JOEL R. BRANDES CONSULTING SERVICES, INC.
  • Home
  • Bookstore
    • New York Matrimonial Trial Handbook
    • New York Matrimonial Trial Handbook 2022 Update Pdf Edition
    • Books about Divorce and Family Law
  • Conduct of Trial
    • Order of Trial - In General
    • Order of Trial - Opening and Closing statements: When and how to make them
    • Order of Trial - Motion to Dismiss After Opening Statementage
    • Conduct of Trial - Right to Cross-Examination of Witness
    • Conduct of Trial - Right to Call Witnesses for Direct Examination
    • Conduct of Trial - Scope of Cross-Examination - Making Adverse Witness Own Witness
    • Conduct of Trial - Redirect Examination
    • ​Conduct of Trial - Redirect Examination - Rule of Completeness
    • Conduct of Trial - Re-Cross Examination of Witness
    • Conduct of Trial - Motion to Dismiss for failure to establish a Prima Facie Case
    • Conduct of Trial - Courtroom Decorum for Counsel and Court - Addressing the Judge - Approaching the Bench
    • Conduct of Trial - Calling a Witness to the Stand to Testify
    • Conduct of Trial - Method of Calling a Witness to the Stand - Presenting Witnesses
    • Conduct of Trial - Requirement that Witness Have Personal Knowledge
    • Conduct of Trial - Examination of Witnesses - Method of Examination - Improper Questions
    • Conduct of Trial – Importance of Objections to Inadmissible Evidence or Improper Questions
    • Conduct of Trial - Method of Making an Objection
    • Conduct of Trial - Voir Dire to Challenge Foundation for Introduction of Evidence
    • Conduct of Trial - Leading Questions - What they are and when they are permitted
    • Conduct of Trial - Method of Making Objection to Leading Question
    • Conduct of Trial - Refreshing the Witness’s Recollection
    • Conduct of Trial - Questions for Refreshing Witness Recollection
    • Conduct of Trial - Refreshing Recollection of Witness - Past recollection recorded
    • ​Conduct of Trial - Motion for Reconsideration of Prior Ruling
    • Conduct of Trial - Method of Making Motion to Reconsider Prior Ruling
    • ​Conduct of Trial - Motion to Adjourn Trial - Defendant’s Objection to proceed with Defense before Plaintiff Rests
    • ​Conduct of Trial - Method of Making Motion to Adjourn - Objection to proceed with Defense before Plaintiff Rests
    • Conduct of Trial - Continuing Objection
    • Conduct of Trial - Motion to Strike Evidence Improperly Admitted
    • Conduct of Trial - Motion to Strike Evidence Admitted Subject to Connection
    • Conduct of Trial - Offer of Proof - What is it?
    • Conduct of Trial - Method of Making an Offer of Proof
    • ​Conduct of Trial - Exclusion of Witnesses from Courtroom
    • Conduct of Trial - Method of Making Request to Exclude Witnesses
    • Conduct of Trial - Discretion of Judge to Question Witnesses
    • Conduct of Trial - Right of Court to Compel Testimony
    • Conduct of Trial - Right of Trial Judge to Call own Witness.
  • Trial Testimony
    • Trial Testimony - Right to Confer with Counsel
    • Trial Testimony - Right to Interpreter for Person Who Can Not Communicate with Court
    • Trial Testimony - Calling the Adverse Party as a Witness
    • Trial Testimony - Cross Examination - Modes of impeachment
    • ​Trial Testimony - Cross - Examination - Impeachment of Witnesses
    • Trial Testimony - Cross-Examination - Impeachment Limited by Collateral Evidence Rule
    • Trial Testimony - Cross Examination - Impeachment - Reputation for Veracity
    • Trial Testimony - Cross Examination - Reputation for Veracity - Laying Foundation for Impeachment Testimony of Bad Reputation for Veracity
    • Trial Testimony - Cross Examination - Reputation for Veracity - Questions for Impeachment Testimony of Bad Reputation for Veracity
    • Trial Testimony - Cross - Examination - Impeachment of Witness by Prior Inconsistent Statement and Questions for Introduction
    • Trial Testimony - Testimony of Child
    • Trial Testimony- Cross - Examination – Inadmissibility of Proof of Prior Arrest, Indictment or Conviction for Petty Crime
    • Trial Testimony - Cross - Examination - Attempt to Procure False Evidence Competent as an Admission
    • Trial Testimony - Cross-Examination - Impeachment of Witness by Criminal Conviction
    • ​Trial Testimony - Cross-Examination - Impeachment of Witness by Showing Bias, Hostility, or Interest
    • ​Trial Testimony - Cross - Examination - Impeachment by Showing Witness Hostile to Party
    • Trial Testimony- Cross - Examination - Impeachment by Showing Predisposition
    • Trial Testimony - Questions for Impeaching Witness on Cross - Examination by Showing Hostility
    • ​Trial Testimony - Impeaching own Witness
    • Trial Testimony - Prior Testimony - Use of Depositions at Trial or Hearing
    • Trial Testimony - Prior Testimony - Use of Deposition from Prior Action
    • Trial Testimony - Prior Testimony - Effect of using deposition.
    • ​Trial Testimony - Prior Testimony - Use of Deposition Subject to Rules of Evidence
    • Trial Testimony - Prior Testimony - Questions for Impeaching Witness on Cross Examination by Prior Deposition Testimony
    • Trial Testimony - Prior Testimony - Use of Answers to Interrogatories
    • Trial Testimony - Prior Testimony - Use of Answers to Interrogatories from Prior Action
    • Trial Testimony - Prior Testimony - Effect of using Answers to Interrogatories.
    • Trial Testimony - Prior Testimony - Use of Answers to interrogatories Subject to Rules of Evidence
    • Trial Testimony - Prior Testimony - Questions for Impeaching Witness on Cross Examination by Answers to interrogatories
    • Trial Testimony - Prior Testimony - Admission of Prior Testimony
    • Trial Testimony - Prior Testimony - Admission of Prior Testimony Subject to Objection
    • Trial Testimony - Prior Testimony - Necessity of Foundation for Admission of Prior Testimony
