City Bar Issues Recommendations for Improving the Efficiency and Reducing the Costs of Civil Litigation in New York
The New York City Bar Association has issued a report addressing ways of improving the efficiency and reducing the cost of dispute resolution in New York.
Since 2017, the City Bar President’s Committee for the Efficient Resolution of Disputes has been meeting with participants in the dispute resolution process – including judges, court administrators, advocates and clients – who have consistently observed that the costs and delays of dispute resolution present important issues of access to justice and fair administration of justice.
“Many parties to disputes cannot afford the process required to achieve a decision, because the required cost is too high a percentage of the amount in controversy,” said John S. Kiernan, the former City Bar President who convened the Committee and continues on it, and who chairs the Advisory Committee on ADR set up by New York’s Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks. “Parties also often settle disputes, without the benefit of any judicial input on the merits, only after expenditures of substantial legal costs that could more productively have been spent on bridging gaps and achieving earlier negotiated resolutions. These inefficiencies contribute to overburdened court dockets and client dissatisfaction with the dispute resolution process.”
In seeking to identify why litigation in New York costs too much and takes too long, the City Bar’s report critiques current rules, cultural assumptions and apparently accepted practices that contribute most significantly to inefficiencies in dispute resolution, describes some of the important improvements in dispute resolution processes that have taken hold over the years, and suggests further areas for pursuit of constructive change.
The report proposes the following 10 Best Practices to help improve the timeliness and efficiency and reduce the cost of dispute resolution in New York:
- Recognizing that efficient resolution of a matter may not require taking all the steps in the formal litigation process, the courts, parties and counsel should from the outset work to keep the cost and time of resolving disputes, whether by settlement or by decision, proportionate to the nature and scale of the matters at issue, and to avoid unnecessary cost and delay.
- Parties and counsel should, early in the litigation process (if possible before a complaint is filed), objectively evaluate the merits of all parties’ positions and the likely course and cost of litigation, so that they can manage their disputes efficiently and, when appropriate, sensibly pursue settlement.
- Counsel should consider themselves professionally responsible for crafting, discussing with clients and pursuing with adversaries and courts approaches to disputes that offer the best prospects for efficient and affordable resolution.
- Parties should not regard litigation as primarily a contest left to counsel with instructions to pursue victory, but should instead remain actively involved, treating civil disputes as a form of risk or opportunity to be evaluated and managed to achieve an appropriate and affordable result.
- Beginning early in a litigation and continuing thereafter, courts should, where practical, proactively manage the dispute to promote a fair, efficient and affordable decision or settlement.
- Courts should adopt rules and practices that feature inquiry of counsel and other oversight of the litigation process to foster achievement of effective settlements or decisions at a cost and in a time frame proportionate to the nature and scale of the dispute.
- Courts should support – and in appropriate circumstances mandate – mediation as a vehicle for promoting more efficient case management and less expensive and faster resolution.
- Courts should discourage and Counsel should avoid claims, defenses, motions, requests for discovery, appeals of non-dispositive decisions and other litigation steps or strategies that unnecessarily delay proceedings and burden parties.
- Judges should decide dispositive motions as early as practicable, and decide as much of a motion as possible when they are not able to resolve the dispute entirely.
- If the parties choose arbitration or another ADR method as a mechanism for dispute resolution, they should take advantage of the potential for efficiency that such a process can offer when compared with formal court-directed litigation.
Going forward, the City Bar aims to work with other bar associations, judges and administrators, the private bar and clients to promote these Best Practices and pursue continued reduction of costs and delays in resolving disputes. The City Bar also plans to provide training and practical guidance on enhanced approaches to pursuing more affordable and efficient management and resolution of disputes.
Read the report here: http://bit.ly/2KlF16B
About the Association
The mission of the New York City Bar Association, which was founded in 1870 and has 24,000 members, is to equip and mobilize the legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world. www.nycbar.org
