Standard of Review

De Novo Standard of Appellate Review for Construction of Arbitration Provision

Posted by David Adelstein on February 10, 2016
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Your contract contains an arbitration provision meaning you are required to arbitrate your dispute instead of litigate your dispute (in court).  Nonetheless, your opponent files a lawsuit against you and you move to compel the dispute to arbitration pursuant to the arbitration provision in your contract.  But, the trial court denies your motion to compel arbitration based on its interpretation of the arbitration provision. So, what do you do? You file an interlocutory appeal to appeal this ruling since you want to arbitrate your dispute.  The appellate standard of review for the construction (interpretation) of an arbitration provision is de novo.  See MuniCommerce, LLC v. Navidor, Ltd., 41 Fla. L. Weekly D317b (Fla. 4th DCA 2016) (reversing trial court’s order compelling arbitration based on its construction of arbitration provision).  

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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Statutory Construction Subject to De Novo Standard of Appellate Review

Posted by David Adelstein on February 07, 2016
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Oftentimes, courts are required to engage in statutory construction and this statutory construction becomes a driving issue in the dispute. Statutory construction is the process of a court interpreting law and then applying that law to a set of facts. For example, if your case turns on the interpretation of a particular Florida statute applied to your facts, this would be statutory construction. 

On appeal, the issue of statutory construction is subject to a de novo standard of appellate review. Taylor Morrison Services, Inc. v. Ecos, 163 So.3d 1286, 1289 (Fla. 1st DCA 2015). A de novo standard of review means the appellate court is going to review the trial court’s record anew without giving deference to the trial court.

I discussed the facts in Taylor Morrison Services here. The issue on appeal was whether a homebuilder (contractor) was unlicensed at the time of contract with the homeowners (per Florida Statutes Chapter 489). The trial court declared that the homebuilder was unlicensed by interpreting Florida’s licensing law and applying that law to the facts before it. In reviewing this issue on appeal (and ultimately reversing the trial court’s statutory construction), the First District stated:

The correctness of the trial court’s order turns on an issue of statutory construction, which is subject to de novo review. Proper statutory analysis begins with the plain language of the statute, which is to be considered in context, and not construed in a way that renders any portion of the statute meaningless. When the [statutory] language is unclear or ambiguous, it is appropriate to apply established principles of interpretation to discern the meaning of the governing text.

Taylor Morrison Services, 163 So.3d at 1289 (internal citations omitted).

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The Certiorari Standard of Review

Posted by David Adelstein on November 13, 2015
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I previously talked about petitions for writs of certiorari and the certiorari standard of review. A recent Florida Fourth District Court of Appeals explained: “Certiorari review is appropriate when an order [from the trial court] departs from the essential requirements of law, causing material injury throughout the remainder of proceedings below and effectively leaving no adequate remedy on post-judgment appeal.” Robinson v. Florida Peninsula Insurance Co., 40 Fla.L.Weekly D2547b (Fla. 4th DCA 2015).

In this matter, a homeowner filed a lawsuit against his homeowner’s insurance carrier. The insurer moved to abate the lawsuit for purposes of compelling the homeowner to allow the insurer to exercise its right to repair under the policy. However, the homeowner already initiated repairs.   The trial court granted the insurer’s motion to abate and the homeowner filed a petition for writ of certiorari.

The Fourth District granted the petition quashing the trial court’s order to abate the case. The Court held that the trial court departed from the essential requirements of the law by abating the homeowner’s lawsuit because if the homeowner performed the repairs the abatement would serve as a dismissal of the case thereby causing material injury to the homeowner. In other words, if the homeowner did the repairs, there were no repairs for the insurer to perform and/or exercise its rights to perform.

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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Ruling on Admissibility of Evidence Reviewed Under Abuse of Discretion

Posted by David Adelstein on October 06, 2015
Evidence, Standard of Review / Comments Off on Ruling on Admissibility of Evidence Reviewed Under Abuse of Discretion

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The trial court allowed certain testimony / evidence to be introduced at trial.  I objected, but the trial court overruled my objection. That evidence was introduced and I lost the trial.  I am considering an appeal based on the trial court’s admissibility of this evidence.

