Business litigation.

The Florida Bar's Web site states that "[b]usiness litigation certified lawyers help solve problems arising from business relationships, including resolving disputes. Business litigation includes evaluating, handling and resolving disagreements prior to the filing of an action, preparing for and trying cases and post-judgment proceedings. It includes litigation in state and federal courts, and before administrative agencies, mediators and arbitrators." For the purposes of board certification, business litigation does not include any practice dealing with personal injury, routine collection matters, marital and family law or workers' compensation law.

Business litigators face legal and factual issues that are often unique to the area of practice. The uniqueness of the practice is recognized by the Supreme Court of Florida's approval of board certification, which permits attorneys who substantially practice in the area to distinguish themselves in the field.

The Florida Supreme Court first approved the certification plan for business litigation in 1995, with the first certification exam offered in 1996. For the first class, 60 applications were received and 52 were approved for certification. There are now 226 attorneys certified in business litigation.

In the early 1990s, Maxine M. Long, Ronald B. Ravikoff, and James B. Murphy, Jr., initiated the certification approval process. With the assistance of others, they researched the certification programs of other jurisdictions and outlined recommended certification criteria for Florida. That outline became the certification proposal that was presented to BLSE for approval. At the BLSE level, however, the plan was sidetracked for about a year so that a special panel could study whether business litigation should be a separate certification area or a sub-certification of civil trial law. During this time, it was determined that many business litigators would not have sufficient trials necessary for certification in civil trial law. Most businesses are very reluctant to take a case to trial before a jury and would rather settle a dispute. The proliferation of mediation, arbitration, and other alternative dispute resolution models have also contributed to the reasons why many business litigators do not have the necessary number of trials for certification under civil trial law. In addition, certification in civil trial law has evolved to include primarily personal injury and premises liability because of the area's jury trial requirements. As a result, it was determined that business litigation should be its own area of certification, distinct from civil trial law.

Given the unique nature of business litigation, the requirements and standards for eligibility and approval were tailored to the practice area. An applicant must meet the following criteria: (1)

* During specified periods of time, the applicant must have been substantially involved in at least 25 contested business litigation matters, one tried before a jury and eight submitted to the trier of fact for resolution of one or more contested factual issues at a hearing.

* The applicant must pass peer review for ethics and professionalism.

* The applicant must pass a rigorous written examination demonstrating knowledge, skill, and proficiency in the field of business litigation.

The certification examination identifies attorneys who have superior knowledge of substantive law, procedural rules, and ethical and practical considerations involved in litigation, arbitration, or other dispute resolution forums for legal problems arising from business relationships. The exam consists of two mandatory essays, and both mandatory and optional multiple choice sections, which cover a variety of topics: contracts, business torts, business entities, creditor rights/bankruptcy, Uniform Commercial Code, real estate and construction law, eminent domain, intellectual property, alternative dispute resolution, civil procedure, evidence, ethics, and litigation skills. (2)

The peer review requirement has been the topic of some debate. To ensure complete candor from the reviewer, applicants must agree that all peer review remain confidential and applicants must waive any right to receive copies of the reference statements. This waiver becomes particularly relevant in the event an application is denied based upon unsatisfactory peer review and the applicant chooses to appeal the denial. Even under those circumstances, the applicant is not provided with copies of the peer review, nor is the applicant advised of the content. For any peer review to be considered, however, the reviewer must be involved substantially in business litigation and must be familiar with the applicant's practice. In addition, at least one reference must be received from 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 two years immediately preceding the application.

As with any worthy goal, there are significant challenges that an applicant will face before becoming board certified in business litigation. There are many reasons why experienced business litigators do not apply and test for certification in this area. Many of these reasons are real and some merely are perceived.

For example, many business litigators have expressed that the application process itself is too lengthy, or they are afraid of failing the exam. As to the latter concern, the Business Litigation Committee of the Business Law Section has agreed to reinstitute a review course for business litigation certification. The Business Litigation Certification Committee also has released more detailed examination specifications and topics for improved preparation. The Business Litigation Certification Committee has streamlined the application, relying in part on the applicant's oath that he or she meets the requirements for eligibility.

