Survey: 2010 Evidence

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For 2011, the editors have returned the Survey to its core function: providing a compendium of the statutory changes and case law developments for a one-year period, in this issue, July 1, 2009 through June 30, 2010. In years past, other authors and I have exceeded the formal end date of June 30 as we labored to cram ever more recent decisions into each Survey. While arguably increasing the utility of the Survey, the practice exponentially increased the editorial work to be performed by the members of the Syracuse Law Review, and eliminated uniformity in the coverage by the different articles.

The Evidence Survey last year contained some cases decided after July 1, 2009, and to accomplish the goal of this year’s Survey, they are included herein, as well. Thus, some old wine is in this new bottle.

Repetition is a tool used by every trial attorney.  Advocates tell a jury what they are about to tell them, tell them, and then tell them what they just told them. For this Survey, repetition will cause no harm, and perhaps a case that did not resonate last year will be of significance to readers this year.

The editors also decided this year, in an effort to streamline the Survey, not to include a separate Disclosure Survey,2 preferring instead to have disclosure cases covered in, and divided between, the Civil Practice Survey, authored by Michael A. Bottar and Kimberly Wolf-Price, and this Evidence Survey.

Readers of this Survey are invited to visit from time to time for updates on the cases reported herein, and e-mail any comments, suggestions, or criticisms to
So, on to some evidence (and a few disclosure) cases.

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For over twenty-three years David Paul Horowitz has represented injured people and the families of victims of wrongful death throughout New York State in all types of personal injury cases, including medical malpractice, product liability, construction, and mass torts. He has practiced with Ressler & Ressler in New York City for over thirteen years. As an Adjunct Professor of Law, he teaches New York Practice at Brooklyn Law School and Evidence at St. John’s Law School. As of May 2010, he is the sole author, and has undertaken a complete re-write, of the nine-volume treatise, Bender’s New York Evidence. He is also the author of the LexisNexis AnswerGuide New York Civil Disclosure and the 2011 Supplement to Fisch on New York Evidence, and pens the New York State Bar Journal’s monthly column, “Burden of Proof.” He is a member of the OCA CPLR Advisory Committee and the New York State Bar Association’s CPLR Committee. He presents CLE, including an annual CPLR Update Program, throughout the state for the New York State Judicial Institute and numerous bar associations, and is a founding Dean of CLE at the New York State Academy of Trial Lawyers. He welcomes comments, questions, and referrals, and may be contacted at or 914-424-1113.

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