Highlights from the New York State Bar Association CLE Program on Motion Practice Before the Commercial Division – New York County

June 7, 2019

On June 5, 2019, the New York State Bar Association held a CLE program entitled, "Motion Practice Before the Commercial Division – New York County.” The program was remarkable in that the panelists were all eight of the current Justices of the Commercial Division in New York County, together live and in person. Justices Borrok, Cohen, Friedman, Masley, Ostrager, Scarpulla, Schecter and Sherwood all spoke candidly about their preferences and pet peeves in the course of motion practice (and beyond) in their courtrooms.

Here are a few key takeaways:

  • Technology: These Commercial Division Judges are the most tech savvy to date (not surprisingly). Justice Scarpulla’s courtroom has already been equipped with modern equipment to be used in arguments and trials – including up-to-date screens and technology to display evidence, an ADA-compliant jury box and technology throughout for the sight-impaired and hearing-impaired, and the capability to use Skype for conferencing, arguments and (where necessary) witnesses – and she likes to see the equipment in use. Justice Borrok is next to have a technologically advanced courtroom.
  • Collegiality: The Justices expect and demand civility and collegiality amongst the counsel who practice before them.
  • Remember the Basics: Be on time to court and be prepared. Know the rules, including the New York Civil Practice Law and Rules (CPLR), the Rules of the Commercial Division of the Supreme Court (22 NYCRR 202.70) and the Part Rules of the individual justice. Perhaps most importantly, when the Justice asks a question, be sure to answer it!
  • Pre-Motion Conferences: The Justices largely have moved away from the practice of requiring pre-motion conferences, except for discovery motions.
  • Discovery Disputes: While their precise rules vary, as a group the Justices favor raising discovery issues in a phone call to the Part. In the event the issues cannot be decided informally, the Justices prefer to have counsel come into court for a conference to further discuss the matter. Several of the Justices indicated that discovery disputes were often overblown. (It is hard to disagree.) Justice Scarpulla noted that she often tells litigants that most cases turn on 10 documents and some testimony.
  • Summary Judgment Motions: There is considerable doubt about the usefulness of Rule 19-a statements. Justices Friedman and Borrok said they now require joint statements, only taking those “undisputed” facts on which the parties can agree. Justices Cohen and Sherwood said they are thinking about the rule and if it should be changed. Justice Ostrager said he could not recall whether he had ever looked at a 19-a statement. Justice Scarpulla finds them useful but will not penalize a party for not filing one. Finally, Justice Masley stressed that – wherever you state the facts – there must be clear and accurate corresponding evidentiary citations (or NYSCEF citations when referring to the court record).
  • Oral Argument: The Justices generally believe oral argument is helpful and will hear it on most motions. They are looking to afford the litigants an opportunity to answer remaining questions and to change their mind. Justice Schecter said “I love oral argument” and added that she is always thinking about the case holistically and using oral argument to gauge possible resolutions, whether the case is ripe for ADR, etc. She stressed that counsel appearing before her should know the whole case.
  • Diversity: The Justices are focused on the continued lack of diversity in the lawyers who practice before them. They want to see women, minorities and younger lawyers actively participating in the cases, with opportunities to do oral arguments and maintain speaking roles at trial. Justice Schecter goes so far as to have a Part Rule stating that the chance of securing an oral argument is increased if you let her know a younger lawyer will be arguing.
  • Efficiency: Seven of the eight Justices indicated that they often try to rule from the bench when possible (only Justice Sherwood did not raise his hand). As a group they are very much focused on moving cases along.

Perhaps the biggest takeaway is the strength of the current roster of this court, continuing the outstanding tradition of the New York County Commercial Division. This is a vibrant, dedicated, hard-working (and probably overworked) group of jurists who understand the importance of their role and want to get it right. I do not just say that because of the frequency with which I appear before them. Really. In any event, while we will not agree with their every ruling, we are lucky to have them.

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Schoenstein, Richard C. Partner and Co-Chair of Securities and Financial Services Litigation Group Partner and Co-Chair of Securities and Financial Services Litigation Group 212.216.1120 VCard

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