    • Trial Testimony - Prior Testimony - Questions for Impeaching Witness on Cross Examination by Prior Testimony
    • Trial Testimony - Method of Marking Documents as Exhibits for Identification and Offering them into Evidence
    • Trial Testimony - Method of Offering Exhibit Marked for Identification into Evidence - Standard Questions
  • Rules of Evidence in Matrimonial Actions
    • Rules of Evidence - In General
    • Evidence and Proof - Competent and Material
    • ​Admissibility of Evidence - General Rule
    • Burden of Proof - Standards of Proof
    • Burden of Proof - Fair Preponderance of Credible Evidence - Clear and Convincing Evidence
    • Burden of Proof - Clear and Convincing Evidence in Matrimonial Actions
    • ​Burden of Proof - Presumptions
    • ​Burden of Proof - “Competent Proof” in Family Court Proceedings
    • ​Standards of Proof for Overcoming Presumptions in Matrimonial Actions
    • ​Foundation for Evidence - Fundamental Error and Harmless Error
    • Foundation for Evidence - Stare Decisis - The Doctrine of Precedent
    • Foundation for Evidence - Law of the Case
    • Foundation for Evidence - Judicial Estoppel
    • Foundation for Evidence - Rule Against Inconsistent Positions
    • Foundation for Evidence - Estoppel from Presenting Evidence at Trial Based Upon Contents of Response to Discovery Demand
    • Foundation for Evidence - Judicial Notice of Law and Facts
    • Foundation for Evidence - Method of Asking Court to Take Judicial Notice of a Fact
    • Foundation for Evidence - Judicial Notice of Testimony at Prior Pendente lite Hearing
    • Admissibility of Evidence - Settlement Offers Not Admissible
    • Admissibility of Evidence - Admissions and Letters by Party’s Attorney Admissible in Evidence
    • Admissibility of Evidence - Presumption that Only Admissible Evidence Was Considered By the Trial Court.
    • Admissibility of Evidence – Rule against Hearsay
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay Applicable in Matrimonial Case
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Verbal or operative acts and State of Mind
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - State of Mind
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Present Sense Impression and Excited Utterance/Spontaneous Declaration
    • Admissibility of Evidence - Exceptions to the Rule Against Hearsay - Not Necessary to Lay Foundation For Admission of Certified Non-Party Business Records Produced Pursuant to Subpoena - CPLR 3122-a.
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Expressions of Intent
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Evidence of Abuse or Neglect in Custody and Child Protective Proceedings
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Former Testimony
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Admissions
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Admission of New Spouse
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Past recollection recorded
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Business Records
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Laying a Foundation for and Questions for Offering Business Records into Evidence
    • Admissibility of Evidence - Exceptions to the Rule Against Hearsay - Business Records - Admission of Hospital bills and Records, Records and Reports of Genetic Marker or DNA tests, and Payment Records
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Admission of Certified Hospital, Library, and Government Records.
    • Admissibility of Evidence - Exceptions to the Rule Against Hearsay - Admission of Business Records - Other Certification Substitutes for Foundation Testimony.
    • Admissibility of Evidence - Exceptions to the Rule Against Hearsay - Admissibility of Medical Reports - Not admissible As Business Records Where They Contain Doctor's Opinion or Expert Proof
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Laying a Foundation for Admission of Business Records and Records of Municipality into Evidence - Summary of Rule
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Questions for Laying a Foundation for and Offering Business and Municipality Records into Evidence
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Method of Laying a Foundation for and Offering into Evidence Certified Records of Business or Municipality
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Business Records Rule - Business Duty
    • Admissibility of Evidence - Results of Lie Detector Test Inadmissible
    • Admissibility of Evidence - Privilege - Testimony of One Spouse against the Other. - Action founded Upon Adultery - In General
    • Admissibility of Evidence - Expert Report Inadmissible Without Consent
    • Admissibility of Evidence - Privilege - Testimony of One Spouse against the Other- Action Founded Upon Adultery - As to Non-access
    • Admissibility of Evidence - Privilege - Testimony of One Spouse Against the Other – Actions for Divorce, Separation or Annulment - Confidential Communications.
    • Admissibility of Evidence - Privilege - Testimony of One Spouse against the Other - Confidential Communications - Waiver
    • Admissibility of Evidence - Privilege - Confidential Communications - Waiver
    • Admissibility of Evidence - Privilege - Testimony of One Spouse for the Other - Action founded Upon Adultery
    • Admissibility of Evidence - Privilege - Confessions and Admissions - Action Founded Upon Adultery
    • Admissibility of Evidence - Privilege - Conduct Prior to Marriage - Action Founded Upon Adultery.
    • Admissibility of Evidence - Privilege - Attorney - Client Privilege - Civil Practice Law and Rules § 4501.
    • Admissibility of Evidence - Privilege - Psychologist - Patient Privilege - Civil Practice Law and Rules § 4507.
    • Admissibility of Evidence - Privilege - Physician, dentist, podiatrist, chiropractor and nurse Privilege - Civil Practice Law and Rules § 4507.
