24 March

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Discoverability of Opposing Party’s Attorney’s Fees Records

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...

09 March

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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

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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...

16 February

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Witness Laying Foundation for Business Records Exception Need Not be the Person that Prepared the Business Records

Posted by David Adelstein

in Appeal, Evidence

If you have visited this blog before, then you know the importance I place on the business records exception to the hearsay rule in civil business disputes. (Check out this article too.) Lately, the business records exception to the hearsay rule is a hot topic in mortgage foreclosure cases. In yet another foreclosure case, Wells Fargo Bank, N.A., as Trustee, on Behalf of the Harborview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-1 v. Balkisson, 41 Fla.L.Weekly D308a (Fla. 4th DCA 2016), the trial court entered an involuntary dismissal in favor of the borrower and against the lender after sustaining...

23 January

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Excited Utterance Hearsay Exception

Posted by David Adelstein

in Evidence

I have discussed that hearsay is inadmissible evidence. Again, hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fla.Stat. 90.801(1)(c). While hearsay is inadmissible, there are exceptions that allow hearsay to be admissible at trial. One hearsay exception is known as an “excited utterance.” Typically, this hearsay exception is more applicable in criminal trials than civil trials. An excited utterance is a “statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of...

10 January

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Hearsay can Only be Admitted for Another Purpose if Such Purpose is a Material Issue

Posted by David Adelstein

in Evidence

Sometimes, a party will try to introduce hearsay by arguing that that the document/testimony is not being offered to prove the truth of the matter asserted (hearsay), but instead, is being offered for another purpose. This is an avenue to admit evidence that would otherwise be excluded under the hearsay exclusion. This was the situation in the employment litigation case, Mootry v. Bethune-Cookman University, Inc., 41 Fla. L. Weekly D146a (Fla. 5th DCA 2015). In this case, the University terminated a tenured professor for cause and the professor sued. At trial, the University offered into evidence a report prepared by an...

31 December

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Summary Judgment Must be Based on Admissible Evidence

Posted by David Adelstein

in Evidence

A party moving for summary judgment must rely on admissible evidence in the record. Arlen Realty, Inc. v. Penn Mut. Life Ins. Co., 386 So.2d 886 (Fla. 1st DCA 1980). Parties oftentimes submit an affidavit in support of a motion for summary judgment in order to get certain testimony or documentary evidence into the record. When a party submits an affidavit to get a document into the record, the party still needs to authenticate the document and lay its foundation in the affidavit. See Alavi v. Garcia, 140 So.3d 1141 (Fla. 5th DCA 2014) (party required to lay foundation for...

25 December

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How the Defense of Set-Off Applies

Posted by David Adelstein

in Evidence

Set-off is a popular topic or defense raised in civil disputes. In contract actions, set-off must be raised as an affirmative defense and proven at trial (and determined by the trier of fact) or else the defendant waives the right to assert set-off. See Felgenhauer v. Bonds, 891 So.2d 1043, 1045 (Fla. 2d DCA 2004). What about tort actions such as negligence actions in disputes involving personal injury or property damage? For instance, say a plaintiff sues three defendants in negligence for the same damage. Prior to trial, the plaintiff settled with two of the defendants for a total of $100,000 and...

09 December

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Witness Laying the Foundation for the Admission of Business Records

Posted by David Adelstein

in Evidence

More on the business records exception to the hearsay rule and the importance of laying the proper foundation to introduce business records under this exception. This is a must-know hearsay exception to any business-related dispute; and, it is imperative to understand the required testimony of the witness utilized to lay the foundation for the business records exception. In Sanchez v. Suntrust Bank, 4D14-2457 (Fla. 4th DCA 2015) – yes, a mortgage foreclosure case—the lender introduced a screenshot of its record keeping system, the payment history with the borrower, default letters, and a payoff calculation. The lender introduced this documentation through the...

26 November

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Parol Evidence Rule — A Substantive Rule of Law

Posted by David Adelstein

in Evidence

The parol evidence rule is not an evidentiary rule, but a substantive rule of law. Madsen, Sapp, Mena, Rodriguez & Co., P.A. v. Palm Beach Holdings, Inc., 899 So.2d 435, 436 (Fla. 4th DCA 2005). It is an important substantive rule of law when it comes to cases that involve the rights, liabilities, and remedies of parties pursuant to a written agreement. The parol evidence rule precludes the admissibility of extrinsic “verbal agreements [evidence] between the parties to a written contract which are made before or at the time of execution of the contract.” Pavolini v. Williams, 915 So.2d 251, 254...