The Office of Court Administration’s plans to speed up and standardize procedures in the Commercial Division have been met with little to no opposition—a sign that these measures generally have found favor with the litigation bar.
A small but vocal minority raised concerns in letters to the OCA, showing that the proposals can’t—and won’t—appease all, even if there is broad-based consensus for certain time-saving and cost-reducing procedures.
Over the last few months, OCA has released for public comment proposed use of limited interrogatories, a standardized preliminary conference form, accelerated adjudication and special masters handling discovery disputes in the Commercial Divisions statewide. A proposed pilot mandatory mediation program in New York County is also up for consideration.
All are intended to boost the profile of the state’s business court as a more attractive forum for litigants while trying to streamline litigation and reduce costs.
In an eight-page memo largely endorsing these proposed changes, the New York State Bar Association’s Commercial & Federal Litigation Section praised accelerated adjudication as a “potentially powerful tool for the simplification of litigation in the Commercial Division,” but cautioned, “without a specific enforcement mechanism, the nine-month deadline for trial-readiness is more aspirational than realistic.”
Under this proposal, parties could contractually agree to the “exclusive jurisdiction of the Commercial Division,” so as to avoid forum disputes, and agree to waive trial by jury, punitive damages, interlocutory appeals and limit discovery based on a certain tier tied to the jurisdictional amount in dispute. The proposal also calls for wrapping up all pretrial proceedings and discovery within nine months of filing a request for judicial intervention.
The Comm-Fed section also asked for further clarity in the event a case tracked for accelerated adjudication is later deemed ineligible to be heard in the Commercial Division – would such accelerated adjudication be enforced in other IAS parts, for instance?
Pegging the number of permitted document requests to the disputed monetary value troubles Manhattan solo practitioner Paul Frohman. He submitted a letter to OCA stating that such a correlation is misguided and pointed out to CLI, “you can have a simple uncomplicated case where the damages are 5 million and you can have a more complicated case where there are numerous witnesses to examine, and the damages are only $350,000.”
Frohman, who said he handles real estate brokerage claims whose value don’t typically meet the $500,000 monetary threshold now instituted in Manhattan, added that the accelerated adjudication measure “really requires the party to consent before they even would know the nature of the dispute and the extent of the damages.”
“I think the goal they’re seeking to advance is not so much in the best interest of the parties but the best interest of the court,” he said. “I don’t think it’s really appropriate and in the best interest of the parties themselves. I think [the parties] may regret to having consented in the blind.”
Steve Susman, a litigator with Susman Godfrey who sits on the board of the American Board of Trial Advocates, voiced strong dissent over the jury waiver provision in the measure, writing in his own brief letter, “For a group of lawyers to thus denigrate the right to trial by jury with such false premises, is wrong.”
In an interview with CLI, Godfrey added that the proposal “implies that a jury trial would not be suitable to expedited treatment and that’s just wrong.”
“I just disagree fundamentally that just because there’s a jury, it’s got to be drawn out, complicated and can’t be as quick as a bench trial,” he said.
By far, the Commercial Division proposal that has garnered the most reaction has been one for pilot mandatory mediation, in which every one out of five cases assigned to New York’s Commercial Division would be subject to automatic mediation, unless the parties choose to opt out.
Everyone from litigators to bar groups to the CEO of litigation finance firm Burford Capital has chimed in, largely favorably, to the provision.
According to OCA spokesman David Bookstaver, there is no set timeframe for when such proposals could be instituted.
“The board will take up this issue in the coming weeks,” he said.
Robert Haig, partner at Kelley Drye & Warren, who chairs the Commercial Division Advisory Council that submitted such recommendations to OCA for adoption, said the council is currently “considering the written comments.”
“The Commercial Division Advisory Council is grateful for the time and thought which bar associations and individuals have devoted to our recent proposals,” he said. “We plan to submit to OCA any further thoughts we may have on our proposals and the public comments.”