The New York Supreme Court’s Commercial Division Advisory Council has recommended a rule that it believes would substantially expedite non-jury trials and facilitate cross examination with no adverse effects. According to the Council “such a rule would highlight the availability of a practice … that has been found by some judges and attorneys to streamline trials and facilitate crisper cross-examination of witnesses.” The proposed rule would allow courts to require direct testimony in affidavit form of a party’s own witness in a non-jury trial or evidentiary hearing. The proposed rule reads as follows:

The court may require that direct testimony of a party’s own witness in a non-jury trial or evidentiary hearing shall be submitted in affidavit form, provided, however, that the court may not require the submission of a direct testimony affidavit from a witness who is not under the control of the party offering testimony.

The proposed rule would not mandate that courts use this practice; rather, it would give the trial judge discretion to do so. After all, some judges may prefer traditional direct examination to assess the witness’ credibility and to have an opportunity to question witnesses from the bench, during direct as well as cross and redirect examination.

According to the Subcommittee that proposed this rule change, the practice of replacing direct examination with written affidavits has already met with some success in both federal and state courts. In the S.D.N.Y., for example, 21 of 46 judges require direct testimony by affidavit in non-jury trials, and litigants have reported that the practice facilitates trial preparation and shortens the trial without compromising the integrity of the record. In the State Court Commercial Division, Justice Ramos has imposed a blanket rule requiring that fact witnesses present all direct testimony in affidavit form, while Justices Driscoll and Scarpulla, among others, have used the practice in certain but not all cases. Along the same lines, some Commercial Division justices require the use of reports in lieu of direct testimony by experts in bench trials.

Conclusion:

If adopted, the proposed rule is likely to promote efficiency, trial preparedness, and more effective cross-examination. But the proposed rule isn’t perfect. For example, the rule does not give any direction to the procedural steps that litigants should take if they want their witnesses to give traditional direct testimony rather than by affidavit. Apparently it will be up to each litigant to try to persuade justices who prefer testimony in affidavit form that direct testimony is worth the court’s time. Alternatively, such litigants may try to argue that the witness they wish to examine in person is not under their “control” and, thus, a direct testimony affidavit cannot be compelled. As currently drafted, the proposed rule offers no explanation of what constitutes such “control”. This could lead to additional disputes and reduce some of the efficiency the proposed rule seeks to achieve.

Interested individuals can track the status of the proposed rule change at www.nycourts.gov/RULES and submit comments by e-mailing [email protected]. The deadline for public comments to be received is July 25, 2016.