West Virginia Judiciary

Business Court Division Orders

Business Court Division Overview

WEST VIRGINIA’S NEW BUSINESS COURT DIVISION:

An Overview of the Development and Operation of Trial Court Rule 29

By: Judge Christopher C. Wilkes

On October 10, 2012, Justice Robin Jean Davis, on behalf of Chief Justice Menis Ketchum and the Supreme Court of Appeals of West Virginia, formally opened the Business Court Division of Circuit Court in Martinsburg, West Virginia. West Virginia Trial Court Rule 29.01 concisely portrays the purpose of the new Business Court Division:

The Business Court Division is the product of a complex and in-depth, yet expedited process. Discussions amongst the judiciary began in 2008 after then-Justice Brent Benjamin and then-Administrative Director, Steven Canterbury, traveled to Delaware to study the operation of the Delaware Chancery Court, one of the oldest and longest-operating business courts in America. This study led to House Speaker Rick Thompson introducing House Bill 4352, authorizing the Supreme Court of Appeals to conduct a study and make a recommendation regarding the creation of a Business Court Division. The Legislature passed this bill two years later, in 2010.1

In response to H.B. 4352, the Supreme Court of Appeals established a committee to study the formation of a business court in West Virginia.2 The Business Court Committee’s stated purpose was to explore the feasibility of establishing a specialized court function devoted exclusively to the resolution of commercial disputes as well as its advantages, disadvantages, and parameters.3 The Court and the committee, in this statement, recognized that business-related issues are currently being handled fairly, effectively, and expeditiously; yet they also recognized that there is room for improvement, as there is in any case resolution system.

At the direction of Judge Darrell Pratt, chairman of the committee, the members studied business courts that exist in other American jurisdictions and discussed how aspects of those courts were applicable to West Virginia. They also met with various business court judges, undertook informal discussions with various members of the business community and the bar, and engaged in several other areas of study.

The committee was then commissioned to make a recommendation to the Court regarding the establishment of a business court in West Virginia. After further meetings and discussions, the committee chose to solicit input on the creation and implementation of a business court.

On November 12, 2010, the Supreme Court held a public forum in the House of Delegates chamber in Charleston. The keynote speaker at that forum was the Honorable Ben F. Tennille, the chief special superior court judge for complex business cases in North Carolina. Judge Tennille is a recognized leader in business court administration and created the nation’s first statewide business court in January 1996. Judge Tennille's remarks were well received by members of the business community, the bar, and the legislative leaders.

The committee next undertook further study of the practical possibilities for a business court and developed a preliminary draft of the rule governing business court litigation. On September 30, 2011, the Business Court Committee met with an invited group of attorneys and others representing businesses across West Virginia in a day-long session in Charleston. At this meeting, input and suggestions were received and the second draft of the proposed rule was discussed. Further revision was undertaken, with those suggestions again in mind, which led to a third draft of the new rule.

Thereafter, this third draft was presented to the Supreme Court of Appeals with a recommendation by the committee that the Supreme Court of Appeals establish a business court division.

The Supreme Court of Appeals, on February 9, 2012, issued an order requesting public comment on the proposed additions to the West Virginia Trial Court Rules that were recommended by the Business Court Committee.4 After closing the public comment period on May 11, 2012, the Justices of the Court, led by Justice Robin Jean Davis, and members of the committee reviewed the comments and made changes to the initial proposal in response to the suggestions received and created the final draft of West Virginia Trial Court Rule 29.

On September 11, 2012, by unanimous vote, the Supreme Court of Appeals approved West Virginia Trial Court Rule 29 creating the Business Court Division effective October 10, 2012.5 The Court ordered that the headquarters be established in the Berkeley County Judicial Center in Martinsburg, West Virginia, in the space formerly occupied by the Twenty-Third Judicial Circuit Law Library.6 The establishment of the Business Court Division headquarters in Martinsburg marks the first division of the Supreme Court of Appeals to be headquartered outside of the Charleston area.

Also on September 11, 2012, Chief Justice Menis Ketchum entered an administrative order appointing the Honorable Donald H. Cookman, Judge of the Twenty-Second Judicial Circuit; the Honorable James Rowe, Judge of the Eleventh Judicial Circuit; and the Honorable Christopher C. Wilkes, Judge of the Twenty-Third Judicial Circuit, to serve under the provisions of Rule 29 effective October 10, 2012, and further appointed the Honorable James H. Young Jr., Judge of the Twenty-Fourth Judicial Circuit, to serve under the provisions of Rule 29 effective January 1, 2013.7 The Chief Justice further ordered that Judge Wilkes would serve as chairman of the division for a three-year term.8

As noted above, this Court is a new division within West Virginia’s Circuit Courts, designed to handle complex commercial litigation cases between businesses. The Court is governed and authorized primarily by West Virginia Code § 51-2-15 and new Trial Court Rule 29. Attorneys and judges may become acquainted with the practical side of getting a case to business court, as well as navigating the new court, by reading Trial Court Rule 29.