    • Admissibility of Evidence - Privilege - Clergy - Penitent Privilege - Civil Practice Law and Rules § 4505.
    • Admissibility of Evidence - Privilege - Social worker - Patient Privilege - Civil Practice Law and Rules § 4508(a).
    • Admissibility of Evidence - Privilege - Rape crisis counselor - client Privilege - Civil Practice Law and Rules § 4510.
    • Admissibility of Evidence - Practice Point - Privilege - Confidential Communications
    • Admissibility of Evidence - Privilege - Fifth Amendment Privilege against Self-Incrimination
    • Admissibility of Evidence - Privilege - Method of Making Objection to Question on Fifth Amendment Grounds
    • Admissibility of Evidence - Privilege - Adverse Inference from Failure of Party to Testify and Failure to Call Favorable Witness - Missing Witness Rule in Civil Case
    • Admissibility of Evidence - Privilege - New York Privilege against Self-incrimination - Civil Practice Law and Rules §4501.
    • Admissibility of Evidence - Privilege - Electronic Communication of Privileged Communications - Civil Practice Law and Rules § 4548
    • Admissibility of Evidence - Evidence Illegally Obtained. – Unlawful Entry, Search and Seizure and Electronic Surveillance of Family Conversations – Exceptions for Custody and Article 10 Cases
    • Admissibility of Evidence - Suppression of Illegally Obtained Eavesdropping Evidence - Civil Practice Law and Rules § 4506(a) - Vicarious Consent for Child
    • Admissibility of Evidence - Motion to Suppress Illegally Obtained Eavesdropping Evidence under CPLR § 4506
    • Admissibility of Evidence - Illegal Interception of Electronic Evidence - Electronic Evidence Defined
    • Admissibility of Evidence - Social Networking Sites
    • Admissibility of Evidence - Admissibility of Electronic Evidence
    • Admissibility of Evidence - Authentication of Instant Message
    • Admissibility of Evidence - Authentication of Text Message and Questions for Introduction into Evidence
    • Questions to Lay Foundation for Introduction of text message into evidence
    • Admissibility of Evidence - Authentication of Blogs and Websites
    • Admissibility of Evidence - Authentication of email and Questions for Introduction
    • Questions to Lay Foundation for Introduction of email into evidence
    • Admissibility of Evidence - Evidence Obtained By Spyware - CPLR 4506
    • Admissibility of Evidence - Admissibility of Audio and Visual Recordings
    • Admissibility of Evidence - Admissibility of Audio and Visual Recordings - Foundation for Admission of Recordings
    • Admissibility of Evidence - Questions for Laying Foundation for Admission of Recorded telephone call into Evidence
    • Admissibility of Evidence - Questions for Laying Foundation for Admission of Transcript of Sound Recorded telephone call into Evidence
    • Admissibility of Evidence - Best evidence rule
    • Admissibility of Evidence - Parol Evidence Rule
    • Admissibility of Evidence - Authentication of Foreign Records and Documents for Use at Trial
    • Admissibility of Evidence - Spoliation - Unfavorable Inference - Preclusion
    • Admissibility of Evidence - Inadmissibility of Evidence Protected by the Health Insurance Portability and Accountability Act
    • Admissibility of Evidence - Admissibility of Foreign Language Exhibits and Affidavits and Papers
    • Admissibility of Evidence - Authentication of official record of court or government office in the United States
    • Practice Point - Admissibility of Charts and Summaries Counsel may be permitted to use charts to summarize documents already in evidence where the charts are based solely on information already in evidence. A foundation must be laid, demonstrating that
    • Practice Point – Testimony about Out of Court Statements Made by Third Party.
    • Practice Point - No Client - Expert Privilege.
    • Practice Point - Trial Evidence not Limited by Scope of Pretrial Disclosure
    • Practice Point - Effect of the Failure of a Party to Deny or Contradict Evidence or Pleadings
    • Practice Point - Effect of withholding Evidence in Your Possession, or Failure to Call a Witness
  • Opinion Evidence
    • Opinion Evidence and Need for Expert Opinion
    • Opinion Evidence - Form of expert opinion
    • Opinion Evidence - Admissibility of Expert Testimony - Basis for Admission of Expert Opinion
    • Opinion Evidence - Impeaching Your Own Expert Witness.
    • Opinion Evidence - Opinion of Ordinary Witness as to ownership, intent, belief and value of property or services.
    • Opinion Evidence - Cross Examination of Expert Witnesses - Impeaching the Expert
    • Opinion Evidence
    • Opinion Evidence – Qualification of Expert and Weight of Testimony
    • Opinion Evidence - Expert Cannot Be Compelled to Testify
  • Custody Proceedings - Rules of Evidence
    • Custody Proceedings - Evidence - Admissibility of Hearsay
    • Custody Proceedings - Evidence - Use of Experts, Evaluations, and Reports
    • Custody Proceedings - Evidence - Investigations
    • Custody Proceedings – Evidence - In-camera and Lincoln interviews
    • Custody Proceedings – Evidence - Confidential communications - Waiver in Custody Cases
    • Custody Proceedings - Evidence - Child Permitted to Assert Psychologist - Patient Privilege
    • Custody Proceedings - Evidence - Admissibility of child abuse reports
    • Custody Proceedings - Evidence - Child as a Witness
  • Questions for the Examination of Witnesses
    • Questions for Placing Stipulation on the Record and Allocution
    • Questions for prima facie economic case - Direct Examination of Client – General Questions
    • Questions for Prima Facie Custody Case -Direct Examination of Party
  • About
  • Contact us
Joel R. Brandes Consulting Services Bookstore
Picture
​Burden of Proof - Presumptions  

