The New York State courts are, in many ways, at the cutting edge of judicial innovation around the country. Yet, as the twenty-first century dawns, they face daunting challenges. Perhaps no institution will be more affected by the current demographic, social, economic and technological changes than the courts themselves.
As the number and complexity of civil case filings continues to increase dramatically, the civil courts, in particular, are under great pressure to find new ways to fulfill their core mission of resolving disputes quickly, affordably and fairly. One thing is certain. We cannot continue to rely on traditional methods of processing civil cases, but must develop creative approaches that foster greater efficiency without compromising the quality of treatment for individual cases. Constant experimentation in the New York State courts has led to the development of advanced case assessment, assignment and management techniques that are now being integrated into a far-reaching system designed to promote active judicial management of civil cases.
Along with innovations in case management, the time has come to pursue legislative and administrative initiatives to streamline and simplify civil practice and eliminate existing inefficiencies that contribute to litigation delay and expense. It is time also to accelerate the introduction of technology and alternative dispute resolution methods into the case management process to promote efficiency and access and to reduce costs.
While no report can give adequate treatment to so broad and complex a subject as civil justice, the following pages preview the many initiatives that the court system is undertaking -- now and in the future -- to improve its processing of civil cases and meet the challenges facing the civil justice system in the twenty-first century.
Over the last decade, the number of civil cases filed in the New York State Supreme Court has risen from 134,103 in 1988 to over 184,000 last year. Despite this surge in workload, there has been no comparable increase in the number of judges available to adjudicate these cases. As a result, the 1988 average of 480 filings for each Supreme Court Justice in New York City has risen dramatically to 648. Outside New York City, the average filings per judge is also up significantly, from 352 to 496. While the often herculean efforts of judges in managing burgeoning caseloads have kept a grave situation from getting worse,1 all indications are that case filings will continue to increase steadily in the years ahead.
At the same time, a culture has evolved in many jurisdictions around the State in which discovery timetables, trial dates and other judicially-established case deadlines are not met. Instead of moving forward to resolution, far too many cases tend to languish well beyond "Standards and Goals" -- the benchmarks the court system uses to measure its performance in disposing of cases.2
The confluence of these factors -- increased filings, limited numbers of judges and slippage of schedules intended to promote expeditious disposition -- has produced sizeable backlogs and extensive delays in the processing of civil cases. Across the State, 24% of cases pending in Supreme Court in which a Note of Issue has been filed -- that is, trial-ready cases -- are over Standards and Goals; and 46% of cases in which a Note of Issue has not yet been filed are over Standards and Goals.
To develop effective responses to these trends, the court system created a task force of local practitioners and judges in each of the State's 12 Judicial Districts. Each task force evaluated the state of civil litigation in its District and made concrete recommendations to reduce cost and delay in case processing. Based on the task forces' recommendations and on extensive input received from the bench and bar, the court system has developed a Comprehensive Civil Justice Program -- a wide-ranging set of initiatives designed to enhance the quality and efficiency of the civil justice system.
The centerpiece of the Program is a new civil case management system that represents the culmination of the court system's evolving transition from merely assigning and processing cases to affirmatively managing them. Building upon the foundation of the Individual Assignment System's (IAS) "one-judge, one-case" philosophy, the case management system will enable judges to actively monitor civil cases at all stages of their development and efficiently move them forward to resolution. Since its introduction in 1986, IAS has undergone modifications that reflect the Judiciary's growing commitment to more active judicial management. The court system will now bring this evolution to its fullest development.
Under the new system, judges will handle cases from initial assignment to final disposition. High-volume jurisdictions currently using Trial Assignment Part (TAP) systems will phase out their TAP Parts and incorporate Differentiated Case Management (DCM) procedures, which emphasize active judicial management of all stages of a civil case. Our experience with DCM pilots has demonstrated the effectiveness of early screening and assignment of cases to a specific track -- expedited, standard or complex -- followed by rigorous monitoring throughout the life of the case to ensure compliance with the deadlines established for each track. To implement DCM, judges will be assisted by case coordinators who will use specially designed software to monitor and report on the progress of all assigned cases, and regularly send computer-generated notices to counsel reminding them of conference dates, disclosure deadlines and other case milestones.
The Program includes additional measures that complement this case management system. The additional measures fall within the following broad areas:
This Comprehensive Civil Justice Program reflects the recognition that the Judiciary has an obligation to move cases forward to fair and effective resolution rather than permit them to stagnate in the courts. To fulfill this obligation, the courts must play an increasingly active role in each stage of case development, including promoting early settlements, limiting the number of court appearances to those in which meaningful events transpire, imposing and enforcing realistic time frames for case milestones and expeditiously moving to trial those cases that cannot be settled. The Program provides both the overall strategy and the specific tools that will enable the courts to accomplish these goals.
I. Comprehensive Case Management
A. The Evolution of IAS
1. The IAS Approach and Affirmative Case Management
Until the mid-1980s, courts in New York generally processed civil cases through a "master calendar system," in which different judges handled various aspects of an individual case as it proceeded to disposition. Under this system, the judge's involvement in the case prior to filing of a note of issue was primarily limited to hearing and deciding motions. Active judicial monitoring took place only after the parties had completed discovery and filed a note of issue.
With the introduction of the Individual Assignment System in 1986, the court system committed itself to the principle of judicial case management. Under IAS, a single judge is assigned to the case the first time the court is asked to intervene -- upon filing of the request for judicial intervention (RJI) -- and then handles the case through to its conclusion. The goal is for judges to oversee the progress of the case, from discovery and settlement discussions to the filing of a note of issue and ultimately (where appropriate) to trial. This approach best ensures a limited number of court appearances, reduced motion volume, manageable calendars and prompt dispositions. IAS judges also develop familiarity with their cases, thereby promoting efficiency.
Over time, the court system has significantly modified and strengthened the IAS approach. One important modification was expansion of the Standards and Goals guidelines to cover case progress prior to filing of the Note of Issue. In light of the IAS emphasis on judicial management of the entire life of the case, it became increasingly evident that the Standards and Goals guidelines should also measure the period from RJI filing to Note of Issue filing. A related modification of IAS was amendment of the Uniform Rules for the Trial Courts, to require that a preliminary conference be held within 45 days of the return date of a motion for disclosure if such a conference had not yet been conducted in the case. The preliminary conference affords the court a critical opportunity to set a disclosure timetable and lay the groundwork for the timely and orderly progression of the pre-note stage of the case.
A third major IAS modification was the creation of specialized court parts to handle unique categories of cases, including commercial cases, matrimonial cases and cases in which the City of New York is a defendant. As is more fully discussed in Section III, specialized judicial treatment promotes more effective resolution of the unique problems that characterize certain types of cases. Yet another important modification was the creation of Trial Assignment Parts.
2. Trial Assignment Parts (TAP)
During the 1990's, jurisdictions with heavy caseloads -- New York City and Nassau, Suffolk and Westchester counties -- instituted TAP, a modified form of IAS that focuses on managing trial-ready caseloads. Under a TAP system, a case is assigned to an IAS judge, who presides over all proceedings in the case up to Note of Issue filing. At that point, the case is re-assigned from the IAS judge to the TAP judge, who attempts to facilitate settlement. If the case is not settled, the TAP judge ensures that all pretrial matters are resolved, and then re-assigns the case to yet another judge for trial. As the TAP modification has evolved, the judge who ultimately tries the case is rarely the original IAS judge.
