New York Evidence Courtroom Manual

By David M. Epstein and Glen Weissenberger

Published by LexisNexis Matthew Bender, 2019 Edition, New York, $291, 588 pages

Evidence: A word that should be on all diligent litigators' minds the moment they get a case. Whether the case is in its preliminary stages or heading to trial, litigators must know the evidentiary issues the case presents. To measure the likelihood of prevailing at trial, litigators must understand, not only the facts of the case but also whether a viable way exists to offer those facts at a hearing or a trial.

Litigators must also have a working knowledge of evidentiary objections and appropriate responses. It is unlikely that all the evidentiary issues presented in a case can be anticipated or resolved before trial. Unanticipated evidentiary issues often arise during trial. How litigators deal with unexpected evidentiary issues will make all the difference. Litigators must be ready to object quickly and to respond to objections quickly.

Trial lawyers should always be mindful of laying a thorough and proper foundation to admit evidence. A good foundation offers a path for the fact-finder to assess the reliability and trustworthiness of a piece of evidence. Being thorough will assure that the fact-finder credits the evidence and gives it appropriate weight. A proper foundation will also maximize the likelihood that the evidence is admitted in its entirety. Similarly, understanding the flaws in an adversary's attempt to lay a foundation will enable litigators to keep inadmissible portions out of evidence or, at least, to secure a limiting instruction.

Various treatises guide practitioners on evidentiary issues during trial preparation and the trial itself. No trial lawyer's bookshelf should contain just one evidence treatise. Valuable publications on New York evidentiary rules include Robert A. Barker & Vincent C. Alexander, Evidence in New York State and Federal Courts (2d ed. 2011); Edward M. Davidowitz & Robert L. Dreher, Foundation Evidence, Questions and Courtroom Protocols (5th ed. 2014); Edith L. Fisch, Fisch on New York Evidence (2d ed. 1977); John E. Durst, New York Courtroom Evidence (4th ed. 2013); Helen E. Freedman & Gerald Lebovits, New York Objections (19th ed. 2019); Lawrence N. Gray, Evidentiary Privileges: Grand Jury, Criminal and Civil Trials (6th ed. 2015); Randolph N. Jonakait, New York Evidentiary Foundations (2d ed. 1998); Joseph McLaughlin, New York Law of Evidence (1970); Michael M. Martin & Daniel J. Capra, New York Evidence Handbook (3d ed. 2017); Michael Mushlin, Jo Ann Harris, Anthony J. Bocchino & David A. Sonenshein, New York Evidence with Objections (5th ed. 2018); and Richard T. Farrell, Prince, Richardson on Evidence (11th ed. 1995).

Another resource, though still a work in progress, is the online Guide to New York Evidence, nycourts.gov, https://www.nycourts.gov/judges/evidence, which can be found in paperback on Amazon.com. Because few New York evidentiary rules are codified, the Guide to New York Evidence conveniently assembles New York's common-law-based evidentiary rules and notes the source of each rule. The Guide to New York Evidence emphasizes controlling New York Court of Appeals precedent.

Also insightful are the New York Law Journal's monthly Burden of Proof columns by David Paul Horowitz and Lukas M. Horowitz, his son. From 2004 through 2018, Père Horowitz published his Burden of Proof columns in the New York State Bar Association Journal. He also authored Bender's New York Evidence (LexisNexis 2018) since 2010 and the forthcoming third edition of Fisch on New York Evidence.

In that New York evidence pantheon is David Epstein and Glen Weissenberger's aptly titled New York Evidence Courtroom Manual. It is an exceptional publication. Recently released in its 2019 edition, the Courtroom Manual was originally published in 2003 and is updated annually. It covers New York civil and criminal trial issues.

An authoritative, convenient and well-written manual for judges and practitioners, the Courtroom Manual addresses most evidentiary issues that arise in litigation. The Courtroom Manual comprehensively guides litigators to prepare for trial and is intended for courtroom use. Meant for novice and expert litigators alike, it is an essential and easy-to-use compendium for complex commercial litigation, multi-defendant criminal trials, and even simple hearings where the rules of evidence apply.

