Trial Perspectives

Do I or Do I Not File a Reply to Affirmative Defenses?

Posted by David Adelstein on January 13, 2017
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I’ll be the first to tell you that I seldom file a reply to affirmative defenses unless I am truly looking to avoid an affirmative defense – I have a defense to the defense. When I do file a reply, it is typically specific and catered to a specific defense (again, a specific defense to a specific affirmative defense). This is an important consideration and not filing a reply and specifically avoiding a defense (when you have a defense to the defense) can be problematic as an insured recently found out in an insurance coverage dispute.  Thus, if you have an avoidance to a specific affirmative defense, raise it in a reply!

The insured filed an insurance coverage dispute and the insurer relied on an exclusion in the policy. The insured, however, never filed a reply to the affirmative defense. When the insurer moved for summary judgment on the exclusion, the insured tried to argue waiver, that the insurer’s conduct waived its right to this affirmative defense. Well, this is an avoidance of the defense (a defense to a defense) and should have been raised in a reply. But, it was not. The trial court granted the summary judgment in favor of the insurer and on an appeal the appellate court agreed – the insured failed to preserve its waiver argument because it never raised its waiver defense to the insurer’s affirmative defense through a reply:

We reject Gamero’s [insured’s] argument that Foremost [insurer] waived its right to rely upon the marring exclusion [in the insurance policy] by its pre-suit conduct in initially acknowledging coverage and paying a portion of the claim. Moreover, even if such actions by Foremost amounted to a waiver, Gamero failed to preserve the issue below. After Gamero filed suit for breach of the insurance contract, Foremost answered and asserted, as an affirmative defense, that Gamero’s claim was excluded from coverage because the loss constituted marring. Gamero, however, failed to reply to, or avoid, this affirmative defense by alleging, as he does in this appeal, that the affirmative defense was waived by Foremost’s conduct in initially acknowledging coverage and paying a portion of the claim. Instead, Gamero raised this issue, for the first time, in opposition to Foremost’s motion for summary judgment. The trial court was correct in not considering this issue, raised for the first time in opposition to Foremost’s motion for summary judgment.

Gamero v. Foremost Ins. Co., 42 Fla. L. Weekly D158b (Fla. 3d DCA 2017).

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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Quick Note: An Ambiguous Agreement will Lead to Admissibility of Parol Evidence

Posted by David Adelstein on January 01, 2017
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In an earlier article I explained that parol evidence (extrinsic evidence) is inadmissible to determine the intent of an unambiguous agreement. The corollary is that parol evidence is admissible to determine the intent of an ambiguous agreement. Naturally, parties want their agreements to be clear—crystal clear—to avoid any argument regarding an ambiguity. For example, in a recent case, a commercial lease was deemed ambiguous regarding the tenant’s lease rate. As a result, the landlord could not ram its commercial eviction claim through the court due to what it claimed to be the tenant not paying the right lease rate. Instead, evidence needed to be considered regarding the intent of the parties, particularly as it pertained to the paragraph in the lease regarding the lease rate. Clearly, this is not what the commercial landlord wanted and, perhaps, could have been avoided by specific and unambiguous language regarding the lease rate. Remember, an ambiguity regarding a material portion of an agreement is bad–it just leads to the inevitable dispute.  

 

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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Recoverability of Expert Witness Fees in Federal Court

Posted by David Adelstein on December 24, 2016
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Many litigants are unaware that testifying expert costs are not automatically recoverable in federal court like they are in state court.   Expert witness fees / costs are not an automatic taxable costs.   28 U.S.C. s. 1920 discusses taxable costs. 28 U.S.C. s. 1821 discusses a witness’ per diem costs of $40/day for each day’s attendance. See 28 U.S.C. 1821(2)(b) (“A witness shall be paid an attendance fee of $40 per day for each day’s attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.”).

The Eleventh Circuit in Primo v. State Farm Mutual Automobile Ins. Co. , 2016 WL 5436821, *5 (11th Cir. 2016) explained that, “[u]nder 28 U.S.C. § 1821(b), [a] witness shall be paid an attendance fee of $40 per day for each day’s attendance. The Supreme Court has held that when a prevailing party seeks reimbursement for fees paid to its own expert witness, a federal court is bound by the limit of § 1821(b), absent contract or explicit statutory authority to the contrary.” (internal quotations omitted).

In order to recover more than the standard per diem witness fee, either the contract needs to authorize expert witness fees or a specific federal statute needs to authorize the recovery of testifying expert costs. See Troche v. City of Orlando, 2015 WL 631280 (M.D.Fla. 2015) (“[A]bsent explicit statutory or contractual authorization for the taxation of the expenses of a litigant’s [expert] witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920. Section 1920 does not provide for costs for experts unless they were court-appointed.”) (internal quotations omitted).

