The Mother of Innovation: 2021 Commercial Division Rule Changes

“As I see it,” said Socrates, “the true creator of our invention is necessity.” Plato, Republic at II.369c. So too did the necessity for change become apparent to judges and practitioners as successive waves of COVID-19 infections compelled courts to shut their doors to in-person legal proceedings. But the administration of justice is and must be unshakable. In the midst of uncertainty and crisis, courts were quick to deploy new technologies and enact rules to enable virtual proceedings and sustain court operations. At the front line of this effort was the New York State Commercial Division, no stranger to innovation, which last year added or amended five rules to §202.70(g) of the Rules of Practice encompassing: pre-trial submissions (Rule 31), alternative dispute resolution (ADR) (Rule 3(a)), disclosure statements (Rule 35), virtual evidentiary hearings and non-jury trials (Rule 36), and remote depositions (Rule 37).

As a specialized forum for business disputes, the Commercial Division carries a well-earned reputation for innovation. The Commercial Division was formed in 1995 following the success of its experimental predecessors, the four initial Commercial Parts which demonstrated that a state court could provide “efficient, cost-effective and timely processing of commercial cases and an improvement in the quality of disposition.” Robert L. Haig, Can New York’s New Commercial Division Resolve Business Disputes as Well as Anyone, 13 Touro L. Rev. 191, 196 (1996). Since then, it has been at the vanguard in adopting rules and advanced technologies to aid in effective caseload management, including being the first in New York to utilize electronic filing. N.Y.S. Unified Court Sys., History, Commercial Division—NY Supreme Court. Such was the Commercial Division’s success as an “efficient, sophisticated, up-to-date court, dealing with challenging commercial cases” that 29 Commercial Division rules were adopted into the New York State Supreme Court’s Uniform Rules, effective Feb. 21, 2021, for use throughout the court system. Administrative Order 270/2020, N.Y.S. Unified Court Sys. (Dec. 29, 2020) (“AO 270/2020”). Chief Administrative Judge Lawrence K. Marks properly cited the preeminence of the Commercial Division and its role as “an incubator … a recognized leader in court system innovation … demonstrating an unparalleled creativity and flexibility in development of rules and practices.”