“Rulings on the admission of evidence are reviewed [on appeal] under the abuse of discretion standard [of review].”  Cantore ex rel. Cantore v. West Boca Medical Center, Inc., 2015 WL 5603449 (Fla. 4th DCA 2015).  This discretion, however, is limited by the Florida Rules of Evidence.   Johnston v. State, 863 So.2d 271, 278 (Fla. 2003). 

For example, in Cantore, a medical malpractice action, a pediatric neurosurgeon that treated a minor answered hypothetical questions.  The jury returned a verdict in favor of the defendant hospital and the plaintiff appealed.   The plaintiff argued that the the trial court should not have admitted the testimony of the treating doctor in answering hypothetical questions.   The appellate court, in the context of the medical malpractice action, found that the trial court did not abuse its discretion in admitting this testimony.

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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Know Your Standard of Appellate Review Regarding the Admissibility of Evidence

Posted by David Adelstein on March 21, 2015
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The standard of appellate review regarding the trial court’s admissibility of evidence is an abuse of discretion. See Vavrus v. City of Palm Beach Gardens, 927 So.2d 992 (Fla. 4th DCA 2006); Castaneda ex rel. Cardona v. Redlands Christian Migrant Ass’n, Inc., 884 So.2d 1087 (Fla. 4th DCA 2004).  Naturally, a party needs to preserve this issue by objecting to the admissibility of the evidence.  If a trial court sustains an objection and excludes the evidence, the party trying to introduce the evidence should make a proffer / offer of proof

On the other hand, the standard of review for the trial court’s interpretation of a contract, which is a question of law, is subject to the much more favorable de novo standard of appellate review. See Jenkins v. Eckard Corp., 913 So.2d 43 (Fla. 1st DCA 2005); RNK Family Limited Partnership v. Alexander-Mitchell Associates, 788 So.2d 1035 (Fla. 2d DCA 2001). This means the appellate court can examine the contract and reach a completely different legal interpretation than the trial court. See Leisure Resorts, Inc. v. City of West Palm Beach, 864 So.2d 1163 (Fla. 4th DCA 2003). Best explained by the Fourth District Court of Appeal in Gilman Yacht Sales, Inc. v. FMB Investments, Inc.766 So.2d 294, 296 (Fla. 4th DCA 2000) (internal citations omitted):

The interpretation of a written contract is a question of law to be decided by the court. An appellate court is not bound to give the trial judge’s interpretation or construction of a contract any weighted presumption of correctness. To the contrary, a decision construing a contract is reviewable on appeal under a de novo standard of review, and therefore we are required to consider for ourselves anew the meaning of the disputed contractual language.

It is important for parties to know the standard(s) of appellate review they may confront when appealing a trial court’s ruling as the standard of review will dictate the amount of deference the appellate court is required to give the trial court’s ruling. A de novo standard of review is much more favorable than an abuse of discretion standard of review.  The appellate standard of review is an essential component of appellate practice and will be identified in an appellate brief.   And, besides the standard of review, a party defending an appeal (appellee) may argue that to to the extent the trial court erred, such error was nothing more than a harmless error that did not contribute to the verdict.  

 

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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Voir Dire and Reasonable Opportunity to Examine Prospective Jurors

Posted by David Adelstein on January 25, 2015
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Voir dire, as mentioned in prior postings, is a very important part of the jury trial process.   Voir dire is when the parties have an opportunity to examine and question prospective jurors in the context of their theme and case in order to determine which six jurors (and alternate) should be sworn in on the jury panel. The objective behind voir dire is to ensure that parties have a fair and impartial jury. Williams v. State, 424 So.2d 148 (Fla. 5th DCA 1982).

 The right of parties (and even the trial court) in civil dispute to engage in voir dire is set forth in Florida Rule of Civil Procedure 1.431 which provides in pertinent part:

(b) Examination by Parties. The parties have the right to examine jurors orally on their voir dire. The order in which the parties may examine each juror shall be determined by the court. The court may ask such questions of the jurors as it deems necessary, but the right of the parties to conduct a reasonable examination of each juror orally shall be preserved.”

