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Common Pleas Court's New 'Rocket Docket' May Offer Advantages in Business Litigation

October 5, 2011
Edward M. McNally
Delaware Business Court Insider

The Delaware Court of Common Pleas recently adopted new procedures that will make this often-overlooked court much more attractive to both businesses and lawyers. Historically, the Court of Common Pleas has not been used to resolve many business disputes because its jurisdiction is limited to claims not exceeding $50,000. However, its new procedures will speed up litigation, cut down on litigation costs and provide some added benefits to law firms.

Called the "SPEED" docket - the name is an acronym for Special Election and Expedited Docket - it should be used more often for several good reasons. First, businesses often must deal with smaller disputes that may have serious implications. If a business does not act to enforce its rights in small matters because it wants to avoid litigation costs, it risks being known as a mark for the unscrupulous. Businesses need to stand up for their rights to preserve their reputations. The SPEED docket will help them do so because it will reduce litigation costs.

Second, law firms need to serve their business clients or those clients may go elsewhere. The firm that refuses to help a client with a dispute that "is too small for us to handle" risks another law firm taking its place. Often, law firms solved this problem by cutting their fees for small matters to please the client. But that means losing the value of the time spent on that matter and is hardly a good solution. Again, the SPEED docket will help cut the time needed to handle a small dispute, helping both the firm and its client.

Third, law firms need trials to train inexperienced associates how to try a case. That does not work well in the "big" case where there is too much at risk to let the inexperienced lawyer handle significant parts of the trial. The smaller cases handled by the Court of Common Pleas provide an opportunity to let a newer lawyer try a case with less risk of a significant loss to the client. Even apart from trying a case, the SPEED docket will teach lawyers how to manage their time. They will have little choice but to focus on getting the job done when the trial schedule does not permit procrastination. That is good training.

How then does the SPEED docket work? The process begins with any party to the litigation filing "a SPEED civil action election sheet." That simple form requires the electing party to certify the claim is for "$10,000 or greater" and to give notice that it has elected to "proceed through the ... Speed Docket." Once that election is made, a judge is automatically assigned to that case until final disposition. A scheduling conference is then "held within 30 days" of the filing of a responsive pleading or "any motion by the opposing party." At that conference, firm pretrial and trial dates are established "to take place within five months."

Pretrial procedures are also structured to meet this six-month schedule from when the issues are joined. For example, all discovery motions must be filed and heard by the court within two months of the scheduling conference. That means the litigants must promptly file their discovery to be sure that if there is any discovery dispute they will get it heard in the two-month window available. Similarly, discovery will necessarily be limited by the time available to take it. Thus, if depositions are taken after documents are produced, there will be less than four months to do so before trial.

The new SPEED docket rules also address a prime cause of trial delay - the case dispositive motion. In other courts, such motions to dismiss a complaint or for summary judgment are often very complicated and lengthy to address all the arguments lawyers will make in a "big" case.

In the SPEED docket, however, those motions now must be "heard by the court within four months of" the scheduling conference. That will require the parties to promptly brief any dispositive motion to give it time to be "heard" and decided before the trial that will be only days away from starting. This will mean that everyone must focus hard on the real issues. That will be particularly important in the Court of Common Pleas, where all trials are before the bench only because there are no juries in civil cases in that court.

These procedures will reduce litigation costs. The limited time for discovery will limit the amount of discovery. Motion practice will also be reduced to meet the time available. As a result, "it may well cost less to litigate these cases in the SPEED docket than it would cost to resolve the matters in mediation or other private ADR," notes one common pleas judge.

To some extent, the SPEED docket is admittedly an experiment. After all, it will not work if the judges of that court cannot decide case dispositive motions within the time limits set by the trial date. Yet there is good cause for optimism this will work. To begin with, all the judges of the Court of Common Pleas are very experienced, hardworking and committed to giving this experiment a good try. For practical reasons involving the limited amounts at stake, the issues any party will want to litigate should also be limited. That will help keep to this tight schedule.

Finally, this is an experiment that deserves to be tried. Litigation now costs too much for the benefits achieved. It is time to see if just results can be reached with limited discovery and motion practice. It is time to see if disputes really can be reached in a short time, not the years it takes now to get a case concluded. Years ago, before lawyers cost so much and were paid on the basis of how much time they spent on a case, smaller matters just went right to a trial, even in cases involving a jury. Verdicts for $10,000 or so in jury trials were common. New lawyers cut their teeth in these cases. My firm, at least, is going to be looking for cases to bring on the SPEED docket.