The high-volume jurisdictions that instituted TAP did so for several reasons. Significant disparities had arisen in individual judges' post-Note inventories. As a result, litigants assigned to a judge who was current in his or her caseload proceeded to trial more quickly than those assigned to a less current judge. TAP also permits trial-ready cases to be assessed for their complexity, with straightforward cases tried in chronological order by any judge who is available to try the case at the time of such assignment. Finally, TAP takes advantage of the fact that some judges are more adept at settling cases than others and assigns those judges to TAP parts, where their settling skills can be put to maximum benefit.
Over time, however, TAP has garnered its share of criticism. A common criticism is that it mandates removal of the case from the judge who is most familiar with it, depriving the judge of the opportunity to put that knowledge to advantage by attempting to resolve the case prior to trial. Another criticism of TAP is that attorneys may be less responsive to the IAS judge's directions and less inclined to settle a case, because they know that a judge other than the IAS judge will be trying the case; the result is that attorneys all too frequently fail to meet, or may even ignore, the time frames set by the IAS judge. This has created a situation in some courts in which disclosure proceedings often are not completed by the time the case is called in the TAP Part, causing considerable delay in assigning cases for trial. Yet another criticism is that TAP reduces individual judicial accountability for caseload management. Unlike a more straightforward IAS system, in which one judge controls the case from inception to disposition, under TAP a series of judges exercise control over an individual case, thereby diluting responsibility for case progress.
TAP has been successful in many regards. From the early 1990s through 1995, a period when most of the jurisdictions that have instituted such systems were operating TAP Parts, the number of dispositions of "post-Note" cases (cases in which a Note of Issue had been filed) in those courts exceeded the number of cases in which a Note of Issue was filed. For example, in all the TAP counties in 1995, 47,032 post-Note cases were disposed while Notes of Issue were filed in 45,049 cases. This is a significant measurement of judicial efficiency, because it shows that these courts were resolving more trial-ready cases than were being added to their caseloads.
In the last several years, however, TAP counties have not kept pace with rising caseloads. Thus, in all the TAP counties in 1998, Notes of Issue were filed in 55,366 cases, but only 51,085 post-Note cases were disposed. Furthermore, the number of pending cases in which a Note of Issue had been filed has risen in the TAP counties, particularly in the last several years. In New York County, for example, the number of pending post-Note cases rose from 7,483 cases in 1995 to 13,549 cases in 1998; in Nassau County, the number rose from 11,007 to 12,920.
Other concerns about TAP have emerged in recent years. With rising post-Note caseloads, on any given day large numbers of cases are now being called in individual TAP Parts. These calendars have increased the number of non-meaningful court appearances in a great many cases. In addition, when a TAP judge is unable to settle a case and must reassign the case to another judge for trial, the trial judge is now rarely the original IAS judge.
These trends and concerns illustrate TAP's difficulties in keeping pace with current conditions and suggest the need for further refinements.
3. Differentiated Case Management
One of the most promising case management developments to emerge in recent years is Differentiated Case Management (DCM). The DCM model grew out of work of the American Bar Association, the Bureau of Justice Assistance of the U.S. Department of Justice, and research around the nation demonstrating that standard time frames, combined with early and active case management, can result in more effective dispositions.
Under DCM, cases are screened at the outset for complexity and assigned an appropriate "track" -- typically, expedited, standard or complex. Each track has delineated time frames for milestone events in the lawsuit, such as completion of disclosure, filing of Note of Issue and commencement of trial. The idea is that, by reviewing the case early and assessing its complexity, the court can tailor its allocation of resources to the needs of the individual case. Some cases can be disposed expeditiously, with minimal discovery; others require more extensive court supervision. The court usually is assisted by dedicated staff, which helps monitor the cases to ensure compliance with court-established time frames. Unlike TAP, with its focus on managing cases only after they reach the trial-ready stage, DCM emphasizes extensive judicial management throughout all phases of the case.
In New York, the DCM approach has been piloted in the last few years in Kings, Erie and Westchester counties, and the results have been most impressive.
The Kings County Supreme Court DCM Program was established in March 1997 to apply this approach to tort cases (excluding medical malpractice cases and cases in which New York City is a defendant). Five judges, some of whom also sit in the Court's Criminal Term, are assigned cases in which an RJI is filed with a request for a preliminary conference and in which issue has been joined but no disclosure has yet occurred. The judges are assisted by two dedicated court clerks, who serve as case coordinators. The coordinators provide critical assistance in monitoring case progress, including regularly notifying counsel of conference and disclosure dates, Note of Issue filing and other deadlines.
At the preliminary conference, the case is assigned one of three tracks:
A second conference is held within 60 days (for expedited cases), 90 days (standard cases) or 180 days (complex cases) of the preliminary conference, at which the progress of the case is monitored and settlement explored. Within 45 days of the scheduled deadline for completion of disclosure, the attorneys must submit to the court a trial information sheet detailing the progress of disclosure, the attorneys' availability for trial and other relevant information. After a Note of Issue is filed, a pretrial conference is held at which settlement again is explored. If the case is not settled, trial matters such as the estimated number of witnesses and the length of trial are discussed and the case is set down for trial within the following six to eight weeks. The case usually is tried by the DCM judge.
The results of the Kings program have been dramatic. The following chart compares the progress of the DCM cases to a comparable number of similar cases assigned to a court part that employs a more orthodox case management approach. Of the DCM cases, far more were settled prior to filing of note of issue (309 vs. 30); far more Notes of Issue were filed (442 vs. 157); far more were settled following filing of Note of Issue (198 vs. 36); and far more proceeded to trial (60 vs. 4). In addition, significantly fewer motions were made in the DCM cases (346 vs. 664).
Furthermore, 73% of the DCM cases filed with the court in 1997 had been disposed within a year of filing. This compares with a 28% one-year disposition rate for civil cases assigned that year to the other judges of the court, and a 34% one-year disposition rate for other non-DCM civil cases assigned that year to the five DCM judges.
In the Erie County Supreme Court DCM Program, from February 1996 to October 1997 DCM procedures were applied to all civil cases (except matrimonial and tax cases, and special proceedings) assigned to three of the court's judges. In these cases, plaintiffs were required to file an RJI within eight months of answer. Within 35 days of the RJI filing, a preliminary conference was held, at which the case was assigned one of three tracks -- expedited (eight months from track assignment to disposition); standard (18 months from track assignment to disposition); or complex (30 months from track assignment to disposition) -- and a scheduling order established for completion of disclosure and filing of Note of Issue. Computer-generated reminders were sent out to attorneys as deadlines approached. After filing of the Note of Issue, a pretrial conference was scheduled, at which trial dates were set.
The Erie program has also produced very positive results. The program demonstrated almost immediately that early screening and tracking of cases combined with rigorous judicial monitoring leads to quicker dispositions. Of the DCM cases filed during the first six months of 1996, roughly 50% had been disposed within one year. This represented a significantly higher disposition rate than was true for the non-DCM cases filed with the court during that same period.
