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. 1^st 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. 1^st 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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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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During a direct examination at trial, a party will always tiptoe on the fine line of asking the witness leading questions in order to elicit the desired testimony.  Leading questions, in most circumstances, are objectionable during direct examination because it allows the lawyer asking questions to basically testify while leading the witness to the answer he or she is seeking.   Look, a lawyer will ask leading questions if he/she can get away with it—until the trial court sustains objections.  But, just because a trial court sustains an objection does not necessarily mean the lawyer will stop asking leading questions during direct examination.  If a lawyer can get away with leading a witness during direct examination to elicit the testimony needed, the lawyer will do so and probably should do so. 

When do leading questions in a civil trial become so over-the-top to warrant a new trial? They really do not! “[L]eading questions do not result in an error that will warrant a new trial.” Moore v. Gillet, 96 So.3d 933, 944 (Fla. 2d DCA 2012).

In Moore, during the defense, direct examination of a treating doctor was being conducted. The doctor was serving as a defense witness. The trial court sustained numerous objections that the defense was leading the defense witness. At some point, and despite there not being an objection or motion for mistrial by the plaintiff, the trial court terminated the defense’s questions of its witness due to the persistent leading questions.

At the conclusion of the trial, the trial court ordered a new trial upon motion by the plaintiff. One of the reasons the trial court granted the new trial was due to the defense’s persistent leading questions. The defense appealed the trial court granting a mistrial.

With respect to leading questions, the appellate court held that the issue was not properly preserved for appeal because the plaintiff did not move for a mistrial at the time of the questions. The trial court ceasing the defense’s examination of a defense witness due to leading questions was a severe remedy that the plaintiff agreed to. The plaintiff did not make a contemporaneous motion for mistrial based on the leading questions, but rather, accepted the trial court terminating the defense’s direct examination.   But, even if the plaintiff did contemporaneously move for a mistrial, the leading questions would not warrant a new trial because leading questions generally do not form the basis of error for purposes of an appeal.

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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