Comments on proposed amendment of Commercial Division Rule relating to direct testimony in affidavit form by a party’s own witness in a non-jury trial or evidentiary hearing

SUMMARY

The Council on Judicial Administration (Steve Kayman, Chair), State Courts of Superior Jurisdiction Committee (Adrienne Koch, Chair) and Litigation Committee (Cary Samowitz, Chair) provided comments in opposition to a proposal by the Unified Court System’s Commercial Division Advisory Council to enact a new Commercial Division rule permitting judges to require that the direct testimony of a party’s own witness in a non-jury trial or evidentiary hearing take the form of an affidavit. The Committees express an appreciation for the Advisory Council’s desire to “streamline” trials, but express several reservations about turning direct testimony by affidavit into a standard rule and describe why the rule would be a “sea change” from traditional trial practice. The comments state, “We agree that it may make sense in certain circumstances for some secondary witnesses to submit their direct testimony by affidavit. And the parties, if they wish, can certainly agree on whether it is appropriate to do so in a particular case and for particular witnesses. But we do not believe that it is prudent to create a rule that allows judges to make these decisions for the litigants and that, at least implicitly, creates a presumption that even principal witnesses should submit their direct testimony by affidavit.”

RULE INFORMATION

Proposed amendment of Commercial Division Rule (22 NYCRR § 202.70(g))

OUTCOME

Rule Adopted AO/190/16 – September 20, 2016