28 May

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General Understanding of Collateral Estoppel and Res Judicata

in Appeal, Standard of Review, Trial Perspectives

There are two similarly related legal doctrines known as collateral estoppel and res judicata. The doctrines are designed to prevent a party from re-litigating either a prior issue (collateral estoppel) or claim (res judicata). These doctrines are generally discussed below regarding the elements (in the case of collateral estoppel) or the identities (in the case of res judicata) required to support their application. Keep in mind that these are nuanced legal doctrines and a party should consult with counsel to determine the application of these doctrines which are typically raised as an affirmative defense in a lawsuit. Collateral Estoppel =...

29 April

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A New Trial is Not Automatically Warranted when Jury Renders what a Plaintiff Perceives to be an Inadequate Jury Verdict

Posted by David Adelstein

in Appeal, Standard of Review

Juries do not always award huge jury verdicts in favor of plaintiffs in personal injury actions. Sure, sometimes they definitely do. But it is also true that sometimes they do not. Juries can find that the (i) defendant was not liable, (ii) the plaintiff was comparatively liable, or (iii) that the plaintiff's damages were relatively minor. As to the latter two points, this was the issue in Black v. Cohen, 43 Fla. L. Weekly D903e (Fla. 4th DCA 2018), involving an automobile accident, where the trial court granted plaintiff's motion for a new trial based on an inadequate jury verdict....

08 April

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Directed Verdict Warranted if Jury Needs to Stack Inferences to Determine Negligence

Posted by David Adelstein

in Burden of Proof, Standard of Review

If you have read prior articles, you know what a motion for directed verdict is and that it is routinely moved for in jury trials, as it should be. It is also not a motion commonly granted. But, this does not mean there are no appellate rights if a court denies a motion for directed verdict. A denial of a trial court’s motion for directed verdict is reviewed under a de novo standard of appellate review. An example can be found in the slip-and-fall case, Publix Supermarkets v. Bellaiche, 43 Fla. L. Weekly D673a (Fla. 3d DCA 2018), where an appellate...

11 March

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Moving for an Involuntary Dismissal in a Nonjury Bench Trial

Posted by David Adelstein

in Appeal, Burden of Proof, Standard of Review

Analogous to a motion for directed verdict in a jury trial, in a nonjury bench trial decided by a judge, a defendant can move for an involuntary dismissal after the plaintiff (party introducing evidence in favor of affirmative relief) puts on his/her case. This is a common motion after the plaintiff in a bench trial puts on his/her case. No different than moving for a directed verdict in a jury trial, it is a motion that carries a high burden since every doubt and inference is given in favor of the plaintiff. Florida Rule of Civil Procedure 1.420(b) authorizes motions for...

04 November

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Striking / Excusing a Prospective Juror for Bias during Voir Dire

Posted by David Adelstein

in Appeal, Burden of Proof, Standard of Review, Trial Perspectives

An attorney’s opportunity to question prospective jurors (the jury venire) is an important part of the trial process. This is known as voir dire. Attorneys want to ask tailored questions to determine those persons in the venire that should be stricken for cause, those for which they should exercise a peremptory challenge, and those, quite frankly, they want to sit on the jury panel. There is strategy involved including wanting to develop a rapport with jurors. These are the potential folks that will render a verdict in the case and analyze the factual evidence based on the law (jury instructions)....

14 October

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Arbitration is an Appealable Non-Final Order

Posted by David Adelstein

in Standard of Review, Trial Perspectives

Arbitration is a creature of contract. If a contract requires arbitration that means the parties are required to arbitrate their disputes as opposed to litigate their disputes. Instead of their being a judge or jury, there will be an arbitrator. There are three considerations when determining whether a dispute is subject to arbitration: 1) Is there a valid written agreement to arbitrate (such as an arbitration provision in a contract)? 2) Is there an arbitrable issue? And 3) Has the right to arbitrate the issue or dispute been waived? Chaikin v. Parker Waichman LLP, 42 Fla. L. Weekly D2165b (Fla. 2d DCA 2017) quoting Jackson v....

12 August

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Writ of Certiorari to Remedy Pre-Trial Discovery Order

Posted by David Adelstein

in Discovery, Standard of Review

Sometimes, a trial court issues a pre-trial order on a discovery issue that a party claims causes it irreparable harm. In this situation, the only basis to appeal the pre-trial discovery order is through a petition for writ of certiorari, as recently explained by the Second District Court of Appeal: A party seeking review of a pretrial discovery order must show that the trial court's order departed from the essential requirements of law and caused material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal. Generally, certiorari is not available to review orders...

15 July

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Insurance Policy Construction is a Question of Law

Posted by David Adelstein

in Appeal, Standard of Review

I am sure you have an insurance policy...

23 April

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Denial of Right to Depose Material Witness

Posted by David Adelstein

in Depositions, Standard of Review

Depositions are an integral part of a dispute’s "truth seeking" discovery process. This is where parties can depose a witness under oath and explore key factual issues and parties’ positions, both from a liability and damages perspective. Certain depositions can be introduced for purposes of substantive evidence at trial. Other depositions can be used for purposes of impeachment in case a witness changes his/her position or story at trial. The significance of a deposition of a material witness in a civil case cannot be understated. If an opposing party wants to limit or prevent a deposition from moving forward, that party will...

07 April

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Designating a Representative(s) to Serve as the Corporate Representative for Deposition

Posted by David Adelstein

in Standard of Review, Trial Perspectives

Corporate representative depositions play an important role in the discovery of any dispute involving a corporate party. A corporate representative deposition requires the corporate representative to speak on behalf of the company – they are not speaking based on their personal knowledge, but as to the company’s position regarding designated topics. In fact, the designated corporate representative does not have to have the most knowledge about a particular topic to be the representative. See Fla.R.Civ.P. 1.310(b)(6). See also Sybac Solar, GMBH v. 6th Street Solar Energy park of Gainesville, LLC, 42 Fla. L. Weekly D771a (Fla. 2d DCA 2017) (“The...