Burden of Proof

Striking / Excusing a Prospective Juror for Bias during Voir Dire

Posted by David Adelstein on November 04, 2017
Appeal, Burden of Proof, Standard of Review, Trial Perspectives / Comments Off on Striking / Excusing a Prospective Juror for Bias during Voir Dire

An attorney’s opportunity to question prospective jurors (the jury venire) is an important part of the trial process. This is known as voir dire. Attorneys want to ask tailored questions to determine those persons in the venire that should be stricken for cause, those for which they should exercise a peremptory challenge, and those, quite frankly, they want to sit on the jury panel. There is strategy involved including wanting to develop a rapport with jurors. These are the potential folks that will render a verdict in the case and analyze the factual evidence based on the law (jury instructions). Having the opportunity to speak to them and ask them questions cannot be overlooked! Parties need a reasonable opportunity to ask prospective jurors questions during voir dire.

An important part of voir dire is to figure out biases of potential jurors. Obviously, if a juror cannot truly be impartial or fair based on their preconceived biases, then an attorney will want them stricken for cause. But in order to truly determine whether a juror has a bias that should render them stricken for cause, both sides need the reasonable opportunity to question the venire. Otherwise, the determination of a juror’s prejudicial bias will be one-sided based on one side’s questioning without any context from the questions the opposing side will ask.

In recent case, Irmi v. Estate of Dale Moyer, 42 Fla. L. Weekly, D2156b (Fla. 4th DCA 2017), dealing with wrongful death associated with cigarette smoking, the plaintiff’s counsel asked the venire whether they felt that if someone has been smoking essentially all of their life whether their family should not be allowed to file suit against the tobacco companies. Numerous jurors felt that the family should not be allowed to sue in this scenario. Such jurors were then asked whether this belief was strongly held and if they had a reasonable doubt whether they could set this feeling aside (establishing the bias of the jurors). The defense counsel wanted the opportunity to question such jurors in private to see if any of them could be rehabilitated (so they are not stricken for cause) but the court would not allow this. The defense counsel then wanted the opportunity to speak with the entire venire panel before the court struck jurors for cause based on their bias regarding long term cigarette smoking. The court denied this, over the defense counsel’s objection, and allowed approximately 30 jurors to leave without the defense ever questioning them.

After a jury verdict was entered for the plaintiff, the defendant moved for a new trial arguing that the court erroneously dismissed jurors for cause after the plaintiff’s questioning during voir dire without ever allowing the defense to question these jurors. The trial court recognized this error and granted a new trial because the court prevented the defense from its reasonable opportunity to question jurors about biases based on the plaintiff’s voir dire questioning. The plaintiff appealed the trial court’s granting of a new trial.

When an appellate court reviews a trial court’s order granting a new trial, it is done under a limited abuse of discretion standard of review. “A trial court’s discretion to grant a new trial is of such firmness that it would not be disturbed except on a clear showing of abuse.” Irmi, supra, quoting Thigpen v. United Parcel Servs., Inc., 990 So.2d 639, 645 (Fla. 4th DCA 2008).

Here, the trial court granted a new trial because it realized it excused jurors for cause based on bias without allowing the defense the opportunity to ever question these jurors. When a trial court is deciding whether to excuse a juror for bias, the test is whether the juror possesses the state of mind necessary to render a verdict in accordance with the evidence and not based upon preconceived opinions.” Irmi, supra (internal quotation and citation omitted). This means that each side – both the plaintiff and defense – must be given an opportunity to orally question jurors so that the entire context of the juror’s answers can be considered. “A trial court must excuse a juror where there is reasonable doubt whether the juror is impartial. To determine whether such reasonable doubt exists, the trial court should consider the context and entirety of the juror’s responses.” Irmi, supra (internal quotation and citation omitted).

In this situation: “The trial court had the unique perspective to reflect upon its own decision to eliminate thirty-one people from the venire without allowing the defense to ask a single question. We provide great deference to trial courts in making such decisions. We agree with the trial court in correcting its initial error and granting a new trial.” Irmi, supra.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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The Nonparty Fabre Defendant

Posted by David Adelstein on February 20, 2016
Burden of Proof, Trial Perspectives / Comments Off on The Nonparty Fabre Defendant

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I want to discuss the concept of a “Fabre defendant.” This is an important concept in negligence cases, particularly personal injury and property damage cases.

