The Administrative Board of the Courts is seeking public comment on a proposal, proffered by the New York State Bar Association (NYSBA) and the New York City Bar Association (City Bar) (Exhibit A – Joint Letter), to amend Section 202.12 of the Uniform Rules to “require attorneys to discuss discovery issues, insurance coverage and ADR with their clients and their adversaries before the preliminary conference” (Exhibit B –Joint Report on Rule 202.12, p. 1). The goal of the rule amendment is to make the preliminary conference process more efficient. If an agreement can be reached prior to the preliminary conference in compliance with the amended rule, then the preliminary conference can be handled by a so-ordered stipulation. Where an agreement is not reached, the Joint Report concludes that the attorneys would, nevertheless, come to a preliminary conference better prepared to discuss such issues if the proposed amendments were adopted. Efficiency and clarity are also promoted through explicitly empowering the Court to require written submissions in advance of a preliminary conference that would present the parties’ views on any disagreements.
The Joint Report notes that 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.” (Ex. B, p. 2.) Instead of eliminating preliminary conferences, the proposed rule attempts to make these conferences more meaningful through an expanded mandatory meet-and-confer process. The Joint Report states that the enhanced attorney preparation and collaboration before a preliminary conference and the active judicial intervention at such conferences (fostered by the rule amendment) will focus and streamline litigation overall. The proposed rule amendment also encourages the use of virtual preliminary conferences. The proposed revisions to the rule are reproduced in Exhibit C.
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Persons wishing to comment on the proposal should e-mail their submissions to rulecomments@nycourts.gov or write to: David Nocenti, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 10th Fl., New York, New York, 10004.
Comments must be received no later than October 31, 2023. All public comments will be treated as available for disclosure under the Freedom of Information Law and are subject to publication by the Office of Court Administration. Issuance of a proposal for public comment should not be interpreted as an endorsement of that proposal by the Unified Court System or the Office of Court Administration.
