Evidence: Trial Manual 2020 | Page 2

Evidence Trial Manual 2020

Evidence: A Courtroom Manual is exactly what its title suggests: A manual designed for rapid courtroom reference of frequently encountered evidentiary issues that you are likely to face in your family law trials. Unlike our more elaborate and scholarly seminar course books, the Courtroom Manual is terse (under 200 pages) and to the point. It gives you the citation you need and a digest of the decision so that you can readily cite authority for your objections and evidentiary positions. The Table of Contents gives you a glimpse as to the scope of its coverage:

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Chapter 1 GENERAL EVIDENTIARY PRINCIPLES I. RELEVANCY 1 II. REBUTTAL EVIDENCE 1 IIi. ATTORNEY’S AFFIRMATION 2 IV TRIAL RULINGS – APPEALABILITY 2 V. HARMLESS ERROR 2 VI. SPECIFIC OBJECTION 2 VI. GENERAL OBJECTION 2 VIII. COMPETENCY 2 IX.. PREPONDORANCE OF THE EVIDENCE 3 X. CLEAR AND CONVINCING EVIDENCE 3 XI. COMPLETION EVIDENCE 4 XII. SUBJECT TO CONNECTION 4 XIII. PARTIES CAN CHART THEIR OWN COURSE 4 XIV. PRIVILEGE – STATEMENT MADE DURING JUDICIAL or QUASI-JUDICIAL PROCEEDING 4 XV. TESTIMONY BY ELECTRONIC MEANS 5 Chapter 2 BURDEN OF PROOF ISSUES I. NECESSITY TO VALUE 6 II. VALUATION - DETERMINATION OF FACT-FINDER 6 III. EQUITABLE DISTRIBUTION – BURDEN 6 IV. INDIRECT OR LESSER BURDEN TO VALUE 8 V. CLASSIFICATION 9 VI. TRACING SEPARATE PROPERTY 10 VII. COMMINGLING ASSETS 12 VIII. COMMINGLING – CORPUS V. INCOME 12 IX. PROVING SEPARATE PROPERTY BY NO MARITAL SOURCE 13 X. TRUSTS 14 XI. APPRECIATION OF SEPARATE PROPERTY – DOUBLE BURDEN 15 XII. TRANSMUTATION 15 XIII. “DOUBLE COUNTING” 15 XIV. BURDEN OF PROOF - DEFERRED COMPENSATION V. PERSONAL INJURIES 16 XV. CONTEMPT OF COURT - POWERS, 86 NY2D 63, 629 NYS2D 984 (1985) 16 XVI. GIFT TO BOTH PARTIES 17 XVII. GIFT TO ONE PARTY 18 XVIII. NEGLECT 18 XIX. OTHER AREAS 19 Chapter 3 OPINION TESTMONY BY LAY PERSON I. GENERAL RULE 26 II. DRUG EFFETCS 26 III. DISABILITY; MEDICAL CONDITION 26 IV. IDENTIFICATION 27 V. EXAMPLES OF OPINIONS BY LAY WITNESSES 28 VI. HANDWRITING 28 VII. VALUATION – EXCEPTION 29 VIII. APPLICATION TO EQUITABLE DISTRIBUTION CASES 29 Chapter 4 WITNESS-PROOF AND PRESUMPTIONS I. CREDIBILITY 30 II. WEIGHT OF TESTIMONY - FAILURE TO CONTRADICT 30 III. FAILURE TO CALL WITNESSES OR PRODUCE EVIDENCE - ADVERSE INFERENCES 30 IV. MISSING WITNESS RULE 31 V. FAILURE TO TESTIFY 33 VI. FAILURE TO DISCLOSE 34 VII. INFERENCES FROM PAUCITY OF INFORMATION 35 VIII. FAILURE TO