How Did We Get Here? A Look at New York Practice Changes

By: Katryna L. Kristoferson and David Paul Horowitz

Introduction

Those of us who litigate in New York state courts have experienced every day the dramatic changes the COVID-19 pandemic has wrought on civil practice. But the pandemic alone does not account for other fundamental changes in New York civil practice that predate March 2020.

We believe that the litigation landscape, especially for lawyers admitted in the last seven years, is vastly different from the one David entered and navigated for many years. In contrast, Katryna was admitted to the New York bar via the uniform bar examination (UBE), and while we have worked together since she graduated, her education prior to admission was dramatically different as discussed below. For many attorneys admitted in the years preceding the pandemic, the combination of burgeoning court dockets and the shutdown of the courts before starting remote procedures has largely eliminated “live,” in court exposure.

While our contrasting experiences nicely mirror the dichotomy between pre- and post-UBE New York attorneys, we are all impacted by the changes which have made it difficult to stay abreast of developments and changes in New York practice.

In this column we will focus on civil practice issues that we encounter in our day-to-day lives as civil litigators. As for the name of the column? To make clear that it is not an academic exercise targeting hypothetical, esoteric litigation issues, or unique, one-off legal issues arising outside the norms of everyday practice. Our intent is to focus on issues we encounter on a recurring basis, while some issues may occur less frequently, our goal is to focus on issues with the potential for causing mischief.

What Is Different: Before

We believe the biggest change agent in preparing lawyers to practice in the New York state courts has been the adoption of the uniform bar exam (UBE), starting with the bar exam administered in July 2016. The benefits and shortcomings of New York joining 36 other jurisdictions in utilizing the UBE were addressed by the NYSBA Task Force on the New York Bar Examination whose March 5, 2020, report that concluded “we hope that this report will be a catalyst for needed change so that New York can again have a bar examination that meets the fundamental purpose—that the public is protected by assuring that attorneys admitted to practice in New York have the basic knowledge required to do so effectively.” The report convincingly argued that the UBE failed to meet this basic goal. We should all be concerned. Like many of his peers, David learned New York practice from three sources (think legs on the New York practice stool): he took New York practice for four credits with his mentor Prof. Jay C. Carlisle II; he was re-taught New York practice in his bar review course (“Pieper people pass”); and then at work again re-learned the rules and, critically, the practical application of the rules. He had the advantage of working with talented, experienced lawyers eager to passalong their knowledge. And, by going to court many days a week and conducting depositions most other days, he learned not only what to do, but what not to do, by watching and engaging with more experienced lawyers.

While many attorneys currently practicing in New York attended law school at a time where New York practice was a required course, by the time Katryna was entering her 2L year, there was no requirement to take that course. Like many of her peers, who were a part of the cohort of students that were slated to be only the second year of students in New York who were taking the UBE, Katryna focused her selection of electives on helping with the bar, she selected classes that would aid in taking the UBE which, primarily did not focus on, or test, New York substantive or procedural law.

She did not take New York practice, even though it was offered. Her bar review course prepared her for the UBE; again not New York substantive or procedural questions. She did have the advantage of beginning her career in a litigation firm and was guided through the often Byzantine aspects of New York civil practice by her managing attorney, Pauline Mason. But, shortly after starting to get comfortable at conferences, motions and mediations, everything shut down.

What Is Different: After

Fast forward to today. A likely unintended consequence of the adoption of the UBE was the near total extirpation of New York practice from law school curriculums. David’s teaching experience bears this out: having taught New York practice in law schools since 2002, he last taught the subject in 2016 when demand evaporated; first leg of the stool gone. And, with New York substantive and procedural law no longer tested on the bar examination, bar review courses no longer covered New York practice; second leg of the stool gone. Finally, with remote office work and Microsoft Teams replacing in-court appearances and in-person depositions, the opportunity to be suffused with the practical aspects of New York practice have been, are, and likely continue well into the future to be greatly diminished; third leg of the stool cracked(best case scenario).

Procedure in the Pandemic

No need to elaborate on the impact of the pandemic on New York practice since March 2020, other than to highlight our personal experience of having worked in our office a total of six days between March 2020 and June 2021, and attending the first post-March 17, 2020, appearance in Supreme Court, Bronx County, on Nov. 10, 2022, a courthouse David frequented an average of five or more days a month for his entire career.

Three significant changes in New York practice occurred during the pandemic: first, the switch to remote court appearances and depositions, second, the implementation of presumptive court-annexed alternative dispute resolution(ADR), and third, the promulgation of significant changes to the Uniform Rules for Supreme and County Courts which took effect Feb. 1, 2021.

The switch to remote appearances has evolved, and improved, to the point where many of us cannot comprehend a world in which we would spend four-plus hours traveling to, waiting for, participating in, and traveling back from a five-minute court appearance. To be clear, we are OK with that. And by now, we have all mastered, or at least stumbled through, the mechanics of remote appearances.

The implementation of presumptive court-annexed ADR during the pandemic has been, in our opinion, a positive enhancement, particularly given the difficulties inherent in ramping up a statewide program during the pandemic. While the implementation has been done on a rolling basis, and important components are still being developed, ADR will continue to expand and play an ever-increasing vital role in resolving civil cases in New York.

The promulgation of new and amended uniform rules has impacted practice in ways intended and unintended. The unintended results and certain unpopular changes were themselves the subject of further revision which took effect July 1, 2022.

A major problem with the new rules was the absence of fanfare surrounding their introduction: The new rules are contained in an administrative order signed by Chief Administrative Judge Marks on Dec. 29, 2021, with an effective date of Feb. 1, 2021.

If you are thinking “what new rules?,” you are not alone. Perhaps because of the holidays, the rules were not, as far as I can tell, released until Jan. 15, 2021, and even then were not publicly disseminated. In fact, as of this writing (Jan. 22,2021), there is no press release or other announcement of the rules on the Unified Court System’s website (www.nycourts.gov), the rules themselves on the website have not been updated, and the commercial online legal publishers do not show the new rules or announce that they had been amended.

Equally problematic was the implementation of new statewide rules in the midst of the pandemic:

The new rules promise to impact many aspects of civil practice in ways both large and small. However, their impact will not come about as a result of their implementation, but rather on the degree to which they are enforced by the courts. Major changes in practice are always difficult to absorb and implement, even more so during a pandemic when many attorneys are not in their offices.

Nevertheless, the “new” rules are now widely known, if not uniformly followed.

Conclusion

For those of you who are interested in CPLR updates, we have, and will continue to post updates at PracticalNewYorkPractice.com and hope you will come visit. We also invite you to attend one of our annual CPLR Update (dates will be posted on the website). Maybe we will be able to meet in person, whether in person or virtually. And we hope you look for us here on the third Tuesday of every month to read Practical New York Practice™.

Please see ALM.com for the full printed article.