Regular visitors to this blog no doubt are aware that the rules of practice for the Commercial Division are centered on innovation, efficiency, cost-effectiveness, and predictability. This includes the rules governing trial and trial preparation (Rules 25-33), which are important enough to merit their own, separate Preamble.
As it stands, the Preamble to Rules 25-33 explains that "[t]hese rules emphasize the importance of pre-trial preparation and remind the practitioner that such preparation is an essential element of successfully . . . conducting a complex commercial . . . trial [and] identify a series of key items that must be addressed or completed before commencing a trial in the Commercial Division" (emphasis added). The Preamble goes on to list the items that counsel are obligated to address in advance, including:
- "accurately estimating the length of the trial so that the court, counsel and parties can properly allocate their time";
- "preparing and communicating to the court motions in limine in advance of the trial date";
- "reviewing, assembling, and pre-marking exhibits";
- "addressing issues that may arise in connection with the use of deposition testimony at trial";
- "agreeing on a schedule for witnesses and the manner in which each witness will testify (including giving consideration to direct testimony by affidavit in a non-jury trial)"; and
- "preparing and negotiating jury instructions and verdict sheets."
The pre-trial obligations of counsel under ComDiv Rules 25-33 are clear enough. But as with trial-prep in general, these obligations can be labor-intensive and require thoughtful planning and scheduling on the part of the lawyers, parties, witnesses, and court personnel, which can be difficult to navigate in the sometimes-chaotic months and weeks leading up to a trial, particularly a contentious one.
Enter the Commercial Division Advisory Council's Subcommittee on Best Practices for Judicial Case Management...
In December 2024, in an effort to "further consistency in practices in the Commercial Division statewide," and to "assure efficiency and cost effectiveness consistent with the goals noted in the Preamble," the Subcommittee proposed an amendment to the pre-trial Preamble to include a "Model Pretrial Order," which, while not mandatory, offers a productive "starting point" for counsel and court personnel alike to chart a well-ordered course on the way to trial. The specific language of the proposed amendment to be tacked onto the end of the Preamble reads as follows:
A Model Pretrial Order can be found at Appendix E. It serves as a "tool" for the Court and counsel. It provides guidance while allowing for flexibility to account for the particular case at hand and the rules of the Trial Part.
As noted by the Subcommittee, the point of the proposed amendment and model order is to "capture, in one document, the critical activities for trial as set out in Commercial Division Rules 25-33 that the Court may require or address in advance of trial, whether before, during or after the final pretrial conference." In that way, the Model Order "can serve as a ready 'checklist' reference for counsel and the Justices of the Commercial Division."
My own view, which I suspect is not the minority view, is that the proposed amendment to the pre-trial Preamble would be a most welcome addition to the ComDiv Rules. In any event, whether or not the amendment becomes effective later this year – and I have no good reason to believe it won't – practitioners facing trials in the Commercial Division in the coming months are well-advised to check out the corresponding Model Order in its proposed form for guidance in getting their pre-trial ducks in a row, including, e.g., (i) briefing motions in limine; (ii) marking and submitting exhibits; (iii) offering deposition and expert testimony; (iv) stipulating to undisputed facts; (v) submitting pre-trial memoranda; (vi) identifying witnesses, including direct testimony by affidavit; and so on.
After all, in the law, as with virtually anything else, preparation is everything.
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