When drafting a prevailing party attorney’s fees provision in a contract, I always like to include that the prevailing party is entitled to recover their testifying expert witness fees.  This way if the lawsuit is filed in federal court there is a contractual basis to recover expert witness fees. 

 

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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(Extract on) Business Judgment Rule

Posted by David Adelstein on December 12, 2016
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Directors that serve on a board owe a fiduciary duty to their company and members. Directors are generally protected from personal liability for decisions they make by what is known as the business judgment rule. See Fla. Stat. s. 607.0830 (“(5) A director is not liable for any action taken as a director, or any failure to take any action, if he or she performed the duties of his or her office in compliance with this section.”); see also Florida Statute s. 617.0834 (regarding directors that serve on a nonprofit board).   These are very important statutes (607.0830 and 617.0834) for directors that serve on for profit and not for profit boards and their discharge of duties and decision-making.

The business judgment rule, however, is not absolute meaning directors are not automatically immunized from personal liability if they do not at in good faith, as set forth below. Directors needs to remember this point!

Under the business judgment rule, a court presumes that corporate directors acted in good faith. The rule prevents a court—which may possess less business expertise than the corporate directors—from calling upon directors to account for their actions, no matter how poor their business judgment, absent a showing by the plaintiff of abuse of discretion, fraud, bad faith, or illegality. The rule also prevents a factfinder from using hindsight to second-guess directors’ business decisions.

Kloha v. Duda, 246 F. Supp.2d 1237, 1244-45 (M.D. Fla. 2003) (internal citations omitted); accord Raphael v. Silverman, 22 So.3d 837, 838 (Fla. 4th DCA 2009) (nonprofit condominium association directors “are immune from liability in their individual capacity absent fraud, criminal activity, or self-dealing/unjust enrichment.”); Hollywood Towers Condominium Ass’n, Inc. v. Hampton, 40 So.3d 784, 787 (Fla. 4th DCA 2010) (“In applying the business judgment rule to condominium association decisions, courts have generally limited their review to two issues: (1) whether the association has the contractual or statutory authority to perform the relevant act, and (2) if the authority exists, whether the board’s actions are reasonable.”).

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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Prevailing Party for Purposes of Attorney’s Fees in Breach of Contract Claims

Posted by David Adelstein on November 03, 2016
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To be entitled to attorney’s fees, there needs to be a contractual or statutory basis to recover attorney’s fees (absent serving a proposal for settlement). There is oftentimes the misconception in breach of contract cases that the party that recovers a positive net judgment will automatically recover their attorney’s fees. While, certainly, sometimes this is the case, this is NOT what you should be banking on. The law has tried to progress to a point where it does not want certain cases to be driven solely by the prospect of recovering attorney’s fees just because you won $1.  

The Florida Supreme Court in Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla. 1992) held that in a breach of contract action the significant issues test applied to determine the prevailing party for purposes of awarding attorney’s fees.  A party prevails on the significant issues if the party prevails on any significant issue in the case that achieved a benefit sought by the parties in the action.

A year later, the Florida Supreme Court in Prosperi v. Code, Inc., 626 So.2d 1360 (Fla. 1993) addressed this significant issues test in the context of a construction lien action where the contractor received a net judgment in its favor but did not prevail on its construction lien (that provided a statutory basis for fees).  In this case, the owner prevailed on the contractor’s lien claim but the contactor prevailed in a breach of contract action and, therefore, recovered a net judgment in its favor.  For purposes of the case, a net judgment was “when the claimant fails to foreclose a mechanic’s lien but obtains a judgment for the underlying claim which exceeds any claim of the owner.”   Prosperi, 626 at n.1.   Here, the Court explained that recovering a net judgment is a significant factor to determine the prevailing party for purposes for purposes of attorney’s fees, but was NOT the only consideration. The equities of the case must be considered at the trial court’s discretion to determine the party that prevailed on the significant issues to be deemed the prevailing party for purposes of attorney’s fees.

