An Indispensable Resource for Commercial Litigators

An Indispensable Resource for Commercial Litigators

4.7.2020

By Bernice Leber

A review of the New York Commercial Division Practice Guide, 2019 Edition

Edited by Stephen P. Younger and Muhammad U. Faridi

Reviewed by Bernice K. Leber

Any litigator’s bookshelf of indispensable resources would have to include the newly updated New York Commercial Division Practice Guide, edited by Stephen P. Younger and Muhammad U. Faridi of Patterson Belknap Webb & Tyler.

Younger and Faridi are the right choices to handle the breadth of this subject matter. Both are adjunct professors at Fordham Law School. Younger clerked for Associate Judge Hugh Jones of the New York Court of Appeals, Faridi for Hon. Jack Weinstein of the Federal District Court for the Eastern District of New York, and they have handled leading commercial cases over the years (e.g., Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616 (2016) (common interest doctrine in commercial transactions)).

The Guide forms a part of the Litigation Practice Portfolio Series available from Bloomberg Law. For those familiar with the Portfolio Series, the beauty of these publications is that they provide an in-depth look at a variety of substantive subject matters, complete with practice tools, checklists and forms most commonly used in everyday practice in a single wire-bound edition. Notably, the 2nd edition of the Guide includes updated bench composition for every county, including the newly created Bronx Commercial Division, amended rules, updated caselaw on jurisdiction, arbitration, management of cases, motion practice, emergency applications and appeals.

Of late, the trend in the law for space, convenience and cost is to discard multi-bound volumes and parts of or whole law libraries and move toward online sources for legal research. Here, the Guide is offered in a single wire-bound edition and online with hyperlinks to all cases and materials needed by litigators to practice in the Commercial Division. This particular feature enables a lawyer efficient, effective and, immediate recall of research, eliminating copying pages from tomes, which makes it especially useful and portable. The Guide thus reflects the reality of how lawyers practice today: in the office, after hours and at other locations including at home.

Featuring a list of the judges currently serving on the statewide 11 Commercial Divisions, their backgrounds and individual practice rules in chapter 1, the Guide succinctly explains their role as well as the role and rules that apply to judicial hearing officers and special referees in the Commercial Division. Jurisdiction of the Commercial Division, a helpful categorization of commercial cases and their amounts in controversy follows. There is a succinct explanation of how cases are managed including the absence of an automatic stay of discovery for dispositive motions, privilege logs, challenges to privilege and discovery and motion practice generally with emphasis, for example, on summary judgment motions, Rule 19-a requiring a concise statement of material facts not in dispute (which forms the basis for the motion) and the various judges’ approaches to that rule. Presented in one place with a view toward harmonizing the rules, process, law and judges, the Guide is unique among treatises and is a timesaver for lawyers.

Substantively, I found the Guide most helpful targeting key practice areas that are so critical to achieving success for clients involved in commercial cases. The chapter on Motion Practice in particular delivers the complete compendium of rules, local rules and justices’ rules one needs to consider before making a motion and, equally important, sets out certain required features to include in a motion in checklist format, as well as the mechanics for e-filing a motion and tips on avoiding pitfalls such as type size. The editors included a discussion about filing and supporting applications to file confidential documents under seal, and for the new lawyer the kinds of motions available (initial dispositive motion, discovery motion, summary judgment motion, provisional remedies and the like) and their distinctions. By demystifying motion practice in the Commercial Division, both new and seasoned practitioners will be assured that important issues are addressed and procedural minefields are deftly avoided.

Similarly, the trial section of the Guide provides a clear and concise overview of trial practice generally in New York Civil Practice and then substantively fills in how the Commercial Division treats the readiness calendar, witnesses and special rules governing a trial, e.g., realistic estimate of the length of the trial at least 10 days prior to trial or at such time the court may set, agreement on trial exhibits and non-contested deposition testimony, the motion in limine, pretrial memoranda and even the size type required for jury instructions. This chapter was again extremely valuable for rather than having to consult several trial treatises, the Guide covers all the issues including challenges to jurors, the method of jury selection, questions permitted to be asked of jurors whether under the “Struck Method” or “White’s Method” as well as helpful reminders about the timing to challenge for cause under the “Struck Method.”

I found the Guide particularly insightful comparing jury trials, judge trials and referee trials. The Guide’s reference to the arcane “long account” recalled orders of reference, the reference process as well as the required contents of such an order or stipulation so as to ensure that it sets forth the basis and method of computation. Even the coverage of the judgment is all-encompassing in order to complete an action. That these features are fairly arcane is beyond dispute but required reading before tackling these subjects.

Beyond covering the expected, the editors also included special chapters devoted entirely to emergency applications (TROs, preliminary injunctions, stays and appeals, again with practical tips), to arbitrations, mediations and special parts of the Commercial Division (accelerated adjudication actions, RMBS Litigations). Truly comprehensive yet concise in scope, the Guide describes mediation and the mediation process in the Commercial Division, key pertinent rules in Commercial Divisions around the state, where specific lists of mediators by county may be found online, even court telephone numbers of whom to call for information. These chapters thoughtfully cover the breadth of the work of the Commercial Division.

For many of us who have used Bender’s Forms of Pleadings generally and adapted them for use in the Commercial Division, the Guide offers some 24 key practice tools and forms developed for use in Commercial cases specifically, including the form of Stipulation and Order for the Exchange of Confidential Material, subpoena duces tecum with instructions, the Order for Mediation and Note of Issue as well as Notices of Appeal. The forms, like the rest of the Guide, are fresh and up to date.

The New York Commercial Division Practice Guide, 2nd edition, edited by Stephen P. Younger and Muhammad U. Faridi, is published by Bloomberg Law (2019).