​           A presumption provides a method whereby certain facts are deemed to be prima facie proof of other facts.[1]  Presumptions range from those known as “conclusive presumptions” to those known as “permissive presumptions”. Conclusive presumptions are those which describe basic value judgments, such as a defendant is presumed innocent until proven guilty.  A conclusive presumption is equivalent to a substantive rule of law which favors the party introducing it and acts to transfer the burden of proof, as does an affirmative defense, to the party raising it. A conclusive presumption cannot be rebutted.  [2]  It has been said that a conclusive presumption is an inference, which as a matter of law cannot be rebutted. A conclusive presumption is, in reality, a rule of substantive law expressed in terms of rules of evidence.” [3]

 
          A permissive presumption is a rebuttable presumption. It places the burden upon the adversary to come forward with evidence to rebut the presumption, to negative the existence of the fact. [4]   A permissive presumption is an inference which the law directs the jury to draw if it finds a given set of facts; an inference is a conclusion which the jury is permitted, but not compelled to draw from the facts.[5]    
       
          A “presumption of law” is a rule which requires that a particular inference must be drawn from an ascertained state of facts. A “presumption of fact” merely warrants that a particular inference may be drawn from a state of facts, but does not absolutely demand that such an inference shall be drawn from that fact. In other words, a presumption of fact leaves the trial court free to infer certain conclusions from a certain set of circumstances but does not compel the court to do so.[6]  “A presumption of fact is merely an inference drawn by a logical process of reasoning from observation, experience, or other admitted facts. In the absence of any proof, the presumption uncontradicted and undisputed is sufficient to give a basis for a judgment. Such a presumption is rebuttable.  It may be rejected and disregarded, no matter how strong and persuasive is its character.”[7] When substantial evidence to the contrary is produced, the presumption disappears and ceases to be a legal factor in the case. [8]

          There is a presumption of regularity that attaches to judicial proceedings. Under this presumption, in the absence of evidence to the contrary, it is presumed that a court of general jurisdiction has proceeded within the general scope of its powers.  [9]This presumption of regularity attaches with particularity to judicial proceedings in which the jurisdiction of the tribunal is unquestioned.[10]

 
          The orders of a court or judge authorized to act must be presumed to be regular until annulled in a direct proceeding to review or set them aside. [11] The presumption of regularity also applies to the proceedings of foreign courts. [12]The presumption is that a decision was made and signed on the day indicated by the date it bears. [13]


         The “presumption of regularity” attaches to the acts of a public official.  The law presumes that no official or person acting under an oath of office will do anything contrary to his official duty, or omit anything which his official duty requires to be done and that where a statute requires an official to perform a certain act statutory requirements will be satisfied. Substantial evidence is necessary to overcome that presumption. [14]
 
          A process server’s affidavit of service ordinarily raises a presumption of proper service and constitutes prima facie evidence of proper service of process.[15] However, a defendant’s sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server’s affidavit and necessitates an evidentiary hearing. But, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server’s affidavits.[16] An affidavit by the defendant that is conclusory or bare and unsubstantiated is not sufficient to rebut the presumption.[17] 


     [1]  People v Robinson, 97 Misc 2d 47, 61-64 (Sup Ct 1978)

     [2]  People v Robinson, 97 Misc 2d 47, 61-64 (Sup Ct 1978) (Citing Richardson on Evidence (J. Prince, 10th Ed., 1973) at 34-38).

     [3]  Hanley v Flanigan, 104 Misc 2d 698, 701 (Fam Ct 1980) (citing (Richardson on Evidence, Tenth Edition, § 57).

     [4]  People v Robinson, 97 Misc 2d 47, 61-64 (Sup Ct 1978) (Citing Richardson on Evidence (J. Prince, 10th Ed., 1973) at 34-38).’

     [5]  People v Robinson, 97 Misc 2d 47, 61-64 (Sup Ct 1978) (citing Bray v. United States, 113 U.S.App.D.C. 136, 306 F.2d 743, 747.)

