jury instruction

Avoiding the Mistrial

Posted by David Adelstein on July 27, 2016
Trial Perspectives / Comments Off on Avoiding the Mistrial

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If you prevailed at trial, there is nothing worse than a mistrial. Talking about taking the wind out of your sails. It happens. Unfortunately.

Boyles, Personal Representative vs. Dillard’s Inc., 41 Fla.L.Weekly D1709a (Fla. 1st DCA 2016), is a case where the defense prevailed, but on appeal, the court granted a mistrial for multiple (or cumulative) reasons, only two of which will be discussed below. Both reasons, however, could have been avoided.

A. Closing Argument

 

First, during closing argument, the defense counsel tried to attack the credibility of the plaintiff’s trial testimony by bringing up what the plaintiff testified to during her deposition. The problem, however, was that the defense brought up the plaintiff’s deposition when the deposition transcript was NOT introduced into evidence or apparently used to impeach the plaintiff during her trial testimony. The defense only brought this up during closing in order to insinuate that the plaintiff was not telling the truth based on deposition testimony that was NOT in the record. This is a huge no-no! The appellate court expressed:

[B]ecause the inadmissibility of appeal to non-record evidence during closing arguments is such a fundamental and longstanding canon of trial practice and ethics, codified in rule 4-3.4 of the Rules Regulating the Florida Bar, defense counsel’s violation, if not intentional, was at least grossly reckless, particularly because it was committed during closing arguments, when such improper statements are especially likely to inflame the minds and passions of the jurors so that their verdict reflects an emotional response . . . rather than the logical analysis of the evidence in light of the applicable law.

Boyles, supra (internal quotations omitted).

B. Voir Dire

 

Second, and another basis for a mistrial, during voir dire, the plaintiff read a standard jury instruction to the venire (jury pool) and essentially asked whether anyone would have a problem applying the law. The defense objected and the trial court precluded the plaintiff from asking a potential juror about the jury instruction.   The appellate disagreed: “[D]enial to counsel of the opportunity to question prospective jurors on their ability to follow the law constitutes abuse of discretion and is grounds for a new trial.Boyles, supra (internal quotations and 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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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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Using Demonstrative Aids or Exhibits at Trial

Posted by David Adelstein on March 26, 2015
Trial Perspectives / Comments Off on Using Demonstrative Aids or Exhibits at Trial

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It is common to use demonstrative aids or exhibits at trial. These are exhibits (e.g., models, diagrams, charts, photographs, etc.) that are used to help explain or illustrate testimony or other evidence. The operative word is “help” because these exhibits need to help explain the testimony and help the trier of fact in understanding the testimony. These exhibits, however, are for demonstrative purposes only and do not constitute substantive evidence. No different than evidentiary exhibits, the probative value of a demonstrative exhibit must outweigh any prejudice to the adverse party.

Regarding the use of demonstrative evidence, the Florida Supreme Court stated:

“Demonstrative evidence is admissible only when it is relevant to the issues in the case. Such evidence is generally more effective than a description given by a witness, for it enables the jury, or the court, to see and thereby better understand the question or issue involved. For this reason it is essential, in every case where demonstrative evidence is offered, that the object or thing offered for the jury to see be first shown to be the object in issue and that it is in substantially the same condition as at the pertinent time, or that it is such a reasonably exact reproduction or replica of the object involved that when viewed by the jury it causes them to see substantially the same object as the original.”

Harris v. State, 843 So.2d 856, 863 (Fla. 2003) (quotation and citation omitted) (plastic replica of gun helped jury to better understand the weaopon).

A party’s use of a demonstrative exhibit is within the trial judge’s discretion. See Chamberlain v. State, 881 So.2d 1087, 1102 (Fla. 2003). This means its admissibility is subject to an abuse of discretion standard of review.

Florida has a standard jury instruction regarding demonstrative aids in civil cases: .

301.4 INSTRUCTION REGARDING VISUAL OR DEMONSTRATIVE AIDS

a. Generally (should be given when witness first uses exhibit):

This witness will be using (identify demonstrative or visual aid(s)) to assist in explaining or illustrating [his] [her] testimony. The testimony of the witness is evidence; however, [this] [these] (identify demonstrative or visual aid(s)) [is] [are] not to be considered as evidence in the case unless received in evidence, and should not be used as a substitute for evidence. Only items received in evidence will be available to you for consideration during your deliberations.

b. Specially created visual or demonstrative aids based on disputed assumptions (should be used when witness intends to use exhibit based on disputed assumptions):

This witness will be using (identify demonstrative aid(s)) to assist in explaining or illustrating [his] [her] testimony. [This] [These] item[s] [has] [have] been prepared to assist this witness in explaining [his] [her] testimony. [It] [They] may be based on assumptions which you are free to accept or reject. The testimony of the witness is evidence; however, [this] [these] (identify demonstrative or visual aid(s)) [is] [are] not to be considered as evidence in the case unless received in evidence, and should not be used as a substitute for evidence. Only items received in evidence will be available to you for consideration during your deliberations.

Below are some preliminary questions to ask the witness that may be important (based on the exhibit) to begin to lay the foundation for the demonstrative exhibit, although it is important to note that different witnesses, demonstrative exhibits, and courts may require different questions or a more stringent foundation:

 Q: Is there something I can show you (or a way) for you to help explain your testimony?

A: Yes, it would help if I can use the exhibits I prepared to more effectively explain my testimony.

Q: I am handing you exhibit ____. Do you recognize this exhibit?

A: Yes. These are the exhibits I prepared to help explain my testimony?

Q: Is this exhibit a fair and accurate representative of what it purports to represent?

A: Yes.

Q: Would this exhibit aid the jury in understanding your testimony?

A: Yes.

* *  *

Q: Would this exhibit (shown to the witness) help you in explaining your testimony to the jury?

A: Yes.

Q: Would this exhibit aid the jury in understanding your testimony?

A: Yes.

Q: Is this exhibit a fair and accurate representation of what it purports to represent?

A: Yes.

Demonstrative exhibits are an important part of trial and witness preparation.  Besides using demonstrative exhibits to aid in the testimony of a witness, such exhibits can also persuasively be used during opening and closing argument. (Opening and closing arguments will be specifically discussed in subsequent articles.)

 

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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