Clarifying the Courts’ Authority to Order Virtual Evidentiary Hearings and Bench Trials – Public Comment

SUMMARY

The Council on Judicial Administration, Litigation Committee and State Courts of Superior Jurisdiction Committee submitted comments with respect to Amending Commercial Division Rule 36 to Clarify the Courts’ Authority to Order Virtual Evidentiary Hearings and Bench Trials. In particular, the Committees suggest two important changes. First, that subpart (a) of the proposed amendment be modified to provide that the court may conduct an evidentiary hearing or a non-jury trial utilizing video technology in the absence of consent or a motion by a party only upon a finding of good cause to do so. Second, that for all purposes under the Rule, the “good cause” standard be modified to provide greater clarity, reasoning: “Implicit in this rule is the concept that one party—over the objection of the other party—must make a showing of “good cause” to overcome the traditional preference for live proceedings. We believe that the “good cause” analysis must be tied to tangible factors, such as cost of travel, the location of the witnesses, health issues, and scheduling delays, as opposed to nebulous concepts such as the ‘convenience to all parties involved.’ Some practitioners believe that virtual proceedings are more convenient and efficient, but not all prefer virtual proceedings to live proceedings, especially with respect to evidentiary hearings and bench trials. Further, if one party is making a motion to establish “good cause” to conduct a virtual proceeding, it necessarily means that the other party does not believe that a virtual proceeding is more efficient, convenient, or otherwise superior to a live proceeding. Otherwise, the parties would have stipulated to it.”

REPORT

December 7, 2022[1]

By Email
Anthony R. Perri, Esq.
Counsel
Office of Court Administration
25 Beaver Street, 11th Floor
New York, NY 100041
rulecomments@nycourts.gov

Re:      New York City Bar Association Response to Request for Public Comment on Proposal to Amend Commercial Division Rule 36

Dear Mr. Perri:

We write to provide comments with respect to the Request for Public Comment on Amending Commercial Division Rule 36 to Clarify the Courts’ Authority to Order Virtual Evidentiary Hearings and Bench Trials (the “Proposal”).

The City Bar’s Council on Judicial Administration, State Courts of Superior Jurisdiction, and Litigation Committees have considered and discussed the Proposal.  As set forth herein, we suggest two changes to the Proposal and provide some related observations, which we hope that you will adopt.

First, subpart (a) of the proposed amendment to Rule 36 should be modified to provide that the court may conduct an evidentiary hearing or a non-jury trial utilizing video technology in the absence of consent or a motion by a party only upon a finding of good cause to do so.[2]

Second, we believe that the “good cause” standard in subpart (d) should be modified.  Implicit in this rule is the concept that one party—over the objection of the other party—must make a showing of “good cause” to overcome the traditional preference for live proceedings.  We believe that the “good cause” analysis must be tied to tangible factors, such as cost of travel, the location of the witnesses, health issues, and scheduling delays, as opposed to nebulous concepts such as the “convenience to all parties involved.”  Some practitioners believe that virtual proceedings are more convenient and efficient, but not all prefer virtual proceedings to live proceedings, especially with respect to evidentiary hearings and bench trials.  Further, if one party is making a motion to establish “good cause” to conduct a virtual proceeding, it necessarily means that the other party does not believe that a virtual proceeding is more efficient, convenient, or otherwise superior to a live proceeding.  Otherwise, the parties would have stipulated to it.

Accordingly, we recommend that the proposed subpart (d) be modified, as follows:

(d)  For all purposes under this Rule, the Court shall determine the existence of “good cause” by considering at least the following factors:

(1) The necessity of conducting a virtual proceeding, dictated by considerations of, including but not limited to, the financial or other hardship of a party, attorney, or witness in traveling to the location of the trial or hearing;

(2) Avoiding undue delay in case management and resolution;

(3) The safety of the parties, counsel, and the witnesses, including whether counsel, the litigants, and the witnesses may safely convene in one location for the trial or hearing; and

(4) Prejudice to the parties.

Thank you for considering our comments.  If you believe that it would be beneficial, we would be happy to discuss these comments with you further.

Sincerely,

Fran Hoffinger, Chair
Council on Judicial Administration

Seth D. Allen, Chair
Litigation Committee

Amy D. Carlin, Chair
State Courts of Superior Jurisdiction

Contact:  Maria Cilenti | Senior Policy Counsel | mcilenti@nycbar.org | 212.382.6655