01 May

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

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...

07 March

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Proximate Causation in a Negligence Action and the Granting of a Directed Verdict in a Negligence Action

Posted by David Adelstein

in Burden of Proof, Evidence

Mostly everyone has heard of the term “negligence.” Negligence actions oftentimes form the basis of personal injury claims and, in certain instances, property damage claims. (For example, this article discusses negligence actions in premise liability claims.) To prove a negligence claim, a plaintiff must prove the following elements: 1) the defendant owed a duty of care to the plaintiff, 2) the defendant breached that duty of care, 3) the defendant’s breach proximately caused damages to the plaintiff, and 4) the plaintiff suffered injuries / damages. The Florida Supreme Court in Sanders v. ERP Operating, Ltd. Partnership, 2015 WL 569041 (Fla. 2015) recently...

28 February

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Photographic / Video Evidence Needs to be Relevant and Outweigh any Unfair Prejudice to the Opposing Party

Posted by David Adelstein

in Evidence

During trial, a party may move to admit photographic evidence. The opposing party, however, may object based on either the relevancy of the evidence or, if relevant, that the probative value of the evidence is outweighed by the unfair prejudice to that party if the evidence is admitted. “The test for admissibility of photographic evidence is relevancy rather than necessity.” Pope. V. State, 679 So.2d 710, 713 (Fla. 1996) (photographs in murder trial were relevant to establish manner in which murder was committed and condition of crime scene). This same test applies to video evidence. See Zelaznik v. Isensee, 2014 WL 2596140...

20 February

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Admissions Against a Party Are Admissible Exceptions to the Hearsay Rule

Posted by David Adelstein

in Evidence

Previously, I discussed the business records exception to the hearsay rule (of inadmissible evidence). Another exception to the hearsay rule deals with admissions against party opponents. This is an important exception to the hearsay rule that will apply in civil disputes so that a witness can testify about a statement made by a representative / employee of an opposing party without this statement being deemed inadmissible hearsay. This hearsay exception in Florida Statute s. 90.803(18) states that the following statements (admissions) are admissible: (18) Admissions.--A statement that is offered against a party and is: (a) The party's own statement in either an individual or a...

08 February

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Importance of Laying the Appropriate Foundation for the Business Records Exception to the Hearsay Rule

Posted by David Adelstein

in Evidence

As you can tell from prior postings, I love the business records exception to the hearsay rule because of its importance in civil disputes, particularly business disputes. Without the business records exception, many business records that are needed to prove a claim or defense would be excluded as evidence under the hearsay rule. But, with the business records exception, these important records are admissible as long as a witness lays the appropriate foundation. The reason an appropriate foundation is required is to ensure the reliability or trustworthiness of the business records before deeming the records admissible evidence. The case of Bank...

29 January

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Proffers / Offers of Proof when Trial Judge Precludes Evidence or Testimony from being Introduced

Posted by David Adelstein

in Appeal, Evidence

What is an offer of proof or evidentiary proffer? During trial there are times where the opposing party objects to a question (testimony) and/or the introduction of evidence. If the judge sustains (or agrees with) an objection, the witness is precluded from offering testimony in response to the question and/or the evidence is excluded and deemed inadmissible. Ouch!! When this happens, it is important for the party trying to offer the excluded testimony or evidence to make a proffer or offer of proof in furtherance of preserving this issue for appeal. The reason a proffer or offer of proof of...