29 January

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Contract is Not Hearsay; It has Independent Legal Significance

Are words of a contract hearsay? Or do they have independent legal significance such that the hearsay doctrine does not apply? The answer is explained in a recent foreclosure dispute, U.S. Bank National Association as Trustee for Ramp 2006 EFC2 v. Bell, 48 Fla.L.Weekly D218a (Fla. 5th DCA 2022). In this case, a trustee filed a foreclosure action. To establish it was the holder of the promissory note when it filed the foreclosure lawsuit, the trustee tried to introduce a Pooling and Servicing Agreement where the trustee was one of the parties that executed it. The borrowers objected to the Pooling...

03 April

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Moving for a Remittitur to Reduce Jury’s Verdict

Posted by David Adelstein

in Evidence

When a damages verdict comes in high for a plaintiff, it is not uncommon for a defendant to move for a remittitur for the trial judge to reduce the amount of damages arguing that the verdict is unreasonably excessive. A motion for remittitur is a motion to reduce the jury's verdict award. Florida’s Fourth District Court of Appeal in Fernalld v. ABB, Inc., 46 Fla.L.Weekly D542a (Fla. 4th DCA 2021) explained: When considering a motion for remittitur, the court must determine whether the amount of a damages award “is excessive . . . in light of the facts and circumstances which...

30 January

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Expert Cannot Serve as Conduit for Inadmissible Evidence / Hearsay

Posted by David Adelstein

in Evidence

The law allows an expert to rely on hearsay when formulating expert opinions, but an expert cannot serve as a conduit for inadmissible evidence / hearsay. This point is discussed in the wrongful death action, Dayes v. Werner Enterprises, Inc., 46 Fla.L.Weekly D233b (Fla. 3d DCA 2021), a case that resulted in a defense verdict that was reversed on appeal. The case involved a tractor-trailer backing up and killing someone. The plaintiff (the estate of the deceased person) raised an issue on appeal that it was error for the trial court to allow a detective to testify “that another officer...

20 September

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Admissibility of Text Messages

Posted by David Adelstein

in Evidence

In today’s world, we text. We text a lot! In many instances, we text more than we e-mail or talk on the phone to a specific person. At trial, no different than letters or e-mails, texts need to be authenticated for purposes of admissibility. If you want to use text messages at trial, you need to authenticate those texts. In Walker v. Harley-Anderson, 45 Fla. L. Weekly D2116a (Fla. 4th DCA 2020), the sole issue in this appeal was the admissibility of text messages. This case involved an injunction to prevent stalking. The petitioner moving for the injunction claimed the respondent...

03 November

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Authentication of Photograph at Trial

Posted by David Adelstein

in Burden of Proof, Evidence

A photograph needs to be authenticated at trial just like any other evidence. A recent decision impacts what can happen if a photograph at trial is NOT properly authenticated. In City of Miami v. Kho, 44 Fla.L.Weekly D2555c (Fla. 3d DCA 2019), a plaintiff slipped and fell on a sidewalk. The plaintiff claimed she slipped in a difference in elevation of the sidewalk which constituted a dangerous and defective condition that the City of Miami had knowledge of. The plaintiff could not prove the City had actual knowledge of the difference in elevation of the sidewalk at-issue, so she focused on...

23 June

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Hearsay within a Medical Record (Double Hearsay)

Posted by David Adelstein

in Evidence

A medical record is admissible under the business record exception to the hearsay rule. Strong v. Underwood, 44 Fla. L. Weekly D1598c (Fla. 5thDCA 2019). What about a party's statement within a medical record (double hearsay - hearsay within hearsay)? Well, that hearsay statement may be admissible if another exception permits its admissibility. Once such exception that could apply is an admission by a party opponent. For instance, in Strong, a person driving a motorcycle collided with an SUV. The motorcyclist sued the driver of the SUV. ...

07 April

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Affirming Summary Judgment when there are Competing Expert Affidavits

Posted by David Adelstein

in Evidence, Trial Perspectives

Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” “Summary judgment is designed to test the sufficiency of the evidence to determine if there is sufficient evidence at issue to justify a trial or formal hearing on the issues raised in the pleadings.” Because summary judgment tests the sufficiency of the evidence to justify a trial, it “is proper only if, taking the evidence and inferences in the light most favorable to the non-moving party, and assuming the jury would resolve...

09 December

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Then-Existing State of Mind Hearsay Exception

Posted by David Adelstein

in Evidence

While this hearsay exception is predominantly applicable in criminal trials, it is still worth mentioning the then-existing state of mind hearsay exception. This is a hearsay exception where hearsay is admissible, not to prove the truth of the matter asserted by a declarant (the person that made the out-of-court statement), but the declarant’s then-existing state of mind. Naturally, the declarant’s state of mind has to be at-issue for this exception to come into play. For example, in the criminal matter of Rodriguez v. State, 2018 WL 6331764 (Fla. 3d DCA 2018), a pregnant woman requested her friend go to her neighbor’s apartment and...

29 September

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Appealing Correct Measure of Damages

Posted by David Adelstein

in Appeal, Evidence

In an earlier article, I wrote how economic damages MUST be supported by substantial competent evidence. In a recent case, Levy v. Ben-Shmuel, 43 Fla.L.Weekly D2229a (Fla. 3d DCA 2018), a plaintiff, after a bench trial, recovered a judgment against a defendant that included money damages associated with a claim for conversion. During trial, and after the plaintiff’s case-in-chief, the defendant moved for an involuntary dismissal arguing the plaintiff failed to meet its burden in establishing the correct measure of damages at trial. On appeal, the plaintiff ultimately conceded that he did not establish the correct measure of damages. The issue...

06 May

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Admitting a Business Record Under the Hearsay Exception

Posted by David Adelstein

in Evidence

If you have perused this blog, then you know if there is a new case discussing the business records exception to the hearsay rule, I am writing about it. The reason being is that it comes up in many business disputes. Lately, there has been a trend where this business records exception comes up in mortgage foreclosure cases where the borrower argues that the lender failed to properly introduce key evidence (such as payment histories) under the business records exception. As a result, the evidence was inadmissible hearsay warranting a reversal of a foreclosure judgment. The recent opinion in Evans v....