Whether directly representing a party or acting as local counsel, one of the first questions we are often asked as litigators sitting in Atlanta is: “What court works best for us?” Needless to say there are a significant number of issues that must be considered and it is impossible to provide a rote answer. There are, however, a few big-picture considerations that can help drive the final conclusion as to the favored venue. And those considerations are evolving because of a ballot amendment approved in the recent midterm elections.

State vs. Federal Court

At the risk of stating the obvious, the biggest consideration driving the decision of whether to proceed in federal court is often the question of jurisdiction. Does the case present the appropriate facts to allow the parties to proceed in federal court? Experience proves that many businesses located outside of Georgia would choose to be in federal court if they can, as much out of a fear of being “home-towned” in state courts as anything.

That concern, however, oversimplifies the impact that choosing the federal venue may have on your case. One’s case will likely move faster in federal court than in state court. And while it is cliché (and yet still very possibly true) to say that every business wants to end litigation as soon as possible, there is an inverse question to consider. Specifically, are you prepared for the obligations on your and your company’s time imposed by litigation? If not, the speed of litigation may not be your friend. Because the truth is, federal courts are quite good at moving cases quickly, and a party must be prepared for the impact that timeline will have on its business.

In the Northern District of Georgia (the district encompassing Atlanta and its environs), the average case reaches resolution in less than seven months, and it takes approximately 27 months for a case to reach a jury trial. Moreover, only 1.5 percent of the cases pending in the Northern District as of September 30, 2018, were more than 3 years old. While that number is lower than previous years, the number of such old cases usually hovers at less than 5 percent.

In other words, federal cases in metro Atlanta gather no dust.

And while that seems to generally be a positive thing, one must also consider the impact of that pace on the front end of the litigation.  Initial planning conferences must be held within 16 days of the court answer being filed. Initial disclosures must be filed within 30 days of the answer. And most cases are put on a four-month discovery deadline with judges who expressly state that extensions of the discovery period will not be granted merely by the consent of the parties. While not a rocket docket, these cases move fast. A corporation that finds itself surprised by being a defendant in a lawsuit may prefer the longer time frame that a state court provides in order to ensure it can properly prepare its defense.

State vs. Superior Court

If a decision is made to proceed in state court, or if federal jurisdiction is not available, the next question a plaintiff must decide is which Georgia court to choose. Georgia currently has two levels of trial courts: Superior and State. Generally, the Superior Court is considered the more senior court. It is a court of general jurisdiction, while the Georgia Constitution defines the State Court as one of limited jurisdiction. The Superior Court also has exclusive jurisdiction over felonies, divorce cases, equity, and land title cases. Because of these distinctions, there is often a default belief that Superior Court is preferable to State Court for complicated business disputes.

However, and in contrast to federal courts, the issue of time can be a detriment in Superior Court.  As noted, Superior Courts have exclusive jurisdiction over felonies and divorce cases. A business dispute therefore ends up competing with these cases not only for the time of a judge but also for that of a jury. Indeed, in the four largest metro Atlanta counties, civil cases are a little sibling to the cases with which they must share resources, making up approximately a quarter of the total cases of civil, domestic, and felonies combined. While we were unable to find any statistics as to time from filing to a jury trial in the metro Atlanta courts, by experience,  it can be difficult to get a case before a jury in a metro Atlanta Superior Court.

In contrast, your civil case in State Court competes with matters less likely to end up before a jury. The categories of cases making up a State Court’s caseload are “Civil,” “Serious Traffic,” “Non-Traffic Misdemeanors,” “Probation Revocations,” “Other Traffic,” and “Landlord Tenant.” Thus, while a State Court judge’s workload is no less challenging or time consuming than that of a Superior Court judge, it is true that there is less competition for available jury trials.

Again, this is not dispositive. It is, however, worth consideration. It also explains why a State Court judge stated in a Continuing Legal Education class a few years ago that he did not understand why civil litigants would ever choose to file in a Superior Court if they thought a jury trial was going to be required.

Business Court

This past November, Georgians approved a ballot initiative to amend the state constitution to create a statewide business court. Beyond that definitive statement (and the fact judges will be appointed and not elected), it is not yet certain what this court will look like. There has been no legislation defining the terms of the court. The Georgia Chamber of Commerce, a big proponent of the constitutional amendment, notes that a statewide business court will benefit both (i) business cases by increasing predictability, speed, and case management, and (ii) non-business cases on the Superior and State Court dockets by removing “complex, time-consuming” business cases from the general docket. Whether this means the soon-to-be-created business court will be a mandatory venue for certain business disputes remains to be seen.

There are currently two Georgia counties (Fulton and Gwinnett) that offer a business court under the auspices of the Metro Atlanta Business Court. In what may provide some guidance as to what a statewide court will look like, the cases permitted in the Metro Atlanta Business Court are limited to eight specified topics and a general topic of “large contract and business tort cases and other complex commercial litigation, [where] the value of the relief sought is at least one million dollars.”

The impact of the Business Court in these two counties is still evolving. From the court’s inception in 2006 through the end of 2017, 260 cases had been transferred to the Business Court, 21 of them in 2017. As of January 2018, active cases before the Business Court were pending on average 525 days. Excluding one case the court considered an “outlier,” the average case closed in 2017 had been pending in the Business Court 377 days, and the average time for the court to rule on pending motions was approximately 17 days.

The existing Business Court in Atlanta generally receives very positive reviews. However, it is fair to say the concept of a business court in Georgia is still in its relative infancy. For any litigant, the development of the Business Court is something that must be followed.

Arbitration

When discussing appropriate venues for dispute resolution, one cannot at least mention the possibility of arbitration. At this particular point in time, the concept of arbitrating domestic commercial disputes seems to have as many detractors as proponents. It is, nonetheless, a perfectly viable option for dispute resolution.

It is also worth noting that among the debate over arbitration, it is almost indisputable that one of its main benefits is time. According to the American Arbitration Association, the average United States District Court case took 24.2 months to reach a jury trial. An average AAA arbitration was adjudicated by an arbitrator in 11.6 months. Thus, if an option, one should at least discuss with one’s counsel the possibility of arbitrating a dispute.