The trial court has discretion to control voir dire including limiting argumentative or repetitive examination. Leamon v. Punales, 582 So.2d 8 (Fla. 3d DCA 1991); Allen v. Se-Go Industries, Inc., 510 So.2d 1097 (Fla. 3d DCA 1987) (trial court had discretion to conduct voir dire and then limit each party to 20 minutes to examine prospective jurors); but see Carver v. Niedermayer, 920 So.2d 123 (Fla. 4th DCA 2006) (trial court limiting parties voir dire to 30 minutes to examine 19 prospective jurors was arbitrary and constituted reversible error).

A trial court’s control or limitations imposed on voir dire will not be disturbed unless the trial court abused its discretion. Sisto v. Aetna Cas. and Sur. Co., 689 So.2d 438 (Fla. 4th DCA 1997). Hence, the standard of appellate review is abuse of discretion. A trial court will be deemed to abuse its discretion in controlling the voir dire process if it prevents a party of its right in conducting a reasonable examination to ensure a fair and impartial jury is selected.   A reasonable voir dire examination assists the parties “in determining whether a particular juror should be the subject of either a challenge for cause or a peremptory challenge.Carver, 920 So.2d at 124 (quotation and citation omitted). Thus, it would be an abuse of discretion to deprive a party of this right to reasonably identify prospective jurors to challenge. See id.

For instance, in the personal injury case Sisto, the trial court prevented the plaintiff from inquiring as to prospective jurors’ views concerning personal injury lawsuits and damage awards. This limitation prevented the plaintiff from going into prospective jurors’ views and feelings on non-economic damages that are largely the type of damages awarded in a personal injury case. Naturally, this is an important aspect of a personal injury case that impacted the plaintiff’s exercise of peremptory challenges or excusing a prospective juror for cause based on that juror’s feelings and views about non-economic damages awarded in the personal injury context. The jury found for the plaintiff but did not award the plaintiff any non-economic damages. The plaintiff appealed and the appellate court found that the trial court abused its discretion in limiting the plaintiff’s voir dire examination and remanded the case for a new trial.

 

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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Application of the Business Records Exception to the Hearsay Rule

Posted by David Adelstein on January 18, 2015
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Hearsay (an out-of-court statement offered at trial for the truth of the matter asserted) is inadmissible at trial. But, there are exceptions to this exclusionary hearsay rule to allow such evidence / testimony to be admissible at trial.

Previously, I wrote about one exception known as the business records exception contained in Florida Statute s. 90.803. The business records exception is commonly relied on in business disputes in order to admit business records as evidence.  

What if there is an appeal concerning the admissibility of evidence introduced at trial under an exception to the hearsay rule?

 

Standard of Appellate Review

 

Whether evidence is admissible under an exception to the hearsay rule, such as the business records exception, is subject to a de novo standard of appellate review. See Browne v. State, 132 So.3d 312, 316 (Fla. 4th DCA 2014).   

 

Application of Business Records Exception

 

Landmark American Insurance Company v. Pin-Pon Corp., 2015 WL 71849 (Fla. 4th DCA 2015) is recent a case where the appellate court remanded the dispute back to the trial court for a new trial as to damages because the trial court improperly allowed evidence to fall within the business records exception to the hearsay rule.  The evidence should have been deemed hearsay and should not have been admissible under the business records exception.

This case involved an insurance coverage dispute over damages a hotel sustained from a hurricane. After trial, the hotel received a judgment against its insurer. The insurer appealed and an issue on appeal concerned whether the trial court erred in admitting the hotel’s repair (damages) estimate.

The hotel, to support its repair damages, introduced into evidence a composite exhibit through its architect.   The exhibit contained the architect’s repair scope of work (to repair the damage stemming from the hurricane). The exhibit also contained cost information (pricing the architect’s repair scope of work) that was not prepared by the architect. Rather, the cost information was prepared by the hotel’s general contractor with subcontractor invoices and proposals as the supporting back-up.