A ‘Fabre defendant’ is a nonparty defendant whom a party defendant asserts is wholly of partially responsible for the negligence alleged [by the plaintiff].Salazar v. Helicopter Structural & Maintenance, Inc., 986 So.2d 620, n.1 (Fla.2d DCA 2007).

As further explained in Florida Statute s. 768.81(3):

(3) Apportionment of damages.–In a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.

(a) 1. In order to allocate any or all fault to a nonparty, a defendant must affirmatively plead the fault of a nonparty and, absent a showing of good cause, identify the nonparty, if known, or describe the nonparty as specifically as practicable, either by motion or in the initial responsive pleading when defenses are first presented, subject to amendment any time before trial in accordance with the Florida Rules of Civil Procedure.

2. In order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff’s injuries.

This means in order to allocate fault to a Fabre defendant (a nonparty) the named defendant must a) plead the fault of the nonparty and identify the nonparty in an affirmative defense, and, importantly b) prove at trial by a preponderance of evidence the fault of the nonparty (the Fabre defendant) causing plaintiff’s injuries in order to get that nonparty on the verdict form for purposes of having the jury allocate damages to the nonparty.  

Simply identifying the nonparty in an affirmative defense is not good enough. The burden of proof is on the named defendant to prove the nonparty’s negligence at trial to get that nonparty on the verdict form as a Fabre defendant. R.J. Reynolds Tobacco Company v. Grossman, 96 So.3d 917, 919-20 (Fla. 4th DCA 2012) (nonparty Fabre defendant may not be included on verdict form until defendant proves nonparty’s negligence at trial) . However, a named defendant cannot rely on the vicarious liability of a nonparty to prove that nonparty’s fault in order to get that nonparty identified on the verdict form. See Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262, 1263 (Fla. 1996) (security company could not name hospital that hired it as Fabre defendant since hospital would only be vicariously liable based on the negligence of the security company).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Proving Affirmative Defenses and the Affirmative Defense of Comparative Negligence

Posted by David Adelstein on April 01, 2015
Burden of Proof, Jury Instructions / Comments Off on Proving Affirmative Defenses and the Affirmative Defense of Comparative Negligence

 

When a defendant is sued, the defendant will typically assert affirmative defenses (or defenses to the claims asserted by the plaintiff).  Just like a plaintiff has the burden of proof to prove its claims against a defendant, the defendant has the burden of proof to prove its affirmative defenses.

The recent opinion in Bongiorno v. Americorp., 40 Fla L. Weekly D760c (Fla. 5th DCA 2015) exemplifies that a defendant that asserts an affirmative defense has the burden of proving that defense.   This case was a personal injury negligence case. The defendant argued that the plaintiff’s negligence contributed to her negligence, i.e., the affirmative defense of comparative negligence.   The reason the defendant argued this is to reduce its damages exposure.

For instance, let’s assume the jury found that the plaintiff’s damages were $100,000 but that the plaintiff was 50% responsible for her damages. This would have the effect of the court reducing the plaintiff’s damages by 50% or, in this hypothetical, $50,000, in the judgment.

Florida’s standard jury instruction dealing with comparative negligence provides:

501.4 COMPARATIVE NEGLIGENCE, NON-PARTY FAULT AND MULTIPLE DEFENDANTS

In determining the total amount of damages, you should not make any reduction because of the negligence, if any, of (claimant). The court will enter a judgment based on your verdict and, if you find that (claimant) was negligent in any degree, the court in entering judgment will reduce the total amount of damages by the percentage of negligence which you find was caused by (claimant).

[The court will also take into account, in entering judgment against any defendant whom you find to have been negligent, the percentage of that defendant’s negligence compared to the total negligence of all the parties to this action.]*

*Use the bracketed paragraph above only when there is more than one defendant; the reference to “responsibility” in this additional instruction is designed for use in strict liability cases.

However, the point is that even if you wanted to assert comparative negligence as an affirmative defense, the burden would be upon you (the defendant) to prove this defense. The Court in Bongiorno explained:

Comparative negligence is an affirmative defense; thus, the party asserting the defense bears the burden of proving that the negligence of the other party was a cause of the accident.

