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Biography

A.B., Brown University
J.D., Boston College
Clerked for Judge Matthew J. Jasen, New York State Court of Appeals, practiced law with a New York law firm involved in antitrust and unfair competition litigation. Authored a book and numerous articles on antitrust and unfair competition. Active in the Litigation Section and the Committee on Antitrust and Unfair Competition of the ABA. Member of advisory group to the American Law Institute Restatement of the Law of Unfair Competition. Member of the New York State Law Revision Commission. Editor, Model Jury Charges in Business Torts Cases. One of seven nominees for the New York Court of Appeals in 1998 as selected by the State Commission of Judicial Nomination.
View Michael J. Hutter's Curriculum vitae (CV)

Books

2002 Update to NO FAULT CASE HANDBOOK (New York State Bar Association)
NO FAULT CASE HANDBOOK (New York State Bar Association, 1996)
Editor, NEW YORK LITIGATION FORMS (Lawyers Cooperative Publishing Co., 1995) (with eds. Kevin J. English, Barry G. Saretsky, et al.)
MONOPOLIES AND MERGERS: CASES AND MATERIALS (1981)
Editor-in-Chief, MODEL JURY CHARGES IN BUSINESS TORT CASES, (ABA, 1981)

Publications

"Executive Branch: Need to Ensure Stability and Legitimacy in Issues of Succession to the Offices of Governor and Lieutenant Governor" in MAKING A MODERN CONSTITUTION: THE PROSPECTS FOR CONSTITUTIONAL REFORM IN NEW YORK (NYSBA, 2016) (Rose Mary Bailly and Scott N. Fein, eds.)
Attorney Client Privilege Update, 20 NY Business Law Journal 36 (NYSBA, Winter 2016)
Appealability of Evidentiary Rulings Made Before Trial on Motions in Limine, Leaveworthy, Vol. V, No. 3, Fall/Winter 2016 (New York State Bar Association)Link to publication
"Evidence" in PREPARING FOR AND TRYING THE CIVIL LAWSUIT, 2nd ed., revised (New York State Bar Association, 2016)
The New York Law Journal in its Feb 4, 2015 edition published his bi-monthly Evidence column. This column addressed and criticized the recent First Department decision in Ambac v. Countrywide which recognized a broad new exception to NY's waiver by disclosure rule.
Excited Utterances and Present Sense Impressions - Time to Reevaluate?
Use of Convictions to Impeach in a Civil Action, New York Law Journal (July 30, 2013)PubArticleNY.jsp
Refreshing Recollection Doctrine Revisited, New York Law Journal (Dec. 6, 2012)
Inadvertent Waiver of the Attorney/Client Privilege, New York Law Journal (Oct. 4, 2012)
Scope of Waiver Effected by Disclosure of Attorney-Client Privileged Matter, New York Law Journal (Aug. 2, 2012)
Pommells: The Facts, Nothing But the Facts, 78 (no. 5) New York State Bar Association Journal 42 (2006)papers.cfm
COVENANTS NOT TO COMPETE: A USEFUL EXPLANATION INCLUDING DRAFTING (National Law Foundation, 2006)
Honor The Craft: The Judicial Legacy of Judge Matthew J. Jasen, 69 Albany Law Review 403 (2006)papers.cfm
