Burden of Proof: Not Quite Our Sesquicentennial

By David Paul Horowitz and Katryna L. Kristoferson | NYSBA Journal Winter 2026

A 150th anniversary is a rare milestone – so rare, in fact, that not even wedding anniversaries stretch that far. Unless you’re flipping through the Old Testament, chances are you won’t find many couples celebrating a sesquicentennial together. Even our traditional wedding gift list tops out at just 60 years (with diamonds, in case you’re wondering).[1]

This column is a mere 20 years old (emerald, in case you are so inclined).[2] Looking back, the changes in practice in the New York State courts during that period often seem dramatic (think NYSCEF filings, remote conferences, and ChatGPT).

On the other hand, legal strategies, effective advocacy, and ethical responsibility remain much the same. Not to mention printed and bound appellate briefs.[3]

Reviewing a sampling of past Burden of Proof columns we are happy to report that while the topics have varied, and they often responded and reported on changes in practice, the core warnings, strategic recommendations, and overall advice, we believe, hold up well (but feel free to tell us otherwise). Along the way, columns celebrated both the 50th and 60th anniversaries of the CPLR.

Countries can, and some do, reach their 150th anniversary. If you trust AI, and what judge doesn’t, here are two search results from the same query:

There are over 70 countries established before or during 1875 (150 years ago), but the exact number depends on how “country” is defined and the criteria for “establishment” or “sovereignty.” Countries like San Marino (301 A.D.), Portugal (1143), Spain (1139), and Sweden (c. 9th-10th century) are among the oldest, with some others like the United States (1776) also being well over 150 years old.[4]

Or:

There are at least 16 countries with official founding dates from 1875 or earlier, meaning they are over 150 years old, including Tonga (1875), Canada (1867), Luxembourg (1868), Australia (1901 – though older with British colonization), and others like San Marino, the United States, and Norway, which are much older. The exact number can vary depending on the criteria used to define a country’s “age,” such as when a modern state or constitution was established versus the age of its civilization.[5]

We don’t understand what all this talk of AI hallucinations is about.

NYSBA’s sesquicentennial is worthy of celebration. So too is the long and storied history of our New York state courts.

Did you know:

The New York State Supreme Court was established in 1691, making it one of the oldest continuing courts of general jurisdiction in the United States. Pursuant to legislation adopted by the New York Assembly, the court, originally known as the Supreme Court of Judicature, was given jurisdiction over criminal and civil pleas. The court was also empowered to hear appeals from local courts. The bench consisted of a Chief Justice and two, later three, Associate Justices. Appeals were taken to the royal governor and his council and from there to the Privy Council in London. During the remainder of the colonial period, the New York Assembly and the royal governors were in conflict over the authority to regulate the jurisdiction and procedure of the court, with many New Yorkers claiming that the acts of the Assembly and English common law defined that jurisdiction and procedure. In fact, basic notions of English common law were transplanted to the State, and in part to the country generally, through the workings of the Supreme Court.[6]

The “modern” incarnation of New York’s civil courts dates to 1986:

In 1986, this court and the rest of the State court system underwent a dramatic change with the introduction of the Individual Assignment System. Prior to that time, the Justices of this court and their colleagues throughout the State did not concern themselves with the pace at which lawsuits moved and did not supervise cases until the eve of trial. Different Justices, sometimes many, handled pretrial applications or motions in each case. The IAS system changed this. In most instances, a case is assigned to a single Justice for all or most of its life. That Justice is now charged with the task of assur

Concomitant with the change and growth of our courts were changes in the bar. “The population of New York City was small at the time of the creation of the court and the number of attorneys tiny (perhaps no more than 20). The city did not reach a population of 25,000 until 1774.”[8]

Fast forward to today. At the end of 2024 there were 190,015 resident lawyers admitted to practice in New York State.[9] Add to that another 170,152 non-resident lawyers admitted to practice yields a grand total of 360,167 lawyers eligible to practice in the state. And yet, while there seems to be enough work to go around for all of us, NYSBA reported in 2019:

[O]nly three percent of [New York State lawyers] live and work in the rural areas that spread across thousands of square miles. This has caused a scarcity of attorneys in the state’s small-town communities and a mounting access to justice crisis that up until now had largely gone unaddressed.[10]

As the courts and bar have changed, the bench has changed, and grown, accordingly:

The Supreme Court was the first in the country to record its opinions officially. The caseload and the production of opinions have changed radically from the early days. In 2018, the Supreme Court, Civil Branch, New York County issued 33,475 decisions on motions, which does not include dispositions at trial.[11]

Just in case you were wondering why it often takes so long for your motion to be decided.

And likely first in New York’s judicial pantheon:

Benjamin N. Cardozo, a graduate of Columbia Law School who practiced law at Cardozo Brothers at 96 Broadway and later 52 Broadway, was elected a Justice of this court in 1913. His outstanding ability was such that he was promptly made a Judge of the Court of Appeals, the State’s highest court, by designation until his election to that court shortly thereafter. He went on to become Chief Judge of the Court of Appeals and to grace the Supreme Court of the United States. Cardozo is generally recognized as among the handful of the greatest Judges in the history of this country.[12]

The remaining stakeholder in our court system? The public it serves:

On the front of the 60 Centre courthouse is this inscription, taken from a letter of George Washington to the

Attorney General in 1789: “The true administration of justice is the firmest pillar of good government.”[13]

As true today as it was then.

So, while statistically only one of us will be writing this column when it celebrates its 40th anniversary (ruby)[14] in 2045,[15] we hope you will continue to join us in each issue and find useful information, strategic tips, and perhaps all too frequent legal and non-legal digressions.

Please see NYSBA.com for the full article.

Ellie Nan Storek and Sarah Schreiber, Anniversary Gifts by Year: Our Traditional
and Modern Guide, Brides (Dec. 11, 2024), https://www.brides.com/gallery/weddinganniversary-
gifts-by-year-for-him-her-and-them.
Id.
N.B. Even appellate practice is changing. The First and Second Department do not require hard copies in e-filed matters but reserve the right to request one. The Third and Fourth departments still require hard copies, regardless of whether the matter is e-filed.
Thank you, Google AI Assist: “How many countries in the world are 150 years old?” (Sept. 29, 2025). (On file with NYSBA).
Google AI Assist, “How many countries in the world are 150 years old” (Sept. 29, 2025). (On file with NYSBA).
History, NYCourts.gov (accessed Sept. 29, 2025), https://ww2.nycourts.gov/
courts/1jd/supctmanh/A_Brief_history_of_the_Court.shtml.
Id.
History, NYCourts, supra n. 6. Another source records New York City’s population in 1774 as under 23,000. 1700-1775 Metropolitan Progress: Setting the Stage for American Independence, History101.nyc. history101.nyc/new-york-city-in-the-1700s.
See Office of Court Administration, Location of Registered NY Attorneys at the
End of Calendar Year 2024, NYS Unified Court System (2024), https://iappscontent.
courts.state.ny.us/aronline/population_report/attorney/2024.pdf.
Christian Nolan, Lawyer Shortage in Small-Town, NY, New York State Bar
Association (Oct. 23, 2019), https://nysba.org/lawyer-shortage-in-small-town-ny-nysbatakes-
lead-to-address-growing-rural-justice-crisis.
Id.
Id.
Id.
Ruby, in case you are wondering. Supra n. 1.
Per Table 1. Life table