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New Amendments to the Uniform Civil Rules in New York

According to this New York Law Journal article, the New York Uniform Civil Rules will be amended, effective October 1, 2006, including rule 202.8, which was only just recently amended as I'd posted about previously.  (Hat tip:  New York Attorney Malpractice Blog).  Apparently, allowing lawyers to badger judges about their failure to hand down timely decisions on pending motions wasn't quite working out.

The new amendments will affect a number of areas of practice, including the ways in which depositions are handled, the ways in which pre-trial conferences are managed, and motion practice.  The NYLJ article indicates that some of the new rules are intended to curb lawyer abuses during depositions, in addition to allowing judges to require that representatives of insurance companies participate in settlement conferences.  Another rule change bars an attorney from seeking ex parte relief unless there is a showing of significant prejudice.

From the article, regarding the new rules for depositions:

The deposition standard seeks to bar attorneys from coaching witnesses by making lengthy "speaking objections" in which they suggest an answer to an adversary's question. They also limit situations in which attorneys may stop a deposition and instruct the witness not to answer a question...

Under the rules, lawyers will be barred from making objections solely on the grounds of relevance, hearsay or competence. Lawyers will be permitted to instruct witnesses not to answer when the questions delve into an area of privilege; stray into an area barred by prior court order; or raise a question that "is plainly improper" and would cause "significant prejudice."

To deter the cessation of questioning on what Zauderer called a "frivolous basis," attorneys will be required to instruct witnesses to remain silent to provide "clear and succinct" statements on the record of the reason the instruction is being given.

Attorneys will only be permitted to interrupt a deposition when the questioning veers into one of the prohibited areas. And as is the case when instructing a witness not to answer, a new requirement specifies that, before interrupting a deposition, an attorney will have to "clearly and succinctly" state the reason for intervening.

From the article, regarding the new rules for settlement conferences:

Empowering judges to order insurance company representatives to participate in settlement conferences is an effort to stop insurers from waiting until jury selection is completed before they come forward with their best offer, said Zauderer...

Some insurance companies, he said, have publicly embraced a policy of announcing early in a case "a best and last offer" and sticking with it through trial if the offer is not accepted. But other insurers, even when they voluntarily send a representative to court, will not send someone with authority to offer a high enough figure to settle a case until after the jury is selected, added McDonough, a partner at Cozen O'Connor...

The rules will empower judges to compel the participation of parties and others who have an interest in the outcome of litigation, such as the holders of liens on an award. Judges are given the option of allowing participation over the telephone.

From the article, regarding ex parte relief:

The rule barring a party from seeking ex parte relief absent a showing of "significant prejudice" is designed to bring New York practice in line with that of the federal courts and many other states, said Zauderer. The state's practice of allowing attorneys to routinely request restraining orders without notifying their adversaries has been "rife with abuses," he said.

Under the rule, judges will be barred from granting restraining orders unless a party demonstrates a significant reason why an adversary must be kept in the dark. For instance, Carpinello said that an ex parte order would be justified where a request is being made to restrain funds and there is a likelihood that notice of the application would lead an adversary to secrete the funds before an order could be obtained.

Similarly, an ex parte order would be appropriate where a party is seeking to restrain the demolition of a building and notice would likely lead to the destruction of the building, said Carpinello.

A new procedure will be established for situations where a party cannot justify obtaining an ex parte order. Instead of proceeding ex parte, lawyers will, at a minimum, advise their adversaries of the time and place they will be asking for a restraining order. The rule does not specify how much advance notice will be required but says it must be "sufficient" to allow opposition.

The only rule change that is currently available at the New York Court's web site is the order amending Rule 202.8.

The additional amendments can be found here.


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