Business litigation sessions looks to expand to other counties

Issue February 2003 By Krista Zanin

Business lawyers and companies located outside Suffolk County may have more options for litigating cases if the popular business litigation session in Suffolk County expands.

Since it began in October 2000, the Suffolk County business litigation session's popularity has surged so that it has become a full-time program rather than a pilot project.

Justice Allan van Gestel
Photo by David Spink
Since the business litigation session in Suffolk County began in October 2000, Associate Justice Allan van Gestel, who heads the session, has watched as its popularity has grown among business attorneys looking to resolve complex business matters. The session may expand to other counties. Of the 599 cases that have been accepted by the session as of last month, 367 have been resolved.
Now court administrators are eying just whom the session should serve next, according to Suffolk County Associate Justice Allan van Gestel, who heads the session.

"We are considering expanding the venue to be able to take in cases that otherwise would be located in Norfolk, Middlesex and Essex counties," van Gestel said.

The session allows Suffolk County litigants to opt to have complex business matters handled in the special session rather than through a traditional superior court session. Litigants have filed 599 cases in the session since its first day, of which 367 have been resolved.

Van Gestel and Associate Justice Margot Botsford, who has been with the session since last year, alternate taking new cases, which have to relate to a complex business matter in order to be heard by them.

The session has become so popular that court administrators are looking to expand so that complex business matters arising out of Norfolk, Middlesex and Essex counties may also come before the session, which likely will remain in Boston.

"It seems to us there is real justification for this session because it has been accepted almost unanimously and praised almost unanimously by a segment of the bar that has used it - the lawyers who are involved in representing people in complex business cases," van Gestel said. "And one of their greatest complaints, and only complaints, is the Suffolk County venue is too limited, at least in eastern Massachusetts."

Boston may be the hub of Massachusetts, but other business sectors are equally important to the economic climate of the state, including the Route 128 and Interstate 495 belts. But the session is geared for only Suffolk County litigants.

The session also is discretionary. Litigants submit their complaints as well as a cover sheet indicating why the matter is complex or in some need of management by the judge. And cases do get rejected.

Van Gestel has rejected about 60 cases since the session's beginning - mostly because the case is not complex enough or because it arose in a venue outside Suffolk County.

But even if the case didn't arise or have any connection with Suffolk County, it still may wind up in the session, at least for attorneys who are using creative maneuvers to get their case heard there.

"What I'm finding is a great number of cases are claiming trade secrets are being stolen because the trade secret statute provides for venue in Suffolk County even though parties are elsewhere," said van Gestel, who takes this as another sign of the session's popularity.

"You'd be amazed what everybody says is a trade secret in order to slide under the door to get in here," he added.

So why have nearly 600 cases headed to the session in just more than two years?

There are several hallmarks to the session that appeal to business attorneys. For one, van Gestel's background includes 35 years at Goodwin Procter, where he specialized in business trial litigation. Consequently, he is intensely familiar with the highly complex issues that come before him. Second, the session adheres to a consistent and strict trial schedule. Don't count on continuances here. Third, decisions are consistent so attorneys can better gauge the outcome of a particular issue.

"There is certainty as to when they get to trial so everything lawyers said they wanted they're getting," van Gestel said. "… What most lawyers want and the business clients say they want is certainty. They want (the process) to move smoothly. They want to have enough time for discovery, but when they have a trial date, they want to be able to schedule experts, executive officers (and others) who often have to come from all over the country."

Frequently cases get continued in other court sessions, which can be quite costly to the firm that is paying for experts and executives to attend a hearing or trial.

"It is very expensive," van Gestel said. "And we have solved that problem in this session. Whether we keep it up remains to be seen, but so far we've been successful."

Though the session's popularity is thriving in the greater Boston metropolitan area, it hasn't caught on in other parts of the state, such as Worcester or Springfield, van Gestel said.

"They don't think that there's enough business litigation to warrant a full session in either of those cities," he said.

Attorneys in those communities have suggested devising a pool of judges to sit on business matters on special assignment when warranted.

One expansion idea being discussed is to keep the session in Boston at the Suffolk County Superior Court location, but open up the docket to cases from Norfolk, Essex and Middlesex counties, according to van Gestel.

"First, we think it is useful for a court, the courtrooms and the judges to remain in Boston," he said. "We find it useful ourselves to be in the same building, to have communications with each other about issues and legal questions … and to cover hearings … Furthermore, most of the lawyers are from around the Boston area anyway and have no problem (getting here)."

If litigants want a jury from their county of venue, they still would have the option of filing the case in that county's superior court rather than the business litigation session. Van Gestel is continuing to study the issue and how the session might expand. But he believes it should be available for litigants in other counties.

"It's not rocket science," van Gestel said. "It's just responding to what the lawyers and clients want, and what I wanted when I was a lawyers was consistency of a judge, the same person who knows what the case is about and is available to deal with all aspects of it."

Grover S. "Buddy" Parnell Jr. of Finneran & Nicholson, PC of Boston said he thinks expansion is a good idea. He credits the success of the session to van Gestel because of his knowledge in a variety of complex business matters.

"I think the key to the success of the Suffolk business litigation session is that Judge van Gestel is so ideally suited to do that … he's very knowledgeable and he's very judicial with the lawyers," said Parnell, who specializes in securities' law issues.

Parnell said the key to continuing with the success of the session is to have judges familiar with complex business issues continue to oversee cases. Another draw is the session's reputation for expediency.

"It's an immediate kind of day in court, not a typical superior court session," Parnell said.

Parnell said he has worked as local counsel with attorneys from New York and other states who also hail the session because it is consistent and timely.