can potentially enlarge and expand its role and at least begin to compete for influence in the development of business law and in doing so provide a more attractive home for entrepreneurs as well as established businesses by restructuring its Business Technology Case Management Program in a way that allows it to at least begin to play a role similar to the Delaware Chancery Court.

A worthy New Years Resolution?  I think so!