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. 4^th 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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If you have an expert testifying on your behalf at trial, the opposing party will ask how much you or your agents have paid the expert for his testimony.   Why? Because this shows bias, right? The sentiment is that the expert is a hired gun being paid for his testimony; although, this cuts both ways in a case where both parties have a testifying expert.

In the personal injury case of Vazquez v. Martinez, 40 Fla. L. Weekly D2170a (Fla. 5^th DCA 2015), the plaintiff showed that the defendant’s expert witnesses were paid almost $700,000 by the defendant or her agents. The Fifth District Court of Appeals found this to be appropriate to show the bias of the experts:

A party may attack the credibility of a witness by exposing a potential bias. A jury is entitled to know the extent of the financial connection between the party and the witness, and the cumulative amount a party has paid an expert during their relationship. Therefore, Florida courts allow extensive discovery of financial information to assist counsel in impeaching examining physicians and other experts by demonstrating that the expert has economic ties to the insurance company or defense law firm.

Vazquez, supra (internal citations and quotations omitted).

This is supported by Florida Statute s. 90.608(2) that allows a party to impeach (or attack the credibility of a witness such as an expert) by showing that the testifying expert or witness is biased.

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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I am the prevailing party and I am entitled to recover my attorney’s fees from the opposing party! Now what?

If you are unable to come to an agreement with the opposing side regarding the amount of attorney’s fees you incurred, then you need to have an evidentiary hearing for the court to determine your reasonable attorney’s fees. This requires your attorney to testify as to the rates and the number of hours expended on the matter. This also importantly requires to you to have an expert testify as to the reasonableness of the attorney’s fees you incurred. See Jaffe v. In re: Guardianship of Jaffe, 147 So.3d 578, 581 (Fla. 3d DCA 2014) (explaining that proving reasonable attorney’s fees must be supported by expert witness testimony). This expert is nothing more than another attorney that testifies that the rates are reasonable and the number of hours expended was reasonable.   This expert is known as a reasonable attorney’s fees expert.

The good news is that this reasonable attorney’s fees expert may be taxed as a cost against the opposing party. Travieso v. Travieso, 474 So.2d 1184 (Fla. 1985); accord Jaffe, 147 So.3d 578; Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720 (Fla. 1999).

More than likely, a court is going to tax your reasonable attorney’s fees expert as a cost against the opposing party. Knowing this, a so-called losing party should try to avoid the evidentiary attorney’s fees hearing by coming to an agreement with the prevailing party as to the reasonable attorney’s 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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Expert witnesses can rely on hearsay (or inadmissible evidence) in arriving at their expert opinions subject to exceptions set forth below. Vega v. State Farm Mut. Automobile, 45 So.3d 43 (Fla. 5^th DCA 2010) (expert automobile appraiser was entitled to rely on other persons knowledge in vintage automobiles to arrive at estimated value of vintage vehicle); Houghton v. Bond, 680 So.2d 514 (Fla. 1^st DCA 1996) (expert allowed to rely on inadmissible study to arrive at expert opinion).

Indeed, Florida Statute s. 90.704 supports this point by stating:

If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

The key, as set forth in s. 90.704, is that the inadmissible hearsay the expert relies on must be the type reasonably relied upon by experts in the field. See Vega, 45 So.3d 43.

Yet, while the expert can rely on hearsay to arrive at their opinion, the expert cannot (a) serve as a conduit for purposes of getting into evidence otherwise inadmissible hearsay or (b) use hearsay to merely bolster the credibility of their opinion by testifying that a particular writing or other expert agrees with the expert’s opinion. See Duss v. Garcia, 80 So.3d 358, 364 (Fla. 1^st DCA 2012); see also Linn v. Fossum, 946 So.2d 1032 (Fla. 2006) (expert not able to testify that he consulted with other experts as it effectively bolsters the credibility of the expert’s opinion based on hearsay); Department of Corrections, State of Fla. v. Williams, 549 So.2d 1071 (Fla. 5^th DCA 1989) (while expert could rely on affidavit in forming opinion, the affidavit was not admissible to allow the expert to serve as a conduit to introduce inadmissible evidence).

Typically, if an expert’s opinion is based solely on inadmissible evidence, there is a strong argument that the expert’s opinion is simply a conduit to introduce otherwise inadmissible hearsay. See Maklakiewicz v. Berton, 652 So.2d 1208 (Fla. 3d DCA 2009) (officer which served as accident reconstruction expert was not allowed to rely exclusively on hearsay to render expert opinion).

Expert opinion testimony is important in many disputes.  Parties rely on experts to help support their positions or theories of the case.  Hence, knowing what an expert can and cannot rely on in forming their expert opinion plays an important part of the trial process.

P.S.  Wasn’t My Cousin Vinny a fantastic movie?  

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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You know how proposals for settlement / offers of judgment (“proposals for settlement”) work because I previously wrote about this topic. You know that such proposals for settlement need to be made in good faith. Remember, proposals for settlement create the argument to recover attorney’s fees from the date the proposal for settlement is served on forward.

The recent case of Key West Seaside, LLC v. Certified Lower Keys Plumbing, Inc., 40 Fla. L. Weekly D2052b (Fla. 3d DCA 2015), exemplifies a defendant relying on a proposal for settlement.  In this case, a defendant served the plaintiff with a proposal for settlement.  Notably, the defendant was being indemnified by a co-defendant meaning another defendant was paying for its legal fees.  This defendant prevailed at trial by getting a judgment of no liability.  The trial court, however, refused to grant this defendant its reasonable attorney’s fees from the time it served the proposal for settlement on forward.

On appeal, the Third District maintained that because the trial court did not find that the defendant’s proposal for settlement was made in bad faith–not in good faith–there was no basis to deny the defendant its reasonable attorney’s fees.  The Third District further held that the fact that another party may have paid the defendant’s legal fees was of no relevance.  

There is a value for serving proposals for settlement, especially if you have no statutory or contractual right to recover your legal fees. But, even if you do, there still may be a strategic reason to serve a proposal for settlement in good faith to create another basis to recover your attorney’s fees and costs.

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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