Yesterday, I attended an informative Zoom meeting with Brooklyn’s Commercial Division Justices Hon. Lawrence Knipel and Hon. Reginald Boddie. The meeting was co-sponsored by the New York State Bar Association (and its Commercial & Federal Litigation Section) and the Brooklyn Bar Association. This post shares my notes from the meeting.
Here is the description of the meeting from the emails that I received:
The New York State Unified Court System has faced its share of the pandemic’s impact. As the state continues its uncertain recovery, a check-in with Brooklyn’s Commercial Division Justices is timely. Please join the Commercial and Federal Litigation Section for a discussion with Brooklyn’s Commercial Division Justices Lawrence S. Knipel and Reginald A. Boddie.
The conversation will cover a broad range of topics, including discovery issues, motion practice, settlement conferences, trials, ethical concerns, and the changes brought on by the pandemic, to name a few.
Below are notes that I took during the meeting. As you read these notes, please keep in mind that I probably made errors because I took them during the meeting, not from a recording. Although I have a decent typing speed, I did not take a word-for-word transcript. In fact, I often summarized. Also, I rearranged the notes because the Hon. Knipel had to leave early and the Hon. Boddie answered some of the same questions later in the meeting. The biggest take-aways for me are:
- Virtual hearings are likely to stay.
- Judges have different styles. For example, the Hon. Boddie prefers to have the parties settle cases.
- The Commercial Division is unlike other divisions because there are no jury trials and judges handle discovery issues themselves (i.e., there isn’t a separate part dedicated for discovery issues).
- Good communication is crucial:
- With other attorneys, it helps reach a settlement.
- With the court, it helps keep them informed of a document you e-filed or of a request you want (e.g., increase in word limit or oral arguments).
- For court clerks, writing ability is paramount.
- Written motions get read, but oral argument can change a justice’s opinion.
Here are my notes from the meeting:
- How Has the Pandemic Affected the Commercial Division? Hon. Knipel said that they switched over to virtual, but that it hasn’t been affected as much as other divisions. Judge Boddie is the only full time judge in the Commercial Division. Hon. Knipel and a few other judges have part-time calendars.
- Brooklyn v. Other Counties? Hon. Knipel said that Brooklyn is like the other counties, but that Manhattan is a little different – they have 8 full time judges.
- Virtual Hearings
- Hon. Boddie said that the courts are still using Microsoft Teams for conferences. Other than technical issues (such as internet issues), there haven’t been any problems.
- Virtual v. In-person? Hon. Knipel said that virtual is very practical, but in-person is easier when there are numerous exhibits. There are often technical difficulties with virtual trials. He said that it is good enough, but that technology should get better. “It gets done if it’s virtual. It gets done,” he said.
- Are Virtual Hearings Here to Stay?
- Hon. Boddie said that yes, he thinks that it is here to stay. It saves both he attorneys and the court a lot of time.
- Hon. Knipel said that he concurs. After COVID is gone, they are moving to virtual.
- What if One Party Wants Virtual and the Other Doesn’t? Hon. Boddie said that he hasn’t had this issue come before him. He said that there is a new rule indicating that the trend in commercial cases will be for virtual trials.
- Ruling from the Bench?
- Hon. Knipel said that he does it from the bench when he can.
- Hon. Boddie said that he has not had any commercial cases to rule on. But in previous cases, he would rule from the bench if he could, and in situations where he can’t he would reserve. But he still uses the same technique with commercial cases: He tries to get the attorneys to find agreement and issue a joint order. He said that he tries to get his written decisions done usually within a week.
- Motions & Oral Arguments
- Motions: More or Less than Before Pandemic? Hon. Knipel said that the pandemic affected them the Commercial Division the least. The Commercial Division is uniquely situated to handle things virtually because there is no jury.
- To Make a Motion: Hon. Boddie said you can e-file, e-mail the court, or do the both. If you just e-file it, then the court doesn’t get an alert. It is up to his clerk to catch it.
- Word Limits for Motions: Hon. Boddie said that the rule was created for a reason, but the rule has an exception: You can ask the court to extend the word limit.
- Hon. Knipel said that he reads the motion papers and makes a preliminary decision, but oral argument is important because he changes his mind frequently.
- Hon. Boddie said that he reads motions prior to argument. Generally, he doesn’t have a decision prepared ahead of time, but sometimes he knows which way he wants to go. Very often, he wants the attorneys to resolve it.
- Hon. Boddie said that he doesn’t require oral argument for motions, but if the parties want it, then they can request it.
