admissible evidence

Summary Judgment Must be Based on Admissible Evidence

Posted by David Adelstein on December 31, 2015
Evidence / Comments Off on Summary Judgment Must be Based on Admissible Evidence

 

A party moving for summary judgment must rely on admissible evidence in the record. Arlen Realty, Inc. v. Penn Mut. Life Ins. Co., 386 So.2d 886 (Fla. 1st DCA 1980).

Parties oftentimes submit an affidavit in support of a motion for summary judgment in order to get certain testimony or documentary evidence into the record. When a party submits an affidavit to get a document into the record, the party still needs to authenticate the document and lay its foundation in the affidavit. See Alavi v. Garcia, 140 So.3d 1141 (Fla. 5th DCA 2014) (party required to lay foundation for promissory note in summary judgment affidavit); Bryson v. Branch Banking and Trust Co., 75 So.3d 783 (Fla. 2d DCA 2011) (unauthenticated default letters were insufficient for summary judgment consideration); Southern Developers & Earthmoving, Inc. v. Caterpillar Financial Services Corp., 56 So.3d 56 (Fla. 2d DCA 2011) (trial court properly disallowed letter on summary judgment that was not authenticated); Mitchell Bros., Inc. v. Westfield Ins. Co., 24 So.3d 1269 (Fla. 1st DCA 2009) (affidavit with schedule of payments to support damages was insufficient for consideration on summary judgment as the schedule of payments was hearsay and the business records exception to the hearsay rule was not established); Dutilly v. Department of Health & Rehabilitative Services, 450 So.2d 1195 (Fla. 5th DCA 1984) (party relying on blood tests should have submitted affidavit (i) of record custodian of blood tests to support business records exception to the hearsay rule or (ii) of the technician that performed the blood tests).

 

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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Judicial Notice of a Court’s File does NOT Circumvent Inadmissible Hearsay

Posted by David Adelstein on September 26, 2015
Evidence / Comments Off on Judicial Notice of a Court’s File does NOT Circumvent Inadmissible Hearsay

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Judicial notice is the “cognizance of certain facts which judges or jurors may properly take and act upon without proof, because they already know them.” Wyatt v. State, 270 So.2d 47, 48 (Fla. 4th DCA 1972) (quotation and citation omitted).

A court may take judicial notice of “[r]ecords of any court of this state or of any court of record of the United States or of any state, territory, or jurisdiction of the United States.” Fla.Stat. s. 90.202(6).

However, just because a court can take judicial notice of records in the court’s file cannot be used to circumvent otherwise inadmissible hearsay statements included within the court’s file. To this point, the Florida Supreme Court explained that otherwise inadmissible documents do not automatically become admissible simply because the inadmissible documents were included in the judicially noticed court file. Stoll v. State, 762 So.2d 870, 876 (Fla. 2013) (handwritten statement in court’s file was hearsay and not properly admissible into evidence just because it was in a judicially noticed court’s file).

In a more recent case dealing with a mortgage foreclosure, Tomlinso v. GMAC Mortgage, LLC, 2015 WL 5124763 (Fla. 2d DCA 2015), the homeowner argued that the mortgagee did not have standing to enforce the promissory note (and mortgage) because it was not the original lender and there was no evidence that the mortgagee otherwise held the note at the time of the foreclosure complaint. The trial court after a bench trial entered judgment in favor of the mortgagee. The appellate court reversed agreeing with the homeowner that the mortgagee failed to establish it held the note at the time of the foreclosure complaint. The mortgagee argued on appeal that the court took judicial notice of the court’s file and in the file was a letter the mortgagee sent to the homeowner establishing it held the note at the time of the foreclosure complaint.   The problem was the letter was hearsay (an out-of-court statement offered to prove the truth of the matter asserted) that was never introduced or properly admitted during trial; the foundation was not laid to get this letter admitted into evidence at trial. Stated another way, just because the letter was included in the judicially noticed court file did not mean that everything in the court’s file was admissible evidence.

When it comes to hearsay statements, parties still must ensure the statement or document is stipulated into evidence or the proper foundation is laid at trial to admit the statement or document into evidence.

 

 

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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Note on Discovery in Litigation

Posted by David Adelstein on June 19, 2015
Discovery, Evidence / Comments Off on Note on Discovery in Litigation

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Here is a quick note on discovery in litigation (e.g., document requests, depositions, interrogatories).

An objective of discovery is to discover information that is reasonably calculated to lead to the discovery of admissible evidence. In other words, just because the discovery appears irrelevant does not necessarily mean that pursuing such discovery will not reasonably lead to the discovery of admissible evidence. By taking a more liberal approach to discovery, hopefully, some of the unfortunate gamesmanship that occurs during discovery is eliminated or reduced. In particular, parties should not be able to unilaterally dictate what they believe is relevant to another party’s claims or defenses. This would just result in parties potentially hiding information, concealing information, or not producing information under the pretext that such information is not relevant as determined by that party. Who wants this? Many times, disputes get resolved during discovery or after discovery runs its course as parties are able to better evaluate the strengths and weaknesses of their case based upon another party’s analysis and theories supported by the information.

Now, just because there is a more liberal approach to pursuing discovery does not mean parties have carte blanche to discover everything or go on fishing expeditions. Discovery is not intended to be a tool to harass another party by seeking evidence / information that is categorically irrelevant to the dispute at-issue. Check out this article for an example of a court granting a writ of certiorari due to the irreparable harm of a plaintiff trying to pursue categorically irrelevant discovery that could not reasonably lead to the discovery of admissible evidence.

Moreover, when parties know that there is a dispute, they have an obligation not to spoil (destroy or alter) relevant, critical evidence, specifically with electronically stored information. By not taking steps to preserve evidence, a party could be subject to discovery sanctions, the dreadful adverse inference jury instruction, or in worst-case scenarios, the striking of pleadings. Check out this article for more information on spoliation of evidence including the dreadful adverse inference jury instruction (that no party wants!).

Discovery is crucial fact-finding process in litigation to discover evidence in your case. It is also a tool used to authenticate certain evidence and/or lay the foundation for certain evidence.

 

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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