New York Courts Weigh Improvements to Pretrial Conferences

In theory, pretrial conferences streamline litigation by setting discovery deadlines and encouraging parties to take a hard look at all relevant issues in the case and, if possible, reach a settlement before trial.

In practice, however, pretrial conferences often fall short of this ideal. They can be go-through-the-motions affairs conducted by lower-level associates who are unfamiliar with the case and who are not authorized to make the sorts of hard decisions that might resolve the case or narrow contested issues for trial.

To solve this problem, New York court administrators are seeking public comments on a proposed rule change, submitted by the New York State Bar Association and the New York City Bar Association, that would allow lawyers to skip the pretrial conference altogether if they have conferred and resolved important case issues in advance of any scheduled pretrial conference.

Proponents of the rule revision believe that the change would streamline civil litigation by incentivizing lawyers to work through important issues early on. If a pretrial conference remains necessary despite the parties’ best efforts to reach an agreement, then the pretrial conference will be more productive due to the prior attention given to the case. At least, that’s what the proposed rule’s drafters hope will occur.

In New York, the pretrial conference is called a “preliminary conference, as set out in Section 202.12 of the Uniform Civil Rules for the Supreme Court and the County Court.

Section 202.12 calls on litigators to consider these items at the preliminary conference:

• simplification and limitation of factual and legal issues
• timetables for the completion of lawfully required disclosures
• issues related to pretrial discovery, depositions, and electronic discovery
• settlement of the case
• the addition of other necessary parties
• other matters that the court may deem relevant

Insurance coverage is a new matter to be addressed during every preliminary conference. For lawsuits filed after Dec. 31, 2021, New York’s Comprehensive Insurance Disclosure Act (CIDA) mandates the disclosure of applicable insurance policies that may be liable to satisfy all or part of a judgment and information about the “total limits” available under the policies. The disclosures are due within 90 days of filing an answer to a complaint.

Any party may demand a preliminary conference after the service of process in a civil matter. Under the proposed changes to Section 202.12, the trial court will send to all parties a proposed court order addressing the issues to be resolved before trial. If the parties can resolve these issues in advance of the scheduled preliminary conference, then they can avoid the need to attend the preliminary conference by filing the trial court’s proposed stipulated agreement.

If an agreement cannot be reached, then the preliminary conference will be held under the trial court’s supervision, possibly as a virtual conference.

“A common complaint about preliminary conferences is that they are inefficient, pro forma conferences, often attended by junior or contract lawyers not familiar with the details of the case, and some lawyers have suggested the practice could be eliminated by e-filing a bare-bones stipulation,” the bar committees wrote in their submission to the court.

Far from “bare-bones,” however, the stipulation the bar associations’ proposal envisions would cover any pretrial issues the trial court believes should be addressed. “The Proposed Rule encourages active judicial participation at the conference and, if the parties come prepared, an informed discussion of how to streamline the case and reduce the attendant costs.”

Public comments on the proposed rule revisions are due by Oct. 31, 2023.