The examination is a significant challenge. The level of difficulty is relatively high given the benefits and privileges that an examinee will receive from certification. A successful examinee, meeting all other requirements, will be permitted by The Florida Bar to hold himself or herself out to the public as a "board certified lawyer" or a "specialist" in business litigation or an attorney who "specializes" in business litigation. Therefore, the examinee must prove ability, knowledge, and skill in this area to the satisfaction of the Business Litigation Certification Committee and BLSE.

There are substantial benefits to becoming board certified in any area of the law, but especially in the area of business litigation. These include the obvious benefits of peer recognition, marketing value, and self-esteem. The enhanced marketing value is evident from The Florida Bar's Web site message to potential clients, which states: "[w]hile all lawyers are allowed to advertise, only certified attorneys are allowed to identify themselves as `Florida Bar Board Certified' or as a `specialist.' Certification is the highest level of recognition by The Florida Bar of the competency and experience of attorneys in the areas of law approved for certification by the Supreme Court of Florida."

The current chair of BLSE, Norman Vaughan-Birch, states that his firm, Kirk-Pinkerton, P.A., located in Sarasota, stresses the desirability of becoming board certified, particularly to the attorneys who are on a shareholder track. Approximately 60 percent of his shareholders are board certified, with three of them being certified in two areas of the law. Mr. Vaughan-Birch's firm also references the fact that its attorneys are board certified on both its Web site and in professional promotional materials. Mr. Vaughan-Birch reports that he is "noticing more clients asking whether we are certified. I think as a new generation of lawyers who will have grown up with certification become the Bar's leaders, the process will take on even more importance. It is almost an evolutionary process."

Mr. Vaughan-Birch notes that the courts in Hillsborough County are beginning to award premium attorneys' fees if the attorney is board certified. More importantly, he has observed that the vast majority of the board certified lawyers in his circuit have a reputation for professionalism.

A slightly different perspective comes from Bud Bennington, a partner in the Orlando office of Shutts and Bowen, L.L.P. He states that "board certification at Shutts and Bowen L.L.P. is always encouraged. Unfortunately, to someone like myself who has been a busy trial lawyer for 25 years, the time required to achieve such a worthy professional goal . may just not be available." Mr. Bennington recommends to less experienced colleagues that they make achieving board certification a top priority. He believes that this "stamp of approval" by BLSE is worthwhile because it distinguishes the board certified attorney from another who may claim to be a "business litigator," which may not be completely accurate when considering the attorney's skill, knowledge and "real court room experience."

I have been practicing in the area of business litigation since 1988. Because I am able to market myself as a "specialist" in the area of business litigation, I can compete more successfully for larger clients than other business litigators who may have more years' experience. My firm, Brown, Ward, Salzman & Weiss, P.A., strongly encourages our attorneys to become board certified. My firm pays for all testing fees and gives our attorneys the necessary time to study for the exam. Board certification is also one of several factors that it considers in determining whether an attorney is eligible to be offered partnership status. Our commitment to board certification is evidenced by the fact that 83 percent of our shareholders (five out of six) are board certified in either business litigation, civil trial law, or city, county and local government law.

My firm's marketing materials highlight the fact that most of our shareholders are board certified. These are significant qualifications that allow my firm to compete with other statewide and regional firms for complex cases and larger clients.

Attaining board certification in business litigation is not for every attorney and is not easy. However, specialists in this area who make the commitment and achieve board certification will reap many benefits, making the quest well worth the effort.

(1) The complete requirements to become board certified in business litigation can be found on The Florida Bar's Web site, and in Rule 6-16, Rules Regulating The Florida Bar.

(2) The detailed specifications for the 2003 examination may be obtained from The Florida Bar.

Gary S. Salzman is the chair of the Business Litigation Certification Committee and has been board certified in business litigation since 1997.