18 January

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Application of the Business Records Exception to the Hearsay Rule

Hearsay (an out-of-court statement offered at trial for the truth of the matter asserted) is inadmissible at trial. But, there are exceptions to this exclusionary hearsay rule to allow such evidence / testimony to be admissible at trial. Previously, I wrote about one exception known as the business records exception contained in Florida Statute s. 90.803. The business records exception is commonly relied on in business disputes in order to admit business records as evidence. What if there is an appeal concerning the admissibility of evidence introduced at trial under an exception to the hearsay rule? Standard of Appellate Review Whether evidence is...

15 January

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Moving for a Directed Verdict and, then, a Motion to Set Aside the Verdict

Posted by David Adelstein

in Appeal, Evidence

Moving for a directed verdict is a standard procedure in a jury trial. Simply put, after the plaintiff puts on its case-in-chief (evidence supporting its claims against the defendant), the defendant moves for a directed verdict stating that even assuming all of the evidence is true and undisputed, and all inferences relating to that evidence favor the plaintiff, the plaintiff failed to prove its case as a matter of law and a jury cannot reasonably enter a verdict in favor of the plaintiff based on that evidence. See Wald v. Grainger, 64 So.3d 1201 (Fla. 2011); see also Etheredge v....

11 January

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Expert Opinion Testimony and the Standard of Appellate Review

Posted by David Adelstein

in Appeal, Expert Testimony, Standard of Review

Previously, I discussed expert opinion testimony and the Daubert gatekeeping test employed by trial courts to determine the admissibility of the expert testimony. But, there is much more to expert opinion testimony. An expert witness is NOT allowed to serve as a conduit for inadmissible hearsay so that a party is using an expert witness to simply get in testimony/evidence that is otherwise inadmissible. Doctors Co. v. State, Dept. of Ins., 940 So.2d 466, 470 (Fla. 1st DCA 2006) (“The rule is well established that if an expert is called merely as a conduit to place inadmissible evidence before the jury, the trial...

10 January

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Expert Opinion Testimony and Understanding Daubert’s Gatekeeping Test

Posted by David Adelstein

in Evidence, Expert Testimony

Expert opinion testimony is an important aspect of complex civil litigation. Expert testimony assists in proving or disproving liability and damages. A credible and persuasive expert can make the difference in a case and retaining experts, generating expert opinions, and the manner in which expert opinions are presented should not be taken lightly. Regarding expert testimony, Florida Statute s. 90.702 provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in...

04 January

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Useful Maps Explaining Florida’s Judicial System

Posted by David Adelstein

in Appeal, Trial Perspectives

A picture is worth 1,000 words. This is true. Therefore, the best way to describe Florida's judicial system is through pictures in the form of maps: FLORIDA COUNTIES For more information on Florida counties, take a look at the useful maps that will tell you the cities located within each county. FLORIDA JUDICIAL (TRIAL COURT) CIRCUITS For more information on Florida's judicial (trial court) circuits, take a look at this map and the corresponding links to the judicial circuits. FLORIDA APPELLATE CIRCUITS For more information on Florida's appellate districts, take a look at this useful map that will identify the judicial (trial court) circuit and counties that...

03 January

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Verdict Forms (General or Special) and the Two-Issue Rule

Posted by David Adelstein

in Appeal, Standard of Review

I previously discussed the importance of jury instructions and the jury instruction conference. Now, I want to discuss the importance of the verdict form. This is the form the jury fills out during its deliberation that identifies the associated liability and damages it determines. There are 2 types of verdict forms used. A general verdict form is a relatively simple form that is easy to prepare and asks the jury to determine whether it believes the defendant is liable and, if so, the damages the defendant owes the plaintiff. This is the type of form a plaintiff oftentimes wants. A special interrogatory verdict...

30 December

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Preparing Jury Instructions and the Standard of Review in Appealing Jury Instructions

Posted by David Adelstein

in Jury Instructions, Standard of Review

Jury instructions are a vital component of any jury trial. These are the instructions that the trial judge reads to a jury explaining the elements of the plaintiff’s causes of action against the defendant, the defendant’s defenses, the required burden of proof, how to weigh the evidence, etc. There are jury instructions that are considered Florida standard jury instructions. But, outside of these standard jury instructions, there is a great deal of discretion in preparing and presenting jury instructions in civil trials as long as the instructions accurately reflect the law and are not misleading to the jury. Typically, each party...

28 December

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Appealing the Granting or Denying of a Party’s Peremptory Challenge(s)

Posted by David Adelstein

in Appeal, Standard of Review, Voir Dire

Previously, I discussed the basics regarding peremptory challenges. What if the court grants or denies a peremptory challenge and a party wants to appeal that ruling at the conclusion of the trial? A party will want to potentially appeal if (a) a party challenges its opponent's use of a peremptory challenge arguing that the opponent wants to strike a juror for a racially motivated basis and the court still grants / sustains the peremptory challenge or, alternatively, (b) a party challenges its opponent's use of a peremptory challenge arguing that the opponent wants to strike a juror for a racially motivated basis and...

27 December

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Civil Jury Trials and the Basics of Peremptory and Cause Juror Challenges

Posted by David Adelstein

in Voir Dire

Civil jury trials in a Florida state court require 6 jurors. See Fla.Stat. s. 69.071. The court also generally directs for 1 or 2 alternate jurors to be selected. See Fla.R.Civ.P. 1.431(g). During jury selection in civil trials, or the voir dire process, parties have peremptory challenges and challenges for cause that are used to strike a prospective juror(s) from being sworn on the jury panel. These challenges are a very important component of the jury trial process designed to not only prevent biased or partial jurors from being sworn to the jury panel (challenges for cause), but to allow a party to strike...

26 December

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Satisfying the Burden of Proof by a “Greater Weight of the Evidence”

Posted by David Adelstein

in Burden of Proof, Evidence

The burden of proof (or burden of persuasion) in a civil case is NOT the same “beyond a reasonable doubt” burden that the government has in convicting a criminal defendant. The burden of proof in a civil case is a much lesser burden. Rather, the burden of proof in a civil case is often referred to as the burden to prove YOUR case by a “preponderance of the evidence” now known as the “greater weight of the evidence.” It is this “greater weight of the evidence” burden of proof that a jury will be instructed upon. The jury will be instructed that it is...

Author: David Adelstein