***

The four elements necessary to prove a negligence claim [and, thus, a comparative negligence defense] include: (1) a duty to conform to a certain standard of conduct; (2) a breach of the duty; (3) proximate cause; and (4) damages.

Bongiorno, supra (internal quotations and citations omitted).

Notably, in Florida, when it comes to negligence claims, a defendant can only be liable for his/her/its pro rata percentage of fault. See Fla. Stat. 768.81(3) (“In a negligence action [or an action based on a theory of negligence], the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.”). This means that joint and several liability no longer applies in negligence actions; this is why a defendant’s allocated percentage of fault, especially when there are multiple defendants, becomes important. With the affirmative defense of comparative negligence, as mentioned above, the defendant’s pro rata percentage of fault may be reduced based on the pro rata percentage of fault caused by the plaintiff that contributed to the plaintiff’s damages.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Proximate Causation in a Negligence Action and the Granting of a Directed Verdict in a Negligence Action

Posted by David Adelstein on March 07, 2015
Burden of Proof, Evidence / Comments Off on Proximate Causation in a Negligence Action and the Granting of a Directed Verdict in a Negligence Action

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Mostly everyone has heard of the term “negligence.” Negligence actions oftentimes form the basis of personal injury claims and, in certain instances, property damage claims. (For example, this article discusses negligence actions in premise liability claims.)

To prove a negligence claim, a plaintiff must prove the following elements: 1) the defendant owed a duty of care to the plaintiff, 2) the defendant breached that duty of care, 3) the defendant’s breach proximately caused damages to the plaintiff, and 4) the plaintiff suffered injuries / damages.

The Florida Supreme Court in Sanders v. ERP Operating, Ltd. Partnership, 2015 WL 569041 (Fla. 2015) recently discussed the application of a directed verdict in a negligence action (the case was a negligent security action). The district court of appeal held that the plaintiff, as a matter of law, failed to prove the element that her injuries were proximately caused by the defendant’s breach of a duty of care. The Florida Supreme Court reversed with two important rulings regarding 1) the element of proximate causation in a negligence action and 2) the granting of a directed verdict in a negligece action.

Element of Proximate Causation in Negligence Action

 

 As to the element of proximate causation, the Florida Supreme Court held:

“Whether or not proximate causation exists is a question of fact, involving an inquiry into whether the respondent’s [defendant] breach of duty [of care] foreseeably and substantially contributed to the plaintiff’s injuries. This Court has made clear that plaintiffs alleging negligence in Florida must meet the more likely than not standard of causation as Florida courts require proof that the negligence probably caused the plaintiff’s injury.”

Sanders, supra, at *3 (internal citations and quotations omitted).

Directed Verdict in Negligence Action

 

As to the granting of a directed verdict, the Florida Supreme Court held:

“In order for a court to remove the case from the trier of fact and grant a directed verdict, there must only be one reasonable inference from the plaintiff’s evidence. Where the jury only has to draw one inference from direct evidence to reach a decision regarding the defendant’s negligence, the jury is entitled to make the ultimate factual determination regarding whether the defendant’s breach was the proximate cause of the harm suffered. Thus, if the jury is forced to stack inferences to find that the plaintiff presented a prima facie case of the defendant’s negligence, then a directed verdict is warranted. An appellate court reviewing the grant of a directed verdict must view the evidence and all inferences of fact in the light most favorable to the non-moving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the non-moving party.”

Sanders, supra, at *3 (internal citations and quotations omitted).

Take-Aways

 

The following bullet points are important take-aways from this Florida Supreme Court case:

  • When proving a negligence action, make sure you understand the elements you need to prove and the evidence required to support the elements.
  • The element of proximate causation is typically a question of fact and is generally proven by the “more likely than not” standard—the plaintiff must prove that the defendant’s breach probably (e.g., more likely than not) caused the plaintiff’s injuries / damage.
  • A directed verdict entered against a plaintiff will only be proper if no proper view of the evidence and all inferences from the evidence can sustain a verdict in favor of the plaintiff as a matter of law.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Harmless Error and the “No Reasonable Possibility” Test

Posted by David Adelstein on February 07, 2015
Appeal, Burden of Proof / Comments Off on Harmless Error and the “No Reasonable Possibility” Test

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The terms “harmless error” and “reversible error” are well known terms in the trial and appellate world. In a nutshell, a harmless error is an error committed by the trial judge that does NOT impact the fairness of the trial; a reversible error is an error that does impact the fairness of the trial. 

