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Practical Considerations for Time Limited Trials
Date: May 1st, 2017    Written by Jessica M. Baquet

The Federal Rules of Civil Procedure authorize judges to “establish[] a reasonable limit on the time allowed to present evidence” at trial.[i] A number of state procedural codes contain similar provisions. While the CPLR does not explicitly authorize the imposition of time limits at trial, section 4011 empowers judges to “regulate the conduct of [a] trial in order to achieve a speedy and unprejudiced disposition of the matters at issue. . . .” Courts interpreting this provision have held that a “trial court has broad discretion to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel and witnesses when necessary”.[ii]


Commercial Division Rule 26 was recently amended to more closely resemble the Federal Rules’ provision for time-limited trials. Amended Rule 26, which will become effective on July 1, 2017, explicitly authorizes judges to limit the total number of trial hours permitted for each party.[iii] It states:


Rule 26. Length of Trial. At least ten days prior to trial or such other time as the court may set, the parties, after considering the expected testimony of and, if necessary, consulting with their witnesses, shall furnish the court with a realistic estimate of the length of the trial. If requested by the Court, the estimate shall also contain a request by each party for the total number of hours which each party believes will be necessary for its direct examination, cross examination, redirect examination, and argument during the trial. The court may rule on the total number of trial hours which the court will permit/or each party. The court in its discretion may extend the total number of trial hours.


Both the Commercial and Federal Litigation Section of the New York State Bar Association and the Commercial Division Advisory Council supported the adoption of the amendment.


Amended Rule 26 adds an arrow to the quiver of Commercial Division judges who are managing congested dockets with limited judicial resources. Despite the fact that CPLR 4011 may already provide statutory authority for time limitations, “such time limits are not generally used now in the Commercial Division.”[iv] It is anticipated that the amendment will encourage judges to take advantage of time limits, and may also eliminate a potential point of contention among litigants as to whether there is authority for the practice. In addition, the amendment will enable judges to provide jurors with estimates of a trial’s duration at the outset, something that jurors consider extremely important.[v]


As time-limited trials are not new to federal courts, there are many practical considerations that can be gleaned from federal case law on the subject. For one, time limits are generally regarded by federal courts as a preferred method for streamlining trials because they “reduce[] the incidence of the judge interfering in strategic decisions.”[vi] This is in contrast to other methods by which judges may regulate a trial’s conduct, including restrictions on the number of witnesses a party may call, or time limits on a particular witness’ testimony.[vii] As one court recognized, “[i]t is for the parties, and not the court, to make the determination about which witnesses are truly necessary and, in addition, how much of each witness’ testimony is necessary.”[viii]


Federal case law also illustrates that a judge’s authority to control the conduct of a trial must be counterbalanced against the right of litigants to put on their cases or defenses. Amended Rule 26 was drafted in a way that ensures both ends can be served. The Rule is not mandatory and may be applied in a given case at the discretion of the court. And, in the first instance, the Rule contemplates that the parties will have input on the length of time required for various phases of the case. The Rule also vests judges with the discretion to extend, but not reduce, previously fixed time limits.


With so much discretion built into Amended Rule 26, judges will be charged with making fact-sensitive inquiries in order to establish time restraints. Several federal cases have considered the factors that a court should weigh when imposing and changing such limits. Generally, federal courts disfavor inflexible time limits and complicated timekeeping methods.[ix] Time limits should be made “on the basis of an informed analysis, including review of proposed witness lists and proffered testimony, exhibits, or estimates of trial time”[x] and in keeping with the overarching principle that probative, non-cumulative evidence cannot be excluded simply because its introduction will cause delay.[xi] Courts should also be willing to accommodate adjustments during the trial where the circumstances warrant them.[xii]


Of course, where discretionary time limits are employed, an appeal will sometimes follow. Here, too, federal cases provide guidance. As those courts have noted, it is critically important for a party to preserve his objection to a time limit by “com[ing] forward with an offer of proof showing how its presentation would be curtailed by and [by demonstrating] prejudice.”[xiii] While raising an objection may seem futile, the right to appeal may be lost without it. These cases also suggest that, to succeed on appeal, a party must show that it was prevented from presenting probative, non-cumulative evidence that may have impacted the ultimate outcome of the case.[xiv]


In sum, Amended Rule 26 will clarify the authority of Commercial Division judges to impose time limits on trials. These restraints will be a useful tool for preventing unnecessarily prolix presentations of evidence before overburdened courts. At the same time, the Amended Rule is flexible and appropriately balances the court’s need to control its docket with the due process rights of litigants. Though practitioners are likely to be uneasy about any rule change, in this instance they should take comfort in the ample body of federal case law that can provide both them and the court with guidance.




This article first appeared in the May 2017 edition of The Suffolk Lawyer and is reprinted with permission.




[i] Fed. R. Civ. P. 16(c)(2)(O) (2017).

[ii] Messinger v. Mount Sinai Med. Ctr.,15 A.D.3d 189, 189 (1st Dep’t 2005) (internal citations omitted) (emphasis added).

[iii] Memorandum dated December 15, 2016 from the Commercial and Federal Section of the New York State Bar Association to the Administrative Board of Courts (“ComFed Memo”) available at (last visited Apr. 17, 2017).

[iv] Memorandum dated January 13, 2017 from the Subcommittee on Procedural Rules to Promote Efficient Case Resolution to the Commercial Division Advisory Council (“CDAC Memo”) available at (last visited Apr. 17, 2017).

[v] Civil Jury Project at NYU School of Law, Fact Sheet: Limiting Length of Trials, available at (last visited Apr. 17, 2017).

[vi] Crowell, Michael, UNC School of Government Administration of Justice Bulletin, Time Limits on Trials(July 2009), available at (last visited Apr. 17, 2017) (citing United States v. Reaves, 636 F. Supp. 1575, 158 (E.D. Ky. 1986)).

[vii] Id.

[viii] Id. (citing Enright v. Auto-Owners Ins. Co., 2 F.Supp.2d 1072, 1074 (N.D. Ind. 1998)).

[ix] Flaminio v. Honda Motor Co.,733 F.2d 463, 473 (7th Cir. 1984)

[x] United States v. Hildebrand,928 F. Supp. 841, 848-49 (N.D. Iowa 1996).

[xi] Johnson v. Ashby,808 F.2d 676, 678 (8th Cir. 1987).

[xii] Id.

[xiii] Evans v. Port Auth.,246 F. Supp. 2d 343, 351 (S.D.N.Y. 2003); see Ashby, 808 F.2d at 678-79.

[xiv] See Evans, 246 F.Supp. 2d at 351.

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