PRODUCE FOR INSPECTION/VALUATION 35 IX. INFERENCES IN FACE OF INCREDIBLE TESTIMONY 35 X. IMPUTATION OF INCOME 36 Chapter 5 POWERS AND LIMITATIONS OF COURT I. DISCRETIONARY POWERS OF TRIAL COURT 38 II. ORDER OF INTRODUCING EVIDENCE AND WITNESSES 38 III. REJECTION OF RELEVANT TESTIMONY 39 IV. INTERESTED WITNESSES 39 V. RECEIPT OF INADMISSIBLE TESTIMONY 39 VI. ADJOURNMENT OF TRIAL 39 VII. EXCLUSION OF WITNESSES 40 VIII. EXAMINATION OF WITNESSES 40 IX. EXCESSIVE HELP TO ONE SIDE 41 X. ATTORNEY FOR CHILD; IMPROPER RULE 41 XI. CALLING OWN WITNESS 42 XII. iNDEPENDENT FACT RESEARCH 42 XIII. FACT WITNESS COMPENSATION 43 XIV. TRIAL RULINGS - APPEALABILITY 43 XV. APPOINTMENT OF APPRAISER 43 XVII. MOTIONS IN LIMINE 44 XVII. FORENSIC REPORT 45 XVIII. FORMAL EXCEPTIONS 46 XIX. LAW OF THE CASE 46 XX. CONSIDERATION OF DOMESTIC VIOLENCE 47 XXI. MARITAL FAULT 48 XXII. SPOILATION 49 XXIV. SPOILATION OF EVIDENCE; PRECLUSION OF TESTIMONY 49 XXIV. SEALING OF RECORDS 49 XXV. CLOSING COURTROOM 49 XXVI. COUNSEL NOT TO SPEAK TO WITNESS 50 XXVII. EXCLUDE EVIDENCE ADMITTED BY STIPULATION 50 XXVIII. PARTIES CHART OWN COURSE……………………………………………………………………………………………… 50 XXIX. IMMUNITY 50 Chapter 6 DIRECT-EXAMINATION OF WITNESSES I. LEADING QUESTIONS 52 II. REFRESHING WITNESS’S RECOLLECTION 53 III. DIFFERENCE WITH PAST RECOLLECTION RECORDED 55 IV. PAST RECOLLECTION RECORDED 55 V. OFFER OF PROOF 57 VI. CUSTOM AND USAGE OF TESTIMONY 57 VII. DEMONSTRATIVE EVIDENCE 57 VIII. MARKET REPORTS - CPLR 4533 58 Chapter 7 CROSS-EXAMINATION - MODES OF IMPEACHMENT - GENERAL I. SCOPE OF CROSS EXAMINATION 59 II. MODES OF IMPEACHMENT – GENERAL 59 III. COLLATERAL EVIDENCE RULE 60 IV. INTERPLAY OF COLLATERAL EVIDENCE RULE AND CROSS EXAMINATION OF PRIOR BAD ACTS 61 V. INCOMPLETE CROSS EXAMINATION 62 VI. PRIOR CRIMINAL, IMMORAL OR VICIOUS ACTS 62 VII. IMPEACHING REGARDING A DISCIPLINARY ADJUDICATION 64 VIII. CRIMINAL CONVICTION 65 IX. BIAS, HOSTILITY, INTEREST 65 X. WITNESS HOSTILE TO PARTY 66 XI. PREDISPOSITION 66 XII. REPUTATION FOR TRUTH AND VERACITY 66 XIII. CHARACTER EVIDENCE – CIVIL CASE 67 XIV. OPINION TESTIMONY IMPERMISSIBLE 67 XV. REPUTATION RE: OTHER CHARACTER TRAITS 67 XVI. PRIOR INCONSISTENT STATEMENT 68 XVII. REHABILITATION BY SHOWING PRIOR CONSISTENT STATEMENT 71 XVIII. READING FROM DEPOSITION OF ADVERSE PARTY 72 XIX. ACCESS TO GRAND JURY MINUETS FOR USE IN CIVIL PROCEEDING 74 XX. CREDIBILITY 74 Chapter 8 SPOUSAL TESTIMONY I. STATUES – CPLR 4502, 4512 76 II. INCOMPETENCY - CPLR 4502(a) 76 III. SPOUSAL PRIVILEGE - CPLR 4502(b) 77 IV. PUBLIC POLICY EXCEPTION 79 V. NEW MEXICO – ABOLISHMENT OF PRIVILEGE 79 Chapter 9 PRIVILEGE AGAINST SELF-INCRIMINATION I. STATUTORY PROVISIONS 75 II. NATURE AND SCOPE OF PRIVILEGE 75 III. PROCEDURE 76 IV. EFFECT IN CIVIL CASES………………………………………………………………………………………………………………….,81 V. INVOCATION BY NONPARTY WITNESS………………………………………………………………………..