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A proposed rule to allow the use of videoconferencing for some Commercial Division proceedings could make life a lot easier for attorneys and their clients, lawyers said this week.

The Administrative Board of the Courts announced Aug. 1 that it is seeking public comment on the proposal from the Commercial Division Advisory Council, which would permit attorneys to ask the court’s permission to participate in conferences and oral arguments from afar, using videoconferencing or other technologies.

While the new rule would open the door to video appearances, it would not require remote participation, and individual justices would retain discretion in deciding whether to grant the requests.

“It’s certainly going to make a lot of lawyers happy,” said Helene Hechtkopf, a partner with Hoguet Newman Regal & Kenney in Manhattan.

In a memorandum dated July 12, the advisory council said that implementing a videoconferencing option would enhance court efficiency and cut down on expenses for attorneys who have to travel long distances to appear in court.

“The case for making greater use of this simple yet effective technology is obvious and compelling, and it presents an opportunity for the Commercial Division to continue its innovation and leadership in the smart adoption of technology in aid of the efficient administration of justice,” the memo read.

Hechtkopf said the proposed rule would also favor clients, who can be billed for the time attorneys spend traveling and waiting in court for their turn to argue motions.

“Streamlining that process is only going to benefit the client,” she said. “It’s certainly a nice option to have.”

Attorneys agreed that it is often important to appear personally in court, where they are better able to gauge a judge’s reactions to their arguments and respond to overbearing or inappropriate behavior by opposing counsel.

But Scott Musoff, head of Skadden, Arps, Slate, Meagher & Flom’s New York litigation practice, said the rule would add a new level of flexibility for attorneys and judges, “which is important because there are certainly some motions or conferences where it is necessary to be there in person.”

“The way it’s fashioned seems to be promoting efficiency but maintaining discretion as to when it is to be used,” he said.

Scott Mollen, a member of the advisory council who said he was authorized to discuss the proposal, said many firms were already using videoconferencing, and the costs to implementing the feature would be low.

In addition, the advisory council noted that at least five federal appeals courts, including the U.S. Court of Appeals for the Second Circuit, have used some form of videoconferencing technology in conducting oral arguments, and state and federal trial courts in recent years have followed suit.

For the Commercial Division, which draws litigants from across the globe, the technology would also be a major selling point, as it competes with other jurisdictions to attract commercial cases.

“Clients in other states and other countries [may] be more receptive to New York as a venue if they can observe the proceedings without the need to incur expensive airplane and hotel costs,” Mollen said.

Musoff agreed that the use of videoconferencing “can enhance the attractiveness of the court to litigants who are not located in New York,” but said the proposal “primarily goes to the Commercial Division’s goal of promoting quick and efficient resolutions to matters.”

It remains to be seen how the rule would be implemented in the courtroom, but it was clear that the ultimate decision-making power would be left to individual judges.

“Some of it’s going to have to be wait-and-see,” Musoff said. “I think you’re going to see justices experimenting with it.”

The Administrative Board of the Courts is accepting public comment on the proposal until Sept. 30. Submissions can be emailed to [email protected] or sent by mail to John W. McConnell of the Office of Court Administration at 25 Beaver St., 11th FI., New York, New York, 10004.

 

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