Adverse Inference Jury Instructions due to Spoliation of Evidence

In a recent case, a trial judge gave the plaintiff a burden shifting adverse inference jury instruction due to a spoliation of evidence argument. No defendant wants any adverse inference jury instruction. These instructions are not favorable to a defendant and don't present well to a defendant. A burden shifting adverse inference jury instruction is known as the kiss of death jury instruction because it tells the jury to presume a fact and that the plaintiff satisfied a component of the claim unless it is rebutted by the defense. Ouch! Florida has two standard form jury instructions relative to adverse inferences...

06 August

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Jury Instructions and your Case THEORY

Posted by David Adelstein

in Jury Instructions

When it comes to jury trials – really any trial, bench or jury – your theory matters. A lot. Your theory should not be overlooked. It is your theme in context and perspective. You put on evidence to support your theory so that it falls in your given context and perspective. Your theory or theme is your story that supports your burden of proof. Your opening statement sets your case up with your theory and the evidence you will put on the support the theory. Your closing statement then summarizes your theory with the evidence introduced. With respect to jury instructions,...

23 May

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Accurate Jury Instructions are Important

Posted by David Adelstein

in Appeal, Jury Instructions

Accurate jury instructions that are read to a jury are important. This is because accurate jury instructions help a jury properly resolve issues important to the case. “A decision to give or withhold a jury instruction is reviewed for an abuse of discretion.” Vainberg v. Avatar Property & Casualty Ins. Co., 46 Fla. L.Weekly D1141d (Fla. 4th DCA 2021). In Vainberg, the trial judge refused to give a jury instruction requested by the plaintiff. The case involved a property insurance dispute where the insurer, pursuant to the terms of the property insurance policy, elected to perform the repairs. After the insurer’s contractor...

27 February

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Incorrect / Misleading Jury Instructions and Reversible Error

Posted by David Adelstein

in Jury Instructions

I have discussed the importance of jury instructions. Time should be taken crafting applicable jury instructions based on the law to discuss during the charging conference where the judge determines the jury instructions to read to the jury. What happens if a court reads a misleading and incorrect jury instruction? Final judgment may be reversed and a new trial ordered--reversible error! In a first-party property insurance coverage dispute, the court read a jury instruction relating to the insured and insurer’s burden of proof. The jury instruction, however, was confusing and contained an incorrect burden of proof for the insurer. As a...

01 April

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Proving Affirmative Defenses and the Affirmative Defense of Comparative Negligence

Posted by David Adelstein

in Burden of Proof, Jury Instructions

When a defendant is sued, the defendant will typically assert affirmative defenses (or defenses to the claims asserted by the plaintiff). Just like a plaintiff has the burden of proof to prove its claims against a defendant, the defendant has the burden of proof to prove its affirmative defenses. The recent opinion in Bongiorno v. Americorp., 40 Fla L. Weekly D760c (Fla. 5th DCA 2015) exemplifies that a defendant that asserts an affirmative defense has the burden of proving that defense. This case was a personal injury negligence case. The defendant argued that the plaintiff’s negligence contributed to her negligence, i.e.,...

30 December

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Preparing Jury Instructions and the Standard of Review in Appealing Jury Instructions

Posted by David Adelstein

in Jury Instructions, Standard of Review

Jury instructions are a vital component of any jury trial. These are the instructions that the trial judge reads to a jury explaining the elements of the plaintiff’s causes of action against the defendant, the defendant’s defenses, the required burden of proof, how to weigh the evidence, etc. There are jury instructions that are considered Florida standard jury instructions. But, outside of these standard jury instructions, there is a great deal of discretion in preparing and presenting jury instructions in civil trials as long as the instructions accurately reflect the law and are not misleading to the jury. Typically, each party...