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!

At the New York City Bar Association the evening of February 25th, five recently retired justices of the Commercial Division—Hon. Eileen Bransten, Hon. Shirley W. Kornreich, Hon. Charles E. Ramos, Hon. Melvin L. Schweitzer, and moderator Hon. Carolyn E. Demarest—convened for a panel entitled “The Commercial Division: Past, Present and Future.” Here is a summary of some of the topics discussed by the panel:

History of the Commercial Division. Before the Commercial Division, commercial cases were heard in New York County’s Special Term, Part 1, a forum marked by chaos and disengaged justices. In Special Term, Part 1, there was no continuity and no monitoring of discovery. Opinions were generally drafted by the law department. Several of the panelists remarked that when they were in private practice, they had no faith that their clients would be treated fairly in Special Term, Part 1.

When it was first created, no judges were interested in sitting in the Commercial Division, as it had no rules and had not yet proved successful. Nowadays, by contrast, many view the Commercial Division as a stepping-off point to the Appellate Division. At a recent luncheon with judges from the Southern District, the federal judges complained that the Commercial Division was “taking all the good cases.”

Development of the Commercial Division Rules. The Rules began from discussions among judges about how to resolve certain common problems. The judges had similar, but not identical, part rules. Justice Ramos credited Robert L. Haig (who was in attendance, author of the exhaustive treatise on commercial litigation in New York courts) with creating uniform rules and then forming an advisory council. Justice Bransten emphasized that each new Rule is carefully considered and debated before it is enacted, going through multiple rounds of input from the advisory council, the chief counsel of court administration, board of judges, and public comment.

Effectiveness of the Rules. The panel generally agreed that the Rules have been effective because they allow individualism and flexibility to each part. For example, Justice Kornreich noted that the flexibility afforded by the Rules allowed her to make her procedures conform to the expectations of practitioners accustomed to the federal courts. The justices also discussed variations in their part rules concerning affidavits for direct examination and resolution of discovery disputes.

Common Mistakes Made by Practitioners. Throughout the evening, as well as in response to a specific question from the audience, the panelists shared the following tidbits of advice for attorneys in the Commercial Division:

  • Motions to dismiss should be utilized as much as possible, to clean the pleadings (and the scope of discovery) of non-meritorious claims, as well as to give the judge a “feel” for the case.
  • Unsolicited letters to the court should be avoided—if in doubt about whether a letter should be sent to chambers, ask the clerk in advance.
  • Preliminary conferences are an important opportunity to address the merits and educate the judge about the case, as well as to give the judge a sense of the potential usefulness of ADR.
  • Take care to read the Commercial Division Rules and Part Rules carefully. Justice Bransten believed that there should be stricter enforcement of the Rules.
  • Be aware of differences between federal and state procedural law, and do not confuse the two.
  • Take the court seriously—do not send in per-diem attorneys unfamiliar with the case.

Is the Commercial Division Elitist? The panel addressed this question last, and generally agreed that the Commercial Division was not elitist, although Justice Ramos conceded that it might appear so from the outside. Justice Schweitzer felt strongly that as the business center of the United States, if not the world, New York should devote extra resources to its commercial litigation courts to the extent necessary. Other benefits from the Commercial Division that justified its extra costs included:

  • The Commercial Division has made other Parts more efficient by not having to oversee trials of these matters;
  • High value cases attract higher-quality litigants who operate more efficiently and require less of the court’s time and resources;
  • The Commercial Division serves as a laboratory for creative solutions to issues affecting other courts; and
  • The Commercial Division does not really require so much extra resources—simply one extra clerk per Part.

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The New York Commercial Division was founded in 1993 “to test whether it would be possible, by concentrating on commercial litigation, to improve the efficiency with which such matters were addressed by the court and, at the same time, to enhance the quality of judicial treatment of those cases.” Among other things, its continual adoption of innovative new rules and amendments to existing rules has elevated the Commercial Division to being one of the world’s most efficient venues for the resolution of commercial disputes.

In our last installment of this blog’s Check the Rules series, we looked at the Commercial Division Advisory Council’s proposed amendment to Commercial Division Rule 17 concerning length of papers, along with some recent support from Commercial Division judges, including Justice Saliann Scarpulla of the Manhattan Commercial Division, whose decisions have taken lawyers to task for being long-winded.

It turns out that Justice Scarpulla also is an advocate of the efficiency associated with pretrial evidentiary hearings and immediate trials on material issues of fact under CPLR §§ 2218, 3211 (c), and 3212 (c), which, according to the Advisory Council in a recent new-rule proposal, are “significantly underutilized” and provide “yet another tool to help efficiently dispose of commercial disputes.”

Under the Advisory Council’s proposed new Rule 9-a, which essentially reinforces a court’s existing authority under the aforementioned CPLR provisions to direct evidentiary hearings, “parties are encouraged to demonstrate on a motion to the court when a pre-trial evidentiary hearing or immediate trial may be effective in resolving a factual issue sufficient to effect the disposition of a material fact of the case.” The proposed rule sets forth specific examples of such motions, including dispositive motions to dismiss and for summary judgment; preliminary-injunction motions; spoliation of evidence motions; jurisdictional motions; statute of limitations motions; and class action certification motions.

