Proposed Commercial Division Rule Change Would Clarify Courts Can Order Virtual Hearings, Bench Trials Upon ‘Good Cause’ Motions
Scott E. Mollen, Herrick litigation partner and subcommittee member of New York State Supreme Court Commercial Division Advisory Council, spoke to the New York Law Journal about a recent proposal to amend Commercial Division Rule 36.
The article noted that this rule, as currently written, authorizes virtual evidentiary hearings and bench trials only with the consent of the parties to the litigation. The new proposal would clarify that Commercial Division courts in New York state have the power to order virtual bench trials and evidentiary hearings by granting a party’s “good cause” motion.
The subcommittee members highlighted that “many” New York courts in recent years have ordered virtual or remote evidentiary hearings and bench trials without party consent, and those include both Commercial Division courts and other state courts.
Scott expressed that many commercial litigants in New York are “doing business throughout the country, or throughout the world, and the costs of travel, including airfare, hotels and travel time, can be extremely high." He added, “Witnesses are often located in Europe, Asia, Africa, other parts of the United States and even in inconvenient localities within New York state.”
Scott further stated that “COVID-19, as well as recent major weather events such as what just happened in Florida, as well as the national and international aspects of Commercial Litigation, made this kind of rule extremely important.” He noted that within the Advisory Council itself the proposed rule amendments received support from individual practitioners, mid-sized law firm members and large law firm members alike.
“By codifying this rule, we’re making clear that it is permissible,” said Scott, speaking of the rule changes, if they are ultimately implemented.
“We’re also encouraging the use of virtual hearings and bench trial where appropriate,” Scott went on to clarify.
Scott concluded that the subcommittee is expecting to receive support for the proposed rule amendment, although it is unclear when or if it will be instituted by the state court system.