     [6]  Platt v.  Elias, 186 N.Y. 374, 79 N.E. 1 (1906).

     [7]  Kennell v. Rider, 225 A.D. 391, 233 N.Y.S. 252 (3 Dept. 1929)

     [8]  Kennell v. Rider, 225 A.D. 391, 233 N.Y.S. 252 (3 Dept. 1929) (Citing Potts v. Pardee, 220 N. Y. 431, 433, 116 N. E. 78 (8 A. L. R. 785); Rose v. Balfe, 223 N. Y. 481, 119 N. E. 842, Ann. Cas. 1918D, 238; Plumb v. Richmond Light & R. Co., 233 N. Y. 285, 135 N. E. 504, 25 A. L. R. 685; Wigmore, Ev., §§ 2490, 2491.)

     [9]   John v Centennial Ins. Co., 91 AD2d 1104, 1106 [3d Dept 1983]. In re Anderson's Estate, 171 Misc. 795, 13 N.Y.S.2d 504 (Sur. Ct. 1939); People ex rel. Ackerson v. Warden of City Prison, Kings County, 167 Misc. 475, 3 N.Y.S.2d 412 (Sup 1937).

     [10]  John v Centennial Ins. Co., 91 AD2d 1104, 1106 [3d Dept 1983]

     [11]  Herlihy v. Watkins, 252 A.D. 605, 300 N.Y.S. 242 (1st Dep't 1937)

     [12]  Gonzalez v. Gonzalez, 46 N.Y.S.2d 270 (Sup 1943).

     [13]  Kennedy v. Smith, 202 A.D. 249, 195 N.Y.S. 196 (3d Dep't 1922).

     [14]  People v Dominique, 90 NY2d 880 [1997];
          In Matter of Anna B.,105 A.D.3d 1399, 964 N.Y.S.2d 804 (4th Dept, 2013) during the proceedings the father contended that he never had notice of either the DSS petition seeking an order of protection or the order of protection itself.  In dismissing the petition, the court reasoned that the presumption of regularity applied to the proceedings giving rise to the order of protection.   The presumption of regularity assumes that statutory requirements, including those regarding service, were followed.   Here, however, inasmuch as it sought dismissal of the petition, DSS had the burden to establish that it properly served the father so as to obtain jurisdiction over him with respect to the order of protection.  Ordinarily, a process server's affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service.   DSS, however, failed to meet that burden inasmuch as it failed to submit such an affidavit, and the record was devoid of evidence that the father was served with either the DSS petition giving rise to the order of protection or the order of protection itself.   Consequently, it concluded that the court erred in granting the motion to dismiss, and reinstated the petition.

     [15]  See Velez v. Forcelli, 125 AD3d at 644; Edwards, Angell, Palmer & Dodge, LLP v. Gerschman, 116 AD3d 824, 825; Scarano v. Scarano, 63 AD3d 716, 716)

     [16]  U.S. Bank, Natl. Assn. v. Arias, 85 AD3d 1014, 1015, quoting Scarano v. Scarano, 63 AD3d at 716.

     [17]  See Deutsche Bank Natl. Trust Co. v. Quinones, 114 AD3d 719, 719
​

​The material on our website is from  the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case.  It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial.  There are numerous questions for the examination and cross-examination of witnesses. 
​Joel R. Brandes Consulting Services, Inc. ​publishes The ​New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at  Amazon,  Barnes & Noble, Goodreads and other online book sellers.  

The New York Matrimonial Trial Handbook  is  available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore. 
Joel R. Brandes Consulting Services, Inc.   
2881 NE 33rd Court (At Dock)
Ft. Lauderdale, Florida 33306.
Telephone (954) 564-9883.
email to:divorce@ix.netcom.com.


​​Joel R. Brandes Consulting Services, Inc is a Florida corporation  which is owned and operated  by 
​Joel R. Brandes of The New York Law Firm of Joel R. Brandes. P.C. 
​This website is published by ​Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C.  Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of  the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters),  and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.