…………………82 VI. PENDENCY OF CRIMINAL CASE 83 VII. TESTIMONIAL AND DOCUMENTARY EVIDENCE; PHYSICAL EVIDENCE 83 VIII. CORPORATE RECORDS 83 IX.. FACTUAL PREDICATE 84 X. ADULTERY 84 XI. RUNNING OF STATUE OF LIMITATIONS 85 XII. COMPULSION 86 XIII. WAIVER OF FIFTH AMENDMENT PRIVILEGE 86 Chapter 10 ATTORNEY - CLIENT PRIVILEGE I. POLICIY OF PRIVILEGE 88 II. WHO MAY ASSERT THE PRIVILEGE 88 III. DURATION OF PRIVILEGE 88 IV. ELEMENTS OF PRIVILEGE - ESTABLISHMENT OF ATTORNEY-CLIENT RELATIONSHIP 89 V. TO WHOM THE PRIVILEGE EXTENDS 90 VI. AGENT OF CLIENT 91 VII. ATTORNEY NOT ACTING IN THE CAPACITY OF ATTORNEY 91 VIII. WHAT CONSTITUES AN "ATTORNEY" FOR PURPOSE OF PRIVILEGE 92 IX. ELEMENT OF PRIVILEGE - CONFIDENTIAL COMMUNICATION 92 X. PRESENCE OF THIRD PARTY 92 XI. EXCEPTION-COMMON INTEREST DOCTRINE 93 XII. DUAL REPRESENTATION …………………………………………………………………………………………………………..…94 XIII. FIDUCIARY EXCEPTION…………………………………………………………………………………………………………….….94 XIV. EXCEPTION – PROBATE CONTESTS 94 XV. EXCEPTION – INTRA-LAW FIRM PRIVILEGE 94 XVI. CRIME-FRAUD EXCEPTION 95 XVII. E- MAILS – NO REASONABLE EXPECTATION OF PRIVACY 95 XVIII. BURDEN 95 XIX. WAIVER OF PRIVILEGE 90 XX. PLACING CONFIDENTIAL COMMUNICATION IN ISSUE 96 XXI. INADVERTENT DISCLOSURE 96 XXII. SCOPE OF PRIVILEGE 97 XXIII SUIT AGAINST CLIENT 98 XXIV. NAME AND ADDRESS OF CLIENT 98 XXV. PUBLIC POLICY EXCEPTION 98 XXVI. PRIVILEGE NOT APPLICABLE 99 XXVII. TESTIFYING AGAINST CLIENT 100 XXVIII. BREACH OF PRIVILEGE 100 XXIX.WORK PRODUCT DOCTRINE DISTINGUISHED 101 XXXI. PRIVATE INVESTIGATORS RECORDS 102 XXXI. MULTI-MOTIVATED REPORTS 103 XXXII. E-MAILS; PRIVILEGE LOG 103 XXXIII. CARELESSNESS OF CUSTODIANSHIP 104 XXXIV. DEPOSITION OF OPPOSING COUNSEL 104 XXXV. ATTORNEY’S STATEMENTS –QUALIFIED PRIVILEGE 104 Chapter 11 PHYSICIAN - PATIENT PRIVILEGE I. STATUE – CPLR 4504 105 II. PURPOSES 105 III. ASPECTS OF THE PRIVILEGE 106 IV. DIAGNOSIS FOR TREATMENT 107 V. "IN CONTROVERSY" (CPLR 3121(A)) 107 VI. WAIVER 108 VII. MEDICAID INVESTIGATIONS 109 VIII. CONTESTED CUSTODY CASES 110 IX. ARTICLE 10 ABUSE AND NEGLECT CASES 110 X. CHILD-THERAPIST COMMUNICATION 111 XI. TARASOFF EXCEPTION 111 XII. RELEASE OF CHILD’S THERAPY RECORDS – PRIVILEGE 111 XIII. DRUG