Although administrative management of cases will be done through the central office located at the Berkeley County Judicial Center, Business Court cases will be heard throughout the state by Business Court Judges. The rule divides the state into seven regions by grouping circuits together in a manner that follows the requirements of West Virginia Code § 51-2-15(b). 9

The rule does not limit jurisdiction of the circuit courts, but rather creates a referral process which allows a business case to be assigned to a judge trained in complex business court litigation. The type of cases the Business Court Division will handle is addressed by the new rule:

W.Va. T.C.R. § 29.04(a).

Litigation between businesses is at the center of the Business Court Division’s purpose. Cases which have a high level of complexity, novel issues, or other issues requiring specialized treatment are likely to land on the Business Court docket if requested. The Business Court Judges recognize that business cases present matters that differ from other types of cases and will attempt to resolve these concerns in a judicious and timely manner. The judges have undertaken and will continue to undertake special training in areas such as the administration and governance of business entities, complex discovery of electronically stored information, mediation of commercial disputes, as well as other issues unique to litigation between businesses. The techniques which the judges are being trained in, such as judicially led mediation, provide a method for quicker, less costly, resolution of cases.

So, with this in mind, one may ask how to get a case to the Business Court Division. The Business Court Division is given no original jurisdiction, and a case must be referred to the Division.11 This referral process is relatively simple.

Any party or the judge may file a motion to refer a case to the Business Court Division. A judge can file a motion to refer at any time; however, a party must file the motion within the first three months of filing the action.12 After a reply period, the circuit clerk will transmit the motion and all reply memoranda to the Chief Justice for review.13 The Chief Justice must promptly decide the motion or direct the Business Court Division to conduct a hearing and make recommendations regarding his decision. Once a case has been referred to the Division, management of the case will be conducted by the Business Court Judge assigned to the case and the Business Court Division Central Office in the Berkeley County Judicial Center.

Rule 29 contemplates the Business Court Division Judge, generally, hearing the case in the county in which it was filed.14 However, if the designated Business Court Judge does not sit in the county where the business litigation is pending, the Division Chairman may submit a request to the Chief Justice that the assigned Business Court Judge be authorized to preside over the action in any county that is within the same Business Litigation Assignment Region. 15

The Business Court Division is designed as a “rocket docket,” attempting to resolve cases within ten months.16 Along these lines, the Business Court Division is in the process of developing case management “methodologies” for the efficient resolution of cases, including more complex discovery and scheduling orders, case management techniques, and mediation possibilities.17

Like most in the business and legal communities, the Business Court Judges believe this development will prove to be a positive change for West Virginia in a variety of ways – much like it has been in other states that have instituted a business court. Business litigants should be excited that West Virginia will be providing businesses an opportunity to have a specially trained judge resolve complex business issues. With the Business Court Division, West Virginia is now becoming one of the best legal environments for businesses in the country.


1 H.B. 4352, 2010 Reg. Sess. (W.Va. 2010).

2At the June 2010 Administrative Conference, the West Virginia Supreme Court of Appeals created the Business Court Committee. The Business Court Committee was led by the Chairman, Judge Darrell Pratt. The other members of the committee were Judge Donald Cookman; Judge Rudolph J. Murensky, II ; Judge James J. Rowe; Judge Susan B. Tucker; and Judge Christopher Wilkes. This group’s diligent and thorough work was vital to the creation of the new Business Court Division.

3For the full mission statement see, Resolution of the committee setting mission, comprehensive plan and vision, adopted Oct. 28, 2010; W.Va. Judiciary, Press Releases (Oct. 28, 2010) .

4See, W.Va. Judiciary, Press Releases (Oct. 15, 2010) .

5Order Re: Approval of Trial Court Rule 29, Relating to the Business Court Division (W.Va., Sept. 11, 2012). See also, W.Va. Judiciary, Press Releases (Sept. 11, 2012) .

6See, W.Va. Judiciary, Press Releases (Oct. 10, 2012) .

7Order Re: Appointment of Circuit Judges in Accordance with Rule 29.02 of the West Virginia Trial Court Rules Relating to the Business Court Division (W.Va., Sept. 11, 2012).

8Id.

9W.Va. TCR 29.04(b); see also, W.Va. Judiciary, Lower Courts, Business Court Division, .

10See, W.Va. TCR 29.06.

11See, W.Va. TCR 29.03; 29.06; 29.07.

12W.Va. T.C.R. 29.06(a)(2).

13See, W.Va. TCR 29.06.

14See, W.Va. TCR 29.07(b).

15Id.; see also, W.Va. Judiciary, Lower Courts, Business Court Division, .

16This terminology was used by Justice Robin Davis at the opening ceremony of the Business Court Division on October 10, 2012, and is contemplated by the time standard of 10 months set by W.Va. TCR 29.08(g).

17See, W.Va. TCR 29.08(a).