27 April

Sticky

Parol Evidence Inadmissible to Determine Intent of Unambiguous Agreement

Extrinsic or parol evidence is inadmissible to determine the meaning or intent of an unambiguous agreement. See Restoration 1 CFL v. State Farm Ins. Co., 2016 WL 1600331 (Fla. 5th DCA 2016) (error to allow deposition testimony regarding party’s interpretation of assignment when assignment agreement was unambiguous). “The parol-evidence rule is a substantive rule of law and reduced to its essence, provides that a written document intended by the parties to be the final embodiment of their agreement may not be contradicted, modified or varied by parol evidence.” King v. Bray, 867 So.2d 1224, 1226 (Fla. 5th DCA 2016). While there is...

24 April

0 Comments

Sticky

Is Your Expert Qualified to Render the Opinions?

Posted by David Adelstein

in Expert Testimony

You retained an expert witness. You want the expert witness to serve as a testifying expert -- to testify at trial to help support a claim or a defense. But, is your expert qualified to render the opinions you want him/her to render? Stated differently, does the expert have the expertise, knowledge, skill, education, training, or experience to render the opinion (as required by Florida Statute s. 90.702)? This is crucial since if he/she does not, he/she will NOT be qualified as an expert witness. Make sure the expert you retain is qualified to render the opinions you want him/her...

23 April

0 Comments

Sticky

A Promissory Note is NOT Hearsay

Posted by David Adelstein

in Evidence

A promissory note is NOT regarded as hearsay. This means a party introducing a promissory note does not need to lay down the foundation to a hearsay exception such as the business records exception in order to admit the note into evidence. The Fifth District Court of Appeal in Deutsche Bank National Trust Co., Etc. v. Alaqua Property, Etc., 41 Fla.L.WeeklyD994b (Fla. 5th DCA 2016) explained that a promissory note in a foreclosure action is NOT hearsay because it is NOT being offered to prove the truth of the matter asserted; rather, the note has independent legal significance, that being “to establish the existence of...

18 April

0 Comments

Sticky

Election of Remedies PRIOR to Final Judgment

Posted by David Adelstein

in Trial Perspectives

Oftentimes, a plaintiff will plead alternative claims or theories of liability against a defendant(s). Pleading in the alternative is allowed under Florida Rule of Civil Procedure 1.110(g). The plaintiff is entitled to elect--between two mutually exclusive (alternative) remedies--the remedy it prefers any time prior to the entry of final judgment. See Liddle v. A.F. Dozer, Inc., 777 So.2d 421 (Fla. 4th DCA 2001); see also Burr v. Norris, 667 So.2d 424, 426 (Fla. 2d DCA 1996) (“Plaintiffs are also allowed to plead inconsistent or alternative actions and need only elect remedies before final judgment.”) This allows the plaintiff to present...

07 April

0 Comments

Sticky

Difference Between Lay Opinion Testimony and Expert Opinion Testimony

Posted by David Adelstein

in Appeal, Evidence, Standard of Review

Although I have numerous blog articles regarding the appellate standard of review when it comes to the admissibility of evidence, it is important to remember that “[a] trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion; however, the trial court’s interpretation of the evidence code is reviewed de novo.” L.L. v. The State of Florida, 41 Fla.L.Weekly D854a (Fla. 3d DCA 2016). In L.L., a criminal case, a police officer testified that he smelled the strong odor of marijuana from the defendant and that a plastic bag in defendant’s possession contained marijuana. The defendant objected...

27 March

0 Comments

Sticky

Prejudicial Closing Argument Could Result in Mistrial / New Trial

Posted by David Adelstein

in Standard of Review, Trial Perspectives

Closing argument is a very, very important part of jury trials to sum up the evidence in the context / theme of your case based on the applicable law. It is your last opportunity to talk directly to the jury about the theme of your case. Check out this article for the purpose of closing argument. While lawyers are afforded latitude in presenting closing argument, improper and prejudicial argument could result in an appellate court granting a new trial. The opposing party must, however, timely object to the improper and prejudicial argument in order to properly preserve this objection for...

24 March

0 Comments

Sticky

Discoverability of Opposing Party’s Attorney’s Fees Records

Posted by David Adelstein

in Evidence, Trial Perspectives

Interesting new Florida Supreme Court case regarding the discoverability of an opposing party’s fees records in a dispute regarding the reasonableness of your fees. For instance, say you are entitled to your reasonable attorney’s fees after prevailing in a dispute. The parties are entitled to an evidentiary fee hearing to determine the reasonableness of your fees—to determine the reasonable hourly rate and number of expended hours. Oftentimes, the party that prevailed serves discovery on the opposing / contesting party to discover their attorney’s fees records. The opposing / contesting party typically objects to this discovery as being irrelevant. But, not so fast...

19 March

0 Comments

Sticky

Race-Neutral Reason for Peremptory Challenge

Posted by David Adelstein

in Voir Dire

During the voi dire / jury selection process, a party is entitled to 3 peremptory challenges. This means a party can strike prospective jurors for any race-neutral reason. There are times where a party uses a peremptory challenge to strike a juror and the opponent believes the peremptory challenge is being used for a racially motivated reason (i.e., to strike a particular prospective juror due to that juror’s race or ethnicity). Even when the proponent of the peremptory challenge explains the race-neutral reason for the challenge, the opponent believes that the race-neutral reason is merely a pretext. The Second District Court...

09 March

0 Comments

Sticky

Make Sure to Timely Raise Your Daubert Objection to Expert Testimony

Posted by David Adelstein

in Evidence, Expert Testimony

If you are going to raise a Daubert objection or challenge (or request a Daubert hearing), you need to TIMELY do so before the expert witness testifies. A Daubert motion / challenge / hearing relates to the admissibility of an expert witness’ testimony. As you can imagine, this is an extremely important issue as many cases depend on expert witness testimony to support their burden of proof. In Rojas v. Rodriguez, 41 Fla.L.Weekly D423a (Fla. 3d DCA 2016), a defendant raised a Daubert objection post-verdict. The defendant was challenging the admissibility of the testimony of plaintiff's neurosurgeon expert in requesting a new trial....

05 March

0 Comments

Sticky

Agent’s Out-of-Court Statements Could Constitute Admissions by a Party Opponent

Posted by David Adelstein

in Evidence

Below is an example in a criminal trial of the exception to the hearsay rule referred to as admissions against party opponents when a party’s agent makes an out-of-court statement. Check out this article and this article for more on this important hearsay exception embodied in Florida Statute s. 90.803(18). In Osorio v. State of Florida, 41 Fla.L.WeeklyD547b (Fla. 4th DCA 2016), the police used a confidential informant to make an arrest in a drug case. The confidential informant happened to be a co-worker of the defendant (that had previously been arrested on an unrelated drug charge and turned into an...

Author: David Adelstein