At the NCBA’s annual Antitrust and Complex Business Disputes Section CLE last week, there was a panel segment of the North Carolina Business Court Judges. Fox Rothschild was there, and here is our recap of what we heard and learned. As always, we strive to be accurate reporters, but this is not a verbatim recitation of what was said. If you want that, however, my understanding is that the CLE will be available on-demand in the coming months.
As always, the Judges were extremely helpful and gracious with their time and insight. They began by reporting on the necessary modifications that the pandemic has forced on their court operations. Not surprisingly, they have all been fully remote for some time now. The Judges indicated that virtual hearings have been going well, and the lawyers have stepped up to the technology. There were no reports of any lawyers appearing in court as a kitten (if you haven’t seen this, check it out). While there has been a complete pause in jury trials, cases are otherwise generally progressing.
As some may be aware, Judge McGuire has accelerated bench trials. The Judges indicated that as jury trial backlogs grow, parties interested in exploring bench trials should pursue that, even with judges other than Judge McGuire. Because jury trials in Business Court cases have to occur in the county where the case was filed, when NCBC jury trials will ultimately resume will depend on a case-by-case and county-by-county basis.
There was discussion of NCBC Rule 10.9 related to discovery motions. There appeared to be indication that parties in some instances may be over-utilizing the telephonic conference element of that rule, and that in cases where that is occurring the Court may suggest or assign a discovery referee. The underlying message seemed to be that while this rule is supposed to streamline discovery disputes and conserve judicial resources, in recent practice it has at times had the opposite effect. The Judges are sometimes finding themselves involved in repeated discovery disputes in cases, with those discovery disputes often submitted for resolution with hundreds of pages of accompanying materials. It should come as no surprise that the Judges would prefer that counsel for parties make legitimate good faith efforts to resolve discovery disputes and involve the Court through Rule 10.9 judiciously and only when truly necessary.
Motions to dismiss were once again a topic of discussion. Back in 2019 at a similar Business Court Judge’s panel, Judge Conrad discussed his preference for parties seeking to consult and perhaps narrow claims outside of the motion to dismiss process, or as a part of the process that resulted in amended complaints being filed without the Court’s involvement. Motions to dismiss are still posing significant burdens on the Court, especially when they are not likely to resolve the case due to factual issues. So while the Judges did not specifically state this, a takeaway could be that defendants considering filing a motion to dismiss should undertake an analysis of whether the motion will actually change the scope of the case in any significant way. If a partial grant of a motion to dismiss or a grant of a partial motion to dismiss will not impact the ultimate liability the defendant is facing and/or change the nature of discovery that will be necessary, then is that motion really worth filing?
Other motions were also discussed, such as motions for extension of time. The Judges noted that for agreements between parties to extend the time for discovery responses, those do not need to be filed with the Court. However, any motions to extend actual Court deadlines, such as briefing deadlines, require Court approval. Judge Robinson also noted that there is no such thing as a “motion to substitute counsel.” New counsel should file a notice of appearance, and then the withdrawing counsel must file a motion to withdraw (following all the requirements for such a motion).
Chief Judge Bledsoe reminded everyone of the change that eliminated the three day mailing rule, which we previously blogged on here.
The Judges offered some “best practices” tips for remote hearings:
- They emphasized the importance of making eye contact; attorneys should not have the camera pointing at the side of their face.
- If using PowerPoint, don’t just repeat your brief, and don’t make hyper-busy slides; distill your arguments to their essence, or put up key documents with key language highlighted.
- After you put up a PowerPoint slide, take it back down as soon as possible to get your face back up on the screen.
- Don’t be rigid and scripted and tied to doing your PowerPoint in order; be prepared to move around your slide deck to answer specific questions from the judge.
- Submit and exchange any demonstratives ahead of the time of the hearing.
Not surprisingly, all of the Judges commended and expressed appreciation for Senior Business Court Judge Gale, who is nearing his planned retirement. Judge Gale’s NCBC caseload has been reduced significantly as he transitions towards leaving the bench.
Finally, all of the Judges said they considered the opportunity to serve as Business Court judges as the highest honors of their careers, and they did not take that for granted. They expressed appreciation for the opportunity to come speak (albeit virtually) to the bar. As practitioners before the North Carolina Business Court, we should be equally appreciative that we have Judges so committed to their roles and willing to regularly share these insights with us. I know I am.