PART IV Pretrial, Trial, and Posttrial CHAPTER 14 Settlements, Dismissals, and Alternative Dispute Resolution KEY POINTS A stipulation discontinuing action is executed by the attorneys for the parties and filed with the clerk of the court. A party asserting a claim may discontinue a lawsuit by serving upon all parties a notice of a discontinuance. When a party unreasonably neglects to proceed, delays in the prosecution, or fails to serve and file a note of issue, the court, on its own or by motion, may dismiss the party s pleadings. Attorneys must keep copies of records showing disbursement to clients for seven years. DISMISSALS, CONSENT DECREES, AND DISTRIBUTION OF FUNDS ORDER FOR DISMISSAL Any party asserting a claim may discontinue it without an order. In New York, a stipulation discontinuing action is executed by the attorneys for the parties and filed with the County Clerk (CPLR 2104 and CPLR 3217). COURT-ORDERED INVOLUNTARY DISMISSAL When a party unreasonably neglects to proceed in an action, delays in the prosecution, or fails to serve and file a note of issue, the court, on its own or by motion, may dismiss the party s pleading (CPLR 3216(a)). This is subject to conditions outlined at CPLR 3216 (b). STIPULATED DISMISSALS Class actions require approval of the court for dismissal (CPLR 908). VOLUNTARY DISMISSAL OR NOTICE A party asserting a claim may discontinue a lawsuit by serving all parties a notice of discontinuance any time before a responsive pleading is served or within twenty (20) days after service of the pleading asserting the claim, whichever comes first (CPLR 3217(a)). A notice or stipulation of discontinuance is usually without prejudice unless it meets certain requirements (CPLR 3217(c)). CONSENT DECREES See CPLR 3217 for voluntary discontinuance. Consent decrees may be allowed (a) without an order, or (b) by order of court. INFANT S AND INCOMPETENT S COMPROMISE The settlement of a claim by an infant or incompetent requires a court order (CPLR 1207 et seq.). If there is a lawsuit filed, the infant s attorney will file a motion. If no action was filed, the attorney can commence a special proceeding. 55 18429_NY_04_Part4_p055-064.indd 55 7/7/08 10:39:12 AM
56 PART IV Pretrial, Trial, and Posttrial CONFESSION OF JUDGMENT A judgment by confession may be entered, without an action either for money due or to become due, or to protect the plaintiff against a contingent liability in behalf of the defendant, or both, on an affidavit executed by the defendant (CPLR 3218). DISTRIBUTION OF SETTLEMENT FUNDS Prompt payment of settlement funds is governed by CPLR 5003-a. If the settlement requires judicial approval, the plaintiff must supply to the court a copy of the order approving settlement, executed release, and stipulation discontinuing the action (CPLR 5003-a(d)). Funds belonging to a client must be kept in a separate trust account and cannot be commingled with the funds of the attorney. Records of such deposits and withdrawals on behalf of the client shall be maintained for seven years, as well as copies of all retainers, compensation agreements, bills and receipts regarding payment. Retainers and closing statements filed with the office of court administration must also be retained for seven years. See PDR 1200.46, 22 NYCRR 1200.46, DR 9-102. THE PROFESSIONAL DISCIPLINARY RULES. An attorney is required in New York to maintain for seven years copies of all statements to clients showing disbursement of funds and copies of all closing statements filed with the office of court administration. (It is to be noted that not all departments in New York require that closing statements be filed with the office of court administration.) Your local court rules must be consulted here. See <http://www.courts.state.ny.us>. ALTERNATIVE DISPUTE RESOLUTION In certain circumstances, parties can agree to have their disputes settled by arbitration based on a written agreement. Arbitration agreements are governed by Article 75 of the CPLR. Health Care arbitrations are governed by Article 75-A. As claims up to $6,000 (excluding interest), the Chief Judge of the Court of Appeals has authority to promulgate rules for the arbitration of such claims pending in any court or courts (up to $10,000 pending in the civil court of the City of New York). See CPLR 3405. 18429_NY_04_Part4_p055-064.indd 56 7/7/08 10:39:12 AM
CHAPTER 14 Settlements, Dismissals, and Alternative Dispute Resolution 57 Exhibit 14-1 Stipulation of Settlement Short Form. Form can be found at <http://www.nycourts.gov> and it should be checked before use as the form is subject to change. 18429_NY_04_Part4_p055-064.indd 57 7/7/08 10:39:13 AM
58 PART IV Pretrial, Trial, and Posttrial Exhibit 14-2 Stipulation of Settlement and Affidavit Upon Default. Form can be found at <http://www.nycourts.gov> and it should be checked before use as the form is subject to change. 18429_NY_04_Part4_p055-064.indd 58 7/7/08 10:39:14 AM
