Litigator’s Toolkit: Know the Law, Know the Rules, Know your Judge
June 19, 2019
We all know that understanding the law is a first step to good lawyering. But understanding what the particular judge assigned to your case likes and dislikes, and her pet peeves is just as important for your success as an advocate for your client.
On June 14, 2019, the New York State Bar Association’s Commercial and Federal Litigation Section held a Bench-and-Bar program at the Westchester County Courthouse. This program, which was co-moderated by our very own Matt Donovan, featured Westchester Commercial Division Justices – Hon. Linda Jamieson and Hon. Gretchen Walsh. The format of the program was an informal question – and – answer session, including questions from the audience. Below is a summary of some of the topics discussed:
Junior Associates and/or Underrepresented Attorneys: I previously discussed the recent trend of federal and Commercial Division judges allowing oral argument, when they otherwise would not have, if a junior or underrepresented attorney would argue the motion. Both Justice Jamieson and Justice Walsh stated that they like to see young attorneys (especially young women attorneys) argue in their courtroom. Justice Walsh stated that she is contemplating amending her rules to include language reflecting the recent trend in the Commercial Division to permit oral argument if counsel identifies a lawyer out of law school five years or less who will argue the motion. Justice Jamieson took a similar stance and stated that senior attorneys should give junior attorneys a chance to speak in court. The justices stated that if they allow oral argument on a motion, which they usually do not, the decision will not be based solely on oral argument, thus alleviating any concern senior attorneys would have in permitting younger attorneys to argue in court.
Rule 19-a– Statements of Material Facts for Summary Judgment Motions: The consensus between the justices was that they generally like Rule 19-a statements, which should contain only undisputed facts. Both Justice Walsh and Justice Jamieson stated that Rule 19-a statements are important because the parties reference (or at least should reference) the record in support of each statement. This opinion is contrary to what certain New York County Commercial Division justices stated on June 5, 2019 at a NYSBA panel, entitled Motion Practice Before the Commercial Division. Interestingly, at that panel, certain justices stated that they prefer parties to submit joint (as opposed to separate) 19-a statements, indicating that if the parties cannot agree on “undisputed facts,” the 19-a statements are not helpful. On the other hand, other judges stated that they prefer separate Rule 19-a statements from each party.
Rule 17 – Length of Papers: As of October 1, 2018, Commercial Division Rule 17 changed the length guidelines of briefs from 25 pages to 7,000 words and reply briefs from 15 pages to 4,200 words. The rule states that every brief must include a “certification by the counsel who has filed the document describing the number of words in the document.” If a document has standard margins and font, 7,000 pages is approximately 22-23 pages. However, it appears that many lawyers are not abiding by this rule. Why is that? One theory is that judges are not enforcing it. Although, both Justice Walsh and Justice Jamieson emphasized that lawyers need to keep their briefs short and concise, they indicated that they will not be sticklers when it comes to the 7,000 word limit. Although lawyers tend to always include a legal standard section in briefs, the justices stated that lawyers need not do so. So… use your words wisely.
Presumptive ADR: My colleague discussed Presumptive, Early Alternative Dispute Resolution (“Presumptive ADR”) in an earlier post, which is expected to begin in September 2019. Both Justice Jamieson and Justice Walsh are in favor of Presumptive ADR, which encourages settlement at the outset of the case. Justice Walsh stated that the Advisory Committee on ADR is still figuring out which types of cases should go to Presumptive ADR, e.g. matrimonial cases versus business dissolution matters, noting that it may be better suited for certain types of cases. Justice Jamieson is a big proponent of ADR and wants attorneys to consider ADR and to meet and confer about whether or not the case is good for ADR prior to coming to court.
Pet Peeves: Both justices emphasized the importance of being courteous and professional. Justice Jamieson stated that her biggest pet peeve is when the attorneys before her begin to speak to each other instead of addressing the court. Justice Walsh stated that if the attorneys are not being courteous and cannot agree on adjournments, she will require that they come to court and go on the record. Justice Walsh also noted that the Chief Judge DiFiore is coming out with new rules regarding adjournments … so stay tuned.
This was a great program that provided Commercial Division litigators insight into what they should expect when entering the respective judges’ courtrooms. Litigators should make every effort to attend programs where judges provide valuable information concerning their individual preferences and style.