21 March

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Know Your Standard of Appellate Review Regarding the Admissibility of Evidence

in Appeal, Standard of Review, Uncategorized

The standard of appellate review regarding the trial court’s admissibility of evidence is an abuse of discretion. See Vavrus v. City of Palm Beach Gardens, 927 So.2d 992 (Fla. 4th DCA 2006); Castaneda ex rel. Cardona v. Redlands Christian Migrant Ass’n, Inc., 884 So.2d 1087 (Fla. 4th DCA 2004). Naturally, a party needs to preserve this issue by objecting to the admissibility of the evidence. If a trial court sustains an objection and excludes the evidence, the party trying to introduce the evidence should make a proffer / offer of proof. On the other hand, the standard of review for the trial court’s...

25 January

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Voir Dire and Reasonable Opportunity to Examine Prospective Jurors

Posted by David Adelstein

in Appeal, Standard of Review, Voir Dire

Voir dire, as mentioned in prior postings, is a very important part of the jury trial process. Voir dire is when the parties have an opportunity to examine and question prospective jurors in the context of their theme and case in order to determine which six jurors (and alternate) should be sworn in on the jury panel. The objective behind voir dire is to ensure that parties have a fair and impartial jury for your case.Williams v. State, 424 So.2d 148 (Fla. 5th DCA 1982). The right of parties (and even the trial court) in civil dispute to engage in...

18 January

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Application of the Business Records Exception to the Hearsay Rule

Posted by David Adelstein

in Appeal, Evidence, Standard of Review

Hearsay (an out-of-court statement offered at trial for the truth of the matter asserted) is inadmissible at trial. But, there are exceptions to this exclusionary hearsay rule to allow such evidence / testimony to be admissible at trial. Previously, I wrote about one exception known as the business records exception contained in Florida Statute s. 90.803. The business records exception is commonly relied on in business disputes in order to admit business records as evidence. What if there is an appeal concerning the admissibility of evidence introduced at trial under an exception to the hearsay rule? Standard of Appellate Review Whether evidence is...

11 January

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Expert Opinion Testimony and the Standard of Appellate Review

Posted by David Adelstein

in Appeal, Expert Testimony, Standard of Review

Previously, I discussed expert opinion testimony and the Daubert gatekeeping test employed by trial courts to determine the admissibility of the expert testimony. But, there is much more to expert opinion testimony. An expert witness is NOT allowed to serve as a conduit for inadmissible hearsay so that a party is using an expert witness to simply get in testimony/evidence that is otherwise inadmissible. Doctors Co. v. State, Dept. of Ins., 940 So.2d 466, 470 (Fla. 1st DCA 2006) (“The rule is well established that if an expert is called merely as a conduit to place inadmissible evidence before the jury, the trial...

03 January

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Verdict Forms (General or Special) and the Two-Issue Rule

Posted by David Adelstein

in Appeal, Standard of Review

I previously discussed the importance of jury instructions and the jury instruction conference. Now, I want to discuss the importance of the verdict form. This is the form the jury fills out during its deliberation that identifies the associated liability and damages it determines. There are 2 types of verdict forms used. A general verdict form is a relatively simple form that is easy to prepare and asks the jury to determine whether it believes the defendant is liable and, if so, the damages the defendant owes the plaintiff. This is the type of form a plaintiff oftentimes wants. A special interrogatory verdict...

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...

28 December

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Appealing the Granting or Denying of a Party’s Peremptory Challenge(s)

Posted by David Adelstein

in Appeal, Standard of Review, Voir Dire

Previously, I discussed the basics regarding peremptory challenges. What if the court grants or denies a peremptory challenge and a party wants to appeal that ruling at the conclusion of the trial? A party will want to potentially appeal if (a) a party challenges its opponent's use of a peremptory challenge arguing that the opponent wants to strike a juror for a racially motivated basis and the court still grants / sustains the peremptory challenge or, alternatively, (b) a party challenges its opponent's use of a peremptory challenge arguing that the opponent wants to strike a juror for a racially motivated basis and...

25 December

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The Burden to Establish Petitions for Writs of Certiorari (“Cert”)

Posted by David Adelstein

in Appeal, Standard of Review

What is a petition for a writ of certiorari (or “cert,” for short)? A petition for a writ of cert is when a petitioner wants to appeal a non-final order (e.g., an interlocutory order that does not finally dispose of the dispute such as a final adverse judgment against the petitioner) issued by the trial court when there is no direct right to appeal that non-final order. In order for an appellate court to entertain a petition for a writ of cert, the petitioner MUST establish that (a) the trial court departed from the essential requirements of the law and (b) this...

24 December

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Abuse of Discretion Standard of Review for Trial Court Granting or Denying New Trial

Posted by David Adelstein

in Appeal, Standard of Review

Previously, I discussed the de novo appellate standard of review relating to a summary judgment. Now, I’d like to discuss the appellate standard of review when a trial judge grants or denies a motion for a new trial. This means there was a trial. There was a presumed winner and there was a presumed loser. The presumed loser, by way of example, moved for a new trial with the trial court and that motion was either (a) granted by the trial court prompting the presumed winner to appeal the trial court’s granting of a new trial, or (b) denied by the...

14 December

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De Novo Appellate Standard Of Review For Summary Judgments

Posted by David Adelstein

in Appeal, Standard of Review

An appellate court’s standard of review when reviewing a trial court’s summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000); accord L’Etoile Homeowners Ass’n, Inc. v. Fresolone, 940 So.2d 1170 (Fla. 4th DCA 2006). A de novo standard of review means that the appellate court will examine the trial court’s record anew and will rule on the record evidence and law without giving any deference to the trial court. This is a favorable standard of review for an appellant (party appealing trial court’s ruling) because there is no deference afforded to the...