17 December

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Quick Note: Order Denying Attorney’s Fees Reviewed De Novo

An order denying a motion for attorney's fees is generally reviewed under a de novo standard of appellate review. In a recent case I wrote about dealing with a coverage dispute between an insured and a property insurer, both the insured and insurer moved for attorney's fees after the jury's verdict. In this case, the insured moved for attorney's fees pursuant to statute -- Florida Statute s. 627.428. The trial court denied the insured's motion. The insurer moved for attorney's fees pursuant to a proposal for settlement / offer of judgment it served under Florida Statute s. 768.79. The trial...

16 December

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New Trial Warranted for Prejudicially Inflaming the Jury

Posted by David Adelstein

in Trial Perspectives

Jury trials do contain a degree of theatrics, particularly when it comes to opening and closing statements. The objective is to persuasively demonstrate to the jury your theme of the dispute – what the evidence will show (in the opening statement) and what the evidence reveals that supports your theme and the application of the law (in the closing statement). This does not mean, however, that you can intentionally and prejudicially inflame the passions of the jury. Doing so will result in a new trial, and oftentimes, an unnecessary new trial. An example of this can be found in the case...

24 November

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Proving ALL of the Elements of a Fraudulent or Negligent Misrepresentation Claim

Posted by David Adelstein

in Trial Perspectives

Fraud claims are hard to prove. Any fraud claim or claim predicated on a misrepresentation is an intentional tort; therefore, it requires proof that the defendant had the intent to induce the plaintiff to act on a misrepresentation and the plaintiff actually relied on and acted on the misrepresentation. While fraud-type claims are perhaps commonly pled, pleading a fraud-type claim and proving a fraud-type claim are two different things. A party can plead a fraud-type claim to get passed a motion to dismiss. Proving the fraud-type claim, however, is a different story. Plaintiffs need to understand the elements they are...

14 November

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Is the “Bad” Appellate Case Binding or Persuasive?

Posted by David Adelstein

in Appeal, Trial Perspectives

There are times I hear that because the “bad” appellate case is in another appellate district compared to the appellate district where my case is located, that “bad” case is not binding. This sentiment is not necessarily true, particularly if there are no interdistrict conflicting opinions relating to the “bad” appellate case (and, more appropriately, the legal issue that “bad” case deals with). This was explained by the Florida Supreme Court in Pardo v. State, 596 So.2d 665, 666-67 (Fla.1992): This Court has stated that “[t]he decisions of the district courts of appeal represent the law of Florida unless and until they...

08 November

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Proving Fraud on the Court with Clear and Convincing Evidence

Posted by David Adelstein

in Trial Perspectives

When a party files a motion that the opposing party perpetuated a fraud on the court, they are looking for the court to sanction the opposing party, with the harsh remedy of striking the opposing party’s pleadings. Fraud on the court is described as: The requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or...

04 November

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Striking / Excusing a Prospective Juror for Bias during Voir Dire

Posted by David Adelstein

in Appeal, Burden of Proof, Standard of Review, Trial Perspectives

An attorney’s opportunity to question prospective jurors (the jury venire) is an important part of the trial process. This is known as voir dire. Attorneys want to ask tailored questions to determine those persons in the venire that should be stricken for cause, those for which they should exercise a peremptory challenge, and those, quite frankly, they want to sit on the jury panel. There is strategy involved including wanting to develop a rapport with jurors. These are the potential folks that will render a verdict in the case and analyze the factual evidence based on the law (jury instructions)....

26 October

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Election of Remedies Doctrine and Claims for Specific Performance and Breach of Contract

Posted by David Adelstein

in Trial Perspectives

In an earlier article, I talked about the election of remedies doctrine. The purpose of this election of remedies doctrine is to preclude the plaintiff from obtaining a windfall by double-recovering its damages under alternative (or mutually exclusive) theories of liability. If a plaintiff could double recover on mutually exclusive theories of liability based on inconsistent facts, then plaintiffs would recover double than what they are rightfully entitled to. That isn't fair! Before a trial court can apply the election of remedies doctrine, it must determine whether the remedies are factually consistent. A party may not obtain judgment for two remedies...

19 October

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The Contingency Fee Multiplier is NOT just for the Rare and Exceptional Dispute

Posted by David Adelstein

in Trial Perspectives

In a great victory for those handling difficult contingency fee disputes (particularly contingency fee disputes dealing with economic damages, such as me), the Florida Supreme Court held that the contingency fee multiplier is not to be applied only in the rare and exceptional case. Oh no! Had the Court entered such a ruling, this would have virtually eliminated the application of the contingency fee multiplier. Boo! This multiplier is important as it incentivizes those attorneys that handle difficult contingency fee cases by adding a multiplier on the reasonably determined attorney's fees. (For example, if the Court determines that an attorney’s reasonable...

14 October

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Arbitration is an Appealable Non-Final Order

Posted by David Adelstein

in Standard of Review, Trial Perspectives

Arbitration is a creature of contract. If a contract requires arbitration that means the parties are required to arbitrate their disputes as opposed to litigate their disputes. Instead of their being a judge or jury, there will be an arbitrator. There are three considerations when determining whether a dispute is subject to arbitration: 1) Is there a valid written agreement to arbitrate (such as an arbitration provision in a contract)? 2) Is there an arbitrable issue? And 3) Has the right to arbitrate the issue or dispute been waived? Chaikin v. Parker Waichman LLP, 42 Fla. L. Weekly D2165b (Fla. 2d DCA 2017) quoting Jackson v....

01 October

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Strictly Complying with Procedural Requirements when Moving to Amend to Add Punitive Damages

Posted by David Adelstein

in Trial Perspectives

Punitive damages can be an important component of a plaintiff’s damages. No doubt about it. No defendant wants the jury to be able to determine whether to award these damages or the quantum of punitive damages associated with its/his/her gross negligence or intentional misconduct. Punitive damages can be a game changer. The objective behind punitive damages is to punish the wrongdoer-defendant and deter the wrongful conduct, rather than to compensate the plaintiff. Estate of Despain v. Avante Group, Inc., 900 So.2d 637, 640 (Fla. 5th DCA 2005). “Because the amount of an award [of punitive damages] may be a pittance to...