Home

​Bookstore

About

Contact

Copyright © 2019, 2020,  Joel R. Brandes Consulting Services, Inc.
Proudly powered by Weebly
  • Home
  • Bookstore
    • New York Matrimonial Trial Handbook
    • New York Matrimonial Trial Handbook 2022 Update Pdf Edition
    • Books about Divorce and Family Law
  • Conduct of Trial
    • Order of Trial - In General
    • Order of Trial - Opening and Closing statements: When and how to make them
    • Order of Trial - Motion to Dismiss After Opening Statementage
    • Conduct of Trial - Right to Cross-Examination of Witness
    • Conduct of Trial - Right to Call Witnesses for Direct Examination
    • Conduct of Trial - Scope of Cross-Examination - Making Adverse Witness Own Witness
    • Conduct of Trial - Redirect Examination
    • ​Conduct of Trial - Redirect Examination - Rule of Completeness
    • Conduct of Trial - Re-Cross Examination of Witness
    • Conduct of Trial - Motion to Dismiss for failure to establish a Prima Facie Case
    • Conduct of Trial - Courtroom Decorum for Counsel and Court - Addressing the Judge - Approaching the Bench
    • Conduct of Trial - Calling a Witness to the Stand to Testify
    • Conduct of Trial - Method of Calling a Witness to the Stand - Presenting Witnesses
    • Conduct of Trial - Requirement that Witness Have Personal Knowledge
    • Conduct of Trial - Examination of Witnesses - Method of Examination - Improper Questions
    • Conduct of Trial – Importance of Objections to Inadmissible Evidence or Improper Questions
    • Conduct of Trial - Method of Making an Objection
    • Conduct of Trial - Voir Dire to Challenge Foundation for Introduction of Evidence
    • Conduct of Trial - Leading Questions - What they are and when they are permitted
    • Conduct of Trial - Method of Making Objection to Leading Question
    • Conduct of Trial - Refreshing the Witness’s Recollection
    • Conduct of Trial - Questions for Refreshing Witness Recollection
    • Conduct of Trial - Refreshing Recollection of Witness - Past recollection recorded
    • ​Conduct of Trial - Motion for Reconsideration of Prior Ruling
    • Conduct of Trial - Method of Making Motion to Reconsider Prior Ruling
    • ​Conduct of Trial - Motion to Adjourn Trial - Defendant’s Objection to proceed with Defense before Plaintiff Rests
    • ​Conduct of Trial - Method of Making Motion to Adjourn - Objection to proceed with Defense before Plaintiff Rests
    • Conduct of Trial - Continuing Objection
    • Conduct of Trial - Motion to Strike Evidence Improperly Admitted
    • Conduct of Trial - Motion to Strike Evidence Admitted Subject to Connection
    • Conduct of Trial - Offer of Proof - What is it?
    • Conduct of Trial - Method of Making an Offer of Proof
    • ​Conduct of Trial - Exclusion of Witnesses from Courtroom
    • Conduct of Trial - Method of Making Request to Exclude Witnesses
    • Conduct of Trial - Discretion of Judge to Question Witnesses
    • Conduct of Trial - Right of Court to Compel Testimony
    • Conduct of Trial - Right of Trial Judge to Call own Witness.
  • Trial Testimony
    • Trial Testimony - Right to Confer with Counsel
    • Trial Testimony - Right to Interpreter for Person Who Can Not Communicate with Court
    • Trial Testimony - Calling the Adverse Party as a Witness
    • Trial Testimony - Cross Examination - Modes of impeachment
    • ​Trial Testimony - Cross - Examination - Impeachment of Witnesses
    • Trial Testimony - Cross-Examination - Impeachment Limited by Collateral Evidence Rule
    • Trial Testimony - Cross Examination - Impeachment - Reputation for Veracity
    • Trial Testimony - Cross Examination - Reputation for Veracity - Laying Foundation for Impeachment Testimony of Bad Reputation for Veracity
    • Trial Testimony - Cross Examination - Reputation for Veracity - Questions for Impeachment Testimony of Bad Reputation for Veracity
    • Trial Testimony - Cross - Examination - Impeachment of Witness by Prior Inconsistent Statement and Questions for Introduction
    • Trial Testimony - Testimony of Child
    • Trial Testimony- Cross - Examination – Inadmissibility of Proof of Prior Arrest, Indictment or Conviction for Petty Crime
    • Trial Testimony - Cross - Examination - Attempt to Procure False Evidence Competent as an Admission
    • Trial Testimony - Cross-Examination - Impeachment of Witness by Criminal Conviction
    • ​Trial Testimony - Cross-Examination - Impeachment of Witness by Showing Bias, Hostility, or Interest
    • ​Trial Testimony - Cross - Examination - Impeachment by Showing Witness Hostile to Party
    • Trial Testimony- Cross - Examination - Impeachment by Showing Predisposition
    • Trial Testimony - Questions for Impeaching Witness on Cross - Examination by Showing Hostility
    • ​Trial Testimony - Impeaching own Witness
    • Trial Testimony - Prior Testimony - Use of Depositions at Trial or Hearing
    • Trial Testimony - Prior Testimony - Use of Deposition from Prior Action
    • Trial Testimony - Prior Testimony - Effect of using deposition.
    • ​Trial Testimony - Prior Testimony - Use of Deposition Subject to Rules of Evidence
    • Trial Testimony - Prior Testimony - Questions for Impeaching Witness on Cross Examination by Prior Deposition Testimony
    • Trial Testimony - Prior Testimony - Use of Answers to Interrogatories
    • Trial Testimony - Prior Testimony - Use of Answers to Interrogatories from Prior Action
    • Trial Testimony - Prior Testimony - Effect of using Answers to Interrogatories.
    • Trial Testimony - Prior Testimony - Use of Answers to interrogatories Subject to Rules of Evidence
    • Trial Testimony - Prior Testimony - Questions for Impeaching Witness on Cross Examination by Answers to interrogatories
    • Trial Testimony - Prior Testimony - Admission of Prior Testimony
    • Trial Testimony - Prior Testimony - Admission of Prior Testimony Subject to Objection
