Justice Dollinger teaches while entertaining

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You can take state Supreme Court Justice Richard A. Dollinger out of the courtroom, but you can’t take the courtroom out of Dollinger.

When he listens to the song Uptown Girl, Dollinger hears Billy Joel using reputation evidence to describe her.

When Joel sings New York State of Mind, Dollinger asks himself, “How does he get to testify about the state of mind?”

Dollinger’s passion for both music and the law were combined Thursday to create a CLE on the various types of evidence titled The Minstrel Testifies: How the Rules of Evidence Handcuff the Piano Man, Billy Joel.

Accompanied on electric keyboard by Paul Nunes, an attorney and accomplished musician, Dollinger sang a few Joel songs — including Uptown Girl and Italian Restaurant — and delivered a 90-minute presentation to an audience of about 50 attorneys on everything from hearsay rules to demonstrative proof.

“One thing I’ve learned is, having done presentations all over the place, if you can’t entertain them it just doesn’t work,” Dollinger said.

He did a similar program about three years ago at Touro Law School in Suffolk County.

“I did the songs of Billy Joel and said, ‘These are the legal issues that he would face if his songs were someday in the courtroom,’” Dollinger said.

He started out Thursday by getting his audience to sing the La, di da part of Piano man, which he rewrote with his own lyrics.

“It’s 12:15 on a Thursday, and the boys, they all stumble in. They’re confused, sadly they can’t make much sense, in a state with no code of evidence,” it started.

Dollinger spent a lot of time talking about demonstrative evidence, which he defined as “evidence addressed directly to the senses and the trier of facts.”

“Everybody should know demonstrative evidence because demonstrative evidence is on its way to your courtroom whether you want it or not. It has become the most appealing part of evidentiary submissions that you’re starting to see all over the place,” he said.

As a law clerk in the Fourth Department at the start of his career, 40 years ago, Nunes remembered watching Angelo G. Faraci, founding partner of Faraci Lange, an up-and-coming attorney at the time, represent a man who sued his doctor for applying a cast on his arm too tight.

“The issue of demonstrative evidence was evolving and we were going to watch how this young lawyer was going to present the withered arm of the plaintiff, who, because the cast had been on too tight, the muscle tissue had died and the vast underlying vasculature had all been compromised,” Nunes recalled.

“We were breathless. All the clerks had assembled to watch this attorney. And that’s how we were learning evidence, and that’s how I got my first interest and taste of demonstrative evidence,” he said.

As technology progresses, so does demonstrative evidence, Dollinger said. Increasingly, lawyers are preparing videos to show in court, such as depictions of car accidents.

“Understand something: All these videos are getting cheaper, and jurors love them. They want to see action,” Dollinger said.

Dollinger also discussed what he said is a growing debate over whether judges should be allowed to use “outside information” not in the court record in a trial or an appeal. An increasing number of judges are taking advantage of readily available information on the Internet to help make decisions, he said.

In the 2016 New York Court of Appeals decision in Sean R. v. BMW of N. Am., LLC, Judge Eugene F. Pigott Jr., based his decision partly on his own research into the dangerous levels of exposure to gasoline vapor.

In the 2015 Seventh Circuit case, Rowe v. Gibson, Judge Richard Posner did his own research about the proper instructions for effectively treating Gastroesophageal Reflux Disease (GERD) with Zantac.

“Everybody’s doing it now. Wikipedia is starting to crop up in case law everywhere. It’s starting to show up in court opinions. New York judges are starting to go to the internet to figure things out,” Dollinger said.