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Ruling on Admissibility of Evidence Reviewed Under Abuse of Discretion

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...

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Arbitration and the Lax Rules of 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...

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

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...

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Expert Witnesses can Rely on Hearsay….But…

Expert witnesses can rely on hearsay (or inadmissible evidence) in arriving at their expert opinions subject to exceptions set forth below. Vega v. State Farm Mut. Automobile, 45 So.3d 43 (Fla. 5th DCA 2010) (expert automobile appraiser was entitled to rely on other persons knowledge in vintage automobiles to arrive at estimated value of vintage vehicle); Houghton v. Bond, 680 So.2d 514 (Fla. 1st DCA 1996) (expert allowed to rely on inadmissible study to arrive at expert opinion). Indeed, Florida Statute s. 90.704 supports this point by stating: If the facts or data are of a type reasonably relied upon by experts in...

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Fact Witness Testimony Must be Based on Their Personal Knowledge

Fact witnesses may only testify as to matters within their personal knowledge.   Fla.Stat. s. 90.604. “[A fact] witness is limited to testifying to facts that are within the witness's knowledge rather than the witness's speculation and conjecture.” A&A Electric Services, Inc. v. Jurado, 40 Fla.L.Weekly D1963a (Fla.2d DCA 2015). For example, in Jurado, the plaintiff was testifying as to a document he signed and the principal of the defendant signed. In doing so, he testified as to the principal’s intent in signing the document. But, how did he know the principal's intent? Wasn’t he merely speculating as to the principal's intent? Of course...

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Rule of Completeness so Entire Writing or Statement is Contemporaneously Introduced

Florida Statute s. 90.108(1) provides: “When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously. An adverse party is not bound by evidence introduced under this section.” This is referred to as the rule of completeness. The objective behind this rule of completeness is to avoid misleading the jury with a statement that is based on incomplete information. See Harden v. State, 87 So.3d 1243,1249 (Fla. 4th...

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Using Deposition of Expert Witness at Trial and Reading Portion of Deposition Transcript

Expert witnesses are an important part of civil trials (and criminal trials).   Parties utilize expert witnesses at trial to render expert opinions. But, a testifying expert does not need to be at trial live (or, in person) to render an expert opinion.   Florida Rule of Civil Procedure 1.330(a)(3) provides in pertinent part: “The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:…(F) the witness is an expert or skilled witness.” Similarly, Florida Rule of Civil Procedure 1.390(b) provides: “The testimony of an expert…witness may be taken at any time...

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Classic Hearsay: Declarant’s Out-of-Court Statement Offered to Prove the Truth of the Matter Asserted

I previously discussed the concept of hearsay and that hearsay is inadmissible evidence at trial. There are exceptions to hearsay---such as the business records exception or admissions against a party opponent—that I have written about since they are important hearsay exceptions at trial that come into play to admit evidence at trial. What is classic hearsay? Hearsay is simply an out-of-court statement (written or oral) introduced at trial to prove the truth of the matter asserted in the out-of-court statement. “[W]hen the only possible relevance of an out-of-court statement [introduced at trial] is directed to the truth of the matters stated by...

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Note on Discovery in Litigation

Here is a quick note on discovery in litigation (e.g., document requests, depositions, interrogatories). An objective of discovery is to discover information that is reasonably calculated to lead to the discovery of admissible evidence. In other words, just because the discovery appears irrelevant does not necessarily mean that pursuing such discovery will not reasonably lead to the discovery of admissible evidence. By taking a more liberal approach to the legal discovery process, hopefully, some of the unfortunate gamesmanship that occurs during discovery is eliminated or reduced. In particular, parties should not be able to unilaterally dictate what they believe is relevant...

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