Major Changes to New York Trial Practice

February 12, 2021

While there is no date set for Civil jury trials to resume in New York, court administrators have been busy promulgating new rules which will substantially affect trial practice. As you will note, many of the new rules are adapted from Federal trial practice. Gone are the days when evidentiary rulings will be made with a witness on the stand and a jury in the box. Some of the key changes to the New York Uniformed Rules are discussed below.

1. Pursuant to Rule 202.34 all parties must consult with each other regarding proposed trial exhibits before the trial begins. The exhibits which the parties agree upon will be admissible and admitted into evidence before the trial begins. As a practical matter, counsel will be able to use agreed upon exhibits during openings if so desired.

2. Rule 202.34 also provides that the court must rule on any objections raised to exhibits “at the earliest possible time”. The rules indicate the court should make evidentiary rulings as early as the pre-trial conference.

3. Unless the court sets a different date, the parties must submit a pre-trial memoranda to the court of not more than 25 pages. See Rule 202.20-h[a].

4. Pursuant to Rule 202.20-h[b], on the first day of trial, the parties must submit a joint indexed binder or electronic document containing all the exhibits upon which the parties will rely. The presumption is that the court will have made all evidentiary rulings before trial, therefore the submitted binder will only contain admissible evidence.

5. Unless the court sets a different deadline, pursuant to Rule 202.20-h[c], the parties are submit charge requests and interrogatories on the first day of trial. It is axiomatic that the parties will need to know which exhibits will be admitted before preparing a charge request.

6. Unless the court states otherwise, Rule 202.37 will require each party to submit a written witness list at the start of trial. The list must identify all witnesses, when the witness will be called and estimate how long each witness will take. This rule does not apply to impeachment witnesses.

As of now, court administrators have not made any changes to the way jurors will be selected, however we should be prepared for changes to the selection procedures as well. Early evidentiary rulings may encourage additional settlement discussions and hopefully these changes will minimize the unpredictability at trial, something which most often hurts defendants. We will continue to keep you updated.