relevant evidence

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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Introducing Character Evidence of Prior Bad Acts in a Civil Case

Posted by David Adelstein on June 07, 2015
Evidence / Comments Off on Introducing Character Evidence of Prior Bad Acts in a Civil Case

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Relevant evidence is evidence tending to prove or disprove a material fact.” Fla.Stat. s. 90.401. I have previously discussed that evidence needs to be relevant for it to be admissible but that not all relevant evidence is admissible (e.g., if the probative value of that evidence is outweighed by unfair prejudice, etc., then the relevant evidence is not admissible).

When is evidence of a person’s character ever relevant (such as the character of a plaintiff or defendant) to prove or disprove a material fact in a civil case? Generally speaking, it is not relevant and, even if it was relevant, the probative value is probably outweighed by the evidence’s unfair prejudice.

In the civil context, really, the only time character evidence would be relevant if it falls under an exception in Florida Statute s. 90.404(2)(a) that provides:

“Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.”

This exception refers to what is known as “prior acts” or “prior bad acts” evidence. But, when would prior bad acts come into play in a civil case? Specifically, when would introducing evidence of prior wrongs or bad acts by a party be admissible in a civil case to prove “proof of motive, opportunity, intent, preparation, plan, knowledge, identify, or absence of mistake?” And, even if an argument could be made for the relevancy of character evidence, wouldn’t the probative value of this evidence be outweighed by the evidence’s unfair prejudice?  

Here is an example where character evidence was improperly admitted warranting a new trial for a defendant in a civil case.

In Jacobs v. Atlantic Coast Refining, Inc., 2015 WL 2214140 (Fla. 4th DCA 2015), a man hired his girlfriend as a bookkeeper for his company and authorized her to sign checks on behalf of his company. Apparently, the girlfriend wrote hundreds of thousands of dollars in checks to herself or to pay off her credit card.   After the couple broke up, the man argued his former girlfriend embezzled company funds and sued his former girlfriend for claims including civil theft and conversion. The man wanted to introduce evidence reflecting that this wasn’t the first time his former girlfriend embezzled a company’s funds–prior acts evidence. During the former girlfriend’s first marriage, she worked for her husband’s medical office. After the divorce, the ex-husband filed a post-dissolution motion regarding her embezzlement of his company’s funds that was later resolved. In other words, based on the allegations in a motion, she was accused of doing the same thing to her ex-husband’s company that the man asserted she did to his company. The man wanted to introduce the post-dissolution motion in his trial under Florida Statute s. 90.404 to show his former girlfriend’s “knowledge, preparation, plan and identity.” Although the former girlfriend moved in limine to exclude this evidence, the judge denied the motion, and the former girlfriend was questioned about the contents of the post-dissolution motion involving her former husband. The jury entered a verdict for the man against his former girlfriend that was reduced to a judgment by the trial court and the former girlfriend appealed.

The appeal was focused on the trial court allowing the man’s counsel to ask the former girlfriend questions about the contents of the post-dissolution motion. The only reason to do so was to show that the former girlfriend had the bad character and propensity to commit the embezzlement in this case based on her prior bad acts. Remember, character evidence is inadmissible solely to prove bad character or propensity.  The appellate court held that questioning the former girlfriend about the post-dissolution motion amounted to improper character evidence. Further, the appellate court held that even if this evidence was relevant by falling within an exception under Florida Statute s. 90.404(2)(a) to prove more than just bad character or propensity, any probative value of this evidence was outweighed by unfair prejudice deeming this evidence inadmissible.

 

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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Photographic / Video Evidence Needs to be Relevant and Outweigh any Unfair Prejudice to the Opposing Party

Posted by David Adelstein on February 28, 2015
Evidence / Comments Off on Photographic / Video Evidence Needs to be Relevant and Outweigh any Unfair Prejudice to the Opposing Party

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During trial, a party may move to admit photographic evidence. The opposing party, however, may object based on either the relevancy of the evidence or, if relevant, that the probative value of the evidence is outweighed by the unfair prejudice to that party if the evidence is admitted.

“The test for admissibility of photographic evidence is relevancy rather than necessity.” Pope. V. State, 679 So.2d 710, 713 (Fla. 1996) (photographs in murder trial were relevant to establish manner in which murder was committed and condition of crime scene). This same test applies to video evidence. See Zelaznik v. Isensee, 2014 WL 2596140 (Fla. 2d DCA 2014).

However, not all relevant evidence is admissible. Florida Statute s. 90.403 provides in material part, “Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”   Thus, if the relevant evidence is substantially outweighed by its prejudicial effect, a trial court may deem this evidence inadmissible. The trial court has broad discretion in determining the admissibility of relevant evidence. Zack v. State, 911 So.2d 1190, 1210 (Fla. 2005) (“A trial court has broad discretion in determining the relevance of evidence, and such a determination will not be disturbed [on appeal] absent an abuse of discretion.”).

For instance, in Zelaznik, a video in a personal injury action was introduced into evidence showing portions of the injured plaintiff’s surgery. The defendant appealed that the trial court abused its discretion in admitting this video because the probative value of the video was outweighed by its unfair prejudice to the defendant since the video was unfairly graphic. (Before the video was shown to the jury, the trial court viewed the video and did not deem it unfairly prejudicial.) The video was introduced into evidence by the doctor that performed the surgery and the doctor testified the video would aid him in explaining the plaintiff’s surgery to the jury. The appellate court affirmed finding that there was nothing to support that the trial court abused its discretion by admitting the video.

Considerations:

  1. The introduction of photographic or video evidence is based on the relevancy of that evidence.
  2. Not all relevant evidence is admissible – the evidence needs to be balanced by whether it will cause unfair prejudice, confusion, is aimed to mislead the jury, or is needlessly cumulative.
  3. The trial court has discretion to determine whether the relevant evidence’s probative value is outweighed by the evidence’s prejudicial effect, misleading effect, confusing effect, or is needlessly cumulative.
  4. In introducing photographic or demonstrative-related evidence (or a demonstrative aid), it is important to have the witness testify that the evidence / aid will assist him/her in explaining an issue to the jury.
  5. The trial court’s discretion will not be disturbed on appeal absent an abuse of that discretion.

 

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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