A third DCM program was instituted in Westchester County Supreme Court in early 1998. Although the Westchester program involves only matrimonial cases, it is similar in approach to the Kings and Erie programs. DCM procedures are being applied to all contested matrimonial cases assigned to a particular judge. A preliminary conference is held within 45 days of assignment, at which several initial matters are resolved and one of three tracks is assigned: limited (actions expected to require minimal disclosure; disposition within six months of RJI filing); standard (actions requiring some disclosure; disposition within 12 months of RJI filing); or complex (actions requiring extensive expenditure of time and resources by the court and parties; disclosure completed within 12 months of RJI filing and disposition within six months thereafter). Although the Westchester DCM program is only in its first year of operation, preliminary results are promising. So far over 50% of the cases are being resolved within six months of RJI filing, a substantial improvement over the DCM judge's prior disposition rate in contested matrimonial cases.
In light of our experience, DCM will be expanded and made a component of the Judiciary's overall case management strategy in civil cases.
B. The Next Step in Judicial Case Management
The next step in Unified Court System operations is the development of a comprehensive civil case management system that concentrates judicial attention on all phases of the case. The hallmark of this system continues to be the "one judge, one case" approach, with judges retaining control over their caseloads from inception to disposition. By strengthening the judge's capacity to guide the steady progress of the case, IAS reduces delay and gamesmanship. Attorneys who fail to comply with the judges' scheduling orders can expect to be accountable to the assigned judge, rather than a different judge with no prior knowledge of the case. IAS also maximizes judges' accountability for their caseloads, and enables judges to develop greater familiarity with individual cases.
Under the new system, existing TAP Parts will be phased out. As noted, TAP enables trial-ready cases to be assessed for their complexity, and it facilitates the chronological procession of those cases to trial. It also has made full advantage of judges who are more adept at settling cases. But TAP's case management focus is entirely on the post-Note phase of the case. It is time to move beyond TAP to a more comprehensive approach that emphasizes judicial management of all stages of a civil case yet does so without sacrificing the benefits that TAP has provided. In other words, what is needed is an enhanced approach that fulfills the basic goal of the Individual Assignment System -- judicial management of the entirety of the case.
Differentiated Case Management is just such an approach. DCM requires that a case be channeled through an appropriate track with delineated time frames established for all milestones throughout the life of the case -- both pre-Note and post-Note. It also provides judges with resources to monitor their cases to ensure that attorneys comply with those time frames. This allows for individual judicial assessment of case complexity and a more orderly movement of the case from filing to disposition, including, if appropriate, to trial. Because certain types of cases -- such as the "expedited" cases -- may be more susceptible to settlement than others, DCM also can make best use of judges with outstanding settling skills by assigning such cases to those judges. Thus, DCM replicates TAP's benefits, but it also emphasizes judicial management of the entire case.
Accordingly, those counties now utilizing TAP will implement a more comprehensive approach in the management of their civil caseloads. TAP Parts will be phased out, all cases assigned to a judge will remain with that judge until the cases are resolved,3 and DCM procedures will be instituted to ensure that cases are rigorously managed from beginning to end (jurisdictions not currently utilizing TAP will implement DCM procedures as appropriate given caseload conditions). To provide a procedural framework governing the processing of cases in judicial districts that will be utilizing DCM, upon approval by the Administrative Board of the Courts, the Uniform Rules for Trial Courts will be amended. The new rules will prescribe that:
expedited - discovery to be completed within 5 months
standard - discovery to be completed within 10 months complex - discovery to be completed within 13 months
Within this framework, jurisdictions will enjoy ample flexibility in meeting local needs and circumstances. In assigning cases to court parts, some districts might conclude that it would be more efficient to assign cases from all three categories to individual judges; other courts might prefer assigning only one category of cases to individual judges, such as expedited or settlement-susceptible cases to judges adept at settling cases. To provide further flexibility for this system, if the IAS judge were unable to try a case on the scheduled trial date, the District Administrative Judge will attempt to re-assign the case to another judge who was available to try the case at that time. To promote such a reserve trial capacity, certain judges in a particular district could be designated strictly as trial judges; alternatively, individual judges could be temporarily assigned on a rotating basis exclusively to conduct trials.
Finally, during the transition to this new case management system, judicial districts will address their existing backlogs of cases. Concentrating primarily on cases over Standards and Goals, post-Note cases will to the maximum extent possible be assigned to blockbuster parts that will apply maximum effort to settling the cases; those cases not settled will be assigned out for trial in chronological order. As for pending pre-Note cases, inventories will be examined, and those cases not previously assigned disclosure timetables and note of issue deadlines will be screened and tracked within one of the three DCM categories.
In conclusion, this new system represents the next logical step in the evolution of the Individual Assignment System. It will complete the transformation to a system dedicated to active judicial management of a case throughout its court life.
II. Moving New York City Cases to Trial
Although experience has shown that the vast majority of civil cases are settled
before trial, not all cases are susceptible to pretrial settlement. When cases cannot settle, it is incumbent upon the court system to move them to trial as expeditiously as possible. While this is a universally accepted goal and one that civil courts throughout the State have always strived to achieve, it is a goal that has not always been met, particularly in New York City. The following two initiatives, focusing on New York City, will go a long way toward ensuring that cases proceed to trial in a more timely fashion.
A. Centralized Approach to "City Cases"
For many years, cases in which New York City is a defendant (particularly tort cases) have experienced disproportionate delays in reaching disposition. For example, the most recent statistics reveal a dramatically higher percentage of trial-ready "City" tort cases over Standards and Goals than is true for similar categories of "non-City" tort cases: 39 percent of the City cases are over Standards and Goals, compared to 16 percent of non-City cases.
A variety of factors are responsible for the delays, including the relatively limited legal resources that the City historically has devoted to these cases. Another important factor, however, may be the manner in which the court system currently assigns City cases to individual court parts. Under the existing system, the Supreme Court in each county has dedicated a specialized part to handle all pretrial matters in City cases and assign the cases out to trial parts. Although concentration of City cases in a single part is clearly preferable to dispersing cases throughout all of the court's parts -- as was recognized by the various committees that have reviewed the effectiveness of the IAS system over the years -- certain inefficiencies persist. For example, the existence of these several, geographically dispersed court parts can lead to varying, even conflicting, judicial practices and approaches in the handling of these cases. In addition, the processing of City cases by several parts scattered throughout the City makes it more difficult for the City's lawyers, as well as representatives of the City Comptroller's Office (who must approve settlements), to participate in court proceedings.
To address these concerns, the court system will establish in one location several court parts to handle all trial-ready tort cases in which New York City is a defendant. This centralized, Citywide approach will provide a number of important benefits justifying exclusion of City cases from the comprehensive case management system proposed for all other civil Supreme Court cases (see Section I). Citywide court parts will allow the Judiciary to develop a more integrated and focused approach to the handling of trial-ready City cases, eliminating the idiosyncratic and often conflicting practices that arise in a more decentralized system. A centralized approach will ensure that the courts handle City cases in a more chronological fashion, enable the City to concentrate and maximize its resources in a single location and provide plaintiffs with a faster resolution of their claims, whether through settlement or trial.
The components of this proposed plan are as follows:
B. Transfer of Cases to New York City Civil Court
Under CPLR 325(d), a superior court judge is authorized to transfer a civil action to a lower court if the judge determines that the actual damages would be within the jurisdiction of the lower court and if "calendar conditions in the lower court so permit." The purpose of this provision is to enhance the efficiency of the courts by permitting superior courts to transfer smaller cases to the lower courts, where presumably they will be heard more quickly.
