Comments from the New York County Lawyers’ Association Matrimonial Law Section Regarding the Proposed Amendment of 22 NYCRR 202.16

May 20, 2013

Comments from the New York County Lawyers’ Association Matrimonial Law Section Regarding the Proposed Amendment of 22 NYCRR § 202.16(g)

The Matrimonial Law Section of the New York County Lawyers’ Association (the “Section”) submits these comments on the proposed amendment to 22 NYCRR § 202.16(g) regarding expert disclosure (“Proposed Rules”).

While the Section favors open and fair trials in all matters, there is no basis provided in the Proposed Rules as to why experts in matrimonial litigation should be treated differently from experts appearing in general civil litigation. The only rationale set forth by the Matrimonial Practice Advisory Committee (“MPAC”) is that the Proposed Rules are “necessary to assure fairness in today’s increasingly complex litigation.” All civil litigation is increasingly complex; this complexity is not limited to matrimonial practice. The Section also has significant concerns with minimizing the burden to depose an expert in matrimonial actions, as seemingly would be the case under the Proposed Rules.

First, the language is unclear as to whether the Proposed Rules present a shift in burdens on parties seeking to depose an expert and whether the burden on financial experts varies from that of custody experts. Paragraph (3) indicates that the party opposing such a deposition “shall raise the objection.” However, it goes on to state that the court will rule upon whether “an expert should be compelled to submit to a pretrial deposition,” seemingly indicating that there is a motion before the court to compel such disclosure made by the party seeking such disclosure. The Proposed Rules then state that an application is required for depositions in custody-related matters. Based on these conflicting paragraphs, it is unclear (1) if the rules are changing the current law regarding expert depositions in matrimonial matters, (2) where the burden lies for such disclosure, and (3) what the proper procedure is for seeking or objecting to such disclosure. The Section recommends that expert depositions be the exception, not the rule, and that the rules be amended to clarify that the burden always lies with the party seeking such depositions. Additionally, it should be the same standard for depositions of custody experts and non-custody experts.

In addition to the Proposed Rules’ ambiguity as to the burden, it seems unjust for the court to create differing standards for custody experts in Supreme Court and Family Court. Since the proposed rules do not apply to the Family Courts, the rules would create two separate standards in two separate courts for the same cases, namely, custody. Such a discrepancy would undoubtedly result in forum shopping with the more monied parent – more able to afford extensive and prolonged litigation and depositions – to choose to litigate custody in Supreme Court and the non-monied parent more likely to choose Family Court. If enacted, the rules must be universal as to experts in both courts.

Along with the conflicting procedures and ambiguity, the Section is especially concerned with the potential for abuse of depositions and the escalating costs of matrimonial litigation should the burden for deposing experts be minimized. Under the current law and rules, depositions of experts in matrimonial matters are a rare event. It is feared that if the Proposed Rules are enacted, deposing an expert will no longer be an exception, but will in fact become the rule for practitioners. While preparing for and conducting depositions are not an issue for wealthier matrimonial litigants, should depositions become regular practice, they will have the inherent effect of prolonging matrimonial litigations and driving up costs, thereby unfairly prejudicing a less monied spouse. More expert fee applications will be necessitated, thereby increasing counsel fees and the work required by the court, which is already overburdened. Furthermore, since it is rarely the case that all expert and attorney fees of the less monied spouse are paid in full even when applications are made to and granted by the court, making depositions more readily available will provide the monied spouse with an additional tool to leverage the less monied spouse into settling matters prior to trial. Such effect would equate to financial coercion, unless the court somehow ensures fees for the less monied spouse are more readily available.

It must also be acknowledged that, in addition to the increasing costs of litigation to the parties, the Proposed Rules would also increase the costs to the State and City governments in cases where 18-B attorneys and forensic evaluators paid for by the government are participating. This should factor into the determination of whether to enact the Proposed Rules, especially in light of the recent court system cut backs and belt tightening.

If, ultimately, the determination is made to enact the Proposed Rules and make depositions more available, there should be strict time limits placed on the duration of such depositions, especially in the case of neutral, court-appointed experts, who will not be able to perform the work they have been ordered to perform by the court if they are engaged in days- long depositions.

The Section, however, does recommend that OCA proceed with one element of the Proposed Rules, namely, requiring more extensive details in reports from retained experts. More complete and detailed reports can only be beneficial to ensuring all relevant facts are brought to light in matrimonial litigation.

For the reasons described above, it is the recommendation of the Section that pretrial depositions of experts remain the exception rather than the rule in New York State. A presumption against expert depositions should, therefore, be maintained, unless a court finds compelling evidence to the contrary.