    • Trial Testimony - Prior Testimony - Necessity of Foundation for Admission of Prior Testimony
    • Trial Testimony - Prior Testimony - Questions for Impeaching Witness on Cross Examination by Prior Testimony
    • Trial Testimony - Method of Marking Documents as Exhibits for Identification and Offering them into Evidence
    • Trial Testimony - Method of Offering Exhibit Marked for Identification into Evidence - Standard Questions
  • Rules of Evidence in Matrimonial Actions
    • Rules of Evidence - In General
    • Evidence and Proof - Competent and Material
    • ​Admissibility of Evidence - General Rule
    • Burden of Proof - Standards of Proof
    • Burden of Proof - Fair Preponderance of Credible Evidence - Clear and Convincing Evidence
    • Burden of Proof - Clear and Convincing Evidence in Matrimonial Actions
    • ​Burden of Proof - Presumptions
    • ​Burden of Proof - “Competent Proof” in Family Court Proceedings
    • ​Standards of Proof for Overcoming Presumptions in Matrimonial Actions
    • ​Foundation for Evidence - Fundamental Error and Harmless Error
    • Foundation for Evidence - Stare Decisis - The Doctrine of Precedent
    • Foundation for Evidence - Law of the Case
    • Foundation for Evidence - Judicial Estoppel
    • Foundation for Evidence - Rule Against Inconsistent Positions
    • Foundation for Evidence - Estoppel from Presenting Evidence at Trial Based Upon Contents of Response to Discovery Demand
    • Foundation for Evidence - Judicial Notice of Law and Facts
    • Foundation for Evidence - Method of Asking Court to Take Judicial Notice of a Fact
    • Foundation for Evidence - Judicial Notice of Testimony at Prior Pendente lite Hearing
    • Admissibility of Evidence - Settlement Offers Not Admissible
    • Admissibility of Evidence - Admissions and Letters by Party’s Attorney Admissible in Evidence
    • Admissibility of Evidence - Presumption that Only Admissible Evidence Was Considered By the Trial Court.
    • Admissibility of Evidence – Rule against Hearsay
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay Applicable in Matrimonial Case
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Verbal or operative acts and State of Mind
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - State of Mind
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Present Sense Impression and Excited Utterance/Spontaneous Declaration
    • Admissibility of Evidence - Exceptions to the Rule Against Hearsay - Not Necessary to Lay Foundation For Admission of Certified Non-Party Business Records Produced Pursuant to Subpoena - CPLR 3122-a.
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Expressions of Intent
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Evidence of Abuse or Neglect in Custody and Child Protective Proceedings
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Former Testimony
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Admissions
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Admission of New Spouse
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Past recollection recorded
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Business Records
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Laying a Foundation for and Questions for Offering Business Records into Evidence
    • Admissibility of Evidence - Exceptions to the Rule Against Hearsay - Business Records - Admission of Hospital bills and Records, Records and Reports of Genetic Marker or DNA tests, and Payment Records
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Admission of Certified Hospital, Library, and Government Records.
    • Admissibility of Evidence - Exceptions to the Rule Against Hearsay - Admission of Business Records - Other Certification Substitutes for Foundation Testimony.
    • Admissibility of Evidence - Exceptions to the Rule Against Hearsay - Admissibility of Medical Reports - Not admissible As Business Records Where They Contain Doctor's Opinion or Expert Proof
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Laying a Foundation for Admission of Business Records and Records of Municipality into Evidence - Summary of Rule
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Questions for Laying a Foundation for and Offering Business and Municipality Records into Evidence
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Method of Laying a Foundation for and Offering into Evidence Certified Records of Business or Municipality
    • Admissibility of Evidence - Exceptions to the Rule against Hearsay - Business Records Rule - Business Duty
    • Admissibility of Evidence - Results of Lie Detector Test Inadmissible
    • Admissibility of Evidence - Privilege - Testimony of One Spouse against the Other. - Action founded Upon Adultery - In General
    • Admissibility of Evidence - Expert Report Inadmissible Without Consent
    • Admissibility of Evidence - Privilege - Testimony of One Spouse against the Other- Action Founded Upon Adultery - As to Non-access
    • Admissibility of Evidence - Privilege - Testimony of One Spouse Against the Other – Actions for Divorce, Separation or Annulment - Confidential Communications.
    • Admissibility of Evidence - Privilege - Testimony of One Spouse against the Other - Confidential Communications - Waiver
    • Admissibility of Evidence - Privilege - Confidential Communications - Waiver
    • Admissibility of Evidence - Privilege - Testimony of One Spouse for the Other - Action founded Upon Adultery
    • Admissibility of Evidence - Privilege - Confessions and Admissions - Action Founded Upon Adultery
    • Admissibility of Evidence - Privilege - Conduct Prior to Marriage - Action Founded Upon Adultery.
    • Admissibility of Evidence - Privilege - Attorney - Client Privilege - Civil Practice Law and Rules § 4501.
    • Admissibility of Evidence - Privilege - Psychologist - Patient Privilege - Civil Practice Law and Rules § 4507.