Because documents within the composite exhibit (such as the cost information) were not prepared by the architect and, thus, would ordinarily constitute hearsay, the hotel tried to establish that the cost information generated by the contractor and subcontractors would be admissible under the business records exception to the hearsay rule.

The architect testified that in its normal course of business it prepared a repair scope of work (drawings) to address the hurricane damage. This repair scope of work was given to the hotel’s contractor to cost / price. The contractor then submitted the cost / pricing information to the architect for review. The architect testified that these were the types of records it would ordinarily maintain in its ordinary course of business.   Based on this testimony, the trial court ruled that the business records exception applied (since the cost information would be hearsay) and allowed this composite exhibit to be introduced as evidence.

The appellate court, in a detailed discussion about the business records exception to the hearsay rule, explained:

For a record to be admissible under the business records exception, the proponent must show that (1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) that it was a regular practice of that business to make such a record. However, the fact that a witness employed all the “magic words” of the exception does not necessarily mean that the document is admissible as a business record.

To lay a foundation for the admission of a business record, it is not necessary for the proponent of the evidence to call the person who actually prepared the business records. The records custodian or any qualified witness who has the necessary knowledge to testify as to how the record was made can lay the necessary foundation. Stated another way, the witness just need be well enough acquainted with the activity to provide testimony.   To the extent the individual making the record does not have personal knowledge of the information contained therein, the second prong of the predicate requires the information to have been supplied by an individual who does have personal knowledge of the information and who was acting in the course of a regularly conducted business activity.

Nonetheless, the fact that a document is incorporated into a business’s records does not automatically bring the document within the business records exception to the hearsay rule. Otherwise, every letter which plaintiff’s employer received in connection with the operation of his business and which was subsequently retained as part of his business records ipso facto would be fully competent to prove the truth of its contents.”

Pin-Pon Corp., 2015 WL at *7 (internal quotations and citations omitted).

The appellate court held that the architect did not properly lay the foundation for the cost documentation within the composite exhibit to establish that the documentation fell within the business records exception to the hearsay rule. In particular, the architect could not show: (i) the documentation was made by or from information transmitted by a person with knowledge, (ii) the documentation was made at or near the time of the event since the architect had no knowledge when the documentation was made, and (iii) whether the preparer of the documents had knowledge or received information from a person with knowledge.

Because this documentation should have been deemed inadmissible, the appellate court remanded the case back to the trial court for a new trial on damages since there was a reasonable possibility that the error in admitting this evidence contributed to the jury’s verdict (i.e., the error in admitting this evidence was not a harmless error).

This case demonstrates the importance in properly laying the foundation so that documents are properly admitted into evidence.  As mentioned above, business disputes generally involve parties admitting evidence under the business records exception to the hearsay rule.  Thus, knowing how to properly lay the foundation for such evidence is important because if that evidence is improperly admitted there is a good chance that error in admitting the evidence will not constitute a harmless error

 

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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Expert Opinion Testimony and the Standard of Appellate Review

Posted by David Adelstein on January 11, 2015
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Previously, I discussed expert opinion testimony and the Daubert gatekeeping test employed by trial courts to determine the admissibility of the expert testimony. But, there is much more to expert opinion testimony. 

An expert witness is NOT allowed to serve as a conduit for inadmissible hearsay so that a party is using an expert witness to simply get in testimony/evidence that is otherwise inadmissible. Doctors Co. v. State, Dept. of Ins., 940 So.2d 466, 470 (Fla. 1st DCA 2006) (“The rule is well established that if an expert is called merely as a conduit to place inadmissible evidence before the jury, the trial court appropriately exercises its discretion by excluding such evidence.”); accord Tolbert v. State, 114 So.3d 291, 294 (Fla. 4th DCA 2013) (internal quotation and citation omitted) (“Although an expert may rely on hearsay in reaching the expert’s opinion, an expert’s testimony may not merely be used as a conduit for the introduction of the otherwise inadmissible evidence.”)

