25 February

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Attorney’s Fee Awards

Attorney's fee awards can be frustrating. The reason being is the award is based on a mini-bench-trial after the trial aimed at determining reasonableness of the attorney’s fees. An expert, i.e., another lawyer, is required to opine as to the reasonableness of the attorney’s fees. Fees are not just rubberstamped and banking on recovering 100% of the attorney’s fees incurred is probably not realistic. In fact, you should not “bank” on that mindset when determining whether to settle the attorney’s fees or the dispute. A recent case, Kovar Law Group, PLLC v. Jordan, 49 Fla.L.Weekly D431a (Fla. 2d DCA 2024), touches...

11 November

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The Less Stringent Frye Test is Baaaaack to Determine the Admissibility of Expert Testimony

Posted by David Adelstein

in Expert Testimony

There are two competing tests for a trial court to determine the admissibility of reliable expert testimony / opinions. One method is known as the Daubert test. The other as the Frye test. Both are named after respective cases. The Daubert test is used in federal court. The Frye test was used in Florida until 2013 when the Florida Legislature modified the evidence code to reflect the application of the Daubert test. The Daubert test is widely considered a more stringent test relative to the admissibility of expert opinions at trial where trial courts perform certain gatekeeper functions to determine the reliability of an expert’s methodology (Check this...

20 May

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Preserving an Objection for Appeal

Posted by David Adelstein

in Appeal, Expert Testimony

Preserving an objection for appeal. Preserving an objection for appeal. Preserving an objection for appeal. Repeat again and again, because this is important. The lack of preservation of an objection is demonstrated in a criminal trial, Pierre v. Florida, 43 Fla.L.Weekly D1110b (Fla. 4th DCA 2018), which involved man wearing a ski-mask attempting to kill his ex-wife. Of course, his ex-wife and son saw his face, but there was other evidence to support the attempted murder. The jury found that the man was guilty of attempted murder. An issue on appeal dealt with the scope of an expert's testimony that tied...

24 April

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Is Your Expert Qualified to Render the Opinions?

Posted by David Adelstein

in Expert Testimony

You retained an expert witness. You want the expert witness to serve as a testifying expert -- to testify at trial to help support a claim or a defense. But, is your expert qualified to render the opinions you want him/her to render? Stated differently, does the expert have the expertise, knowledge, skill, education, training, or experience to render the opinion (as required by Florida Statute s. 90.702)? This is crucial since if he/she does not, he/she will NOT be qualified as an expert witness. Make sure the expert you retain is qualified to render the opinions you want him/her...

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....

29 January

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You Cannot Contradict Testimony with Affidavit Testimony in Response to Summary Judgment

Posted by David Adelstein

in Appeal, Expert Testimony

Preparing expert witnesses for deposition is vital. To this end, working with an expert witness to ensure their expert opinions fit within the context and theme of your case and burden of proof is equally vital. Not doing so can be fatal to your case. This can lead to unprepared testimony or opinions that may appear innocuous but are in fact detrimental to your claims. For example, in the recent opinion in Lesnik v. Duval Ford, LLC, 41 Fla.L.Weekly D281a (Fla. 1st DCA 2016), the plaintiff’s expert witness was deposed. The case involved a single vehicle accident where the plaintiff asserted claims...

13 January

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Experts Cannot Tell the Jury How to Decide the Case

Posted by David Adelstein

in Expert Testimony

Previously, I discussed the employment litigation case of Mootry v. Bethune-Cookman University, Inc., 41 Fla. L. Weekly D146a (Fla. 5th DCA 2015) involving a terminated professor suing the University that fired him. Check it out here. In this case, the University called an outside counsel as an expert employment attorney that advised it in the termination of the professor. The lawyer testified that in her expert opinion the University had cause to terminate the professor. The appellate court held it was error to admit this testimony because the testimony was essentially telling the jury how to decide the case, particularly,...

19 September

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Showing Bias to Impeach a Witness such as an Expert

Posted by David Adelstein

in Expert Testimony

If you have an expert testifying on your behalf at trial, the opposing party will ask how much you or your agents have paid the expert for his testimony. Why? Because this shows bias, right? The sentiment is that the expert is a hired gun being paid for his testimony; although, this cuts both ways in a case where both parties have a testifying expert. In the personal injury case of Vazquez v. Martinez, 40 Fla. L. Weekly D2170a (Fla. 5th DCA 2015), the plaintiff showed that the defendant’s expert witnesses were paid almost $700,000 by the defendant or her agents....

17 September

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Your Reasonable Attorney’s Fees Expert May be a Taxable Cost

Posted by David Adelstein

in Expert Testimony

I am the prevailing party and I am entitled to recover my attorney’s fees from the opposing party! Now what? If you are unable to come to an agreement with the opposing side regarding the amount of attorney’s fees you incurred, then you need to have an evidentiary hearing for the court to determine your reasonable attorney’s fees. This requires your attorney to testify as to the rates and the number of hours expended on the matter. This also importantly requires to you to have an expert testify as to the reasonableness of the attorney’s fees you incurred. See Jaffe v....

12 September

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Expert Witnesses can Rely on Hearsay….But…

Posted by David Adelstein

in Evidence, Expert Testimony

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...