24 July

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

in Depositions, Evidence, Expert Testimony

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...

17 July

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

Posted by David Adelstein

in Evidence

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...

19 June

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Note on Discovery in Litigation

Posted by David Adelstein

in Discovery, Evidence

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 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 to...

16 June

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Laying the Foundation of Photographic Evidence

Posted by David Adelstein

in Evidence

Photographs make good evidence as they illustrate what a witness is testifying about or conveying. I want to show the witness a relevant photograph, but the witness did not take the photograph. How do I get this photograph into evidence? No different than any other evidence, the proper foundation needs to be laid to admit a photograph into evidence. Metropolitan Dade County v. Zapata, 601 So.2d 239, 244 (Fla. 3d DCA 1992). “[A]ny witness with knowledge that the photograph is a FAIR and ACCURATE REPRESENTATION may lay the necessary foundation for admission of a photograph.” Scarlett v. Ouellette, 948 So.2d 859, 863 (Fla....

07 June

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Introducing Character Evidence of Prior Bad Acts in a Civil Case

Posted by David Adelstein

in Evidence

"Relevant evidence is evidence tending to prove or disprove a material fact." Fla.Stat. s. 90.401. I have previously discussed that evidence needs to be relevant for it to be admissible but that not all relevant evidence is admissible (e.g., if the probative value of that evidence is outweighed by unfair prejudice, etc., then the relevant evidence is not admissible). When is evidence of a person's character ever relevant (such as the character of a plaintiff or defendant) to prove or disprove a material fact in a civil case? Generally speaking, it is not relevant and, even if it was relevant, the...

01 May

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Pinning the Poor Against the Rich at Trial…Nope due to the Presumed Prejudice!

Posted by David Adelstein

in Evidence

We all like to root for the underdog and want the underdog to succeed. In this regard, there is something compelling about pinning the poor against the rich. We perhaps seek redemption for the poor. So, how does this play out in a jury trial? The answer is it does not and should not. Why; because of the presumed prejudice to the rich and the tendency to punish the deep pocket. By eliciting this evidence, a party is exposing itself to a mistrial. “Florida has a long-standing rule that no reference should be made to the wealth or poverty of a party,...

25 April

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Admissions Against Party Opponent (Hearsay Exception) Does Not Need to be Based on Party’s Personal Knowledge

Posted by David Adelstein

in Evidence

An admission against a party opponent is an important exception to the hearsay rule. I previously discussed this hearsay exception in detail because it is an exception that routinely applies in order to admit testimony / evidence at trial. Recently, the case of Jones v. Alayon, 2015 WL 1545005 (Fla. 4th DCA 2015) discussed the applicability of this exception. This case was a wrongful death action brought by the decedent’s daughter as personal representative of the estate stemming from an automobile accident caused by an off-duty police officer that originally fled the scene of the accident. The jury awarded the plaintiff...

16 April

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Purpose of a Motion in Limine to Exclude Evidence

Posted by David Adelstein

in Appeal, Evidence

In order to avoid prejudicial or irrelevant evidence from being introduced to the jury by the adverse party, a party will file a motion in limine to exclude this evidence. “Generally, the purpose of a motion in limine is to prevent the introduction of improper evidence, the mere mention of which at trial would be prejudicial.” Buy-Low Save Centers, Inc. v. Glinert, 547 So.2d 1283, 1284 (Fla. 4th DCA 1989). Stated differently: “The purpose of a motion in limine is to exclude irrelevant and immaterial matters, or to exclude evidence when its probative value is outweighed by the danger of...

15 March

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Benefit of Corporate Representative Depositions

Posted by David Adelstein

in Depositions, Evidence

Depositions are a routine form of discovery in civil disputes. In disputes involving businesses or governmental bodies (the “Entity”), the opposing party will take what is known as a corporate representative deposition. In a corporate representative deposition, the party taking the deposition will designate topics that they want the Entity to answer questions about. The Entity then has to duty to prepare a representative or representatives to answer questions relating to the topics. The Entity has discretion on the representative(s) it chooses to answer questions relating to the topics provided that the representative(s) it chooses is reasonably prepared. For example, assuming there...

12 March

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Inadmissible Subsequent Remedial Measures

Posted by David Adelstein

in Evidence

Sometimes plaintiffs try to introduce evidence of subsequent remedial measures a defendant undertook after a defective condition caused an injury or damage to prove the existence of the defective condition and the culpability of the defendant. In other words, the plaintiff wants to show that if the remedial measure was performed to the defective condition prior to the injury or damage the injury or damage would probably not have occurred. This evidence of subsequent remedial measures is not admissible subject to an impeachment exception (where the evidence is not admitted as substantive evidence but to impeach a witness). To this...