In recent years, 325(d) transfers have become increasingly popular, particularly in New York City, where Supreme Court in recent years has transferred thousands of cases to the New York City Civil Court. The problem today, however, is that Civil Court now labors under its own extremely crowded calendars. Consequently, the intent of the statute is no longer being met -- transferred cases typically are subjected to long delays before they reach trial in the Civil Court.
To rectify this situation, the Administrative Board of the Courts has approved amendments to the Uniform Rules for the Trial Courts. The amended rules now prescribe that, in New York City, the Supreme Court may transfer a case to Civil Court only if the case can be tried there within 30 days of the pretrial conference in Supreme Court. Before ordering the transfer, the Supreme Court judge must consult with his or her Administrative Judge, who must check with the Administrative Judge of the Civil Court and the relevant County Clerk to determine whether the 30-day deadline can be met. If the deadline cannot be met, the case may not be transferred and instead must be tried in Supreme Court "in its proper calendar progression."
In addition, to encourage judges to make the transfer at an early stage in the proceedings rather than when the case is trial-ready, the rules have been amended to include among the issues to be explored at the preliminary conference the possible transfer of the case under section 325(d). To promote the effective implementation of this new provision, New York City judges will evaluate at the preliminary conference whether a case is eligible for 325(d) transfer. Judges will include information on these transfer determinations as part of their regular reporting to their Administrative Judge.
Finally, to eliminate the backlog of trial-ready cases that were transferred prior to the amendments to section 325(d), temporary "blockbuster" parts will be established in Civil Court. The blockbuster parts will concentrate on settling this backlog, with cases not settled sent out to trial immediately -- the oldest cases first. The first blockbuster part will be established in New York County by June 1, 1999, followed by parts in the remaining counties by September 1, 1999.
III. Specialized Treatment of Cases
Certain categories of cases lend themselves to specialized treatment in the courts because of unique issues and problems that characterize them. In recognition of this, the Unified Court System has designated certain categories of civil cases for specialized treatment, including commercial cases, matrimonial cases and guardianship proceedings. The assignment of cases to specialized parts results in efficiency of operation, consistency in dispositions, development of expertise by judicial and non-judicial personnel, and convenience and accommodation of the parties and their lawyers.
A. Commercial Cases
In 1993, commercial pilot parts were established in the New York County Supreme Court. This enabled those assigned to the parts to develop expertise in the fine points and complexities of commercial practice, promoted early and active judicial involvement and facilitated linkage to alternative dispute resolution programs and services.
Chief Judge Kaye subsequently formed the Commercial Courts Task Force, to further refine the court system's specialized treatment of commercial cases. Based upon its recommendations, in November 1995 a separate "Commercial Division" was created in New York County Supreme Court and Monroe County Supreme Court. The goals of the Commercial Division are to expedite the processing of cases and develop judicial expertise in doing so, and to return the New York courts to a leadership role in adjudicating major commercial disputes.
The New York County Commercial Division consists of five dedicated parts, to which various types of complex commercial cases are assigned, such as breach of contract, commercial fraud and cases governed by the Business Corporation Law and the Uniform Commercial Code. The five judges take a "hands-on," early intervention approach to processing their cases. A preliminary conference is held at the earliest possible date to set a schedule for discovery and dispositive motions, and a date to file the Note of Issue. The judges regularly monitor and review pending cases and enforce deadlines.
The judges also may refer cases to the Division's Alternative Dispute Resolution Program. Virtually all of the referrals are to the mediation component of the ADR program, which has proved highly successful in settling cases or delineating issues for trial. The mediation program is discussed in detail in Section V.
The Commercial Division has its own Support Office that provides unique benefits to judges, court personnel and practitioners. An integrated computer network offers advanced e-mail and fax capabilities, as well as access to the Commercial Case Management System, Westlaw and DataCase (see Section VI). These systems provide quick access to enhanced case information such as the status of motions, conference dates and other information about pending and concluded cases. This results in substantial time savings and more effective judicial management of commercial cases. Courtroom 2000, a technologically advanced courtroom being used to try commercial cases, is discussed in Section VI.
The Commercial Division's strong emphasis on active judicial management has fostered great efficiencies in adjudicating cases that rank among the most complex in the system. The number of cases disposed prior to filing of Note of Issue has risen steadily each year. In 1998, 87% of cases filed in the Commercial Division were disposed prior to filing of Note of Issue, as compared to 75% for the rest of the court. In addition, the time to dispose of contract cases has substantially decreased. In 1992, the court took an average of 648 days to dispose of contract cases; in the Commercial Division in 1998, contract cases were disposed in an average of 552 days -- a decrease of almost 100 days.
A single judge presides in the Monroe County Commercial Division, which handlescommercial matters in which the amount at issue exceeds $25,000. Examples of the types of cases assigned include enforcement of employment agreements, declaratory relief actions, shareholder derivative actions, construction contract disputes and commercial class actions. The judge actively manages the progress of each case. A preliminary conference, is held within two weeks of filing of the RJI or determination of the initial motion, and compliance conferences take place regularly.
The Commercial Division also operates a court-annexed Alternative Dispute Resolution pilot program, in conjunction with the Monroe County Bar Association. If a case cannot be resolved promptly by the court, the parties may be directed to participate in the court's mediation program. At least one session is held before a volunteer mediator whom the parties select from a list provided by the court. While mediation is pending, court proceedings are stayed for 30 days, with the option for a second 30-day stay.
An innovation unique to Monroe County is the electronic calendaring of commercial cases. Every two to three weeks, approximately 30 cases in which a Note of Issue has not yet been filed are published on the Internet and in the local legal newspaper. Attorneys are directed to advise the court by a specific date via e-mail of the status of their case. On that date, the court reviews all responses and indicates the next step and scheduled date of completion. This allows the court to monitor the progress of cases at a minimum of time and expense for all involved. Attorneys who fail to respond to the "electronic calendar" must personally appear at a later date, subject to default.
As in New York County, active management has yielded impressive results. In 1998, the Commercial Division disposed of more cases (256) than the number of new cases assigned (245). Despite the complexity of many of these cases, they were resolved quickly and efficiently: last year the average time from Note of Issue filing to commencement of trial was only 81 days.
The success of the New York County and Monroe County programs has led the bar and business community to call for Commercial Division expansion to other counties. Indeed, a recent State Bar survey revealed overwhelming support among attorneys for creation of additional Commercial Divisions in counties with extensive commercial litigation. The survey also demonstrated support for key Commercial Division features, such as periodic compliance conferences, ADR referral and electronic access to documents.
In response to this demand, a new Commercial Division opened in January 1999 in Westchester County, which is home to a large number of major corporations. Commercial Divisions also will be opening imminently in Erie County and in Nassau County, each of which has experienced an increase in contract case filings over the past three years.
