Trials in New York Supreme
We try many of our cases in federal court, in part because we frequently assert federal claims and in part because large commercial disputes from New York often find their way there. Even fairly routine business cases often involve an out of state party or an incidental intellectual property claim. And even where there's no federal jurisdiction, because of the nature of our practice, we tend to land in the commercial division of the New York State courts.
While the commercial division is not a carbon copy of SDNY/EDNY or even the Delaware Chancery Court on which it was rather explicitly modeled, for trial purposes, there are some substantial similarities. In particular, commercial division judges generally retain their cases for trial, participate in (or outright handle) jury selection, and set advance deadlines for exchange of pretrial materials like exhibit lists, witness lists, and jury instructions. If, like us, you started as a federal court lawyer, while you can't blindly assume that everything will be the same in the commercial division, many of your instincts will be fundamentally correct.
But if you aren't in the commercial division and are set to try a case in the “normal” New York State Supreme Court those instincts are going to lead you astray. How do you end up in “normal” court? Generally it’s because there is no federal jurisdiction over the case and you’ve asserted a claim that the commercial division has explicitly forbid, such as personal injury, malpractice, or employment discrimination. You can have a complex legal malpractice case with millions at issue that is, in every relevant way, a “commercial” case, but the rules say that you can’t bring it in the commercial division.
Because I know that trial in “normal” court is very different, every time I try a case in non-commercial New York State court, I end up searching online to see if there's an up-to-date guide to the procedures. And invariably I find nothing because basically none of the procedures are written down. There are some threadbare individual rules for the trial assignment part, but good luck figuring out how things work from those. But having just wrapped up such a case, let me give you a sense of what to expect if you’re headed to trial in “normal” New York court.
1. Pretrial Submissions – Not So Much
So, let's assume you have a case that's gotten through summary judgment briefing outside the commercial division. You'll likely first pass through one or more mandatory mediation parts before you're scheduled for a pretrial conference. In Manhattan these conferences are currently held in Part 40, but there are equivalents in other counties as well.
If you come from federal practice, you probably view a pretrial conference as the very last stage before trial. In SDNY for example, they occur just days before the trial is set to begin. But that's very much not what you're getting in non-commercial New York State court. In the trial assignment part a pretrial conference is really just to kick the tires on whether the case is truly trial ready, give the parties a chance to make any adjournment motions, and set a date for jury selection. You aren't going to get decisions on substantive motions concerning the evidence because you don't have a trial judge at this point and the judge who supervised discovery and or motions for summary judgment is now off the scene.
So, you’ll get a date for jury selection. When do you have to give the other side your exhibit list and witness list? Well, never, or at least not until trial starts and even then only if the trial judge is inclined to order it. The CPLR says that you have to notify them of any subpoenas that you serve, but if you've got witnesses who will come voluntarily, so much the better. This isn’t supposed to be trial by ambush—you have had pretrial discovery after all—but there is still a high degree of uncertainty considering the case that each side is putting on.
2. Jury Selection – Do as Thou Wilt
So, you show up for jury selection. Assuming there are no snafus in the process and no last-minute motions for an adjournment, after checking in with the trial assignment clerk, you’ll be sent from the assignment part over to the jury assembly room to get started. You still don’t have a judge for the trial, so that judge will clearly not be supervising voir dire.
You’ll check in at the jury assembly room, along with your adversary, and be sent somewhere to pick a jury. Usually there are smaller rooms nearby, though occasionally you’ll be shuttled off to some distant corner of the courthouse. You’ll be provided with a large wooden board and a pile of cards with juror names on them. Other than you, opposing counsel, and the potential jurors, nobody else is in the room, so have at it.
At this point, the process is really between you and opposing counsel. If you get along with the other attorneys, you can ask whatever questions you like, excuse however many jurors you want, and structure the whole thing however you please, so long as you eventually end up with six cards (though you should select some alternates as well). There's no such thing as relevance and you can get a very good sense of how a juror thinks, behaves, and interacts with other people in voir dire. And you can go a lot further. If you want to try to sell the jury on the facts or tell them everything that the evidence will show, you certainly can try, though that tends to result in tit-for-tat escalation. As such, most authorities recommend against it, at least in an overt fashion.
Invariably, most of your potential jury pool will claim that they are not available to serve for one reason or another, and again, it's up to you and your adversary to decide how many to let go. Eventually a selected juror will have a chance to complain to a judge, so you can't be totally dictatorial, but you also aren't required to honor any every flimsy excuse.
The tenor of this process all depends on the attorneys. It can be very relaxed or extremely tense. If you have an actual dispute with your adversary, you'll need to go back to see a clerk, though this will obviously delay things and the rest of the potential jurors will be sitting around while you do it. Depending on which court you're in, this can be more or less of a hassle. If the clerk is across the hall and basically free, you may be may be more tempted to dispute all manner of “for cause” challenges offered by your adversary. In contrast, if the clerk is on the other side of the building and generally busy it might be easier just to horse trade with your adversary until you end up with a jury you can live with.
3. Get a Judge
At some point after jury selection begins, you will typically be assigned a trial judge by the trial assignment part. Depending on the court this could be the same day—which we've experienced in Manhattan—or substantially later. In Nassau County I was once told to pick a jury and come back in a week to find out what judge we had.
Once you have judge then you will then find out when the trial can actually start. The trial assignment part looks for judges with availability when making assignments, but judges are busy folks so it's not at all uncommon to wait a few days or even a week to begin the case.
At this point you can also make any in limine motions or other applications that you want the trial judge to decide. You can certainly file papers in the way you would in federal court, but we've also experienced the “lightning round” style where attorneys make a series of oral applications concerning evidence and the judge—who knows basically none of the facts of the case—decides them on the spot.
4. Planning in Advance
There are a number of consequences to this variability. The first is that you'll need even more flexibility than a normal from witnesses, since you won't typically be able to give them a scheduled appearance date weeks or months in advance. You also aren't going to necessarily have the benefit of in limine rulings during most of your pretrial preparation, so your plan for trial is also going to require a great deal of flexibility. And it's luck of the draw on judges, who even if capable, will know next to nothing about your case when the trial begins.
But in return, you get a more comprehensive—arguably fairer—shot at jury selection and a judge who has not had the chance to make up his or her mind about the parties or the claims. And you’ll get the opportunity to put your ability to think on your feet—always tested a trial— to an even more robust challenge.