ABUSE AND ALCOHOLISM RECORDS 112 XIV. DRUG TESTING 114 XV. CAUSE OF ACTION FOR BREACH OF PRIVILEGE 114 XVI. HIPAA (Health Insurance Portability and Accountability Act of 1996) 115 Chapter 12 PSYCHOLOGIST - CLIENT PRIVILEGE I. CPLR 4507 116 III. CASES 116 Chapter 13 RAPE CRISIS COUNSELOR - CLIENT PRIVILEGE I. CPLR §4510; RAPE CRISIS COUNSELOR 117 II. CONFIDENTIAL INFORMATION PRIVILEGED 117 III. WHO MAY WAIVE THE PRIVILEGE 118 Chapter 14 EXPERT TESTIMONY I. ADMISSIBILITY OF EXPERT TESTIMONY 119 II. RIGHT TO CONFRONT EXPERT 120 III. STANDARD OF ADMISSIBILITY 120 IV. PRECLUSION OF EXPERT TESTIMONY 121 V. EXPERT TESTIMONY NOT NECESSARY 122 VI. DUAL CAPACITY 123 VII. QUALIFICATION OF EXPERT WITNESS 123 VIII. VALUATION TESTIMONY 124 IX. PARTY AS OWN EXPERT WITNESS 125 X. DEGREE OF CERTAINTY 126 XI. BASES OF EXPERT OPINION 127 XII. PROFESSIONALLY RELIABLE HEARSAY - EXCEPTION 128 XIII. COLLATERAL SOURCES 131 XIV. LIMITATIONS AND PROVISOS RE: PROFESSIONALLY RELIABLE HEARSAY 132 XV. PROFESSIONAL RELIABILITY TEST V. RIGHT OF CONFRONTATION 133 XVI. BASIS HEARSAY – REPEATED TO TRIER OF FACT 134 XVII. REPORT FROM SEPARATE REPORT 135 XVIII.ARTICLE 10 PROCEEDING 135 XIX. FORM OF EXPERT OPINION - HYPOTHETICAL QUESTIONS 136 XX. WEIGHT OF EXPERT TESTIMONY 137 XXI. IMPEACHMENT OF EXPERT WITNESS 137 XXII. SPECIAL MODE OF IMPEACHMENT – BY TREATISE 137 XXIII. OTHER USE OF MEDICAL LITERATURE 139 XXIV. COMPULSION OF EXPERT TESTIMONY 139 XXV. COURT-APPOINTED EXPERTS 140 XXVI. EXCHANGE OF EXPERT REPORTS 140 XXVII. ATTORNEY CONTACT WITH COURT-APPOINTED EXPERT 141 XXVIII. EXPERT TESTIMONY ON PARTICULAR ISSUES 141 XXIX. SYNDROMES 142 XXX. BUSINESS VALUATION 146 XXXI. ACTURIAL TESTIMONY 147 XXXII. INTOXICATION 148 XXXIII. SCIENTIFIC EVIDENCE 148 Chapter 15 PSYCHIATRIC REPORTS AND TESTIMONY I. HEARSAY 153 II. ADMISSIBILITY 153 III. AID TO COURT 154 IV. NOT TOTAL RELIANCE 154 V. NOT IN EVERY CASE 156 VI. DISCRETION OF COURT 156 VII. FAILURE TO SUBMIT 157 VIII. PRO SE LITIGANT 157 IX. MAKING REPORT AVAILABLE; NOTES AND TEST RESULTS 158 X. THE ISSUE OF MAKING RECOMMENDATIONS 159 XI. "ONE-SIDED" PSYCHIATRIC OR PSYCHOLOGICAL INTERVIEWS 160 XII. USE OF PSYCHIATRIC AND PSYCHOLOGICAL REPORTS 161 XIII. NATURE OF REPORT 162 XIV. IMPERMISSIBLE USE OF ATTORNEY FOR CHILD 162 XV. ADMISSIBILITY OF REPORT OF COURT-APPOINTED EXPERT 163 XVI. POST-HEARING REPORT 164 XVII. COURT APPOINTED EXPERT - RECUSAL 164 XVIII. NON-CUSTODY CASES - PRESERVATION OF PRIVILEGE 164 XIX. CHILD PROTECTIVE SERVICE REPORT – UNFOUNDED ALLEGATIONS…………………………………… 