As any practitioner litigating a case before the Commercial Division knows, and as we have mentioned time and again on this blog, it is critical to know the Part Rules of the particular judge assigned to your case. But getting to know your judge – including the judge’s individual preferences and style – may be just as important.
On March 21, 2023, the Commercial & Federal Litigation Section of the New York State Bar Association hosted the latest in its series of virtual programs pairing young lawyers with Commercial Division judges. The programs are geared to addressing what young lawyers should know about appearing before the judges and providing some practice tips.
The special guest for the March 21 event was Nassau County Commercial Division Justice Timothy S. Driscoll and was co-moderated in part by Farrell Fritz’s very own James Maguire, a frequent contributor to this blog.
In addition to letting the attendees get a glimpse into his background and some of his personal interests, as well as regaling them with colorful stories of his tenure as a practicing attorney and judge, Justice Driscoll provided very useful practice tips for practitioners who come before him. Below is a summary of some of the key takeaways from the conversation.
- Get in the Courtroom and Know Your Case Through and Through
Justice Driscoll noted at the outset of the conversation that getting as much experience as you can in the courtroom – even if that just means carrying a senior lawyer’s litigation bag – is critical. As he noted, “the courtroom is the front row seat to the greatest show on earth, which is humanity.”
Justice Driscoll also stressed the importance of being well-prepared and understanding what your case is about and its inflection points of both strength and weakness. He mentioned specifically that lawyers in the Commercial Division are particularly adept at this, and the high-level intellectual stimulation is what gets him so excited about being a judge in the Commercial Division and coming to work every morning.
- Understand the Principles of Civility
One of Justice Driscoll’s biggest pet peeves is when litigators do not respect their adversaries and do not understand the principles of civility. Justice Driscoll advised that ad hominem attacks and excessive adjectives and adverbs within your legal brief designed to diminish your opponent’s position, as well as interruptions during oral argument, are both unappreciated and a waste of time. As Justice Driscoll stated, rather than addressing your adversary at oral argument, “you are talking to the Court, and the Court is talking to you.”
- Legal Writing: Get to the Point and Provide Binding Authority
Justice Driscoll emphasized that when it comes to legal writing, the most important thing to keep in mind is to get to the point! He stressed that many practitioners lose sight of the main goal of a legal brief, which is to tell the judge (1) what you want him to do, and (2) why he should do it. For Justice Driscoll, the “why” should be supported by recent, binding, primary authority (no obscure cases from before he was born or from a trial court across the country) ideally from the New York Court of Appeals or the Appellate Division. He further advised that, while long string cites of authority might show off your research skills, they do not help a litigant’s cause in the same way that analogies to the facts of the binding precedential cases do. Justice Driscoll also emphasized the importance of a strong Preliminary Statement within a legal brief since that is the only place within which to make pure legal argument without the fear of citation.
- Justice Driscoll’s Method of Reviewing Legal Briefs
Justice Driscoll also shared invaluable insight into his brief-reviewing process. He noted that he always starts by reviewing the papers in reverse chronological order: reply brief first, then the opposition, and then the opening brief. For that reason, he cautioned that reply papers should not merely regurgitate arguments made in the opening brief since it is the ultimate opportunity to tell the Court point blank why your adversary is wrong and why you are right. He stressed that because reply papers provide the benefit of the last word, the opportunity to submit reply papers should always be taken advantage of.
When reviewing a legal brief, Justice Driscoll advised that he scans the brief’s Table of Contents and point headings since those are the “skeleton” of the brief and assist him with easily navigating through thousands of words and getting to the bottom line. For that reason, it is important that brief headings be made argumentative with the word “because” baked in (i.e., “The First Cause of Action Should Be Dismissed Because . . .”)
Finally, Justice Driscoll advised that since he reads so many sets of legal papers throughout the day, he appreciates when briefs are easy to read and “visually appealing.” To that end, he suggested that practitioners use a font that “jumps off the page” like Century Schoolbook or Georgia (rather than the default font of Times New Roman).
The Commercial Division’s recent conversation with Justice Driscoll reinforces the idea that getting to know the audience – i.e., your Judge – is an invaluable tool for legal advocacy that should always be taken advantage of. Litigators should use their best efforts to learn about the judges of the Commercial Division and attend programs where they can gain insight into their likes and dislikes. Whether legal briefs will eventually deviate from Times New Roman . . . well, that remains to be seen!