As recently highlighted by my colleagues, the Commercial Division Advisory Council (“Advisory Council”) has been hard at work striving to implement and amend certain rules and regulations to enhance practice in the Commercial Division. One recent proposal that may catch practitioners’ eyes is the potential addition of Commercial Division Rule 23: a rule designed to govern the filing of amicus curiae briefs.
Amicus curiae or “friend of the court” briefs are used by non-parties, usually in federal appellate cases, who want to assist a court on issues in which they may have an interest. Typically, amicus curiae briefs are allowed if they assist a court in analyzing an issue or argument that a party to the action is not able to fully and adequately present (see 22 NYCRR § 500.23 [a] [4]).
But amicus curiae brief filings in a state trial court, you say? Yes, you read that right. Despite the scarcity of such filings, the Advisory Council’s proposal attempts to introduce Rule 23 “given [the ComDiv’s] docket of sophisticated and often far-reaching commercial and business litigation.”
The proposed rule strives to replicate federal practice, where, and noted above, amicus curiae briefs are widely recognized and governed by specific rules. The Advisory Council seeks to divert from other trial courts, where “amicus filings generally are not guided by rule.” Instead, practitioners are left to the individual judge’s rules or practices to determine how and under what circumstances to file an amicus curiae brief. The lack of universal guidance has led to amicus curiae briefs being very rarely used and analyzed on the trial-court level (see Inner Harbour Phase I, L.P. v COR Inner Co., LLC, et al., 73 Misc3d 1218(A) [Sup Ct, Onondaga County 2021] [discussing the rarity of amicus curiae briefs at the trial level]).
Few and far between? No problem. The Advisory Council was not deterred by the fact that this rule might be rarely used:
“But that does not mean cases of great importance, impacting non-parties, are that rare, or that it makes sense for trial courts to not provide guidance to non-parties wishing to submit an amicus brief.”
By ushering in this rule, the Advisory Council believes that the ComDiv will continue to distinguish itself “as a leading innovative court for resolving significant litigation.” And more importantly, the Advisory Council believes this rule will provide long overdue guidance to interested non-parties wishing to act as a “friend of the court” – potentially even inspiring other trial courts to follow.
You can check out the proposed rule here. Public comments to the proposal are due by Friday, February 7, 2025 – by email to rulecomments@nycourts.gov or by a written submission to David Nocenti, Esq., Counsel, Office of Court Administration, 25 Beaver Street, 10th FL, New York, New York, 10004.