165 XXX. BIAS OF EXAMINER 165 Chapter 16 IN-CAMERA INTERVIEW WITH CHILD I. AUTHORIZATION 167 II. ASPECTS OF INTERVIEW 167 III. THREE METHODS OF CONDUCTING INTERVIEw 169 IV. ADVERSE INFORMATION 169 V. CHILD WITNESS OVER 18 YEARS OF AGE 169 VI. BENEFIT OF LINCOLN HEARING 170 VII. PURPOSE OF LINCOLN HEARING 170 Chapter 17 CHILD AS WITNESS 1. POLICY ARGUMENT AGAINST TESTIMONY 171 II. RIGHT TO CALL A CHILD 171 III. OATH - CIVIL CASES 173 IV. NEGLECT CASE 173 V. HEARSAY STATEMENTS OF CHILD 173 VI. CORROBORATION – VALIDATION TESTIMONY 174 VII. CHILD’S OWN STATEMENT AS CORROBORATION 178 VIII. OTHER THAN ARTICLE 10 PROCEEDING 169 IX. CONTEMPORANEOUS STATEMENTS 181 X. CHILD’S COMMUNCATION TO THERAPIST 182 XI. RECANTATION 182 XII. CROSS-CORROBORATION: HEARSAY STATEMENTS OF OTHERS 182 XIII. CREDIBILITY OF CHILD’S TESTIMONY 182 Chapter 18 TAPE RECORDINGS I. STATUE – CPLR 4506(3) 183 II. ONE PARTY TO CONVERSATION MUST CONSENT 183 III. PARENT-CHILD COMMUNICATIONS 184 IV. VICARIOUS CONSENT – MINORS 185 V. FOUNDATION FOR AUDIO RECORDINGS 186 VI. VIDEO RECORDINGS 187 VII. MOTION TO TURN OVER TAPE RECORDINGS AND TO SUPPRESS 188 Chapter 19 HEARSAY I. DEFINITIONS 189 II. PURPOSE 190 III. IMPLIED HEARSAY 191 IV. BURDEN 192 V. SUMMARY JUDGMENT 192 VI. NON-APPLICATION OF HEARSAY – VERBAL ACTS 192 VII. NON-EXPRESSIVE COMMUNICATIONS 193 VIII. EFFECT ON THE LISTENER 193 IX. STATE OF MIND 193 X. IMPEACHING HEARSAY DECLARANTS 195 XI. PERSONAL KNOWLEDGE 195 Chapter 20 EXCEPTIONS TO HEARSAY RULE PROOF BY ADMISSION I. ADMISSION BY PARTY 197 II. FORMAL JUDICIAL ADMISSION 197 III. INFORMAL JUDICIAL ADMISSIONS 197 IV. EXAMPLES OF INFORMAL JUDICIAL ADMISSIONS 198 V. ADOPTIVE ADMISSION; SILENCE AS ADMISSION 199 VI. VICARIOUS ADMISSION (STATEMENTS BY AGENT OF PARTY) 200 VII. ADMISSIONS BY COUNSEL 202 VIII. ADMISSION BY OPENING STATEMENT AND STATEMENT OF PROPOSED DISPOSITION 203 IX. ADMISSIONS BY EXPERT 203 X. WEBSITES 203 XI. JUDICIAL OR QUASI ESTOPPEL 204 Chapter 21 OTHER HEARSAY EXCEPTIONS I. DECLARATION AGAINST INTEREST 207 II. EXCITED UTTERANCES 209 III. PRESENT SENSE IMPRESSION 210 Chapter 22 HEARSAY EXCEPTION - BUSINESS RECORD RULE I. STATUE 213 II. DOCUMENTS PREPARED FOR LITIGATION 213 III. FOUNDATIONAL REQUIREMENTS 214 IV. POLICE REPORTS 216 V. MULTI-TIERED HEARSAY 216 VI. WHO LAYS FOUNDATION FOR BUSINESS RECORD 219 VII. RECEIPT OF BUSINESS RECORDS OF OTHERS 220 VIII. CERTIFICATION OF BUSINESS RECORDS - CPLR RULE 31221 (CPLR 3120) 221 IX. JUDICIAL NOTICE OF FOUNDATION –SELF-AUTHENTICATING DOCUMENTS 222 X. FORM