Evidence (2004-2005 Survey of New York Law), 56 Syracuse Law Review 871 (2006)papers.cfm
Evidence (2003-2004 Survey of New York Law), 55 Syracuse Law Review 1005 (2005)papers.cfm
Evidence (2002-2003 Survey of New York Law), 54 Syracuse Law Review 601 (2005)papers.cfm
Impeachment of a Witness in a Civil Action: Proof of Prior Misconduct (Bad Acts), (Spring 2004) New York State Trial Lawyers Institute Bill of Particulars (2004)hutter-impeachment-of-a-witness-2004.pdf
Evidence (2001-2002 Survey of New York Law), 53 Syracuse Law Review 539 (2003)papers.cfm
Using Expert Testimony as a Basis for the Invocation of Res Ipsa Loquitor,(Fall 2003) New York State Trial Lawyers Institute Bill of Particulars (2003)hutter-on-evidence-using-expert-testimony-2003.pdf
Plaintiff's Pre-Trial Statements and Expressions of Physical Sensations and Condition: The Questionable Status of New York's Rules Governing Their Admissibility, (Spring 2003) New York State Trial Lawyers Institute Bill of Particulars (2003)hutter-plaintiff-pretrial-statements-2003.pdf
Hospital Records Entries, (Summer 2003) New York State Trial Lawyers Institute Bill of Particulars (2003)hutter-on-evidence-hospital-record-entries-2003.pdf
Accident Reports and the Business Records Hearsay Exception: The Johnson v Lutz Judicially Created Requirement, (Winter 2002) New York State Trial Lawyers Association Bill of Particulars (2002)hutter-on-evidence-accident-reports-2002.pdf
Toure v. Avis and the Serious Injury Threshold: The Court of Appeals Giveth and Taketh Away, But Giveth More, (Fall 2002) New York State Trial Lawyers Association Bill of Particulars 39 (2002)hutter-toure-v-avis-rent-a-car-systems-2002.pdf
Evidence, (2000-2001 Survey of New York Law), 52 Syracuse Law Review 397 (2002)papers.cfm
Tyrrell v. Wal-Mart Admissibility of Employee Statement Regarding Spills in Slip and Fall Cases, (Summer 2002) New York State Trial Lawyers Association Bill of Particulars 55 (2002)hutter-tyrrell-v-walmart-2002.pdf
Chapter: Conduct of the Hearing in MANUAL FOR ADMINISTRATIVE LAW JUDGES AND HEARING OFFICERS, rev. ed. (R. Heverly, ed.) (New York State Dept. of Civil Service, 2002)papers.cfm
Appendix A: Evidence in MANUAL FOR ADMINISTRATIVE LAW JUDGES AND HEARING OFFICERS, rev. ed. (R. Heverly, ed.) (New York State Dept. of Civil Service, 2002)
NO-FAULT SERIOUS INJURY (National Law Foundation, 2002)
2002 Update to NO FAULT CASE HANDBOOK (New York State Bar Association)
EMPLOYEE COVENANTS-NOT-TO-COMPETE (Albany Law School, Institute of Legal Studies, 2001)
Contents of Writing, Recordings, and Photographs, in EMERGING PROBLEMS WITH THE FEDERAL RULES OF EVIDENCE, 3rd ed., (Lexis, 1998) at 387hutter-emerging-problems-under-federal-rules-1998.pdf
Hearsay Update in POLITICAL EVIDENCE (New York State Bar Association, 1996)
NO FAULT CASE HANDBOOK (New York State Bar Association, 1996)