Further, as part of the recent third anniversary celebration of the Commercial Division, guidelines were issued defining the types of cases subject to the jurisdiction of the New York County Commercial Division. These guidelines are based upon recommendations of the Association of the Bar of the City of New York, the State Bar Association and the Chief Judge's Commercial Courts Task Force. Under these guidelines, the Commercial Division will entertain commercial and business disputes in which a party seeks compensatory damages in the minimum amount of $125,000. The court has delineated the types of cases that presumptively will be accepted or declined, although each Commercial Division judge will retain discretion to accept or reject a case at the time of assignment.4
B. Matrimonial Cases
Specialized matrimonial parts, dedicated to early judicial intervention and ongoing management throughout the life of the case, were first instituted in 1993 inthe Supreme Court in New York City. This individual focus on contested matrimonial cases has had striking results. Although matrimonial case filings have increased in New York City by 16 percent since 1993, the matrimonial parts have achieved a 57 percent reduction in the number of pending contested divorce cases. In addition, the average age of pending divorce cases has decreased during this period by 49 percent, from 854 days to 433 days. The success of the New York City matrimonial parts has been replicated outside of the City where, despite a 20% increase in filings since 1993, the number of pending divorce cases has been reduced by 12%.
The programs outside New York City all have a resolution-oriented approach. For example, the Erie County Expedited Matrimonial System was established in 1996 to screen contested matrimonial cases at an early date, eliminate unnecessary and costly motion practice and provide a mechanism to facilitate the early resolution of non-complex matrimonial cases. This is accomplished by scheduling a preliminary conference within 30 days of the filing of the RJI (rather than the 45 days provided by court rule). At the preliminary conference, any motions are heard and determined or informally resolved, and settlement discussions are conducted, if appropriate. If the case is settled, a stipulation is immediately placed on the record. If further discovery is necessary, a discovery timetable is established and a second conference is scheduled or the case is referred to one of two assigned matrimonial judges. As a result of this expedited procedure, cases either are resolved earlier or issues are narrowly defined in more complex cases. Because roughly 75% of the cases are disposed in the Expedited Part, the remaining cases can be heard and resolved more quickly by the trial judge.
The Monroe County Matrimonial Screening Part, established in December 1997, has settled approximately 75% of the cases assigned to it within 90 days. Cases that fail to settle are resolved expeditiously through intensive early conferencing.
A specialized matrimonial part was recently established in Ulster County on a pilot basis to hear contested matrimonial and companion Family Court cases. Like the Erie County program, there is an emphasis on case resolution through an early preliminary conference and additional conferences to resolve requests for preliminary relief and explore settlement. If the case is not settled by the 100th day, it is immediately assigned to a Supreme Court judge who decides any outstanding motions and sets a trial date.
The value of conducting preliminary conferences early in the proceedings is evident in all of these programs. Conferences held within 30-45 days of filing of the RJI facilitate early and final resolution, and eliminate lengthy motion practice that is financially and emotionally costly. Building upon this successful practice, matrimonial screening parts will be established this year in Steuben, Livingston, Yates, Ontario, Seneca, Cayuga and Wayne counties.
Finally, an innovative program has been developed in seven of the Fourth Judicial District's 11 counties. County Court judges, Surrogates and Family Court judges are assigned as Acting Supreme Court judges to handle all aspects of matrimonial proceedings, including custody, support and family offense matters typically scattered among three different courts. This program exemplifies some of the benefits of the streamlined court structure that the Unified Court System is seeking in its constitutional proposal. The program will be expanded to the District's remaining counties in early 1999. Pilot projects modeled on the Fourth District's program also will be initiated htis year in New York County and Kings County.
Not content with simply fulfilling its goal of expeditiously disposing of matrimonial cases, the Unified Court System is now implementing a comprehensive program of matrimonial reforms intended to create a more humane, resolution-oriented approach to family dissolution. Announced in December, this new program promotes the well-being of children and family members through non-adversarial approaches designed to alleviate the emotional trauma of divorce, protect the best interests of the children and preserve family resources by expediting the divorce process.
Certified Law Guardians, Guardians Ad Litem and Mental Health Professionals. Courts frequently appoint law guardians, guardians ad litem and mental health professionals in contested divorce proceedings. To ensure quality of service and better protect children of divorcing parties, the Appellate Division, First Department, in conjunction with local bar associations, is instituting a certification program for these professionals. Individuals must have at least three years of experience in matrimonial or family law and attend annual training sessions. Removal from the panel will be authorized for poor performance or for other appropriate reasons. In the Second Department, a committee of judges and mental health professionals is being established to develop application procedures and criteria for the certification and training of forensic experts in that jurisdiction.
Assisted Resolution of Custody and Visitation Issues. The expeditious resolution of custody, visitation and relocation issues benefits all participants in a divorce proceeding, including the court, the parents and, most importantly, the children. To promote this goal, courts will employ specially trained social workers with experience in matrimonial and family law matters who will work with the parties to reach a mutually agreeable settlement by conducting meetings, defining issues, ameliorating tensions and suggesting resolution of disputes. A case will be referred for assisted resolution only after careful screening by the assigned judge; no case involving issues of domestic violence, child abuse or sexual abuse will be referred. If a settlement is not achieved, a status report will be filed with the judge. Assisted Resolution Programs will be instituted this year in New York City and Nassau, Suffolk, Westchester, Putnam, Rockland, Orange and Dutchess counties.
Parental Education Programs. These programs serve three purposes: to reinforce parenting skills; to educate and sensitize parents about the divorce process and its effect on children; and to help parents develop effective communication skills regarding decisions that affect their children. The programs also foster resolution of issues that arise after the divorce proceeding is concluded.
These programs already have a proven track record in Erie, Monroe and Westchester counties, where parent participation is voluntary. A parental education pilot program is now underway in New York City. Except in cases involving domestic violence or other family abuse, the parents will be directed to attend one or more sessions as early as possible in the divorce proceeding. The court system also is proposing legislation authorizing judges to mandate participation in parental education programs.
Expanded Neutral Evaluation Program. Neutral evaluation programs for matrimonial cases have been successfully instituted in New York, Nassau, and Monroe counties (the Monroe County program is discussed in detail in Section V). Volunteer attorneys with extensive expertise in matrimonial and family law review the pleadings and all relevant documents, and meet with litigants and counsel to discuss issues and explore resolution. The neutral evaluator then issues a verbal evaluation and advisory opinion, to which the judge is not privy. Neutral evaluation programs will be introduced on a pilot basis in Kings, Queens and Suffolk counties in the coming months, and in select locations thereafter.
Legislative Reform. The court system will propose two new legislative initiatives designed to reduce unnecessary motion practice and expedite discovery in matrimonial proceedings. If enacted, these reforms will eliminate or greatly reduce the delay, gamesmanship and financial hardship often associated with matrimonial proceedings.
The first bill would mandate an immediate freeze on marital property, including all assets and debts, at the time of service of the summons. Each party would be prohibited from concealing or reducing property such as real estate, bank accounts, stocks and bonds and retirement funds. The parties would also be prohibited from unreasonably incurring debt, modifying health and life insurance policies or relocating with children. By freezing the status quo, the potential for conflict and extensive motion practice would be significantly reduced.
The second bill would mandate disclosure and production of financial documents within 45 days of commencement of the matrimonial proceeding. Financial documentation includes pay stubs, income tax returns, bank and credit card statements and retirement, profit-sharing, deferred compensation, pension and life insurance statements. Mandatory disclosure within a limited time period would expedite discovery and reduce motion practice.
C. Guardianship Proceedings
Article 81 of the Mental Hygiene Law mandates speedy hearing and disposition of guardianship proceedings, which by law are entitled to a preference over all other civil proceedings (MHL §81.13). Specifically, Article 81 provides that a hearing must be held within 28 days of the filing of the guardianship petition, and a decision must be rendered within 45 days of signing of the order to show cause. Neither may be adjourned, unless good cause is shown.
