Are today's technology issues too complex for the typical judge to judge?

That is a question implicitly raised by


(MSFT) - Get Report

, which in its federal antitrust appeal has contended that the trial it lost was so technical and esoteric that the presiding judge was unable to comprehend the facts.

The complexity question is also being raised by a legislative task force in Maryland, which is studying whether there should be a special court for high-technology cases. While several other states have created specialized sections of their court systems to hear business cases, none but Maryland have yet sought to make technology and business a special focus.

"For Judge Jackson to honestly make the comment that he was ill-equipped says something,'' says James Thompson, a former president of the

Maryland State Bar Association

, who while still in that position appointed 12 of the task force's 19 members.

Thompson was referring to Judge Thomas Penfield Jackson of the

U.S. District Court

in Washington, who presided over the Microsoft antitrust case and ordered the company split in two. In an interview earlier this year with

The New York Times

, Judge Jackson said he had backed a proposal by the

Justice Department

and state attorneys general to break up Microsoft because "there's no way I can equip myself to do a better job than they have done."

Says Thompson, "There are a lot of judges, state judges and federal judges, that are in the same boat as Judge Jackson."

Shared View

Thompson's view is shared by many members of the Maryland legislature, which has convened the task force to consider the creation of special state courts with judges who would be deemed specifically qualified to consider cases involving high tech and new business issues.

"The idea of it is to have a judge that tries nothing but business and technology cases," says Wilbur Preston Jr., chairman of the Maryland study group, which is known as the

Business and Technology Division Task Force

. Its report is due Dec. 1.

A sample case, Preston says, might be a company's claim that it was sold a faulty software system, with the seller defending itself by saying the system was being used improperly. "All of that," he says, "does require by the fact-finder some kind of understanding of what they're talking about."

The Maryland bill that authorized the study, passed in April, was part of a package of legislation intended to entice high-technology businesses to do business in the state. Other measures included steps to expand online government services and to educate citizens about Internet fraud.


Other states with specific judges or special divisions to handle business cases include Illinois, Massachusetts, New York, North Carolina, Pennsylvania and Wisconsin. And Delaware has its 208-year-old

Court of Chancery

, which is specially equipped to handle legal cases involving the many businesses that incorporate in the state.

"None of the other states, though, have got the specific technology focus," says Robert Haig, a New York lawyer who helped design the commercial division of the

Supreme Court of New York County

and who is a consultant to the Maryland task force. "Around the country, there is a great deal of dissatisfaction in the ability of courts to solve disputes."

Microsoft, in its plea to have a federal appellate court hear its appeal before the case goes to the

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Supreme Court

, argued that the intermediate step was necessary partly because of the "complexity of the technologies at issue."

But some of the company's critics contend that Microsoft is raising the complexity issue as a smokescreen. And in granting class-action status to a separate suit based on the antitrust case, Judge Stuart Pollack of the

California Superior Court

said Microsoft "argues that the complexity and changing nature of the software markets over the past six years have been so great as to render class-wide analysis impossible in this case."

Jim Cullinan, a Microsoft spokesman, says the company didn't mean to imply that judges weren't up to the task. Rather, he says, the company believes the antitrust case "is not something to be rushed through." He was unaware of Maryland's study and declined to comment on it.

Everyone Isn't Onboard

Not all of the Maryland task force members necessarily see the need for special courts or judges for technology cases.

"Judges should probably follow the rest of the world into voluntary specialization," says Judge Steven Platt of the

Circuit Court of Prince George's County

, Md., and a task force member. "Does that make necessary a formal division? I'll need to be convinced."

And if the intent is to produce some elite judicial body, Judge Platt says, he draws a comparison to the creation in various places of specialized family courts. "The rationale was that somehow you were going to get these more sensitive judges," he says. "I don't think you do."

Other reasons for skepticism include jurisdiction. For instance, intellectual property disputes, which lie at the heart of many high-technology legal fights, are governed by federal, not state, laws. Three recent, well-publicized technology copyright cases, for instance -- involving the


digital-music swapping service, the scrambling technology protecting DVD movie disks and the online music storage service


-- were all heard by federal courts.

In fact, there already is at least one specialized federal court, the

United States Court of Appeals for the Federal Circuit

, in Washington, which was created in 1982 to hear, among other cases, appeals of final decisions of the federal district courts in patent cases.

What So Special About Tech?

Some legal experts, meanwhile, contend that technology cases merit no special consideration. "The Microsoft case is aberrational in terms of how complicated these cases get," says Joseph Angland, a partner in the antitrust group of the New York law firm of

Dewey Ballantine

. "There's almost an argument that there should be a special court to handle really complex cases" of all sorts, not just technology cases.

In fact, that is just what California set up in January, after spending nearly a decade debating whether to create special business courts.

"Lawyers who specialize in nonbusiness matters were afraid that the best judges would be drawn away," says Joseph Troy, a partner in the Los Angeles firm of

Troy & Gould

who served as chairman of

California's Complex Civil Litigation Task Force


Instead of setting up courts solely for business litigation, California created courts to focus on complex litigation generally.

Even Thompson, the former president of the Maryland bar who favors creation of a technology court, concedes that granting special status to certain kinds of cases could harm other kinds. The issue is similar to the argument used against school voucher programs, he says, adding, "What happens to the rest of the kids?"