09 December

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Then-Existing State of Mind Hearsay Exception

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....

29 January

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Impeachment as to Prior Crimes in Civil Trials

Posted by David Adelstein

in Evidence, Trial Perspectives

In a civil trial, I want to attack (impeach) the credibility of a testifying witness by bringing up a crime that witness committed. Can I do this? When it comes to impeaching the credibility of a witness based on crimes, Florida Statute s. 90.610 states in material part: (1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or...

01 October

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Business Records Exception (to Hearsay Rule) When Business Takes Custody of Another’s Records

Posted by David Adelstein

in Evidence

If you have looked through the articles on this blog before, you will know that the business records exception to the hearsay rule is a very important hearsay exception in business disputes (or any dispute involving business records!). The business records exception requires a proper foundation to be laid by a witness before the records are admitted into evidence to ensure the accuracy and reliability of the records. The proper foundation requires the witness to show that "(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a...

03 September

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Improperly Admitting Hearsay can still be Harmless Error

Posted by David Adelstein

in Evidence

I have discussed the hearsay rule (the evidentiary exclusionary rule and the numerous exceptions) ad nauseam and will continue to do so because it is such an important aspect of a civil trial. There will invariably be an objection under the hearsay rule during trial. The trial court will either sustain the objection or overrule the objection, perhaps under an exception to the hearsay rule. What if a trial court makes a mistake—it happens—and overrules a hearsay objection and admits hearsay evidence? As previously mentioned, an appellate court will review the admission of evidence under an abuse of discretion standard of...

25 June

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Challenging Standard for Granting Directed Verdict

Posted by David Adelstein

in Evidence, Trial Perspectives

If there is a jury trial, there will be a motion for directed verdict. But, the standard for granting a motion for directed verdict is challenging; if the directed verdict is granted, an appeal will be filed arguing the trial court’s error in granting the directed verdict. James v. City of Tampa, 2016 WL 3201221 (Fla. 2d DCA 2016) was a personal injury action. The issue at trial was whether the plaintiff’s injuries from a car accident constituted a permanent injury (as this issue impacted damages to be awarded to the injured plaintiff). At the conclusion of all of the evidence, the...

02 June

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Know the Best Evidence Rule

Posted by David Adelstein

in Evidence

I previously discussed the best evidence rule. Check out the article for more information on this evidentiary rule. It is important to know the best evidence rule when litigating negotiable instruments or even contractual disputes. You do not want to try such a dispute without understanding the application of the best evidence rule. The recent mortgage foreclosure case of Rattigan v. Central Mortgage Company, 41 Fla. L. Weekly D1312a (Fla. 4th DCA 2016) is an example of the application of the best evidence rule. In this case, the lender at trial failed to introduce the written loan modification to a promissory note...

30 May

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“Other Products” Evidence to Support Alternate Causation Theory

Posted by David Adelstein

in Appeal, Evidence, Standard of Review

The recent case of Arizona Chemical Company, LLC v. Mohawk Industries, Inc., 41 Fla. L. Weekly D1213a (Fla. 1st DCA 2016) is a case I discussed regarding lost profit damages. Check out that article here. But, this case also raised an interesting trial and appellate issue involving “other products” evidence to support an alternate causation argument, such as when a specific product or manufactured component fails. This case involved a manufacturer of a specific brand of carpet suing the manufacturer of resin that was used in manufacturing the failed carpet brand. The carpet manufacturer claimed that the resin failure caused an...

21 May

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Motion for Directed Verdict (or to Set Aside the Verdict) is an Important Trial Consideration

Posted by David Adelstein

in Evidence, Standard of Review

After the plaintiff puts on its case-in-chief, you, as the defendant, move for a directed verdict. (Check out this article too for more on directed verdicts.) The court denies the motion for a directed verdict. You put on your defense and then the case is submitted to the jury. The jury returns a verdict in favor the plaintiff. You then move to set aside the verdict (also called a motion for judgment notwithstanding the verdict). The trial court denies your motion and enters final judgment consistent with the jury’s verdict. You appeal the trial court’s denial of the motion for...