OF RECORDS WHICH QUALIFY 223 XI. SUMMARIES 224 XII. PERMISSIBLE CONTENTt; REDACTION OF OBJECTIONAL CONTENT 224 XIII. RECORDS PREPARED SOLELY FOR LITIGATION 225 XIV. WEIGHT ACCORDED BUSINESS RECORDS 225 XV. HEARSAY EXCEPTION FOR CERTAIN PUBLIC RECORDS 226 XVI. MEDICAL RECORDS – HEARSAY 226 XVII. APPLIED TO PHYSICIAN’S OFFICE RECORDS 227 XVIII. CAVEAT - ONLY ADMISSIBLE TO EXTENT GERMANE TO DIAGNOSIS AND TREATMENT 228 XIX. STATEMENTS TO MEDICAL PERSONNEL 229 XX. DOMESTIC VIOLENCE 230 XXI. COERCIVE DRUG INTAKE 230 XXII. REMARKS BY A THIRD PARTY 230 XXIII.INTERPLAY with CPLR 3122-A 231 XXIV. DOUBLE HEARSAY 231 XXV. X-RAY AND OTHER MEDICAL DIAGNOSTIC IMAGING TESTS -CPLR 4532-A 231 XXVI. TESTIMONY REGARDING TEST RESULTS 231 XXVII. HOSPITAL BILLS; CPLR 4518(b) 232 XXVIII. OTHER RECORDS 232 Chapter 23 COMPROMISE AND OFFERS TO COMPROMISE I. CPLR 4547 234 II. IMPACT ON EVIDENTIARY STATUS 234 Chapter 24 AUTHENTICATION & EVIDENTIARY FOUNDATION I. MEANING OF AUTHENTICATION 236 II. CHAIN OF CUSTODY 236 III. BEST EVIDENCE RULE 236 IV. VOLUMINOUS RECORD RULE 240 V. AUDIOTAPES 241 VI. PHOTOGRAPHS 242 VII. VIDEOTAPES 244 VIII. VOICE IDENTIFICATION - GENERALLY 245 IX. ORAL STATEMENTS - TELEPHONE CALLS 245 X. HANDWRITING 246 XI. REPLY LETTER DOCTRINE 247 Chapter 25 ELECTRONIC EVIDENCE I. AUTHENTICATION OF ESI - GENERAL 248 II. THE “BIBLE” - Lorraine V. Markel Amer. Ins. Co., 241 F.R.D. 534 [D. Md. 2007)] 249 III. ELECTRONIC SERVICE 249 IV. COURT RULES 250 V. EVIDENTIARY HURDLE - RELEVANCE 251 VI. EVIDENTIARY HURDLE - AUTHENTICATION 251 VII. AUTHENTICATION BY DISTINCTIVE CHARACTERISTICS 252 VIII. AUTHENTICATION - EMAILS 253 IX. AUTHENTICATION BY E-MAIL THREAD 253 X. AUTHENTICATION BY COMPARISON 254 XI. AUTHENTICATION BY DISCOVERY PRODUCTION 254 XII. AUTHENTICATION BY TESTIMONY OF SENDER 255 XIII. AUTHENTICATION BY TESTIMONY OF THE RECIPIENT 255 XIV. CLAIM OF ALTERATION 256 XV. REPLY LETTER (E-MAIL) DOCTRINE 257 XVI. AUTHENTICATION BY CONTENT 257 XVII. AUTHENTICATION – TEXT MESSAGES & IM’s 257 XVIII. AUTHENTICATION – WEBSITES AND SOCIAL MEDIA 259 XIX. JUDICIAL NOTICE OF INFORMATION ON WEBSITES 261 XX. AUTHENTICATION - SYSTEM/PROCESS CAPABLE PRODUCING RELIABLE/ACCURATE RESULT 263 XXI. SELF-AUTHENTICATION (Rule 902) 263 XXII. EVIDENTIARY HURDLE - HEARSAY - GENERALLY 264 XXIII. ISSUE OF EXPECTATION OF PRIVACY 264 XXIV. METADATA; HASH VALUES 265 XXV. ESI PRESERVATION; SPYWARE 266 XXVI. DISCOVERY 266 XXVII. E-MAILS 268 XXVIII. SOCIAL NETWORK SITES 268 XXIX. IMPEACHMENT EVIDENCE 270 XXX. COMPUTER INSPECTION