A party appealing a trial judge’s ruling (appellant) aims to establish that the trial judge’s ruling, etc. amounted to reversible error. The party responding to the appeal (appellee) aims to establish that there was no error, but if there was, it was harmless. If an error amounts to reversible error, it could result in a new trial or even a reversal of the judgment.

Florida Statute s. 59.041 explains the harmless error standard:

No judgment shall be set aside or reversed, or new trial granted by any court of the state in any cause, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice. This section shall be liberally construed.

However, what impacts a fair trial and results in a “miscarriage of justice” has long been established on a case-by-case basis. This, however, has led to uncertainty as to how to specifically define a harmless error–an error that does not result in a miscarriage of justice / the right to a fair trial–in civil matters. In other words, when does an error result in miscarriage of justice and when does it not and whose burden is it to establish the harmless error?

The Florida Supreme Court in Special v. West Boca Medical Center, 2014 WL 5856384 (Fla. 2014) addressed this exact issue in ruling that the “no reasonable possibility” test is the harmless error test to be applied to civil trials:

To test for harmless error, the beneficiary of the error [appellee] has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error [appellee] must prove that there is no reasonable possibility that the error contributed to the verdict.

***

[T]he application of the no reasonable possibility test for harmless error in civil appeals will serve multiple purposes. The test acts in a manner so as to conserve judicial resources while protecting the integrity of the process. Additionally, the test strikes the proper balance between the parties. While the party that seeks relief  [appellant] must still identify the error and raise the issue before the appellate court, this test properly places the burden of proving harmless error on the beneficiary of the error [appellee]. Requiring the beneficiary of the error to demonstrate that there is no reasonable possibility that the error contributed to the verdict discourages efforts to introduce error into the proceedings.

Special, supra, at *4, 5.

Thus, under the “no reasonable possibility” test: (1) a harmless error is an error in which there is no reasonable possibility that the error contributed to the verdict and (2) the party responding to the appeal (appellee) has the burden to establish that the error was harmless.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Satisfying the Burden of Proof by a “Greater Weight of the Evidence”

Posted by David Adelstein on December 26, 2014
Burden of Proof, Evidence / Comments Off on Satisfying the Burden of Proof by a “Greater Weight of the Evidence”

images-1Burden of Proof

 

The burden of proof (or burden of persuasion) in a civil case is NOT the same “beyond a reasonable doubt” burden that the government has in convicting a criminal defendant.   The burden of proof in a civil case is a much lesser burden.

Rather, the burden of proof in a civil case is often referred to as the burden to prove YOUR case by a “preponderance of the evidence” now known as the “greater weight of the evidence.”

It is this “greater weight of the evidence” burden of proof that a jury will be instructed upon. The jury will be instructed that it is their determination based on the evidence as to whether the plaintiff (party prosecuting civil claims) satisfied its burden of proof with respect to the elements of its claims against the defendant (party that the plaintiff is suing).

An example of a model jury instruction read to the jury explaining what a “greater weight of the evidence” means is as follows:

“Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.

See Standard Jury Instruction 405.3.

One way this “greater weight of the evidence” burden of proof has been explained is that it is simply the difference between 51% and 49%, with the 51% representing the “more persuasive and convincing force and effect of the entire evidence in the case.”  Another way is to simply think of a scale of justice (see above image) where if the plaintiff’s evidence outweighs (by a marginal amount) the defendant’s evidence, than the plaintiff’s evidence was the “more persuasive and convincing force and effect of the entire evidence in the case.”  

To illustrate, applying this jury instruction to the elements of a breach of contract claim, this means a plaintiff MUST prove be a “greater weight of the evidence” that: (1) there was a contract between the plaintiff and the defendant; (2) the defendant breached that contract; and (3) the defendant’s breach of the contract caused damages to the plaintiff. See Knowles v. C.I.T. Corp., 346 So.2d 1042 (Fla. 1st DCA 1977).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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