11 April

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Exceptions to Rule that Subsequent Remedial Measures are Inadmissible

In a recent case dealing with a design defect in a motorcycle, where a product safety recall was issued, the appellate court gave a good discussion on what's known as a "subsequent remedial measure." Consider this discussion on the inadmissibility of subsequent remedial measures as well as EXCEPTIONS to this rule of inadmissibility: Even if relevant, Suzuki [motorcycle manufacturer] asserts that the recall is a subsequent remedial measure inadmissible under section 90.407, Florida Statutes. Section 90.407 precludes evidence of remedial measures from being used to establish negligence or a product defect. See § 90.407, Fla. Stat. (“Evidence of measures taken...

25 February

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Attorney’s Fee Awards

Posted by David Adelstein

in Evidence, Expert Testimony

Attorney's fee awards can be frustrating. The reason being is the award is based on a mini-bench-trial after the trial aimed at determining reasonableness of the attorney’s fees. An expert, i.e., another lawyer, is required to opine as to the reasonableness of the attorney’s fees. Fees are not just rubberstamped and banking on recovering 100% of the attorney’s fees incurred is probably not realistic. In fact, you should not “bank” on that mindset when determining whether to settle the attorney’s fees or the dispute. A recent case, Kovar Law Group, PLLC v. Jordan, 49 Fla.L.Weekly D431a (Fla. 2d DCA 2024), touches...

13 January

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Trial Court / Judge Cannot Act as the Seventh Juror

Posted by David Adelstein

in Appeal, Evidence

The trial judge cannot act as the seventh juror. What does this mean? Read on...

25 November

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Introduce the Right Circumstantial Evidence for Purposes of “Admission by Party Opponent” Hearsay Exception

Posted by David Adelstein

in Evidence, Trial Perspectives

One of the exceptions to hearsay is known as an admission by a party opponent. In Florida, this hearsay exception is included in Florida Statute s. 90.803(18): (18) ADMISSIONS.—A statement that is offered against a party and is: (a) The party’s own statement in either an individual or a representative capacity; (b) A statement of which the party has manifested an adoption or belief in its truth; (c) A statement by a person specifically authorized by the party to make a statement concerning the subject; (d) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence...

29 January

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Contract is Not Hearsay; It has Independent Legal Significance

Posted by David Adelstein

in Evidence

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. ...