Years later, this issue was brought up again to the Florida Supreme Court in Trytek v. Gale Industries, Inc., 3 So.3d 1194 (Fla. 2009), as to whether the significant issues test applied when a contractor obtained a net judgment against an owner on its lien even though the lien amount was reduced by the owner’s claim for repair costs.  In finding that the significant issues test applied, the court further explained that the trial court has discretion to examine all factors including issues litigated, claim amount, amount recovered, and counterclaims, and can determine that neither party was the prevailing party for purposes of attorney’s fees

As you can see, the trend to determine the prevailing party for purposes of attorney’s fees in a breach of contract action is to apply the significant issues test. Because the trial court has the discretion to examine the equities to determine the party that prevailed on the significant issues in a given case, there is not any objective or bright-line rule to refer to in order to determine whether your situation will deem you the prevailing party for purposes of attorney’s fees.   This component makes it challenging to predict how a trial judge or arbitrator may rule and whether a party will be deemed the prevailing party for purposes of attorney’s fees. Recovering a net judgment is still an important factor, but it will not be the sole deciding factor because the prospect of a party recovering $1 and being deemed the prevailing party for purposes of attorney’s fees may prevent that party from becoming reasonable with their settlement terms.

 

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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Prejudgment Interest and Post-judgment Interest

Posted by David Adelstein on October 26, 2016
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Prejudgment interest is routinely a component of a claimant’s monetary damages.   The claimant wants prejudgment interest on the principal amount due and owing. If no interest rate is set forth in the claimant’s contract, then the interest will accrue at the statutory rate. Then, once a judgment is entered, post-judgment interest will accrue on the judgment until it is paid.   See Florida Statute s. 55.03.

Florida’s statutory interest rate is set by the Chief Financial Officer and published here.

For instance, the current statutory interest rate is 4.75% per annum (and it has been 4.75% for numerous years). This translates to a daily rate as a decimal of .000130137.   Say you are owed $100,000 for 125 days. The calculation could be made two ways to determine the statutory interest rate on this amount for 125 days:

  1. $100,000 x 4.75% / 365 days in a year= $13.01 per day x 125 days = $1,626.25;

OR

  1. $100,000 x .000130137 = $13.01 per day x 125 days = $1,626.25.

 

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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Proposals for Settlement when there is a Contractual or Statutory Basis for Attorney’s Fees

Posted by David Adelstein on October 16, 2016
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In an earlier posting I talked about proposals for settlement / offers of judgment.   Again, these are used as a vehicle to create an argument for attorney’s fees down the road, particularly in cases where a party does not have a contractual or statutory basis to recover attorney’s fees. Please check out this article for more information on proposals for settlement because they have become an unnecessarily complicated vehicle with nuances that have resulted in an exorbitant amount of case law, some of which is conflicting. As a result, while the argument to recover fees is preserved by serving the proposal for settlement, it is an argument and not a guaranty.

Sometimes, parties with a contractual or statutory basis to recover attorney’s fees will still serve a proposal for settlement. This becomes tricky because the right to attorney’s fees per the contract or statute is not cut-off by virtue of the proposal for settlement.

Say, for example, a defendant serves a proposal for settlement. The plaintiff, however, prevails in the case through trial in a claim in which the plaintiff is entitled to contractual attorney’s fees. There are two considerations.  

First, when determining the merits of a proposal for settlement, you need to look at the “net” judgment, which would include attorney’s fees and costs incurred by the opposing party (party receiving offer that prevailed in the case) through the date of the offer. See Leon F. Cohn, M.D., P.A. v. Visual Health and Surgical Center, Inc., 125 So.3d 860, 863 (Fla. 4th DCA 2013) (“Because Cohn prevailed on the breach of contract claim and the contract contained a provision awarding attorney’s fees to the prevailing party, we reverse and remand for the trial court to reconsider the issue of Cohn’s entitlement to fees after conducting an evidentiary hearing to determine the total net judgment, which shall include the amount of fees and taxable costs incurred by Cohn in litigating the breach of contract claim up to the date of the offer.”). Since the proposal for settlement is based on the net judgment, to determine whether the above defendant would be a prevailing party for purposes of recovering its attorney’s fees from the date of the proposal on forward would require an analysis to see what the total net judgment to the plaintiff would be factoring in fees and taxable costs through the date the defendant served the proposal.   The issue in looking at the net judgment is to determine whether the defendant could offset some of the attorney’s fees entitled to the plaintiff by being entitled to attorney’s fees from the date of the proposal on forward.

Second, the proposal for settlement does not cut-off the opposing party’s contractual right to fees incurred after the proposal for settlement is served. See Tierra Holdings, Ltd. v. Mercantile Bank, 78 So.3d 558 (Fla. 1st DCA 2011).   The above plaintiff would still be entitled to its attorney’s fees if deemed the prevailing party under the contract through the trial.   The issue, as discussed above, is whether the defendant could offset some of the fees entitled to the plaintiff by being entitled to attorney’s fees from the date of the proposal on forward.