PROTOCOL 270 Chapter 26 SPOLIATION OF EVIDENCE I. SANCTIONS 273 II. WHEN DUTY TO PRESERVE ARISES 274 III. GROSS NEGLIGENCE 275 IV. ETHICAL ISSUES 276 V. PRIVILEGED COMMUNICATIONS AND ELECTRONIC EVIDENCE 278 VI. THIRD PARTY TRANSMISSIONS 279 VII. PRIVILEGE LOGS 279 VIII. COMMUNCATIONS WITH CLIENT BY E-MAIL 279 IX. ELECTRONIC COMMUNICATIONS PRIVACY ACT (18 USC §2510 et seq.) 280 Chapter 27 JUDICIAL NOTICE I. THE RULE 281 II. STATUE – CPLR 4511 282 III. EXAMPLES 283 IV. OTHER EXAMPLES 284 Chapter 28 PAROL EVIDENCE RULE I. RULE 286 II. AMBIGUITY 286 III. EXAMPLES 287 IV. NOT APPLICABLE TO PROVE NO CONTRACT EXISTED 288 V. AGREEMENT UNENFORCEABLE DUE TO IRRESOLVABLE AMBIGUITY OF MATERIAL TERMS 288 Chapter 29 ILLEGALLY OBTAINED EVIDENCE I. PRIVATE ACTION 289 II. UNETHICAL CONDUCT CLAIM 290 III. SURVEILLANCE TAPES 290 IV. APPLICABILITY TO MATRIMONIAL ACTIONS 290 V. STATUTE - CPLR §3101(I) 291 Chapter 30 PRESUMPTIONS I. EQUAL CONTRIBUTIONS 292 II. MAILING 292 III. WAIVER OF COUNSEL - FCA §249-A 292 IV. TENANTS IN COMMON 293 V. VISITATION 293 VI. JOINT ACCOUNT 293 VII. ANTENUPTIAL AGREEMENT 294 VIII. PRESUMPTION OF AUTHRENTICITY OF DOCUMENTS PRODUCED PURSUANT T0 DISCOVERY DEMANDS 294 IX. LEGITIMACY 294 X. EXECUTOR 295 XO. ADOPTIONS 295 XII. OATH 295 XIII. COMPETENCY 295 XIV. VALIDITY OF MARRIAGE 295 XV. INFERENCE V. PRESUMPTION 279 XVI. SEX OFFENDERS – CUSTODY & VISITATION 296 Chapter 31 DEAD MAN'S STATUTE I. STATUTE – CPLR 4519 297 II. WHAT IS THE DEAD MAN’S STATUTE 298 III. WHO CAN TESTIFY? (DISQUALIFIED WITNESS) 299 IV. PROTECTED PERSONS UNDER THE STATUTE 301 V. WHAT IS A PERSONAL TRANSACTION/COMMUNICTION? 303 VI. EXCEPTIONS 303 VII. OTHER AREAS WHERE STATUTE NOT APPLICABLE 305 VIII. HEARSAY 306 IX. WAIVER 307 X. SUMMARY JUDGMENT 308 VII. CONCLUSIONS 309 Chapter 32 NOTICE TO ADMIT I. PURPOSE 309 II. WHEN NOTICE SERVED 309 III. APPLICABILITY 309 IV. RESPONSE 310

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About The Authors

Timothy Tippins Esq.

Timothy M. Tippins, Esq. is an adjunct professor at Albany Law School and serves on the faculty of the American Academy of Forensic Psychology and on the Affiliate Postdoctoral Forensic Faculty at St. John’s University. He has also served as an Adjunct Professor of Forensic Psychology at Siena College. He is a private practitioner who has engaged in matrimonial and family law practice since 1975 and devotes his practice exclusively to serving as trial counsel and consultant to other family law practitioners on a nationwide basis, with special