The idea behind proposed new Rule 9-a is to “expedite and streamline . . . questions of improper notice or other jurisdictional defects or dispositive defenses,” so as to avoid the kind of “litigation [that] continues for years through extensive discovery and other proceedings until trial where the fact issue is finally adjudicated and the case is resolved in a way that it might have been years ago.” In short, the proposed rule “is designed to reduce the waste of time and money which such situations create.”

As noted above, based on a couple recent decisions, it would appear that Manhattan Commercial Division Justice Saliann Scarpulla is on board with proposed Rule 9-a.

In January of this year, before Rule 9-a had even been proposed, Justice Scarpulla granted summary judgment for the plaintiff on a claim for breach of contract in a case called Seiko Iron Works, Inc. v Triton Bldrs. Inc. But because she was unable to “determine the total amount of damages to which [plaintiff w]as entitled based on the papers submitted,” Justice Scarpulla exercised her discretion under CPLR 3212 (c) to direct an evidentiary hearing on the material damages issues raised by the plaintiff’s dispositive motion.

Earlier this month, Justice Scarpulla expressly cited proposed Rule 9-a in a footnote to her post-hearing decision in Overtime Partners, Inc. v 320 W. 31st Assoc., LLC, a commercial landlord-tenant action seeking injunctive relief concerning the acceptance of a proposed sublessee under a master lease. After the tenant commenced the action by order to show cause, Justice Scarpulla “ordered a factual hearing to determine whether [the landlord] unreasonably withheld and delayed consent” to the proposed sublease. Citing CPLR 3212 (c) and footnoting proposed Rule 9-a, Justice Scarpulla expressly referenced her discretion thereunder to “order an immediate trial of an issue of fact raised by a motion when appropriate for the expeditious disposition of the controversy.”

Thus, it seems proposed Rule 9-a already is alive and well in the Manhattan Commercial Division, at least in spirit.  Look for its formal adoption in the near future.

As with all new-rule or rule-change proposals, anyone interested in commenting on proposed new Rule 9-a may do so by sending or emailing their comments to John W. McConnell, Esq. (rulecomments@nycourts.gov), Counsel, Office of Court Administration, 25 Beaver Street, 11th Floor, New York, NY 10004.

For the fifth installment of this blog’s ongoing “Check the Rules” series, we feature the individual practice or part rules of the Justices of the Kings County Commercial Division, particularly those recently instituted by Hon. Sylvia G. Ash.

As hyperlinked within any number of past posts on this blog, the Commercial Division’s official webpage – which encompasses all eight of its statewide locations, including the busy metro counties of New York, Queens, and Kings – provides users with county- and judge-specific practice information, including individual rules and procedures for many of its Justices. Check the Rules

Notably, however, the link to the Kings County Commercial Division, which contains separate links to bibliographical and contact information for its two Justices, Hon. Sylvia G. Ash and Hon. Lawrence Knipel, does not link to the individual rules for either Justice. Their rules can be found elsewhere on the NYCOURTS.GOV site, specifically here (Justice Knipel) and here (Justice Ash).

A couple of Justice Ash’s new rules are worth noting, particularly with respect to motion practice and pre-trial conferencing:

Motions. Justice Ash’s motion calendar, which is designated for Wednesday mornings, consists of two separate calendars – a “general motion calendar” and, to the delight of many practitioners, an “oral argument motion calendar,” which consists only of motions that have been fully briefed and submitted to the court in hard-copy format in advance of the calendar call. As a general rule, “Justice Ash will only hear arguments on motions that are on the oral argument motion calendar.” The bifurcated nature of Justice Ash’s motion calendar – particularly the oral argument motion calendar – presumably will facilitate rulings from the bench, which litigants interested in prosecuting and defending their commercial cases expeditiously no doubt will welcome.

Pre-trial Conferences. Justice Ash’s pre-trial conference calendar, which is designated for Thursday mornings, also is two-fold in nature. At the first pre-trial conference, the court will set a “firm trial date” – generally “three to five months out” – as well as a date for the second pre-trial conference. At the second pre-trial conference, parties must submit witness lists, exhibit books, motions in limine, and pre-trial memoranda, and their failure to do so “will result in an adjournment of the second pre-trial conference as well as the trial.”

Speaking of updates and resources, the webpage for New York’s electronic filing system (NYSCEF), also frequently hyperlinked on this blog, recently was updated to include the following resources:

  • Forms for general use in the Supreme Court, Appellate Division, Court of Claims, and Surrogate’s Court, and for specific use in particular counties;
  • A PDF Checker allowing practitioners to validate acceptable documents for proper e-filing on the NYSCEF system;
  • A statewide list of Authorized Courts and counties for e-filing;
  • Links to Rules and Legislation concerning e-filing, including the Electronic Filing Rules for the Appellate Division, the Uniform Rules for the Trial Courts, and related Amendments and Administrative Orders; and
  • Links to News & Events concerning new features and functions on the NYSCEF system, including production build notes for practitioners, clerks, and administrators alike.