Introduction

• Jurisdiction: New York

xv

INTRODUCTION

All litigation requires the introduction of evidence, whether it is the

recounting of events by a witness or a witness laying the foundation for

the introduction of some form of physical evidence. Unless the litigants

stipulate to the introduction of this evidence, the attorney proffering the

evidence must be prepared to use the proper foundational questions to

permit this evidence to be admitted for the fact finder’s consideration.

Attorneys who do not ask the appropriate questions may find themselves

frustrated by a string of sustained objections. If the evidentiary rules are

addressed inarticulately, carelessly or incorrectly, important evidence may

be preclude from introduction by the Court.

This manual is intended to assist attorneys in addressing and insuring the

introduction of competent evidence. It should aid all attorneys in preparing

appropriate foundation testimony for the introduction of evidence and the

examination of witnesses. Also included is a discussion of the business

record rule,1 which is the fundamental basis for the introduction of most

business records, and other relevant provisions of the CPLR, such as sec-

tions 2306 and 2307 and rules 4520 and 4540, which simplify the proce-

dures for the admission of certain documents by eliminating, through

certificates, many foundation issues.

This book also contains a collection of forms and protocols, which set

forth foundation questions for the introduction of some of the more tradi-

tional and common business records, and for the qualification of witnesses

who will testify about them, including experts in a variety of disciplines,

such as ballistics, narcotics and pathology.

The forms collection also includes the necessary predicate, or founda-

tion, questions that must be asked before other forms of evidence, such as

photos or contraband, may be introduced, as well as the proper methods

for establishing a chain of custody for introducing physical evidence. In

addition, it suggests proper methods for introducing evidence to impeach

witnesses and evidence introduced by an adversary.

For the most part, these forms and protocols concern issues and sub-

jects that litigators encounter on a regular basis. They include basic ques-

tions that should be answered before the document or item can be

received in evidence or the witness qualified as an expert. They always

1See N.Y. Civil Practice Law & Rules 4518 (CPLR).