Government Liability and Immunity from Personal Injury Claims, in THE 1996 WARREN M. ANDERSON LEGISLATIVE BREAKFAST SEMINAR SERIES (Government Law Center of Albany Law School, 1996) at 43papers.cfm
Government Investigative Reports: a New Approach for Their Admissibility in State Courts, Trial Lawyers Section Digest (Trial Lawyers Section, New York State Bar Association) (no. 33) March 1996, at 1hutter-government-investigative-reports-1996.pdf
Hearsay: the Principal Exception, in PRACTICAL EVIDENCE (New York State Bar Association, 1995)
No Fault Law Update, in AUTOMOBILE INSURANCE LAW (New York State Bar Association, 1995)
Evidence, (1994-1995 Survey of New York Law), 46 Syracuse Law Review 601 (1995)papers.cfm
Editor, NEW YORK LITIGATION FORMS (Lawyers Cooperative Publishing Co., 1995) (with eds. Kevin J. English, Barry G. Saretsky, et al.)
Revision of Chapters 2, 14, 57 and 75, Weinstein-Korn-Miller, NEW YORK CIVIL PRACTICE (Matthew Bender, 1987-1996)
Developments Re: Expert Testimony Under the Federal Rules of Evidence, in EXPERT WITNESSES (NYSBA, 1987)
Protecting Software, in COMPUTER LAW (New York State Bar Association, 1987)
Business Torts, in ACTIONS AND PROCEEDINGS (Callaghan, 1985)
Drafting Enforceable Noncompetition Agreements,4 Legal Notes and Viewpoints Quarterly 73 (1983)hutter-drafting-non-competition-agreements-1984.pdf
Drafting Enforceable Employee Non-Competition Agreements to Protect Confidential Business Information: A Lawyer's Practical Approach to the Case Law, 45 Albany Law Review 311 (1981)hutter-drafting-employee-non-competition-agreements-1981.pdf
MONOPOLIES AND MERGERS: CASES AND MATERIALS (1981)
Remedies in Trade Secret Cases, in PROTECTING TRADE SECRETS (PLI, 1981)
Editor-in-Chief, MODEL JURY CHARGES IN BUSINESS TORT CASES, (ABA, 1981)
Pursuing Ex-Employees Who Misappropriate Trade Secrets: Pre-trial Considerations, 6 Litigation 39 (1980)
DISCUSSION OF CERTAIN RECOMMENDATIONS OF THE NATIONAL COMMISSION FOR THE REVIEW OF ANTITRUST LAWS AND PROCEDURES, Prepared for the ABA Litigation Committee (March 1979)
DISCUSSION OF CITY OF LAFAYETTE V. LOUISIANA POWER AND LIGHT, Prepared for the office of the New York Secretary of State (February 1979)
Trade Secret Misappropriation: A Lawyer's Practical Approach to the Case Law, 1 Western New England Law Review 1 (1978)papers.cfm
"Dirty Tricks" and Section One of Sherman Act: Federalizing State Unfair Competition Law, 18 Boston College Industrial and Commercial Law Review 239 (1977)papers.cfm
"Kelley v. Johnson" and Tonsorial Tastes: The Death Knell of Substantive Due Process, 41 Albany Law Review 411 (1977)papers.cfm
Book Review, (with Maleski) reviewing PRODUCTS LIABILITY: CASES AND MATERIALS, 65 Georgetown Law Journal 865 (1977)
Chapters, No Fault Law Update in DECISION (New York State Trial Lawyers Association) annually, 1991-2003
Editor-in-Chief, Business Torts Newsletter * Previewed in Preview of United States Supreme Court Cases:

Forthcoming Publications

Selected Achievements

Professor Michael Hutter participated in the discussion "Asbestos Litigation in New York" presented by the New York State Federalist Society and the Lawsuit Reform Alliance of New York at Albany Law School on April 23, 2018.
Professor Michael Hutter was invited to present a paper before the New York Appellate Division justices at their annual meeting in March concerning "splits" among the four departments, and their effects on the civil justice system in N.Y. He also engaged in a discussion with the justices concerning his presentation.
Professor Michael Hutter presented the CLE "CPLR Update 2018" for the New York State Academy of Trial Lawyers on January 16, 2018.
Professor Michael Hutter presented “Evidence Essentials For Trial Judges” at the NYS Judicial Institute's annual January training program for newly elected and appointed judges in New York.
Professor Michael Hutter’s scholarship was cited in the NYS Assembly Memorandum in Support of Legislation for A.5919-A, which proposes a new rule of evidence.
Professor Michael Hutter presented a “New York Practice Update” at the Government Law Center's Summer in Saratoga CLE Series in Saratoga Springs, N.Y. on August 18, 2017.
Professor Michael Hutter presented a “New York Evidence Update” at the Government Law Center's Summer in Saratoga CLE Series in Saratoga Springs, N.Y. on August 11, 2017.
Professor Michael Hutter was recognized by the Northern District of New York Federal Court Bar Association and the Judges of the Northern District of New York for his pro bono service at an awards ceremony at the James T. Foley Courthouse on July 12, 2017.
Professor Michael Hutter and Professor Vincent Bonventre spoke at the 2017 Judicial Institute seminar—a program that hosted over 400 judges from around the state—on June 20, 2017.
Professor Michael Hutter presented an Evidence Update for an Albany County Bar Association CLE program on May 25, 2017.
Professor Michael Hutter participated in a roundtable discussion with New York State court judges discussing the concerns and emerging problems with electronic evidence at the annual meeting of the New York State Bar Association's Commercial and Federal Litigation Section in Saratoga Springs, N.Y. on May 21, 2017.
Professor Michael Hutter presented the paper "Discovery and Admissibility of Electronic Evidence" at a Fourth Department Attorneys for Children Seminar on May 18, 2017.
Professor Michael Hutter conducted a full-day trial program for Legal Aid attorneys, focusing on the admissibility of evidence at trials and dealing with evidence rules on April 21, 2017.
Professor Michael Hutter spoke on the topic of "Evidence: Concepts and Principles" at a meeting of the Chenango/Delaware/Otsego County Chapter of the New York State Women's Bar Association in Oneonta, N.Y. on April 4, 2017.
Professor Michael Hutter served as the mediator on March 31, 2017 at the request of the Northern District of New York federal court in a wrongful death action brought against the United States as a result of alleged medical malpractice occurring at a VA Hospital in Syracuse.
Professor Michael Hutter moderated a panel organized by the Albany Law School Federalist Society discussing the nomination of Judge Neil Gorsuch to the United States Supreme Court on March 30, 2017. The program featured a presentation by Minnesota Supreme Court Associate Justice David Stras.
Professor Michael Hutter gave remarks at the 2017 Hugh R. Jones Memorial Lecture delivered by former New York Chief Judge Jonathan Lippman at Albany Law School on March 29, 2017.
Professor Michael Hutter participated in a mock trial program sponsored by the Capital District Trial Lawyers' Association featuring the examination, both direct and cross, of a physician on March 16, 2017.
Professor Michael Hutter presented an Evidence Update at the annual meeting of the Sixth Judicial District judges on February 23-24, 2017.
Professor Michael Hutter was recognized by New York Chief Judge Janet DiFiore for his work as reporter to the newly formed OCA Evidence Committee in her annual State of the Judiciary speech on February 22, 2017.
Professor Michael Hutter was a roundtable participant at the screening of "(Dis)Honesty: The Truth About Lies" at Albany Law School on January 26, 2017.
Professor Michael Hutter was invited to participate in the NYS Judicial Institute's annual week-long program for newly elected and appointed judges in New York.
Professor Michael Hutter presented an Update on Civil Practice at the NYS Office of the Attorney General on November 17, 2016.
Professor Michael Hutter presented "Serious Injury and No Fault Update" at the Suffolk County Academy of Law on November 17, 2016.
Professor Michael Hutter moderated the panel "The Role of Technology in Advancing Evidentiary Procedures" at the Albany Law Journal of Science and Technology Symposium at Albany Law School on November 16, 2016.
Professor Michael Hutter presented "Issues in Admissibility of Electronic Evidence" to NYS Surrogates at their annual meeting on November 15, 2016.
Professor Michael Hutter presented a civil evidence update at the Recent Graduate CLE Program at Albany Law School on November 4, 2016.
Professor Michael Hutter presented an Update on Civil Evidence to attorneys at the NYS Office of the Attorney General on November 3, 2016.
Professor Michael Hutter presented "Evidentiary Issues in Administrative Proceedings" to NYS Administrative Law Judges on November 3, 2016.
Professor Michael Hutter presented an Update on Evidence and Tort Law to the NYS Academy of Trial Lawyers on October 28, 2016.