While specialized guardianship parts have been established in the Supreme Court in many counties around the State, including Kings and Queens counties, in New York County guardianship proceedings had been distributed among all Supreme Court judges. A recent report by the Association of the Bar of the City of New York revealed that the statutory time periods were rarely met in New York County and attributed this in part to the dispersion of cases. The report recommended that the court designate a limited number of judges to hear guardianship proceedings. Specialization would promote expertise in Article 81 proceedings for judicial and non-judicial staff and result in more efficient utilization of resources and effective service to the public.
In response to this recommendation, all guardianship petitions in New York County are now being heard in four specialized parts. Two additional parts provide back-up services when necessary.
IV. Simplified, Streamlined Procedures
We propose a series of legislative and administrative initiatives designed to streamline pretrial and trial practice and facilitate more efficient processing of civil cases.
A. Uniform Local Rules
For years, the bar has complained about the patchwork of local rules that individual judges throughout the State have adopted for civil cases.5 Local rules typically vary substantially from judge to judge. For example, one judge's rules may mandate oral argument on all motions, limit briefs to 25 pages and require courtesy copies; the judge next door may prohibit oral argument on motions, and leave matters concerning the length of papers and the submission of courtesy copies to attorney discretion. In addition, an individual judge's rules may not always be readily available to the bar. The result is often confusion, frustration and needless delay -- or even worse yet, preclusion.
Previous efforts to revamp this chaotic system have fallen short, possibly because they sought to standardize the rules on too wide a scale. The court system will now address this problem on a more incremental, district-wide level. Under the coordination of the District Administrative Judges, and with opportunity for local bar input, Supreme Court judges in each of the judicial districts will convene to review their own individual rules and arrive at a consensus on a set of uniform rules for their respective districts. A similar process was undertaken in the Sixth Judicial District in the 1980s, leading to the adoption of uniform rules that have proved workable and received the support of the bench and bar in that district. The Richmond County Supreme Court has recently developed its own uniform rules, and Kings County is now working toward that goal. All other counties will commence the process immediately and complete it by October 1999. In New York City, the ultimate goal is the adoption of uniform Citywide rules.
Among the matters that will be addressed in the uniform rules are:
B. Jury Measures
Since the Jury Project was launched in 1993, the court system has made great progress in enhancing the fairness, efficiency and productivity of jury service. To sustain this momentum and draw upon the unique insights that lawyer-citizens can offer on this subject, in April 1998 Chief Judge Kaye appointed the Committee of Lawyers to Enhance the Jury Process (the Lawyers Committee). Chaired by Gregory P. Joseph, Esq., the Committee completed a comprehensive study of the jury system, including a random survey of some 5,000 attorneys across the State regarding their experiences as jurors. The Committee issued a report in January which found that since the elimination of occupational exemptions from jury service, attorneys have actually been selected to sit on juries at a rate that closely approximates the rate at which all reporting citizens are chosen. The Report also recommended a series of measures designed to further improve juror comprehension and the deliberative process, and minimize wasteful delay.
In recent years, trials have grown increasingly complex, placing heavy burdens on jurors. In response to this trend, we will seek a CPLR amendment providing for preliminary instructions that explain the jury's role, trial procedures, the issues in dispute and basic relevant legal principles. In addition, we will propose separate bills providing that the court, on its own initiative or at the request of the parties, may give interim instructions and/or permit interim summations at any point where they might assist the jury.
We will also propose an amendment to the CPLR to codify a successful procedure modeled on Federal Rule of Civil Procedure 16(c)(3) permitting judges, in appropriate cases in which a jury demand has been made, to order a pre-trial conference to facilitate advance rulings on the admissibility of evidence that the parties wish to present at trial.
The Administrative Board of the Courts has recently approved amendments to the Uniform Rules for Trial Courts that will help jurors in civil cases render intelligent and fair verdicts. The new rules will take effect on September 1, 1999. The rules prescribe procedures governing note-taking by jurors during the course of the trial. These note-taking procedures were approved by the Court of Appeals in its recent decision in People v. Resean Hues, 94 N.Y.2d 413 (1998), and endorsed by the Lawyers' Committee in its recent report. To avoid potential pitfalls, the rules call for cautionary preliminary and closing instructions to the jury. A new rule also authorizes the court to provide a written copy of its legal instructions to the jury during deliberations. The court may do so on its own or on motion after affording the parties an opportunity to be heard. A third rule authorizes the court, upon consent of the parties, to delay designation of alternate jurors until the conclusion of the evidence. Under this procedure, jurors will not be designated as trial jurors and alternate jurors at the time of jury selection. Instead, at the conclusion of the evidence and prior to the court's charge, the court clerk will randomly draw the names of the six jurors who will deliberate on the case. Delaying designation will better ensure that all jurors pay close attention to the presentation of evidence.
Other significant jury measures proposed by the Lawyers Committee that we will pursue in 1999 include development of special pattern jury instructions to be delivered whenever a lawyer or judge sits on a jury panel; abolition of "jury stacking," which involves sending cases out for jury selection with the knowledge that no judge will be available to try them for weeks or months; elimination of the practice of excusing jurors on consent without cause; distribution, in complex cases, of juror notebooks containing exhibits admitted in evidence and not subject to dispute, to assist the jury in following and comprehending the evidence; and pilot studies in selected counties to investigate the effectiveness of full judicial supervision of voir dire.
C. Additional Legislative Proposals
The court system will seek enactment of the following additional legislative measures to streamline the processing of civil cases.6
1. Amendment of CPLR 3216 and 3404 would provide judges with greater flexibility in addressing dilatory litigation. Rule 3216 permits the court, on motion of a party or on its own, to dismiss a case that has remained inactive for at least one year after issue is joined, provided that a demand that the case be placed on the trial calendar within 90 days is first served upon the inactive party, who then fails to honor it. Litigants are reluctant to make use of this rule because to do so they must concede that discovery is concluded, which frequently may not be the case. Courts are reluctant to use the rule because of its burdensome requirement that the 90-day demand be served by certified or registered mail. Rule 3404, by contrast, authorizes dismissal of a case that has reached the trial calendar but been struck and not restored within a year. Rule 3404 is not widely used because once a case is struck from the calendar, the plaintiff enjoys a full year -- an excessively lengthy period -- to have the case restored before it can be dismissed. To encourage greater use of rule 3216, it should be amended to permit service of the 90-day demand by ordinary mail and to allow the demand to call either for placement of the case on the trial calendar or for a case conference. In addition, both rules should be amended to authorize the court to take steps short of ordering outright dismissal, such as imposing costs or sanctions.
2. The requirement of an automatic stay of all disclosure upon service of a summary judgment motion should be limited. Unfortunately, litigants have been known to use the summary judgment motion to delay by serving it late in the disclosure process. To discourage this practice, CPLR 3214 should be amended to require a stay only of disclosure noticed after service of the motion and only for a period of 120 days, unless the motion is decided earlier or the court orders otherwise.
