Commercial Division: Past, Present and Future - New York City Bar Association Program
On Monday February 26, 2019, four retired Justices of the Commercial Division, New York County – Justices Ellen Bransten, Shirley Kornreich, Charles Ramos, and Melvin Schweitzer – took the stage at the New York City Bar to discuss the past, present and future of the Commercial Division, as well as their own experiences on the court. The discussion was moderated by retired Justice Carolyn Demarest of the Commercial Division, Kings County.
The evening began with Justice Ramos vividly recounting the state of affairs in Supreme Court – more specifically Special Term, Part One – before the Commercial Division was established in 1993. He recalled that cases regularly took over a decade to be resolved, 90% of motions were adjourned or decided without argument, decisions were typically written by the court’s Law Department, and judges rotating through Part One would rarely know the details of the case or what had gone on before them. Justice Schweitzer noted that, prior to the Commercial Division’s formation, the Supreme Court was not the preferred forum for commercial litigation.
The panel drew a stark contrast to the present where the Commercial Division has become a “go to” forum for commercial litigation. Justice Ramos opined that the Commercial Division has also made the rest of the New York court system more efficient, as it has taken these complex cases out of the pool from which the other judges draw.
The discussion then moved to the enactment of the Commercial Division’s Rules of Practice. Justice Ramos reflected that common rules began to develop organically as judges met and discussed problems stemming from cases in their dockets. The judges each began crafting their own individual part rules and, while they were not identical, similarities emerged. Justice Bransten then detailed the process through which the Rules were officially created and how new rules are added, including by recommendations form the Commercial Division Advisory Council. Several Justices reflected that while the Rules were necessary in standardizing the experience for litigants, each Justice’s individual part rules are also vital in allowing the judges to be as effective as possible.
The Justices next addressed the effectiveness of the Rules and identified specific provisions that have proven to be particularly valuable, as well as rules that perhaps did not function as intended. First, Justice Kornreich stressed that Commercial Division judges need not follow all of the rules promulgated by the Advisory Council and could instead create detailed rules for their own parts. She noted that because most litigators appearing in the Commercial Division often litigate in federal court, it makes sense that the Commercial Division’s Rules mirror Federal Rules of Civil Procedure, rather than the CPLR. Commercial Division judges had long been doing so in their own parts, she said, but the Advisory Council’s proposed Rules have made this official.
Justice Schweitzer noted that he felt one of the most important Rules was moving forward the time by which a party can submit a Request for Judicial Intervention (Rule 202.70(d)). He explained that this gets judges involved in the case earlier and increases their participation in case management. He also praised Rule 32-a, which allows for affidavits to be submitted instead of direct examinations of witnesses for bench trials. He added that he feared litigants did not take the requirements that they discuss ADR with their clients and that they meet and confer with their adversaries seriously enough.
Asked what lawyers accustomed to practicing in federal court should keep in mind when appearing in the Commercial Division, Justice Bransten stressed the importance of reading the Rules, as well as the Justices’ individual rules. Justice Kornreich noted that litigators should be aware that New York applies common law evidentiary rules that are stricter than the Federal Rules of Evidence and that there are different standards for pleadings.
The Justices also offered general tips for litigants who appear in the Commercial Division. Justices Bransten and Ramos both stressed the importance of drafting and filing compelling papers in briefing motions to dismiss as this allows the parties an early chance to frame the case even if the motion is unsuccessful. Justice Kornreich emphasized the importance of the preliminary conference as it allows the court and the parties to make important decisions and to set the general tone for the litigation to follow. Justice Ramos lamented that judges were not always able to make their clients recognize that there is no perfect case, and that even if their case is strong, there is still a chance they can lose or be wrapped up in the appellate process for years. As such, he felt that clients should take mediation and other ADR options more seriously.
By Jeff Kinkle, Ph.D., and Muhammad U. Faridi