- Hon. Boddie said that most attorneys don’t ask for oral arguments. He said that it helps him move his cases quicker, but attorneys who ask for them don’t get punished. It just takes additional time to schedule the case. He said that oral argument doesn’t have anything to do with who the attorney is (e.g., young or old).
- Motions that Have No Merits: Idea re Mirroring Federal Practice – Asking for Leave to File a Motion? Hon. Boddie said that the Commercial Division has a similar rule.
- Law Clerks
- Hon. Knipel said that he has just one law clerk but for all work, not just commercial.
- Would Hon. Knipel Hire More Than One Law Clerk and What Qualities Does He Look For? Hon. Knipel said that he would hire more than one, but he can’t. He looks for writing ability. “To me that’s the most important aspect of a law clerk.”
- Hon. Boddie said that he has two law clerks – a principal law clerk and an assistant. They participate on everything together – conferences, motions, etc. His principal law clerk has been with him his entire judicial career, and she worked with him previously. His second clerk was hired after he joined the commercial division.
- How many trials in the last year?
- Hon. Knipel said that for commercial matters, they have been all virtual. In one trial, the witness was in Israel, another in Turkey, etc. He has had several trial during the pandemic.
- Hon. Boddie said that he has not had a trial since he took over the Commercial Division and that he has been very effective in settling cases. He attributes this to cooperation by attorneys, attorneys being open-minded to settling, and his being open to listening to the issues before him without siding with one side or the other.
- Is There a General Support Office for the Commercial Division in Kings County as in NY County? Hon. Knipel said he doesn’t think so.
- Hon. Knipel said that they are now starting with foreclosures again.
- Lack of Diversity in Commercial Division Bar: Any Thoughts? Hon. Knipel said that it is a very important topic and he is acutely aware of it.
- Use of Special Masters in Discovery?
- Hon. Knipel said that it is very helpful. But it is unclear what authority the court has to appoint a special master without consent. Usually, he gets consent of the parties. But sometimes he doesn’t get consent. The issue is that the special master has to get paid.
- Hon. Boddie said that the issue has never come up before him.
- Special Procedures for Commercial Hearings? Hon. Knipel doesn’t require exhibits to be given ahead of time. Just call up the office to schedule things.
- Preliminary Conferences in Commercial Division?
- Hon. Knipel said that for an ADR referral, all the party has to do is to ask for it. For PCs, he said that he encourages people to handle them by stipulation, but if a party wants one, then they can ask for one.
- Hon. Boddie said that he automatically schedules PC conferences. He said that he finds that lawyers are well-prepared for PCs.
- Hon. Boddie’s Transition to Commercial Division? He said that it has been smooth. He said that unlike other divisions, which have their own discovery parts, in the commercial divisions, the judges handle discovery. He said that discovery takes more of his time. But the advantage is that he is more familiar with the case as he sees the case from beginning to end. He said that it took some time for him to get used to virtual meetings.
- Hon. Boddie said that no attorney has argued a case before him for more than 15 minutes. He said that typically, cases are scheduled for 30 minutes to 1 hour. But for a settlement conference, he leaves the time open-ended.
- New Rule re Corporate Disclosures? Hon. Boddie said that the issue has not been presented to him, and he is not totally familiar with the rule.
- Court Reports for Discovery Motions, Motions to Dismiss, etc. or Recording it via Microsoft Teams or Taking Notes? Hon. Boddie said that he usually doesn’t take notes because he is looking to see what attorneys think of their case and what issues he should focus on before issuing a decision. Usually, he doesn’t have a court reporter. Attorney Mark Berman said that this is important because knowing whether the case is being transcribed can change an attorney’s style. Hon. Boddie said that the important issues are in the papers. He said that if a party asks for a court reporter, he will generally grant it, even though it might slow the case down.
- How Many Motions to Compel Before Sanctions? Hon. Boddie said that if there is a motion to compel brought to be brought in front of him, there will usually be teeth in his order.
- Younger Attorneys, Women, Different Races? Hon. Boddie said that he sees a mixture. Most of the attorneys appearing before him have been out of law school for a significant time. Boddie said that one way to increase diversity is for attorneys who have experience to mentor other attorneys.
- ADR: Hon. Boddie gives them an option – internal ADR, himself, a panel, etc.
- Common Mistakes that Attorneys Make? Hon. Boddie said that the biggest mistake attorneys make is creating bad blood with the opposing counsel. He said that it makes it less likely to settle the case, which makes it difficult for everyone including the court. “I loathe that type of behavior, and I rapidly let the parties know.”