Let’s use real numbers. Assume the defendant served the proposal for settlement to the plaintiff for $100,000. The plaintiff has a contractual right to attorney’s fees. The plaintiff rejects the proposal for settlement and at trial the plaintiff is awarded $40,000. Now, let’s assume the total net judgment through the date of the proposal for settlement factoring in fees and costs entitled to the plaintiff as the prevailing party under the contract is $60,000.   This $60,000 is at least 25% less than the defendant’s proposal for settlement of $100,000, meaning the defendant would be entitled to its attorney’s fees from the date of the proposal on forward. Assume those reasonable fees are $75,000. Assume the plaintiff’s total reasonable fees are $90,000.

Under step one, the defendant would presumably be the prevailing party for purposes of fees per the proposal for settlement and be entitled to its reasonable fees of $75,000 from the date of the proposal through trial.   The reason being is that the total net judgment to the plaintiff at the time the defendant served the proposal when factoring in fees and costs was at least $25% less than the defendant’s proposal for settlement.

Under step two, the plaintiff is still entitled to its attorney’s fees for prevailing under the contract, which are $90,000 through trial. Thus, the $75,000 owed to the defendant in fees would simply be credited in a judgment given to the plaintiff (reducing the plaintiff’s judgment by $75,000). For example, if the court entered an attorney’s fees judgment, the plaintiff would be entitled to $15,000 in fees, or the difference between the $90,000 and the $75,000.

 

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 Simple, All-or-Nothing Verdict Form

Posted by David Adelstein on October 06, 2016
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Attention should be given to the verdict form you want the jury to fill out after listening to and seeing the evidence presented in the case.   This verdict form dictates how the jury decides the facts in your case in the context of the theme of your case and the jury instructions. Needless to say, the verdict form is very, very important!

There are times when a party may want a simple, all-or-nothing verdict form.  A party may like this (such as the plaintiff) versus a special interrogatory form that contains numerous potentially confusing questions the jury is asked to answer. For example, an all-or-nothing verdict form may simply ask the jury as the first question whether the defendant breached the contract. If the jury answers yes, then they need to answer the second question which would be the amount of damages that should be awarded to the plaintiff as a consequence of the defendant’s breach of the contract. On the other hand, if the jury answers no to the first question, they should not answer any more questions as the jury’s verdict is in favor of the defendant.

In Finkel v. Batista, 41 Fla.L.Weekly D2279b (Fla. 3d DCA 2016), the liability portion of the trial was bifurcated from the damages portion. The case dealt with a car accident that resulted in personal injury. During the liability portion, the jury found the defendant 100% liable for the car accident. During the damages trial, the parties agreed on a verdict form that read:

  1. Evan Finkel [Defendant] was negligent. Was such negligence the legal cause of loss, injury or damage to the Plaintiff, Yarielsi Batista?

Yes_______ No_______

If you answered “NO” to Question 1, your verdict is for the Defendant, Evan Finkel and you should not proceed further except to date and sign this verdict form and return it to the courtroom. If you answered “YES” to Question 1, please answer Questions 2 and 3.

The jury answered “No” to this first question finding for the defendant; no damages were awarded to the plaintiff.

The plaintiff appealed arguing that she should be entitled to damages for medical expenses she incurred. The trial court agreed and ordered a new jury trial.   The appellate court reversed with directions to reinstate the jury’s verdict:

[T]he plaintiffs here did not object to the verdict form that invited the jury to return a verdict on an “all-or-nothing” basis. The jury answered the first question presented to it in the negative, finding that the accident was not the legal cause of loss, injury, or damage to Ms. Batista [plaintiff]. Consistent with verdict form’s instructions, the jury answered no further questions and awarded no damages. It is well-settled law that “the jury cannot be faulted for doing exactly what it was instructed to do” in these circumstances. For these reasons, we reverse the order granting a new trial.

Finkel, supra (internal citation 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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Actions for Declaratory Relief / Declaratory Judgment

Posted by David Adelstein on August 24, 2016
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Sometimes a party pursues what is known as an action for declaratory relief or declaratory judgment– for a trial court to declare their rights with respect to the application of a written document or instrument. In this manner, Florida Statute s. 86.021 states:

Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.

It has long been held that with respect to actions for declaratory relief:

Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interests are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.

Ahearn v. Mayo Clinic, 180 So.3d 165, 174 (Fla. 1st DCA 2015) quoting May v. Holley, 59 So.2d 636, 639 (Fla. 1952) (courts are not going to entertain hypothetical facts or facts that are contingent in nature to address the possibility of a legal injury).