CHAPTER 15 Trial Techniques 59 CHAPTER 15 Trial Techniques KEY POINTS Before trial, leave of court is needed to amend pleadings or supplement them with additional or subsequent transactions, unless the parties so stipulate to the changes. Parties may submit to the Court specific requests for jury charges. A subpoena is needed to compel witnesses to attend a trial if the witness is confined in a penitentiary or jail. Where certified transcripts or copies of documents are admissible in court in lieu of originals, a subpoena is required to compel production of original records. Libraries, departments, or bureaus of municipal corporations or of the state, or officers thereof, must be served with a subpoena duces tecum to compel the production of books, papers, and things, at trial. Subpoenas are served in the same manner as a summons. If subpoenaed, a person shall be paid travel expenses and a witness fee. PRELIMINARY PREPARATION FOR TRIAL AMENDING THE PLEADINGS A party may amend his or her pleadings or supplement them by setting forth additional or subsequent transactions or occurrences by leave of court or by stipulation of all parties (CPLR 3025(b)). Amendments are permitted once without leave of court within twenty (20) days after service of a pleading, or before the period for responding to it expires, or within twenty (20) days after service of a pleading responding to it (CPLR 3025(a)). Responses to amended or supplemental pleadings are governed by CPLR 3025(d). PREPARATION OF WITNESSES SUBPOENA OF WITNESSES Article 23 of the CPLR covers service of subpoenas. There is no official form for a subpoena. A subpoena issued by the court is needed to compel the attendance of any person confined in a penitentiary or jail, or to compel the production of original records or documents where certified transcripts or copies are admissible in evidence (CPLR 2302(b)). CPLR 2302 also covers subpoenas that are not issued by the court. Where a subpoena duces tecum is to be served upon a library, a department or bureau of a municipal corporation or of the state, or upon an officer thereof, requiring the production of books, papers, or other things, it shall be issued by the Court (CPLR 2307). This means it will be prepared by a party s attorney, but signed by the trial judge. Subpoenas in New York must be served in the same manner as a summons. Any person subpoenaed shall be paid or rendered in advance authorized travel expenses and one-day witness fee (CPLR 2303). The subpoena may show the date(s) of attendance and any recessed or adjourned date. Persons who have been subpoenaed may demand fees for their next day appearance and if they are not paid, the person is considered discharged (CPLR 2305). 18429_NY_04_Part4_p055-064.indd 59 7/7/08 10:39:19 AM
60 PART IV Pretrial, Trial, and Posttrial THE JURY PROCESS The right to a jury trial is granted by CPLR 4101. JURY REQUEST Trial by the court(bench trial) is covered in Article 42 of the CPLR and trial by jury is governed by Article 41 of the CPLR. A party may demand a trial by jury of any issue of fact triable of right by jury, by checking the box labelled jury demand, when they file a Note of Issue. The opposing party can also demand a jury trial if the Note of Issue did not include this demand (CPLR 4102(a)). A party may specify the issues to be tried by the jury (CPLR 4102(b)). NUMBER OF JURORS A civil jury shall be composed of six persons (CPLR 4104). Unless the court directs otherwise, one or two additional jurors known as alternate jurors may be drawn (CPLR 4106). Also see <http://www.nyjuror.gov>. PEREMPTORY CHALLENGES. Each party shall have three peremptory challenges, plus one peremptory challenge for each alternate juror (CPLR 4109). The challenge for cause and corresponding reasons to disqualify a juror can be found in CPLR 4110. DISAGREEMENT BY JURY A unanimous verdict is not required. A verdict may be rendered by five-sixths of the jurors (CPLR 4113). If fivesixths of the jurors cannot reach a verdict, the court shall direct a new trial with a new jury (CPLR 4113(b)). VOIR DIRE The Unified Court System of New York (UCS) has rules governing civil voir dire to make the jury selection process more efficient. The trial judge may preside at the commencement of voir dire, and with discretion remain at all or part of the remainder of jury selection, and even select the method of jury selection. Either White s method, the Struck method, or the Strike and Replace method may be selected by the judge. See N.Y. Court Rules. Many more people are now eligible for jury duty. The jury exemptions is the past for doctors, lawyers, judges, journalists, nurses, embalmers, police officers, fire fighters, and clergy have all been removed, greatly enlarging the potential pool of prospective jurors. JURY INSTRUCTIONS Parties may file written requests that the court instruct the jury on the law as set forth in the requests (CPLR 4110-b). The court may direct a general verdict, where the jury decides in favor of either party; or a special verdict, where the jury makes a finding of facts and the court makes the final judgment (CPLR 4111(a)). The court may also require written answers to interrogatories in a general verdict (CPLR 4111(c)). There may be an itemized verdict in medical, podiatric, and dental malpractice cases (CPLR 4111(d)). TRIAL LAWYERS See <http://www.nysba.org> for articles and resources concerning court trials. 18429_NY_04_Part4_p055-064.indd 60 7/7/08 10:39:19 AM
