The Burden of Proof

by Philip M. Halpern

Overview

This meticulous, thorough, and scholarly book provides an understanding of the burden of proof and all it entails, beginning with its historical roots in the court systems of ancient Greece and Rome. Equally a practical work, it demystifies the theory and workings of the burden of proof in civil trials and how it profoundly shapes litigation practice.

Product Details

ISBN-13:	9781641056694
Publisher:	American Bar Association
Publication date:	02/07/2021
Pages:	396
Product dimensions:	6.90(w) x 9.90(h) x 0.90(d)

About the Author

The Honorable Philip M. Halpern is a United States District Judge of the District Court for the Southern District of New York. Prior to receiving his judicial com- mission, Judge Halpern was the managing partner of Collier Halpern & Newberg, LLP, a practice focusing on commercial litigation, estates, employment litigation, real estate litigation, and securities litigation, and had more than ninety reported decisions and more than three decades of experience in representing individuals, corporations, and Fortune 500 companies. While in private practice, Judge Halpern was certified by the National Board of Trial Advocacy as a civil trial advocate and a civil pretrial advocate, and was selected as a Super Lawyer every year since 2008. He has also served as a mediator in U.S. Federal Court for the Southern District of New York and in New York State Supreme Court in the Civil Branch for New York County and in the Ninth Judicial District, Commercial Division, for Westchester County.

Judge Halpern also teaches a course entitled The Anatomy of a Trial: The Burden of Proof as an Adjunct Professor at The Elisabeth Haub School of Law at Pace University, dealing exclusively with trial skills.

Judge Halpern is a magna cum laude graduate of Fordham University, where he majored in economics and is a graduate of the Elisabeth Haub School of Law at Pace UniversitySchool where he obtained his juris doctor. He began his legal career in 1980 as a law clerk to Federal Judge Irving Ben Cooper in the Southern District of New York.

In 2002, Mr. Halpern authored a two-volume book for Thompson Publishing Company on civil procedure entitled Civil Pretrial Proceedings in New York. He has also authored several articles for the Westchester Bar Association, New York State Bar Association, American Bar Association, and the Pace Law Review, and in addition to his adjunct professorship, he has lectured for the Office of Court Administration, New York State Bar Association, New York City Bar Association and a number of Bar Associations on a variety of litigation topics. Judge Halpern received the Pace Law School Alumni Leadership Award in 2006, Westchester County Business Journal Pace Setter Award in 2007, the American Diabetes Asso- ciation Father of the Year Award in 2009, and was the Honoree for the Legal Services of the Hudson Valley Equal Access to Justice Award in 2017.

Table of Contents

Dedication vii

Acknowledgments ix

About the Author xi

1 The Historical Origins 1

Introduction 1

I Athenian Law 8

II Roman Law: The Legis Actio Sacramentum in Rem 16

III Roman Law: The Formulary Procedure 19

IV Roman Law and the Common Law 27

V Conclusion: The Reception of the English Common Law in America 38

2 What Is the Burden of Proof? 41

Introduction 41

I The Burden of Proof 42

II The Burden of Production 50

III Presumptions 59

IV The Burden of Persuasion 68

3 What Is the Standard of Proof? 73

Introduction 73

I Standard of Proof-Preponderance of the Evidence 75

II Standard of Proof-Clear and Convincing Evidence 78

III Standard of Proof-Substantial Evidence in Article 78 Proceedings 80

IV Standard of Proof-Beyond Reasonable Doubt 83

4 Common-Law and Statutory Burdens of Proof 87

Introduction 88

I Common Law 89

A Contracts 89

B Torts 99

II Statutory 157

A Statutory Trademark Infringement 157

B Statutory Eviction Laws 160

C Americans with Disabilities Act-Federal and State 161

D Racketeer Influenced and Corrupt Organizations Act-Federal and State 163

5 Use of Burden of Proof in Discovery 171

Introduction 171

I Picking the Right Discovery Device for the Burden of Proof 173

A Obtaining Discovery from Parties 174

B New York Commercial Division Rules 181

C Obtaining Discovery from Nonparties 183

D Nonparty Discovery and the Commercial Division Rules 192

II Burden of Proof in Discovery-Related Motions 194

A Motion to Compel 194

B Motion for Protective Order or Order of Confidentiality 199

C Motion to Quash 206

D Motion for an Order of Contempt 208

E Motion to Strike a Pleading 211

6 Use of Burden of Proof in Dispositive Motions 215

Introduction 216

I Motion to Dismiss 216

A CPLR § 3211(a)(7) 216

B CPLR § 3211(a)(1) 221

C CPLR § 3211(b) 225

II Summary Judgment 227

A Summary Judgment Motions 227

B Motion for Default Judgment 237

C Motion to Amend Pleading 238

D Motion for a Preliminary Injunction or Temporary Restraining Order 239

E Motion to Reargue and Motion to Renew 244

7 Trial Preparation Based on the Burden of Proof 247

Introduction 247

I Voir Dire 249

II Motions in Limine 256

A Burden of Proof on a Motion in Limine 257

B Why Make a Motion in Limine 258

C Subjects of the Motion 260

D When a Motion in Limine Is Denied 262

E When an in Limine Ruling Is Violated 263

F Nonappealable Motions in Limine 263

III Opening Statements 265

IV Proof at Trial 267

V Motion at the Close of Plaintiff's Evidence 271

VI Defendant's Case 272

VII Motion at Close of Defendant's Case 273

VIII Motion During Trial for Continuance or New Trial 274

IX Closing Argument 275

X Use of Burden of Proof in Post-Trial Motions 277

8 Appeal Based on Burden of Proof 293

Introduction 294

I New York Appellate Courts 294

A Court of Appeals 294

B Appellate Division 295

C Appellate Term 296

II Taking an Appeal 297

A Motion for a Stay 297

B Notice of Appeal 309

C Notice of Cross-Appeal 326

D Motion for Leave to Appeal 330

III Standard of Appellate Review 334

A De Novo Review 335

B Discretionary Review (Deferential Review) 336

C Other Standards of Appellate Review 337

IV Perfecting the Appeal 337

A Record on Appeal Based on the Standard of Review 337

B Brief Based upon Burden of Proof 340

C Oral Argument Based upon Burden of Proof 343

Table of Cases 345

Index 375