3. The law should also allow for greater regulation of civil deposition practice. It is widely agreed that current statutory provisions could be far more effective in preventing abusive practices that delay these proceedings and undermine the truth-finding process. CPLR 3113 and 3115 should be amended to provide specific procedures for the making of objections during a deposition: objections should be stated succinctly so as not to suggest an answer, and they should be accompanied by a clear articulation of the defect. Deponents should answer every question, unless refusal is necessary to preserve a privilege or right of confidentiality or enforce a court directive or unless the question is plainly improper and an answer would significantly prejudice someone. Interruptions for an attorney-deponent communication should be prohibited, unless all parties consent or unless the communication concerns a privilege, right of confidentiality or court order limitation.
4. The CPLR should be amended to require broader expert witness disclosure. Full pretrial disclosure of the sum and substance of an expert witness's anticipated testimony promotes fairness, reduces delays in trial readiness by enabling the parties to prepare for trial more effectively and enhances the possibility of earlier settlement of the case. To bring the New York rule into closer conformity with the federal rule, CPLR 3101 should be expanded to require disclosure of a written report of all opinions to be expressed by the expert and the reasons for the opinions, the exhibits to be used in support of such opinions, the compensation to be paid the expert in the case and a list of any other cases in which the expert has testified. The law should also be amended to afford a party the right to take the deposition of the opposing party's expert.
V. Alternative Approaches to Resolving Civil Matters ADR
Alternative Dispute Resolution (ADR) can offer significant litigation benefits. By increasing the range of available dispute resolution options, many cases can be resolved with greater efficiency, with increased party satisfaction and in a less costly and more timely fashion. Although ADR programs are often privately organized and operated outside the formal judicial process, the Unified Court System has instituted a variety of "court-annexed" ADR programs around the State. These programs vary, but all have demonstrated success. The programs fall within three general categories: mediation, neutral evaluation and arbitration.
The mediator's primary role is to facilitate negotiation. The mediator assists the parties in communicating with each other more effectively, identifies and narrows issues in the case, crystallizes each party's underlying interests and concerns and strives to develop a cooperative, problem-solving approach to resolving the case. Generally, the mediator expresses no opinion about the case, does not issue findings and has no authority to impose a solution on the parties.
The Commercial Division in New York County Supreme Court operates a successful court-annexed mediation program. Either party may voluntarily opt for ADR, or the judge may refer a case after the preliminary conference. Although several ADR options are available, virtually all of the cases referred go to the mediation program. About 275 volunteer lawyers and a handful of non-lawyer specialists serve as the mediators. If a case is sent to mediation, the court proceedings are stayed for 30 days, with the option of an additional 30-day extension. The Commercial Division's ADR Coordinator provides necessary support to the judges, including scheduling and coordinating references and reports. Of the 434 cases heard by the end of 1998, 256 had been settled and 188 cases had been returned to the court (59% resolution rate).
A mediation program was instituted this last fall in the Erie County Supreme Court for personal injury cases. Developed in conjunction with local bar associations, this voluntary program uses experienced, specially trained private attorneys who are compensated by the parties. If all parties consent to mediation, the program's administrator provides a list of 20 possible mediators. The parties may strike no more than 10 names from the list, and the administrator then selects a mediator from the remaining names. At least seven days before the mediation session, each party submits a statement detailing the case's procedural status, the parties' contentions and the status of any settlement negotiations. If the mediation does not resolve all issues, a judge or judicial hearing officer conducts a "pre-trial assessment" hearing and issues an opinion of the value of the case.
B. Neutral Evaluation
In this form of ADR, a neutral evaluator with subject matter expertise in the issues raised in the case meets with the parties to hear abbreviated arguments. The neutral then issues a non-binding, confidential assessment of the case's merits. To promote resolution of the case, the neutral identifies the strengths and weaknesses of the parties' positions as well as areas of agreement and dispute.
A successful court-annexed neutral evaluation program operates in the New York County Supreme Court. Trial-ready cases (primarily non-City tort cases) are referred to a court-employed neutral who hears case presentations from the parties and then meets separately with each side to explore weaknesses and offer non-binding opinions on their claims. Where discovery is pending, the neutral facilitates agreement on a discovery plan and holds a subsequent evaluation session once discovery is completed. The program has resolved 1100 cases since its inception in August 1996, with over 500 cases resolved in 1998 alone.
In the Monroe County Supreme Court program, all matrimonial cases are sent to a law clerk or referee for neutral evaluation. After hearing presentations from the parties, the referee provides a non-binding assessment of the likely court outcome. As of October 1998, 744 cases had been referred to the program, with 128 cases still pending; of the 616 cases completed, 439 had been resolved (71% resolution rate).
This is an adjudicatory dispute resolution process in which one or more arbitrators issues a decision on the merits of the case after an expedited adversarial hearing. If the arbitration was on the consent of the parties, the arbitrator's decision is binding and generally not subject to appeal. If the case was referred to the program mandatorily, either party may reject the decision and request a de novo trial.
The Nassau County Supreme Court initiated a voluntary arbitration program for tort cases in September 1997. Where both parties agree to arbitration before a Judicial Hearing Officer, the decision is binding on the parties, with no right to proceed to trial. As of December 1998, the program had completed 42 arbitrations.
The Suffolk County District Court operates a mandatory arbitration program for all small claims actions. Lawyers certified by the local bar serve as the arbitrators. Either party may reject the arbitrator's decision and request a trial. From March 1998 to December 1998, 2189 cases had been referred to the program, with 1795 cases completed and only 22 requests to proceed to trial.
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Not all cases or case types are appropriate for ADR. Nor can ADR successfuly resolve every case suitable for such treatment. Yet court-annexed programs around the State have demonstrated that ADR is a meaningful case processing option that should be an important component of the court system's strategy for managing its civil caseload. Although the legal community in New York has not been as receptive to ADR as have those of other states, the Judiciary should now assume a more active role in generating support for this proven approach.
In the coming year, the Unified Court System will expand ADR to other judicial districts in the State. This expansion will proceed under the guidance and expertise of the court system's new ADR Coordinator's Office, headed by Daniel M. Weitz, Esq., as well as the court system's newly created ADR Advisory Committee. Expansion will be guided by two principles. First, because no single ADR model has yet been shown to be superior, the expansion will involve a continuation of the mix of ADR programs currently operating around the State. Second, because ADR programs will not succeed unless judges and attorneys recognize ADR's efficacy and willingly and enthusiastically participate, extensive outreach to, and education of, judges and local bars is critical.
The following new and expanded programs will be initiated:
In addition, a new and innovative ADR case screening and referral process -- the multi-door courthouse -- will be considered for development in the near future. In a multi- door courthouse setting, specially-trained court staff review cases shortly after they are filed to determine whether they are appropriate for ADR treatment. If so, a specific type of ADR -- mediation, neutral evaluation or arbitration -- is be recommended. This assessment is based on a variety of factors: whether the parties' relationship is ongoing or finite, their interests in resolving the dispute privately, inexpensively and expeditiously, and the nature of the legal issues raised. Following the designation of an appropriate ADR method, and upon the parties' consent, the case will be referred to a suitable program. This "multi-door" approach recognizes that every case is different and that no single ADR approach can guarantee the best results for all case types.
If the multi-door courthouse concept, targeted for Queens County Supreme Court, is successful, the idea will be expanded to the Commercial Division in New York County Supreme Court as well as the newly-created Supreme Court Commercial Divisions in Westchester, Erie and Nassau Counties.