Moreover, an expert is NOT permitted to bolster his/her credibility on direct examination by testifying that he/she relied on communications/consultations (hearsay) with other experts in order to reach his/her expert opinion. See Linn v. Fossum, 946 So.2d 1032 (Fla. 2006). Stated differently, an expert cannot bolster his/her credibility by testifying that a treatise, article, study, or colleague (e.g., hearsay) agrees with his/her opinion before the expert has been impeached on cross-examination. See Duss v. Garcia, 80 So.3d 358 (Fla. 1st DCA 2012).

What if the trial court allows or disallows expert testimony? In other words, what if the trial court grants a motion to strike an expert (or certain expert testimony) or denies a motion to strike an expert (or certain expert testimony)? 

“The standard of [appellate] review for trial court decisions concerning the qualifications of expert witnesses and the scope of their testimony is abuse of discretion.”   County of Volusia v. Kemp, 764 So.2d 770 (Fla. 5th 2000) (reversing final judgment because trial court erred in allowing expert opinion testimony). This means that a trial court’s acceptance of expert opinion testimony or rejection of expert opinion testimony will NOT be disturbed on appeal unless the trial court abused its discretion. Doctors Co., 940 So.2d 466 (finding the trial court did not abuse its discretion in disallowing expert testimony).

 

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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Verdict Forms (General or Special) and the Two-Issue Rule

Posted by David Adelstein on January 03, 2015
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Verdict Forms

I previously discussed the importance of jury instructions and the jury instruction conference.

Now, I want to discuss the importance of the verdict form. This is the form the jury fills out during its deliberation that identifies the associated liability and damages it determines.

There are 2 types of verdict forms used. A general verdict form is a relatively simple form that is easy to prepare and asks the jury to determine whether it believes the defendant is liable and, if so, the damages the defendant owes the plaintiff.   This is the type of form a plaintiff oftentimes wants. A special interrogatory verdict form, on the other hand, is a verdict form that requires the jury to answer numerous Yes and No questions that forms the basis of how the jury reaches the liability and damages it determines. The special interrogatory verdict form, unlike the general verdict form, has the jury make factual findings by answering numerous questions relating to the theories of liability and the corresponding affirmative defenses. Oftentimes, a defendant prefers a special interrogatory verdict form.

If a party objects to a special interrogatory verdict form or certain questions within the verdict form, it is important for them to put that objection on the record. Likewise, if a party objects to a general verdict form, it is important for them to put that objection on the record and submit a special interrogatory verdict form. See Whitman v. Castlewood Intern. Corp., 383 So.2d 618 (Fla. 1980). 

The trial judge has discretion to determine the type of verdict form that is submitted to the jury. See Walsh v. Diaz, 409 So.2d 1186 (Fla. 4th DCA 1982). Thus, the standard of appellate review is abuse of discretion and absent prejudicial or reversible error, the verdict form given to the jurors will not overturn the verdict. See Triana v. Fl-Shock, Inc., 763 So.2d 454 (Fla. 3d DCA 2000).  Notably, in a complex civil case with multiple defendants and multiple theories of liabilities against the defendants, the Fifth District Court of Appeal held it was reversible error to submit a general verdict form to the jury when the defendants objected to the use of that form. See Derrick v. Clemons, 576 So.2d 939 (Fla. 5th DCA 1991).

There is also an important appellate doctrine known as the two-issue rule when it comes to verdict forms that finds, “where there is no proper objection to the use of a general verdict, reversal is improper where no error is found as to one of two issues submitted to the jury [one of which could be determinative of the case] on the basis that the appellant is unable to establish that he has been prejudiced.” See Whitman, 383 So.2d at 619.   The reason this rule applies is because if more than one issue is submitted to the jury and either issue could be determinative of the case, the general verdict form makes it impossible for an appellate court to determine which issue formed the basis of the jury’s verdict. See Food Lion, L.L.C. v. Henderson, 895 So.2d 1207 (Fla. 5th DCA 2005).