Courts, however, are not going to render an advisory opinion about a future possibility of a legal injury because this means there is NOT a present injury at the time the declaration is being sought. See Apthorp v. Detzner, 162 So.3d 236 (Fla. 1st DCA 2015). Thus, it is imperative that there is a “bona fide, actual, present practical need for the declaration” dealing with the application of an actual fact pattern and these allegations should be included in the lawsuit seeking declaratory relief. See Ahearn, 180 So.3d at 174.

Generally, and subject so some exceptions, actions for declaratory relief must be filed in the trial court that has jurisdiction over that party’s monetary claims. For example, if you are moving for an action for declaratory relief in a civil matter where you are seeking in excess of $15,000 in damages, then the action for declaratory relief must be filed in a circuit court (since a circuit court has subject matter jurisdiction over matters in excess of $15,000). Conversely, if you are moving for an action for declaratory relief in a civil matter where you are seeking damages up to and including $15,000 in damages, then the action for declaratory relief must be filed in county court (since a county court has subject matter jurisdiction over matters up to and including $15,000 in damages).   This jurisdictional requirement is set forth in the following relevant language in Florida Statute s. 86.011:

The circuit and county courts have jurisdiction within their respective jurisdictional amounts to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The court’s declaration may be either affirmative or negative in form and effect and such declaration has the force and effect of a final judgment.

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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Foundation Required to Admit Prior Inconsistent Statement

Posted by David Adelstein on August 20, 2016
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One of the most effective impeachment vehicles to attack the credibility of a testifying witness is the prior inconsistent statement. A prior inconsistent statement is exactly what it seems – a statement previously made by the witness on a material issue that directly contradicts with what the witness is testifying to at trial.  The point of impeaching the witness with the prior inconsistent statement is to show the witness’ trial testimony is not credible—they are lying.   By attacking the credibility, you leave doubts in the trier of fact’s mind (e.g., jury) that the witness’ trial testimony needs to be discounted because of a material lie (either they were lying at trial or they were lying when they originally made the prior inconsistent statement).

However, the foundation needs to be properly laid in order to impeach the witness with the prior inconsistent statement.  

Section 90.614(2) of Florida’s Evidence Code provides in material part:

Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate the witness on it, or the interests of justice otherwise require. If a witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement is admissible.

If the witness admits making the prior inconsistent statement, then the matter is generally closed since the witness admitted the inconsistency. On the other hand, if the witness does not admit or recall making the prior inconsistent statement, then extrinsic evidence of the prior inconsistent statement is admissible to prove the witness made such statement. See MBL Life Assurance Corp. v. Saurez, 768 So.2d 1129, 1134 (Fla. 3d DCA 2000) (“When a witness states that she does not recall questions asked or answers given at a previous time, the law provides that extrinsic evidence of the prior statement is admissible.”).

For example, say a witness previously testified during a deposition that her company decided not to fulfill certain contractual obligations because it underestimated its bid and contract price and would have lost a tremendous amount of money if it fulfilled its contractual obligations. But, during trial, the same witness testified that her company did not perform under the contract because the other side refused to timely pay a certain amount of money. This is a material contradiction.   During cross-examination, the opposing lawyer is very interested in attacking that witness’ credibility with the earlier statement made during deposition.   How does the opposing lawyer lay a foundation?

First, the opposing lawyer will ask the witness if she remembers being deposed (on “X” date by “Y” person) where she was asked the following question and where she answered “that her company did not perform because it underestimated its bid and would have lost tons of money.” If the witness admits to making the prior inconsistent statement, they have the opportunity to try to explain the inconsistency and the opposing lawyer can cross-examine the witness on the admitted inconsistency. However, if the witness denies making the statement or does not recall, then the foundation was laid to admit the prior inconsistent statement.

If the prior inconsistent statement is not reliable (unlike a statement in a deposition, affidavit, official public document, or other self-authenticating / reliable document) then it may be necessary to call as a witness a person that heard the prior inconsistent statement–depends on how the prior inconsistent statement was made and memorialized.  See, e.g., Pearce v. State, 880 So.2d 561, 568-570 (Fla. 2004) (when witness testified he did not recall making prior inconsistent statement after proper foundation was laid, trial court erred by not allowing counsel to immediately show videotape of witness making prior inconsistent statement); MBL Life Assurance Corp., 768 So.2d 1129 (trial court erred by not allowing witness’ prior inconsistent statement to Coast Guard contained in Coast Guard’s report to be admitted when witness testified she did not recall making prior statement);  Kiwanis Club of Little Havana, Inc. v. Kalafe, 723 So.2d 838 (Fla. 3d DCA 1998) (trial court erred in not allowing counsel to introduce periodical articles to impeach witness’ trial court testimony that contained statements contradictory to witness’ trial court 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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