On Wednesday June 5, 2019, all seven of the New York County Commercial Division justices participated on a panel for the New York State Bar Association’s Commercial and Federal Litigation Section on “Motion Practice Before the Commercial Division.”  Motion practice is one of the most frequently used aspects of practice in the Commercial Division.  The format was an informal question and answer session on motion practice, moderated by the Section’s Past Chair, Robert Holtzman.

The panel first addressed Commercial Division Rule 24—Advance Notice of Motions.[1]  The question was whether the justices’ individual rules required additional information prior to filing a motion.  The panel unanimously agreed that they do not have individual rules on pre-motion practice.  Justice Sherwood further explained that Rule 24 is meant to address non-typical motions (i.e. motions other than motions to dismiss, summary judgment motions, and the like), and that Rule 24 does not come into play very often. 

Justices Schecter, Scarpulla, and Ostrager then discussed their positions on discovery motions and letter briefs.  All agreed that discovery motions should be limited.  Justice Schecter stated that she prefers the parties call Chambers before filing a brief, as such disputes can often be resolved over the phone.  Justice Scarpulla explained that she disfavors discovery motions, and prefers that parties appear before her so that she has the opportunity (if the circumstances warrant) to rule from the bench. If needed, Justice Scarpulla will request that the parties follow up with letter briefing on a particular issue after such conference. 

The panel next discussed Rule 19-a statements—i.e., statements of material facts for summary judgment motions.[2]  The justices were split as to whether these statements were helpful.  Justices Friedman and Borrok prefer parties to submit joint 19-a statements, while Justice Scarpulla thinks it is helpful to have each party’s separate viewpoint and recitation of the facts.  Justice Sherwood indicated that, although such statements are helpful, it would be worth reconsidering the contours of Rule 19-a.

The justices also all seemed to favor oral argument on major motions.  Justice Masley suggested that parties do best before her where they have sufficiently sharpened the issues on the motions by citing just one or two of their best cases.  She commented that lengthy string cites are unhelpful.  She also encouraged parties to cite to the factual information in the record, including cites to the NYSCEF docket.  Justice Schecter also pointed out that, although she does not permit oral argument on all motions, she has an individual rule that if the parties write a letter explaining that a junior lawyer will be arguing the motion, she is more likely to grant argument. 

The panel then discussed the diversity of lawyers appearing before them.  The justices explained that many of their individual rules encourage law firms to have women, minority or junior lawyers argue motions. 

Justice Scarpulla described the technology features available in her electronic courtroom.  This blog previously covered Justice Scarpulla’s courtroom in The Commercial Division is Rolling Out Cutting-Edge Courtroom Technology.[3]  The panel discussed the usefulness of having monitors, smart screens and other technology available to attorneys practicing in the Commercial Division.  They encouraged the bar to contact the Office of Court Administration if they find this technology is something that they would like to see in all of the Commercial Division courtrooms.

The panel ended with their general thoughts on motion practice and words of advice.  Justice Cohen explained that he reads the reply briefs first.  To Justice Cohen, this is the first presentation of a synthesized viewpoint on all the issues before him.  Justice Schecter advised parties to be prepared to discuss the entire case, and that she finds it helpful to understand how a decision on a particular motion will affect the direction of the case.  Justice Friedman explained that she finds demonstratives (outside of a jury trial) not to be useful and often to be distracting.  Justice Sherwood encouraged the bar to think about the value of their cases, and to make sure the case is worth proceeding to trial.  Justice Scarpulla encouraged lawyers to be collegial.  Justice Masley informed the bar that she plans to issue new individual rules in the next 1-2 weeks.  She emphasized the importance of parties pointing to factual information in the record with specific citations.  Finally, Justice Borrok advised parties that it is not wise to file multiple letters on discovery disputes.

This program provided a worthwhile distillation of strategies that lawyers can use to make better presentations of their motions in the Commercial Division.