For example, let’s say an injured plaintiff sued a defendant under two theories of liability: (1) negligent failure to maintain premises in a reasonably safe manner and (2) negligent failure to warn the plaintiff of a dangerous condition. The jury returned a general verdict form in favor of the plaintiff. The defendant did not object to the use of a general verdict form that simply asked, “was there negligence on the part of the defendant that was the legal cause of injuries to the plaintiff.”   The general verdict form, unlike a special interrogatory verdict form, did not go into detail as to which theory of liability the negligence (that the jury determined) was grounded on. The defendant appealed as to one theory of liability, but under the two-issue rule, the appellate court had to affirm because it was uncertain which theory of liability the jury based its verdict on and there was no error raised on appeal with the other theory of liability. See Food Lion, 895 So.2d 1207.

In another example, let’s say a plaintiff sued a defendant for breach of contract. The case proceeded to trial and a general verdict form was agreed on by the parties and used. The jury returned a verdict in favor of the defendant. The plaintiff appealed and argued that the trial court erred in instructing the jury on one of the defendant’s affirmative defenses. But, because of the general verdict form, it was uncertain whether the jury ruled in favor of the defendant on this defense or other affirmative defenses raised by the defendant for the jury’s consideration (that would be determinative of the case). Thus, under the two-issue rule, there could be no reversal where “no error is found as to one of the issues that can independently support the jury’s verdict.” See Barth v. Khubani, 748 So.2d 260 (Fla. 1999).

 

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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Preparing Jury Instructions and the Standard of Review in Appealing Jury Instructions

Posted by David Adelstein on December 30, 2014
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Jury Instructions

Jury instructions are a vital component of any jury trial. These are the instructions that the trial judge reads to a jury explaining the elements of the plaintiff’s causes of action against the defendant, the defendant’s defenses, the required burden of proof, how to weigh the evidence, etc. There are jury instructions that are considered Florida standard jury instructions. But, outside of these standard jury instructions, there is a great deal of discretion in preparing and presenting jury instructions in civil trials as long as the instructions accurately reflect the law and are not misleading to the jury.

Typically, each party prepares their own jury instructions (that are not standard jury instructions). The parties then try to agree on a uniform set of instructions to present to the trial judge. It is common for parties to disagree on these jury instructions as each party prefers jury instructions that best suits their case. The judge then holds what is known as a charging conference / jury instruction conference with the parties to determine those applicable jury instructions that the trial judge will read to the jury. However, when the parties disagree as to the jury instructions to be read to the jury, this serves as the basis of an appeal at the conclusion of the trial. It is important, however, for a party to raise an objection during the charging conference / jury instruction conference to a jury instruction that the party may later need to appeal. See High, Clarke & Feneis, Inc. v. Public Service Mut. Ins., 238 So.2d 169 (Fla. 3d DCA 1970) (affirming judgment because party failed to preserve objection to jury instruction by failing to raise objection at charging conference). It is also important for parties to ensure there is a court reporter at the jury instruction conference so that any objection is properly preserved and made part of the record for the appeal. See Wright v. Coca Cola Bottling Co. of Miami, 256 So.2d 56 (Fla. 4th DCA 1971) (affirming judgment because the record failed to disclose any objection made to the jury instructions).

The standard of appellate review relating to jury instructions is abuse of discretion (a standard of review previously discussed in prior postings). See Barton Protective Services, Inc. v. Faber, 745 So.2d 968, 974 (Fla. 4th DCA 1999). As best articulated by the Fourth District Court of Appeal:

A trial court is accorded broad discretion in formulating appropriate jury instructions and its decision should not be reversed unless the error complained of resulted in a miscarriage of justice or the instruction was reasonably calculated to confuse or mislead the jury. A decision to give or withhold a jury instruction is to be reviewed under the abuse of discretion standard of review. The party defending the instructions on appeal must show that the requested instructions accurately stated the applicable law, the facts supported giving the instruction, and that the instruction was necessary in order to allow the jury to properly resolve all the issues in the case. If the jury instructions, as a whole, fairly state the applicable law to the jury, the failure to give a particular instruction will not be an error.

See id (internal citations omitted).

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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