CHAPTER 15 Trial Techniques 61 Exhibit 15-1 Application for Subpoena. Form can be found at <http://www.nycourts.gov> and it should be checked before use as the form is subject to change. 18429_NY_04_Part4_p055-064.indd 61 7/7/08 10:39:19 AM
62 PART IV Pretrial, Trial, and Posttrial CHAPTER 16 Posttrial Practice KEY POINTS A party may move for a directed verdict after the close of evidence presented by the opposing party. After trial, a party may move for a judgment notwithstanding the verdict. A motion for a new trial must be made to the same judge who presided over the trial and within fifteen (15) days after decision, verdict, or discharge of the jury. Appeals may be made to the Appellate Division, the Appellate Term of the Supreme Court (in the First and Second Departments only), and in some instances to the Court of Appeals. An appeal as of right must be taken within thirty (30) days after service of a copy of the judgment or order appealed from. The CPLR covers appeals in general, but appellate rules for your department must be consulted prior to the taking of an appeal, as they vary from department to department. POSTTRIAL MOTIONS MOTION FOR A DIRECTED VERDICT Any party in New York may move for judgment with respect to a cause of action or issue on the ground that the moving party is entitled to judgment as a matter of law, after the close of evidence presented by an opposing party or at any time, on the basis of admissions (CPLR 4401). Motion for a judgment as a matter of law for a medical malpractice action is guided by CPLR 4401-a. MOTION FOR A NEW TRIAL Motion for a new trial is based on CPLR 4402 and 4403. Motions to the judge who presided must be made within fifteen (15) days after decision, verdict, or discharge of the jury (CPLR 4405). MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT After trial, the court may set aside a verdict or order a new trial (CPLR 4404). PRELIMINARY STEPS IN THE APPEAL The subject of appeals is generally addressed in Article 55 of the CPLR. An appeal of right must be taken within thirty (30) days after service upon the appellant of a copy of the judgment or order appealed from and written notice of its entry (CPLR 5513). To preserve its right to appeal, the party files and serves a notice of appeal (PLR 5515). For the court rules for the Court of Appeals and for the Appellate Division see Articles 56 and 57 of the CPLR. See <http://www.nycourts.gov/ctapps> for the steps in filing an appeal with the New York Court of Appeals. Additional papers and requirements for filing with the Court of Appeals can be found at N.Y. Court Rules 500.1. The Court of Appeals will accept the submission of companion briefs and accompanying records on CD-ROM if all parties consent to this type of filing. See N.Y. Court Rules 500.2. The steps in an appeal to the Appellate Division can be found at Article 57 of the CPLR and at <http://www.nycourts.gov/courts>. SUPERSEDEAS BOND In New York, this term is not used; see CPLR 5519 for stay of enforcement. Appeals to the Court of Appeals are governed by article 56 of the CPLR, whereas Article 57 of the CPLR covers appeals to the Appellate Division. It is to 18429_NY_04_Part4_p055-064.indd 62 7/7/08 10:39:21 AM
CHAPTER 16 Posttrial Practice 63 be noted that the Appellate Divisions in each department may have different and special rules and procedures for filing records and briefs, and should be consulted before preparing an appeal (CPLR 5530(c)). These rules of the Appellate Division take precedence over the rules set forth in the CPLR, therefore, your local court rules must be consulted before each and every step in the appeals process. THE APPELLATE BRIEF APPELLANT, APPELLEE, AND REPLY BRIEFS Apart from the rules set forth by the Court of Appeals and the Appellate Division, the contents of the Appellant s brief should contain the following: (1) table of contents (2) concise statement of the questions involved with the corresponding answers by the lower court (3) concise statement of the nature of the case and facts (4) argument(s) by the appellant and (5) an appendix containing parts of the record on appeal that are necessary to consider the questions involved (CPLR 5528(a)). The Respondent s brief is similar to the Appellant s brief (CPLR 5528(b)). The content and form of the record on appeal is guided by appellate court rules (CPLR 5526). FINAL PROCEDURES POSTTRIAL JUDGMENT PROCEDURES The general procedures for the enforcement of judgments can be found in Article 51 of the CPLR. 18429_NY_04_Part4_p055-064.indd 63 7/7/08 10:39:21 AM
64 PART IV Pretrial, Trial, and Posttrial Exhibit 16-1 Notice of Appeal. Form can be found at <http://www.nycourts.gov> and it should be checked before use as the form is subject to change. 18429_NY_04_Part4_p055-064.indd 64 7/7/08 10:39:21 AM