Robert Haig ()
Kelley Drye & Warren partner Robert Haig heads the Commercial Division Advisory Council, a group of about 45 lawyers and judges across New York state who fashion new rules for the Commercial Division.
The division, created in the mid-1990s by former chief judge Judith Kaye, is a specialized arm of the state’s court system that presides over complex commercial and financial cases. The segment that handles the most cases, according to Haig, is the Manhattan Supreme Court Commercial Division. Across the state the Commercial Division is found in 10 counties. It has 29 justices total and handles a high volume of cases, often involving high dollar amounts.
The rules proposed by the advisory council are sent to the Administrative Board, which is headed by Chief Judge Janet DiFiore, chief judge of the state Court of Appeals. The board offers proposed rules for public comment and decides after consideration whether to implement them.
Since the council’s inception in March 2013, about 30 new rules reforming the Commercial Division have been implemented, most aimed at making litigation in the division faster and more efficient. We caught up with Haig by phone to discuss the work of the advisory council. This interview was edited for length and clarity.
Q: Why was the advisory council created? What’s its goal?
A: Chief Judge Jonathan Lippman of the Court of Appeals, in 2011, created a task force on commercial litigation in the 21st century. The task force, by his appointment, was headed by former Chief Judge Judith Kaye and by Martin Lipton, a founder of Wachtell, Lipton, Rosen & Katz. The task force was asked to create a vision for a world-class commercial division. Judge Lippman wanted to improve the Commercial Division, which was already doing good work.
The issue was the division, in 2010 and 2011, was becoming a victim of its own success. It was very popular. But there were so many cases it was imposing excessive burdens on the court system and on the judges we had. It was taking too long to process cases and there wasn’t enough time to devote to each one on a per case basis. And it wasn’t just the numbers. The cases were getting bigger and more complex. It was very clear we had a problem.
The task force, in June 2012, issued a report. It’s a very substantial document, which recommended many things. A lot of them were improvements in the Commercial Division, ideas that would improve business litigation in New York. But they were mostly concepts and had to be translated into specific rules. The report recommended creating a permanent advisory council that would advise the chief judge into the future, and one of its principal tasks was to recommend ways to implement the task force’s report. And that’s what the council has devoted time and effort to doing over the last three-and-a-half years. Our goal is to make business litigation in New York state more cost effective, efficient and predictable.
Q: Given that case volume was becoming a problem was there an effort to add justices to the division?
A: We were trying to get more judges in 2011, and we still are. And that was an uncertain process because you need legislative approval. But we also have been trying to make the process, the handling of the cases, more efficient.
Q: How many members volunteer for the Advisory Council, and who sits on it?
A: The council has about 45 members consisting of Commercial Division judges, state Appellate Division judges, a number of lawyers from firms, and it’s got a number of in-house counsel employed by corporations. They’re all New York judges and lawyers.
Q: How many reforms have been proposed and how many have been put into effect?
A: More than 30 reforms have been proposed. Most have been new rules for the Rules of Practice of the Commercial Division. Almost all have been released for public comment, and all of those released for comment are now in effect except for several that are out for comment now.
Q: What are some examples of accepted proposals directed to making Commercial Division litigation more efficient and faster?
A: One simple example is we proposed a limitation on the number and types of interrogatories that can be served in commercial cases. Another example is we proposed limitations on the number of depositions that can be taken. A third one is requiring the parties to come before a judge sooner in the litigation process than they normally would otherwise—to have a conference with the judge near the start of the case to discuss the litigation.
Q: Do the judges have discretion on whether to comply with rules and limits on what parties can do?
A: We have substantial confidence in the ability of the Commercial Division judges to use the rules effectively. There is some discretion. For example, if you need more than 10 depositions in a case, you can ask the court for permission to conduct more depositions.
Q: What’s been the reaction from the bar to your council’s work and proposed reforms. Have there been objections to proposed new rules?
A: There has been extraordinary support from the bar for these improvements. The way you can tell that: The public and the bar associations have had the opportunity to object to proposals if they wanted to, and they haven’t objected much. Many of the comments have been very positive. There have been a few objections to some proposals. But there are 225,000 lawyers in this state and there are 180 bar associations. And at most we have had a few lawyers object and at most one or two bar associations.
Q: Some in the bar have said improvements to the Commercial Division are also aimed at helping New York compete for high-value commercial cases that, when there’s a choice of jurisdiction, may be filed in Delaware Chancery Court. What’s the goal as far as competition with other courts?
A: I think the goal is to make the Commercial Division a world-class forum for resolution of business disputes, because we are in a world-class city and state. New York City is the financial capital of the world and it ought to have a superb public court. I wouldn’t limit the competition to Delaware. In the same way that states and countries compete with each other in terms of attracting businesses, there is a feeling that New York ought to be able to resolve business disputes efficiently. If you don’t have a good quality court system, businesses will be unhappy because they won’t be able to get their disputes resolved satisfactorily. This is true with all courts that seek to resolve complex business disputes. Not only Delaware, London has a well-known and respected commercial court.
Q: Any final thoughts on the work of the council?
A: What the Advisory Council and the state court system generally is trying to do is to perform a public service by making the Commercial Division as good as it can be. And to make it an efficient way to resolve disputes in New York. And that’s good for everyone in New York and it’s also good for businesses. We are trying to make businesses happy with the dispute resolution process, so they are willing to do business here, have their headquarters here and resolve their disputes here.