    • Admissibility of Evidence - Privilege - Physician, dentist, podiatrist, chiropractor and nurse Privilege - Civil Practice Law and Rules § 4507.
    • Admissibility of Evidence - Privilege - Clergy - Penitent Privilege - Civil Practice Law and Rules § 4505.
    • Admissibility of Evidence - Privilege - Social worker - Patient Privilege - Civil Practice Law and Rules § 4508(a).
    • Admissibility of Evidence - Privilege - Rape crisis counselor - client Privilege - Civil Practice Law and Rules § 4510.
    • Admissibility of Evidence - Practice Point - Privilege - Confidential Communications
    • Admissibility of Evidence - Privilege - Fifth Amendment Privilege against Self-Incrimination
    • Admissibility of Evidence - Privilege - Method of Making Objection to Question on Fifth Amendment Grounds
    • Admissibility of Evidence - Privilege - Adverse Inference from Failure of Party to Testify and Failure to Call Favorable Witness - Missing Witness Rule in Civil Case
    • Admissibility of Evidence - Privilege - New York Privilege against Self-incrimination - Civil Practice Law and Rules §4501.
    • Admissibility of Evidence - Privilege - Electronic Communication of Privileged Communications - Civil Practice Law and Rules § 4548
    • Admissibility of Evidence - Evidence Illegally Obtained. – Unlawful Entry, Search and Seizure and Electronic Surveillance of Family Conversations – Exceptions for Custody and Article 10 Cases
    • Admissibility of Evidence - Suppression of Illegally Obtained Eavesdropping Evidence - Civil Practice Law and Rules § 4506(a) - Vicarious Consent for Child
    • Admissibility of Evidence - Motion to Suppress Illegally Obtained Eavesdropping Evidence under CPLR § 4506
    • Admissibility of Evidence - Illegal Interception of Electronic Evidence - Electronic Evidence Defined
    • Admissibility of Evidence - Social Networking Sites
    • Admissibility of Evidence - Admissibility of Electronic Evidence
    • Admissibility of Evidence - Authentication of Instant Message
    • Admissibility of Evidence - Authentication of Text Message and Questions for Introduction into Evidence
    • Questions to Lay Foundation for Introduction of text message into evidence
    • Admissibility of Evidence - Authentication of Blogs and Websites
    • Admissibility of Evidence - Authentication of email and Questions for Introduction
    • Questions to Lay Foundation for Introduction of email into evidence
    • Admissibility of Evidence - Evidence Obtained By Spyware - CPLR 4506
    • Admissibility of Evidence - Admissibility of Audio and Visual Recordings
    • Admissibility of Evidence - Admissibility of Audio and Visual Recordings - Foundation for Admission of Recordings
    • Admissibility of Evidence - Questions for Laying Foundation for Admission of Recorded telephone call into Evidence
    • Admissibility of Evidence - Questions for Laying Foundation for Admission of Transcript of Sound Recorded telephone call into Evidence
    • Admissibility of Evidence - Best evidence rule
    • Admissibility of Evidence - Parol Evidence Rule
    • Admissibility of Evidence - Authentication of Foreign Records and Documents for Use at Trial
    • Admissibility of Evidence - Spoliation - Unfavorable Inference - Preclusion
    • Admissibility of Evidence - Inadmissibility of Evidence Protected by the Health Insurance Portability and Accountability Act
    • Admissibility of Evidence - Admissibility of Foreign Language Exhibits and Affidavits and Papers
    • Admissibility of Evidence - Authentication of official record of court or government office in the United States
    • Practice Point - Admissibility of Charts and Summaries Counsel may be permitted to use charts to summarize documents already in evidence where the charts are based solely on information already in evidence. A foundation must be laid, demonstrating that
    • Practice Point – Testimony about Out of Court Statements Made by Third Party.
    • Practice Point - No Client - Expert Privilege.
    • Practice Point - Trial Evidence not Limited by Scope of Pretrial Disclosure
    • Practice Point - Effect of the Failure of a Party to Deny or Contradict Evidence or Pleadings
    • Practice Point - Effect of withholding Evidence in Your Possession, or Failure to Call a Witness
  • Opinion Evidence
    • Opinion Evidence and Need for Expert Opinion
    • Opinion Evidence - Form of expert opinion
    • Opinion Evidence - Admissibility of Expert Testimony - Basis for Admission of Expert Opinion
    • Opinion Evidence - Impeaching Your Own Expert Witness.
    • Opinion Evidence - Opinion of Ordinary Witness as to ownership, intent, belief and value of property or services.
    • Opinion Evidence - Cross Examination of Expert Witnesses - Impeaching the Expert
    • Opinion Evidence
    • Opinion Evidence – Qualification of Expert and Weight of Testimony
    • Opinion Evidence - Expert Cannot Be Compelled to Testify
  • Custody Proceedings - Rules of Evidence
    • Custody Proceedings - Evidence - Admissibility of Hearsay
    • Custody Proceedings - Evidence - Use of Experts, Evaluations, and Reports
    • Custody Proceedings - Evidence - Investigations
    • Custody Proceedings – Evidence - In-camera and Lincoln interviews
    • Custody Proceedings – Evidence - Confidential communications - Waiver in Custody Cases
    • Custody Proceedings - Evidence - Child Permitted to Assert Psychologist - Patient Privilege
    • Custody Proceedings - Evidence - Admissibility of child abuse reports
    • Custody Proceedings - Evidence - Child as a Witness
  • Questions for the Examination of Witnesses
    • Questions for Placing Stipulation on the Record and Allocution
    • Questions for prima facie economic case - Direct Examination of Client – General Questions
    • Questions for Prima Facie Custody Case -Direct Examination of Party
  • About
  • Contact us