Professor Michael Hutter, who serves as special counsel to Powers & Santola, LLP, was named in the 2017 edition of "The Best Lawyers in America" in the field of Appellate Practice.
Professor Michael Hutter was appointed to serve as Reporter to New York's new Judicial Advisory Committee on Evidence on July 25, 2016.
Professor Michael Hutter was invited to serve on the Board of Editors of the New York State Bar Association Journal on July 5, 2016.
Professor Michael J. Hutter was invited by the NYS Judicial Institute to participate in its Summer Judicial Education programs for New York state judges and their legal staffs. In June he presented lectures in Rochester, Binghamton and New York City on developments in tort law, business records hearsay exception, and impeachment methods, respectively. He focused on recent cases that impacted these topics.
Professor Michael Hutter was a presenter at the 2016 Joint Seminar for the First, Second, Third and Fourth Judicial Departments held at the Second Department in Brooklyn, N.Y. on May 11, 2016.
Professor Michael Hutter and Professor Patrick Connors participated in the annual meeting of the 4th Judicial District Federated Bar Association held in Montreal on April 29-30. They were invited to give presentations on developments in New York Evidence and New York Civil Practice, respectively. Also presenting at the meeting was Hon. Karen Peters, the Presiding Justice of the Appellate Division, Third Department, and Claire Gutekunst, President-Elect of the NY State Bar Association.
Professor Michael Hutter participated as a panelist for "Roundtable: How Historians Use Legal Materials & How Lawyers Use Historical Materials," a program put on by the University at Albany Department of History and Albany Law School on April 28, 2016.
Professor Michael Hutter presented a New York CPLR Update for Albany Law alumni in New York City on April 27, 2016.
Professor Michael Hutter presented an Evidence Update for the Albany County Bar Association membership.
Professor Michael Hutter submitted an amicus brief in the New York Court of Appeals case Ambac Assurance Corporation v. Countrywide Home Loans, Inc. on March 17, 2016.
Professor Michael J. Hutter presented a 2014 CPLR Update to the Academy of Trial Lawyers. His materials were distributed statewide to the Academy's membership.
Professor Hutter presented "No Fault and Related Tort Issues" before the Nassau County and Suffolk County Academy of Law on June 11 and 26, 2014.
The Appellate Division, Third Department decided the World Trade 9/11 case where Professor Hutter represented on a pro bono basis a volunteer who was denied benefits. The Court accepted his arguments and issued a major decision concerning workers' compensation benefits, reversing the Board and awarding benefits.
Professor Michael Hutter was invited to present "Developments in Electronic Evidence for Family Court Practitioners" in Syracuse, N.Y.
Professor Michael Hutter testified on behalf of Court of Appeals nominee Sheila Abdus-Salaam on April 30, 2013.
Professor Michael Hutter will serve as president of the Albany County Bar Association for the next year. He was elected vice president in January 2011 and served as president-elect for the 2012 term. Justice John T. Casey '49 swore in Professor Hutter at a ceremony on Jan. 16, 2013.
Professor Michael Hutter gave a presentation on "Expert Testimony and Related Discovery Issues at the annual meeting of the Association of Justices of the Supreme Court of the State of New York on Oct. 10, 2012. He also delivered his annual updates on Evidence and No Fault/Serious Injury for the New York Academy of Trial Lawyers on Oct. 5, 2012.
Professor Michael Hutter presented two sessions on Evidence, Torts and Negligence at Albany Law School’s CLE in Saratoga Program in Saratoga Springs, N.Y., on Aug. 10.
Professor Hutter presented at a program for newly elected state judges conducted by the State Judicial Institute, working with an Appellate Division Judge and a Supreme Court Judge.
Professor Michael J. Hutter presented a 2014 No Fault/Serious Injury Update to the Capital District Trial Lawyers Association at its Annual Meeting.
Professor Michael J. Hutter presented at the request of the NY State Bar Association a Memorial to Prof Siegel at the NYSBA's Annual Meeting before the House of Delegates.
Two of Professor Hutter's prior Evidence columns were the basis of two evidence legislative proposals which are part of the Office of Court Administration's 2015 Legislative Program.
One proposed bill proposes for New York a new hearsay exception for agent/employee admissions, which tracks Prof Hutter's call for legislative action to do away with NY's present archaic law on the subject. The other proposed bill proposes an amendment to NY's attorney-client privilege dealing with waiver by disclosure, intentional or inadvertent disclosure, which tracks FRE 502, as urged by Proffessor Hutter.
Professor Michael J. Hutter has been appointed Chair of a subcommittee of the State Bar's CPLR Committee to study and report on a legislative proposal to change or modify New York's present common law rules governing the proper foundation for an expert's opinion.
Professor Michael J. Hutter's article - The case for Adoption of the Uniform Trade Secrets Act, published in 10 Alb. L.J. Tech and Science 1 - was cited favorably in the Wright Miller Federal Practice and Procedure Treatise.
Professor Michael J. Hutter has been appointed to the Advisory Group (Members Consultative Group) for the new Restatement (Third) of Conflicts of Law.