Professor Epstein, distinguished adjunct professor of law at New York Law School, is the author of the seven-volume Eckstrom's Licensing in Foreign and Domestic Operations (Thomson Reuters 2019) and co-author of the Teacher's Handbook to The Lawyer's Craft: An Introduction to Legal Analysis, Writing, Research, and Advocacy (LexisNexis 2003).

Professor Weissenberger was Dean of DePaul University College of Law and is a professor of law emeritus at the University of Cincinnati College of Law. He wrote Weissenberger's Federal Evidence (2011) and Federal Rules of Evidence: Rules, Legislative History, Commentary and Authority (2011).

Epstein and Weissenberger share their wealth of experience in their Courtroom Manual, which contains ten articles, each for a distinct category of evidence. Within the articles are sub-chapters covering specific evidentiary rules.

The first article addresses general topics on rulings, preserving objections for appeal, when and how to make an objection and preliminary issues relating to admissibility of evidence such as burdens of proof and the concept of limited admissibility. The following articles address the intricacies of relevancy, character evidence, privileges, witnesses, expert witnesses, hearsay, authentication and identification and the best-evidence rule.

Each Courtroom Manual sub-chapter is then comprised of three distinct parts. The first part of each sub-chapter provides a short summary of an evidentiary rule. The summary provides the reader with a succinct synopsis of the rule governing the admissibility of the particular evidence sought to be admitted. The summary, which reads as the basis for an objection, provides its greatest utility in the courtroom.

The second part of each sub-chapter provides a commentary on the evidentiary rule. The commentary takes the form of a detailed and comprehensive analysis of the rule and informs the reader about the various contexts in which the rule applies. The commentary is particularly useful for practitioners who are preparing for trial and need a thorough reference on the details of a particular evidentiary rule.

The third part of each sub-chapter provides a compilation of case summaries. Updated annually, the case compilations offer dozens of citations for pretrial motions, or even during trial itself. Included are citations to decisions from New York federal and state courts, with an emphasis on the New York Court of Appeals and the Appellate Division.

Perhaps the Courtroom Manual's most impressive compilation of evidentiary knowledge is its article on hearsay. It contains a whopping 24 sub-chapters. Starting with a thorough analysis on the definition of hearsay, the Courtroom Manual goes on to provide a meticulous study of each hearsay exception.

Particularly impressive is the Courtroom Manual's “New Constitutional Development” on the ever-changing application of the Confrontation Clause, which reads like a scholarly law-review article. Many other tips on constitutional developments are provided throughout.

Every judge and trial attorney should own the Courtroom Manual for its chapter on hearsay, if for no other reason.

Also valuable are the Courtroom Manual's practical tips. Sprinkled throughout are distinctly titled tips based on the authors' research. For example, “Current Trends and New Developments” informs the reader of recent changes in the law and analyzes how courts currently handle the evidentiary rule.

The authors also provide insight through “Practical Considerations” drawn from personal experiences in the courtroom. Litigators dealing with an evidentiary issue for the first time will appreciate the “Practical Considerations.”

To clarify more complicated evidentiary rules, the Courtroom Manual gives practical “Illustrations.” For example, after defining the “Propensity Rule” in sub-chapter 4-4, the Courtroom Manual illustrates how the rule might be applied in a murder trial where the prosecutor improperly seeks to show the accused's violent character to establish that the accused acted in conformity with a propensity for violence. Other “Illustrations” take the form of a Q&A from the perspective of a litigator eliciting witness testimony.

In editions to come, the Courtroom Manual can devote attention to different phases of trial in which evidentiary rules apply. The Courtroom Manual focuses on introducing evidence at trial, but jury selection, opening statements and closing statements are unaddressed. Various evidentiary rules apply in these contexts, and a well-rounded litigator should be aware of them. Discussing these phases of trial will make the Courtroom Manual an even greater asset.

The New York Evidence Courtroom Manual is an essential tool for every judge and litigator. It helps with trial preparation and serves as a reference for quick consultation while in the trenches of trial. Using it might make the difference between winning and losing your next case.

Gerald Lebovits is an acting New York State Supreme Court justice in New York County, the co-author, with Justice Helen E. Freedman, of New York Objections (19th ed. 2019). Julian M. Rodriguez, an associate at Belkin Burden Wenig & Goldman, LLP, is an editor of and research assistant for New York Objections.