TRIAL BY AFFIDAVIT

"Effective July 1, 2022, section 202.20 of the Uniform Rules for the New York State Trial Courts was revised to provide for the direct testimony by affidavit upon the request of a party in a bench trial or evidentiary hearing. On January 23, 2023, the Chief Administrative Judge of the Court issued an Administrative Order creating four 18-month pilot projects in the use of prepared direct testimony in the form of an affidavit in lieu of live direct testimony in contested matrimonial actions. The Administrative Judge for the Civil Branch of the First Judicial District, the Administrative Judge for the Third Judicial District, the Administrative Judge for the Eighth Judicial District and the Administrative Judge for the Ninth Judicial District were authorized to designate one of their parts for the pilot project and then adopt and, if necessary, amend a set of procedures to be implemented in those designated parts which are in accordance with the description provided in Attachment A. (The January 23, 2023 Administrative Order and its Attachment A are attached). Following the disposition in custody or visitation matters using one or more affidavits in lieu of live direct testimony, the parties, their counsel and any attorney for the children are to complete a survey assessing their satisfaction (or dissatisfaction) and those surveys will be used to present a report in the aggregate. 

Pursuant to the Administrative Order, the pilot project applies to all matrimonial actions, including those involving custody, visitation and parenting time, but proceedings for an order of protection and exclusive occupancy are expressly excluded. 

For affidavits in lieu of live direct testimony to be used in custody and visitation matters, all parties must be represented by counsel, all parties and their counsel must consent, and there cannot be any pending orders of protection. The affidavits must be in numbered question/answer format (similar to a deposition or trial transcript) and the opposing party has the opportunity to submit objections thereto. After conferences among counsel to hopefully resolve pending objections, a final redlined written direct testimony affidavit (in numbered question/answer format) is to be uploaded in advance of trial, so that any remaining objections can be ruled upon by the court on the record before or, if appropriate, during the trial.

The pilot program is designed to potentially streamline the presentation of evidence, ease calendar congestion, reduce litigation costs and promote settlement. The substance of a particular affidavit must be predicated on that witness' personal knowledge but, in the case of an expert witness, it may include appropriate opinion testimony and their credentials. Exhibits may be referred to and appended to the
direct testimony of a witness if the exhibits have been duly authenticated or if on consent.

CPLR 4011 provides trial judges with wide latitude and discretion as to trial procedure "in order to achieve a speedy and unprejudiced disposition of the matter at issue in a setting of proper decorum." Judges who have implemented affidavits in lieu of live direct testimony applaud its use because of it shortens the length of bench trials, rejecting concerns that a party's attorney essentially "testifies" for his
client by preparing the affidavit to be submitted. See, Campaign For Fiscal Equity v. State of New York, 182 Misc.2d 676, 699 N.Y.S.2d 663 (Sup.Ct. New York Co. 1999)

Judges in the commercial division have been authorized by Rule 32-a of the Rules of the Commercial Division since 2016 to require a party in bench trials to submit the direct testimony in affidavit form if the witness is under that party's control. Submission of direct testimony by affidavit does not affect the rights to cross-examination and redirect. Judge Timothy S. Driscoll, a proponent of granting judges the discretion to direct the use of direct testimony by affidavit in conjunction with the discretion to limit the number of trial hours explained how his use of these tools has increased the efficiency of the courts, allowed witnesses more assurance as to the precise date when they will be required to appear, permitted counsel to better manage their cases and encouraged litigators to eliminate extraneous issues. (See Judge Driscoll's July 2017 article from Business Law Today attached hereto) 

During the pandemic, when virtual trial time was extremely limited, Judge Chesler addressed the constraints on trial time in a custody modification hearing by directing the parties to submit their direct testimony in affidavit, exchange proposed exhibits in advance of trial, and by advising the attorneys in advance of the number of virtual trial hours that would be available for the hearing. In response to the attorneys' objections in their written summations to the procedures implemented, Judge Chesler cited CPLR 4011 as providing her the discretion to fashion "innovative procedures" to meet the challenges posed by the pandemic. In the decision in Lynch v. Lynch, 71 Misc.3d 1206(A), 142 N.Y.S.3d 925 (Fam.Ct. Bronx Co. 2021 ), Judge Chesler stressed that the direction to submit direct testimony in prepared affidavits and setting time limits for cross-examination were authorized by CPLR 4011 and did not deprive the parties of due process. 

Judge Douglas E. Hoffman, who presides over one of the pilot projects and is a strong proponent of the use of prepared direct examination of witnesses by affidavit, has established a set of procedures to be followed in appropriate actions where each party has consented to written direct testimony of one or more witnesses. Judge Hoffman urges parties to meaningfully discuss the use of what he refers to as a "valuable litigation tool" and, if they consent, deadlines are set for the submissions of numbered question/answers for each witness. The affidavits are to be limited to 50 pages for parties and 15 pages for non-party witnesses, unless otherwise directed by the court. Opposing parties may file written objections to the admissibility of the prepared direct and the court may rule on those objections prior to trial or by written decision or orally from the bench before or during trial."