In a civil trial, I want to attack (impeach) the credibility of a testifying witness by bringing up a crime that witness committed. Can I do this?

When it comes to impeaching the credibility of a witness based on crimes, Florida Statute s. 90.610 states in material part:

(1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, with the following exceptions:

(a) Evidence of any such conviction is inadmissible in a civil trial if it is so remote in time as to have no bearing on the present character of the witness.

So, in a criminal trial, a witness’s credibility can be attacked if (1) the witness was convicted of a crime in excess of one year (a felony) or (2) the witness was convicted of a crime involving dishonesty or a false statement regardless of the length of punishment (a misdemeanor involving dishonesty or a false statement). But, in a civil trial, not so fast – this type of impeachment will not be permitted if the conviction is remote in time that it has no bearing on the character of the witness. If the crime is so remote in time, there is no probative value to impeach the witness other than the prejudicial effect the knowledge of the crime may have with the jury. See, e.g., Trowell v. J.C. Penny Co., Inc., 813 So.2d 1042 (Fla. 4^th DCA 2002) (“The statute directs the court to determine whether the past convictions have a bearing on the present character of the witness. Evidence of theft and shoplifting convictions in the early 1980s with no subsequent convictions would tend to suggest that the witness no longer has a propensity toward dishonesty, and thus such convictions would have little or no bearing on his present character. Evidence of a continuing pattern of theft convictions tends to suggest that the appellant’s character in this regard remains unchanged.”).

The objective in attacking a witness’s credibility based on a crime (as permitted above) is that the witness cannot be trusted—their testimony is nothing but a bunch of lies.

The procedure to attack a witness’s credibility based on a crime is quite simple. The witness will be asked whether he/she has ever been convicted of a felony or convicted of a misdemeanor crime involving dishonesty. If the witness says yes, the next question will be to ask the witness how many times has he/she been convicted of such crimes. The lawyer impeaching the witness will already know the answer to these questions. What if the witness lies? If the witness lies or gives a misleading answer, the lawyer can impeach that testimony by introducing a certified copy of the judgment of conviction for each crime (which is usually a judgment of the conviction and the sentence). This allows the lawyer to prove that the witness has been convicted of a particular crime, however, the lawyer cannot go into the nitty gritty about the crime(s). See Porter v. State, 593 So.2d 1158, 1159 (Fla. 2d DCA 1992). If you’re looking for legal advice like this in Utah you can contact a local criminal law specialist firm such as Brown, Bradshaw & Moffat or visit their website BrownBradshaw.com.

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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So you want to appeal the issuance of an injunction entered against you. (There are numerous reasons why injunctive relief may be entered by the court in a civil context – check out this article as an example.) “If the injunction rests on factual findings, then a trial court’s order must be affirmed absent an abuse of discretion; but if the injunction rests on purely legal matters, then an injunction is reviewed de novo.” Nipper v. Walton County, Florida, 42 Fla. L. Weekly D171a (Fla. 1^st DCA 2017). Stated differently, there is an abuse of discretion standard of appellate review if the injunction is based on factual findings by the trial court. But, assuming the facts are not in dispute and the injunction is based on a matter of law, there is a de novo standard of appellate review.

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’ll be the first to tell you that I seldom file a reply to affirmative defenses unless I am truly looking to avoid an affirmative defense – I have a defense to the defense. When I do file a reply, it is typically specific and catered to a specific defense (again, a specific defense to a specific affirmative defense). This is an important consideration and not filing a reply and specifically avoiding a defense (when you have a defense to the defense) can be problematic as an insured recently found out in an insurance coverage dispute.  Thus, if you have an avoidance to a specific affirmative defense, raise it in a reply!

The insured filed an insurance coverage dispute and the insurer relied on an exclusion in the policy. The insured, however, never filed a reply to the affirmative defense. When the insurer moved for summary judgment on the exclusion, the insured tried to argue waiver, that the insurer’s conduct waived its right to this affirmative defense. Well, this is an avoidance of the defense (a defense to a defense) and should have been raised in a reply. But, it was not. The trial court granted the summary judgment in favor of the insurer and on an appeal the appellate court agreed – the insured failed to preserve its waiver argument because it never raised its waiver defense to the insurer’s affirmative defense through a reply:

We reject Gamero’s [insured’s] argument that Foremost [insurer] waived its right to rely upon the marring exclusion [in the insurance policy] by its pre-suit conduct in initially acknowledging coverage and paying a portion of the claim. Moreover, even if such actions by Foremost amounted to a waiver, Gamero failed to preserve the issue below. After Gamero filed suit for breach of the insurance contract, Foremost answered and asserted, as an affirmative defense, that Gamero’s claim was excluded from coverage because the loss constituted marring. Gamero, however, failed to reply to, or avoid, this affirmative defense by alleging, as he does in this appeal, that the affirmative defense was waived by Foremost’s conduct in initially acknowledging coverage and paying a portion of the claim. Instead, Gamero raised this issue, for the first time, in opposition to Foremost’s motion for summary judgment. The trial court was correct in not considering this issue, raised for the first time in opposition to Foremost’s motion for summary judgment.

Gamero v. Foremost Ins. Co., 42 Fla. L. Weekly D158b (Fla. 3d DCA 2017).

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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After a party prevails in a lawsuit, the next issue to consider is attorney’s fees, and this is oftentimes a driving issue because attorney’s fees can be fairly significant depending on the nature of the dispute. For example, assume you lost a trial and the other side moved for attorney’s fees. You challenged entitlement to attorney’s fees and lost – the trial court granted the other side’s motion for attorney’s fees. An evidentiary hearing was held and an attorney’s fees judgment was entered. Alternatively, assume you moved for attorney’s fees and the trial court denied your motion. Are these issues relating to entitlement to attorney’s fees appealable? Yes.

“‘A party’s entitlement to an award of attorney’s fees under a statute or procedural rule is a legal question subject to de novo review.’” Newman v. Guerra, 2017 WL 33702 (Fla. 4^th DCA 2017) quoting Nathanson v. Morelli, 169 So.3d 259, 260 (Fla. 4^th DCA 2015).

For instance, in a recent case, an owner established that a contractor’s lien was fraudulent. The contractor, however, prevailed in its breach of contract claim. The owner moved for his entitlement to statutory attorney’s fees since he prevailed in the contractor’s lien action. The trial court denied the owner’s motion for attorney’s fees because after considering all of the claims asserted in the case found that the contractor prevailed on the significant issues in the case. The owner appealed the trial court’s denial and this issue was subject to a de novo standard of appellate review.

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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In an earlier article I explained that parol evidence (extrinsic evidence) is inadmissible to determine the intent of an unambiguous agreement. The corollary is that parol evidence is admissible to determine the intent of an ambiguous agreement. Naturally, parties want their agreements to be clear—crystal clear—to avoid any argument regarding an ambiguity. For example, in a recent case, a commercial lease was deemed ambiguous regarding the tenant’s lease rate. As a result, the landlord could not ram its commercial eviction claim through the court due to what it claimed to be the tenant not paying the right lease rate. Instead, evidence needed to be considered regarding the intent of the parties, particularly as it pertained to the paragraph in the lease regarding the lease rate. Clearly, this is not what the commercial landlord wanted and, perhaps, could have been avoided by specific and unambiguous language regarding the lease rate. Remember, an ambiguity regarding a material portion of an agreement is bad–it just leads to the inevitable dispute.  

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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