Which Cases Get Tried First?
There are questions that clients ask all the time, and, for some, you can hardly blame them. We’ve written before about “How do we get a new judge?” – a question that comes up pretty much any time a ruling doesn’t go 100% for the client. The answer is that you usually can’t, though there are exceptions.
Another question that every plaintiff’s lawyer gets asked basically every day is “how can we make this case go faster?” Litigation is slow and, if you’re the person waiting for the money, the entire process can feel absurd, with months or years passing without any outwards signs of material progress. There are ways to speed things along and we employ every tool at our disposal to do so. But litigation takes time — too much time — no matter what you do.
So, after summary judgment motions are decided and a case is finally trial-ready clients are usually chomping at the bit to get their case tried. And so are we! A trial-ready case is like a present sitting under the Christmas tree, just daring you to open it up. But even once dispositive motions are over there is still a line to wain in before the case is tried.
But is there any way to jump the line? And how do courts determine which cases get tried first?
The rules for trial priority vary tremendously by jurisdiction, even within the same city or state. Let’s focus on New York City. In New York state court, the relevant statute is CPLR § 3403. That rule provides that civil cases “shall be tried in the order in which notes of issue have been filed” but that certain types of cases shall be entitled to a “special” preference. Cases without a special preference are said to have a “general preference” and get tried more or less in order by note of issue date.
What does a “general preference” even mean? Like many things, this lingo is a quirk of history. So, it used to be that plaintiffs would file low dollar value tort cases, think soft tissue injuries or slip-and-falls, in New York’s general purpose trial court [1] to try to wrangle larger settlements. If they filed the cases in the civil courts, where damages are limited and low-dollar cases technically belong, that was effectively signaling to the defendant that the plaintiff knew that the case wasn’t worth much. This was pretty transparent, and judges hated it, but at the time there was no way to force the plaintiff down to civil court without its consent. So, the judges would ask the plaintiff to consent to lower the damages demanded and move the case to civil court, and if the plaintiff refused, the judges would withhold the “general trial preference.” In effect, that would mean that the plaintiff’s case would be tried only after every general preference case was finished – roughly the Thursday after never. [2] My understanding is that this is no longer really necessary as revisions to CPLR § 325 were made in the late 1980s to allow a court to kick cases downstairs without a plaintiff’s consent, and which authorize the civil court to exceed its statutory damages cap for those purposes.
But assuming you aren’t being strong armed by a judge and are in the general preference bucket, your position in line is determined by when the note of issue is filed. This is also very much New York state court jargon, but it essentially means that you get in line for trial the day that discovery ends.
One key implication of this is that your position in line is not impacted by things that happen after the note of issue date. In particular, filing a summary judgment motion or an appeal in New York state court does not (in principle) delay your trial date. This is clearly the right incentive structure – the alternative incentivizes defense counsel to file frivolous motions or interlocutory appeals – and contrasts with how New York federal courts typically operate.
But can you do better? CPLR § 3403 lists several types of cases that receive a “special’ preference and get to jump the general line.
The first are cases brought by or against the state. The New York state courts have a preference for New York state cases. The governor may not wear a crown, but about some things the state is still a sovereign and the king ain’t going to wait in line behind seventeen auto accidents if it wants its day in court.
The second type of cases are those brought to recover for medical, dental, or podiatric malpractice. Why do doctor cases get to jump the line? The same reason that medical malpractice has a statute of limitations measured in months rather than years. The medical lobby decided that doctors deserved the right to clear their names quickly and Albany provided.
The third type of case is a personal injury case where the defendant is accused of giving the plaintiff a terminal illness. Oddly specific, but if your client claims that the defendant mortally wounded him or her and that he or she needs a trial before the inevitable death, then you’re in luck. New York has you covered.
What if your client is dying but not specifically because of something the other side did? The rules get a little strange. If your plaintiff (or defendant) is more than seventy years old, New York state assumes that they’ll probably be dead before an ordinary trial is scheduled and gives them a special preference. But if your client is younger than seventy and terminally ill, even on the verge of death, there is no automatic preference. All hope is not lost however, as there is a catchall category for special preferences “in the interest of justice.” And if you demonstrate that it is “likely” that your client will not survive until a normal trial is scheduled, at least some courts have held that you are entitled to a special preference.
But what else qualifies as a preference “in the interest of justice?” As it turns out, very little. Courts understand that every deserving party that cuts the line pushes another (often equally deserving) party that much further back. So courts are reluctant to accept “interest of justice” arguments for trial preferences and have rejected, inter alia, requests based upon the “overwhelming merits” of a case, ongoing harm to personal or business reputation, ongoing pretrial attachments or encumbrance of assets, prior military or public service, and others too numerous to list.
One argument that has worked (other than imminent death) is indigence. A party who is hopelessly indigent can get a special preference in the interests of justice. But don’t get your hopes up. The cases to address the issue have held that a party needs to be effectively living on public assistance and a ward of the state to qualify. The fact that a normal plaintiff is experiencing some financial distress (even severe financial distress) while waiting for a large verdict does not qualify.
The final special preference was added in early 2019 and involves claims brought back to life by the New York Child Victims Act. That law permitted youth victims of certain sex crimes to bring lawsuits up to the time that they turn twenty-three years old. Recognizing that this would lead to some very old cases going to trial, the legislature added the additional trial preference to put those cases at the front of the line.
You might ask what happens if a case qualifies for multiple special preferences. Nothing. There only are two tracks (three if you count the “Thursday after never” track) and having multiple entitlements doesn’t put you any closer to the front of the line.
So, if that’s how it works in state court, how does it work in New York City federal court? The rules, such as they exist, can be swiftly told. Fed. R. Civ. P. 40 requires district courts to “provide by rule for scheduling trials.” That is, the district courts are required to make some rule, it doesn’t really matter what it says. The only limitation is that the court must give priority to trials that congress has given some special preference by statute. Under 28 U.S.C. § 1657, this includes, inter alia, habeas petitions, actions involving a recalcitrant witness, and actions for injunctive relief. But your typical civil case does not qualify.
What trial scheduling rules have SDNY and EDNY adopted in compliance with Rule 40? Once again, they can be swiftly told. Local Rule 40.1 provides that “Judges have discretion to schedule trials in light of the needs of their dockets.” Certainly not the most robust rule. And even this “do whatever you want rule” is of recent vintage, adopted only in 2024 after someone realized that both districts were ignoring the barest semblance of compliance with Fed. R. Civ. P. 40.
[1] This is called “New York Supreme Court,” and if you practice here long enough you start to forget how ridiculous this sounds. New York’s highest court is the “Court of Appeals.”
[2] This whole story sounds insane, but is, I swear, taken directly from the practice commentaries.