In the News

Professor Michael Hutter's column “Excited Utterances and the Quest for Reliability in 'Cummings'” was published by the New York Law Journal on June 6, 2018.
Professor Michael Hutter's column "Protecting Attorney-Client Privileged Communications Disclosed to Retained Professionals" was published by the New York Law Journal on April 4, 2018.
Professor Michael Hutter's column, "Take a Break With This Evidence Quiz," was published by the New York Law Journal on January 30, 2018.
Professor Michael Hutter was quoted in the New York Times article "Legal Boot Camp for New Judges in New York" on January 4, 2018.
Professor Michael Hutter’s column “Revisiting the Character Witness for Untruthfulness” was published by the New York Law Journal on December 6, 2017.
Professor Michael Hutter’s column “Notable Decisions From the 2016-2017 Term, Continued” was published by the New York Law Journal on October 5, 2017.
Professor Michael Hutter's column "Notable Decisions From the 2016-2017 Court Term" was published by the New York Law Journal on August 2, 2017.
Professor Michael Hutter was quoted in the New York Law Journal article "Circuit Taps New York's High Court for Clarity on Trade Secrets Questions" on June 5, 2017.
Professor Michael Hutter was quoted in the Spectrum News State of Politics article "Albany Law Prof Doubts Stipend System Broke Law" on June 2, 2017.
Professor Michael Hutter's evidence column "Using Employer's Server for Personal Communications: Privilege Protected?" was published by the New York Law Journal on June 1, 2017.
Professor Michael Hutter was a guest on "Focus on the Capitol with Fred Dicker" on Talk 1300 on June 2, 2017.
Professor Michael Hutter was quoted in the Times Union article "Three DAs throw support to Abelove's challenge of Cuomo" on May 16, 2017. He appeared on Talk 1300's "Focus on the State Capitol" to discuss the issue on May 17.
Professor Michael Hutter remembered alumnus Sol Greenberg, longtime Albany County District Attorney, on WAMC radio on April 21, 2017. "Even at 95 years old he was still very active out there talking with the younger lawyers, law students and the like, imparting upon them some life lessons about being in the trenches and how that was gonna help these kids in the future," Professor Hutter said.
Professor Michael Hutter’s 2013 testimony was quoted in the Vice/Broadly article “Judge Sheila Abdus-Salaam Was a Champion for the Poor and the Marginalized” on April 13, 2017.
Professor Michael Hutter's evidence column, "'People v. Vining': Adoptive Admissions by Silence" was published by the New York Law Journal on April 5, 2017.
Professor Michael Hutter's column, "Admissibility of Business Records Containing Out-of-Court Statements," was published by the New York Law Journal on February 2, 2017.
Professor Michael Hutter's evidence column, "'People v. Smith' and 'Bad Acts' Impeachment," was published by the New York Law Journal on December 1, 2016.
Professor Michael Hutter's evidence column, "'Stock' and the Application of the Intra-Law Firm Privilege," was published by the New York Law Journal on October 4, 2016.
Professor Michael Hutter's evidence column, "Attorney-Client Privilege and Related Common Interest Doctrine," was published by the New York Law Journal on August 1, 2016.
Professor Michael Hutter's column, "Judicial Notice of Website Information," was published by the New York Law Journal on June 2, 2016.
Professor Michael Hutter was quoted in the article "Court Weighs Merits of Attorney-Client Privilege Expansion" in the New York Law Journal on May 2, 2016. The quote was taken from Prof. Hutter's co-authored amicus brief in the New York Court of Appeals case Ambac Assurance Corporation v. Countrywide Home Loans, Inc.
Professor Michael Hutter's column, "Admissibility of Evidence Obtained from Facebook," was published by the New York Law Journal on April 7, 2016.
Professor Michael Hutter's column, "Fiduciary Exception to Privilege in Shareholder Actions," was published in the New York Law Journal on February 3, 2016.

Michael J. Hutter

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