Conflict Resolution

A Judge Who Knows How To Do Business

Ben Tennille is Chief Judge of the North Carolina Business Court, and spoke last week to the American College of Business Court Judges on how he runs Case Management Conferences in order to encourage clients to focus on settlement of cases at an early stage.  It was an instructive insight into how an experienced court officer gets it done.  And, no surprise for business-to-business litigation, the strategy is money-driven.

To start with, Judge Tennille requires each client to attend the conference.  He explains to the clients when opening the session, “We’re going to be talking about how to spend your money and I thought you should be here for that.” 

He also explains that there will be no judicially conducted settlement conference pre-trial.  Once the trial date is set, the next time the judge will see them will be when the jury is being empanelled.  “If you want to settle this case, you’re going to have to do it yourselves.  Don’t count on me.”

Then he advises them of the mandatory mediation program in the North Carolina Business Court.  “Settlement is your responsibility.  It’s a question of whether you want to keep spending your money on this or whether you want to spend it on your business instead.  But it’s up to you; just understand that this mediation program is your only chance to handle this litigation yourself.”

Judge Tennille then requires each party’s counsel to submit to the court a letter estimating the costs of the litigation, through appeal if needed, with a copy to the client.  Judge Tennille will review these letters and then write his own letter, jointly addressed to all parties and counsel, giving his best (and most informed) estimate of the total expenditure in the case if it goes forward.  This is not a mere sum of both sides’ estimate, explains the judge.  “If one party says it intends to spend $60,000 in prosecuting the claim and the other estimates he’ll spend $10,000 defending it, well, he’s not, and the case is going to cost more than $70,000.”

The key principle is simple (though often difficult to accomplish in the real world).  How to get key business people to focus on where they want to spend their money.  Then, if litigation progresses in its usual protracted and expensive manner, it will have been an intentional and deliberative investment decision by the business client, not just a series of bills that seem too high.

1 Comment
  1. I really like the idea of the parties being at the conference and of the cost estimates being submitted to the court. I would think this latterreally concentrates the mind and ensures the estimates are pretty accurate. It also means if there are challenges on the costs later there is some sort of baseline which could be very interesting

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