emphasis on the presentation and cross-examination of expert mental health testimony. Tippins has served in all major professional leadership positions in the New York family law community, including President of the American Academy of Matrimonial Lawyers - New York Chapter, Chair of the NYSBA Family Law Section, and Chair of the NYSBA Task Force on Family Law. Tippins is a regular feature columnist for the New York Law Journal and is the author of the multi-volume treatise New York Matrimonial Law & Practice (West Publishing).

Company Name: MatLaw Systems Corp.
E-mail: tmtippins@matlaw.com

Stephen Gassman has been practicing matrimonial and family law for over 30 years, and has garnered a nationwide reputation as a leader in the field. He is one of fewer than 100 trial lawyers nationwide to be designated as a Diplomate of the exclusive American College of Family Trial Lawyers.

A graduate of the University of North Carolina and New York Law School, Mr. Gassman has served as an adjunct professor of law at Touro Law School, as Chair of the Family Law Section of the New York State Bar Association, and as President of the Nassau County Bar Association. He is a Fellow of the American Academy of Matrimonial Lawyers and a member of the Committee on Matrimonial Practice of the Unified Court System of the State of New York. He also serves on the Law Guardian Advisory Panel to the Tenth Judicial District, and as a member of the Judicial Hearing Officer Screening Committee of the Tenth Judicial District.

Mr. Gassman has authored numerous articles and monographs on all facets of matrimonial law and is the co-author, with Timothy M. Tippins, Esq., of counsel to Gassman Baiamonte Betts PC, of the popular works Evidence for Matrimonial Lawyers and Matrimonial Valuation. He is an editor of Fairshare, a monthly matrimonial law publication, and has authored a chapter on the Use of Appraisers in the Valuation of Marital Property, published by Matthew Bender, as well as articles for the New York State Bar Association’s Family Law Review. Mr. Gassman has lectured extensively to bar groups and at judicial symposiums on the national, state and local levels.

As the founding member of the firm, Mr. Gassman has successfully tried hundreds of matrimonial cases, and settled thousands of cases, throughout his career. In addition, he has served as appellate counsel in the Appellate Division and the Court of Appeals. The New York Post has written that he is regarded as the top divorce lawyer in Nassau County.