25 December

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How the Defense of Set-Off Applies

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...

18 November

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Best Evidence Rule

Posted by David Adelstein

in Evidence

Florida Statutes s. 90.952, 90.953 and 90.954 codify what is called the “best evidence rule.” “The best evidence rule requires that if original evidence is available, then no evidence should be received which is merely substitutionary in nature….The best evidence rule is applicable only to exclude evidence where the contents of a writing is at issue.” State v. Eubanks, 609 Do.2d 107, 109 (Fla. 4th DCA 1992); These statutes provide: 90.952 Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph. 90.953 A duplicate is admissible to the same extent...

05 November

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Recipient of Trial Court’s Error Needs to Prove Harmless Error

Posted by David Adelstein

in Evidence

I previously discussed that the “no reasonable possibility test” is the harmless error test in civil trials. This means that even if the trial judge committed an error, the recipient of the error (generally the appellee) has to prove that the error was harmless in that there was no reasonable possibility that the error contributed to the verdict (against the appellant). Here is a case where the trial court committed error but the appellee that prevailed at trial was unable to establish that the error was harmless. Thus, the error committed by the trial court was deemed to be reversible error entitling...

01 November

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State of Mind Hearsay Exception

Posted by David Adelstein

in Evidence

Sometimes hearsay statements are introduced at trial not to show the truth of the matter asserted by the out-of-court statement, but to prove a certain state of mind of the person that heard the out-of-court statement. In this situation, the out-of-court statement would be admissible and not considered hearsay. Florida Statute 90.803(3)(a) provides the following hearsay exception: (a) A statement of the declarant's then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, [is an exception to hearsay] when such evidence is offered to: Prove the declarant's state of mind,...

15 October

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Authentication of Document and the “Reply Letter Doctrine”

Posted by David Adelstein

in Evidence

Authenticating evidence, such as a document, is important to show that the document being admitted into evidence is what it purports to be. See Fla. Stat. s. 90.901 ("Authentication...

06 October

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Ruling on Admissibility of Evidence Reviewed Under Abuse of Discretion

Posted by David Adelstein

in Evidence, Standard of Review

The trial court allowed certain testimony / evidence to be introduced at trial. I objected, but the trial court overruled my objection. That evidence was introduced and I lost the trial. I am considering an appeal based on the trial court's admissibility of this evidence. "Rulings on the admission of evidence are reviewed [on appeal] under the abuse of discretion standard [of review]." Cantore ex rel. Cantore v. West Boca Medical Center, Inc., 2015 WL 5603449 (Fla. 4th DCA 2015). This discretion, however, is limited by the Florida Rules of Evidence. Johnston v. State, 863 So.2d 271, 278 (Fla. 2003). For...

02 October

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Arbitration and the Lax Rules of Evidence

Posted by David Adelstein

in Evidence

I'm sure you have heard of arbitration. Arbitration is a method of dispute resolution. If parties want to arbitrate their dispute as opposed to litigate their dispute in court, they need to include an arbitration provision in their contract. This is because arbitration is a creature of contract and you cannot be compelled to arbitrate a dispute that you did not contractually agree to arbitrate as the method of dispute resolution. (If you are arbitrating your dispute, then you are not litigating your dispute in court.) In arbitration, the rules of evidence are lax. For example, Rules 35 and 36 of the Construction Industry...

26 September

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Judicial Notice of a Court’s File does NOT Circumvent Inadmissible Hearsay

Posted by David Adelstein

in Evidence

Judicial notice is the “cognizance of certain facts which judges or jurors may properly take and act upon without proof, because they already know them.” Wyatt v. State, 270 So.2d 47, 48 (Fla. 4th DCA 1972) (quotation and citation omitted). A court may take judicial notice of “[r]ecords of any court of this state or of any court of record of the United States or of any state, territory, or jurisdiction of the United States.” Fla.Stat. s. 90.202(6). However, just because a court can take judicial notice of records in the court’s file cannot be used to circumvent otherwise inadmissible hearsay statements...