Rule 6-16.3 sets out the minimum standards for specialty certification in business litigation.
(a) Minimum Period of Practice. The applicant must have at least 5 years of the actual practice of law immediately preceding application, of which at least 30 percent has been spent in active participation in business litigation.
(b) Minimum Number of Matters. The applicant must have had substantial involvement in a minimum of 25 contested business litigation matters during the 5-year period immediately preceding application. These matters must have proceeded at least to the filing of a complaint or similar pleading and involve substantial legal or factual issues.
At least 8 of the 25 matters must have been submitted to the trier of fact for resolution of 1 or more contested factual issues through the presentation of live testimony or other evidence at a hearing.
The trier of fact includes any judge or jury of a court of general jurisdiction, an arbitration panel, administrative agency, bankruptcy court, or other similar body.
At least 1 of the 8 matters must have been tried before a jury during the 10-year period immediately preceding application. If the applicant has not tried a business litigation matter before a jury, the business litigation certification committee may consider any civil dispute tried before a jury within the allowable time period to satisfy the jury trial requirement.
"Submission to the trier of fact" and trial before a jury requires completion of the case in chief of the plaintiff, petitioner, or claimant. If the applicant has not participated in 8 matters submitted to the trier of fact for resolution, the applicant may substitute completion of an advanced trial advocacy seminar for 1 of the 8 matters, either by teaching, attendance, or any combination, provided that an advanced trial advocacy seminar may not be a substitute for the jury trial requirement.
This seminar must be 3 full days, approved by the business litigation certification committee, and include as part of its curriculum active participation by the applicant in simulated courtroom proceedings. All course materials for the seminar must be submitted to the business litigation certification committee to be considered for substitute credit.
The business litigation certification committee may consider involvement in protracted adversary proceedings to satisfy any of these requirements for good cause shown. A "protracted adversary proceeding" is a "business litigation" matter which, by its very nature, is so time consuming as to preclude the applicant from meeting the requirements of this subdivision.
In order to demonstrate compliance with the requirements of this section, the following criteria will be applicable:
(1) summary judgments will not count as 1 of the 8 matters submitted to the trier of fact;
(2) submission to the trier of fact and trial before a jury requires completion of the case in chief of the plaintiff, petitioner, or claimant;
(3) each preliminary injunction or other evidentiary hearing will count as 1 of the 8 matters submitted to the trier of fact; and,
(4) each matter in which the applicant supervises an associate will qualify the matter as 1 of the 25 but not as 1 of the 8 matters submitted to the trier of fact.
(c) Substantial Involvement. The applicant must have substantial involvement in contested business litigation cases sufficient to demonstrate special competence as a business litigation lawyer. Substantial involvement includes active participation in client interviewing, counseling and investigating, preparation of pleadings, participation in discovery, taking of testimony, presentation of evidence, negotiation of settlement, drafting and preparation of business litigation settlement agreements, and argument and trial of business law cases.
(d) Peer Review. The applicant must submit names and addresses of 5 lawyers, who are not the applicant's associates or partners, as references to attest to the applicant's special competence and substantial involvement in business litigation, as well as the applicant's character, ethics, and reputation for professionalism.
The lawyers themselves must be substantially involved in business litigation and familiar with the applicant's practice. At least 1 of these references must be a judge or presiding officer of a court or other tribunal before whom the applicant has appeared as an advocate in a business litigation matter in the 2-year period immediately preceding the application. In addition, the business litigation certification committee may, at its option, send reference forms to other lawyers, judges, or officers and conduct such other investigation as necessary.
(e) Education. The applicant must demonstrate completion of at least 50 hours of approved continuing legal education in business litigation within the 3-year period immediately preceding the date of application. Accreditation of educational hours is subject to policies established by the business litigation certification committee or the board of legal specialization and education, and may include such activities as:
(1) teaching a course in business litigation;
(2) participation as a panelist or speaker in a symposium or similar program in business litigation;
(3) attendance at a lecture series or similar program concerning business litigation, sponsored by a qualified educational institution or bar group;
(4) authorship of a book or article on business litigation;
(5) attendance at a course dealing with trial practice procedures but in an area of law not considered business litigation as defined in rule 6-16.2;
(6) attendance at seminars dealing with mediation or arbitration procedures and techniques;
(7) attendance at or participation in a "trial advocacy" workshop leader if the attorney participates in or attends the entire program; and,
(8) other educational activities approved by the business litigation certification committee.
(f) Examination. The applicant must pass an examination applied uniformly to all applicants to demonstrate sufficient knowledge, skills, experience, proficiency, and professionalism in business litigation to justify representation of special competence to the legal profession and to the public.