VI. Technological Advances
Modern technology can save time and expense for the parties and the courts. The court system's technology initiatives are modernizing the process by which court documents are filed, providing courts and litigants with easier and enhanced access to case information and revolutionizing the manner in which cases are presented at trial.
A. Electronic Filing
Attorneys today typically prepare briefs and other court documents on a word processing program, print out the documents and arrange for their physical delivery to the courthouse. At the courthouse, court staff review the papers, make entries into the court's case management database and then place the documents in the case file jacket. The court system will embark upon a series of electronic filing pilot programs to dramatically modernize this process.
Under an electronic filing system, attorneys electronically transfer their documents to the court via a dial-up modem, a leased line or the Internet. This saves attorneys the time and cost of transporting the documents to the courthouse, and the court's burdens of paper handling and storage are reduced or even eliminated. Similar, if less extensive, benefits can result from the fax transmission of documents to the court.
Electronic filing of documents that initiate the lawsuit (e.g., the summons and complaint) is not authorized under the CPLR, which requires that such papers be "original" documents. The court system therefore will pursue legislation authorizing electronic filing of documents that initiate the lawsuit.
In the meantime, the Judiciary will proceed with a series of pilot programs involving electronic filing of interlocutory documents -- primarily motions -- to which the CPLR's "original" requirement does not apply. These programs will be voluntary in nature, requiring the consent of all parties in the case. They will be implemented in accordance with guidelines being promulgated by the Chief Administrative Judge. These guidelines are being developed with the assistance of a knowledgeable advisory group of attorneys, and will address the details necessary for operation of a successful electronic filing program, including procedures for credit card payment of filing fees and requirements for service.
In coordination with County Clerk offices and the bar, electronic filing pilots will be implemented in the following locations:
B. Universal Case Management System
The court system is developing a Statewide automated case management system -- the Universal Case Management System. The goal of this major, long-term project is to integrate and ultimately replace the various existing automation systems used by courts throughout the State to track their caseloads. Currently, there are roughly as many civil court automation systems as there are counties across the State; the same is true for the criminal, family and surrogate's court automation systems.
Although the existing systems have served the courts well over the years, increased caseloads and the volume of data they produce have seriously strained the capacity of these systems. In addition, because the courts must continually comply with state and federal legislative mandates, the systems require significant ongoing maintenance. The lack of standardization among the various systems makes this maintenance particularly burdensome and costly.
Replacement of these systems with a single, integrated system will permit standardization and more useful service to the courts, while eliminating the need for retraining when judges and clerks move from one court to another. Other benefits of a new, enhanced system will be the capacity to provide on-line storage and retrieval of documents created by the court or counsel, the automatic compilation of statewide statistics and many other opportunities to speed the flow of information and eliminate duplication of work.
Development of the Universal Case Management System is a multi-year project. Integration of the Family Court will proceed first, to be followed by integration of the civil courts. Judges and court clerks will be actively involved in the analysis and design phases of this system to ensure that the courts' needs are fully addressed.
C. Courtroom 2000
Opened in December 1997 in the Commercial Division of Manhattan Supreme Court, Courtroom 2000 is an experimental program designed to speed up trial presentations and make them easier for jurors to follow and comprehend. It is the first of its kind in New York and one of only a few at the state level around the country. The program incorporates the latest technological advances in the courtroom process, enabling the attorneys to present evidence electronically and avoid the delays and confusion that piles of paper documents and exhibits can engender. Among the technological innovations used in Courtroom 2000 are "real-time" transcription, which instantly converts stenographic notes of the proceedings into readable text and allows attorneys to immediately search and review testimony during trial. Other innovations include touch screen monitors that allow lawyers and witnesses to mark up and annotate pieces of evidence for illustrative purposes, video cassette recorders to facilitate the playback of taped evidence, bar code scanners that allow for rapid retrieval of digitized documents and a computerized blackboard for the video display of drawings or writings. Numerous video monitors for displaying documents, photographs and other visual evidence and for animation of expert testimony are stationed at key locations throughout the courtroom, including the judge's bench, the jury box, the attorneys' tables and the clerks' desks. Also situated throughout the courtroom are personal computer docking stations that facilitate the presentation of evidence and permit attorneys to receive real-time transcription and communicate electronically with their offices during the course of the proceedings and recesses.
Judges, lawyers, jurors and witnesses who have participated in Courtroom 2000 trials have universally praised this modern approach to trial litigation, claiming that they benefitted from its capacity to speed the trial process and enable attorneys to present evidence more effectively and comprehensibly. It is estimated that a trial's duration is reduced by 25 percent when it is conducted in Courtroom 2000.
Building on the success of this impressive technological innovation, planning is now underway for a second Courtroom 2000 in Brooklyn.
D. On-Line Civil Case Information
In December 1996, the Unified Court System began a new on-line case information system that enables attorneys and others to install special software in their modem-equipped personal computers and call up more than two million civil case files from 13 major counties around the State. Subscribers can learn whether a motion was decided, review a judge's daily calendar, identify all cases filed against a particular individual and conduct numerous other searches of computerized court records. The program, which is updated four times daily, can search by case index number, calendar number, party, law firm or judge. The "Autocase" feature permits the tracking of a particular group of cases, with automatic notification if there has been activity in any of the cases.
The benefits to subscribers are obvious -- they can obtain timely, detailed information about cases without having to wait on line at the clerk's office or on hold when calling there. Judges and court clerks also benefit because the system frees court staff for other tasks and because it can produce a multitude of information that helps the courts keep abreast of all aspects of their caseloads.
The use of this system has increased five-fold since it went on-line, and now has over 1000 subscribers. Beginning with a gross usage of about 9,500 minutes in December 1996, usage has soared to a monthly average of over 47,000 minutes. In the coming year, additional counties will be added to the system, expanding the number of cases and enhancing its value to subscribers
2 The Standards and Goals guidelines generally require that disclosure be completed and a Note of Issue filed within 12 months of the filing of a request for judicial intervention in a "standard" civil case and within 15 months of such filing in a "complex" case. Once a Note of Issue is filed, the guidelines provide for disposition of the case within 15 months.
3 As is explained in Section II, the one exception to implementation of this new system would be the new centralized approach that is recommended for cases in which New York City is a defendant.
4 Under the guidelines, cases that presumptively will be accepted in the Commercial Division, provided that the monetary threshold is met, include: breach of contract or fiduciary duty, fraud, misrepresentation, business tort or statutory violation arising out of business dealings; transactions governed by the Uniform Commercial Code (except those concerning individual co-op units); complicated transactions involving commercial real property; shareholder derivative actions and commercial class actions; commercial bank transactions; internal affairs of business organizations or liability to officials thereof or third parties; malpractice by accountants or actuaries; and complicated environmental insurance coverage litigation.
Cases that presumptively be will rejected and transferred out of the Commercial Division, even if the monetary threshold is met, include: cases seeking a declaratory judgment as to insurance coverage for a personal injury or property damage action; landlord-tenant matters, "Yellowstone" cases and uncomplicated real estate disputes; proceedings to enforce a judgment regardless of the nature of the underlying case; first-party insurance claims and actions by insurers to collect premiums or rescind policies; and attorney malpractice actions.
5 The problem has been raised recently by the State Bar's Committee on Judicial Administration, among others.
6 Several of these additional measures were developed by the court system's Advisory Committee on Civil Practice.