Regular visitors to this blog no doubt are aware that the rules of practice for the Commercial Division are centered on innovation, efficiency, cost-effectiveness, and predictability. This includes the rules governing trial and trial preparation (Rules 25-33), which are important enough to merit their own, separate Preamble.
As it stands, the Preamble to Rules 25-33 explains that “[t]hese rules emphasize the importance of pre-trial preparation and remind the practitioner that such preparation is an essential element of successfully . . . conducting a complex commercial . . . trial [and] identify a series of key items that must be addressed or completed before commencing a trial in the Commercial Division” (emphasis added). The Preamble goes on to list the items that counsel are obligated to address in advance, including:
- “accurately estimating the length of the trial so that the court, counsel and parties can properly allocate their time”;
- “preparing and communicating to the court motions in limine in advance of the trial date”;
- “reviewing, assembling, and pre-marking exhibits”;
- “addressing issues that may arise in connection with the use of deposition testimony at trial”;
- “agreeing on a schedule for witnesses and the manner in which each witness will testify (including giving consideration to direct testimony by affidavit in a non-jury trial)”; and
- “preparing and negotiating jury instructions and verdict sheets.”