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ProveMyFloridaCase.com > Trial Perspectives (Page 19)

Trial Court’s Error is Harmless when there is No Reasonable Possibility Error Contributed to Verdict

Just because the trial court committed an error does NOT mean the error constitutes reversible error warranting a new trial. The trial court's error could very well be harmless error. When it comes to a trial court's error, the recipient of the error should prove that "there is no reasonable possibility that the error contributed to the verdict." Maines v. Fox, 41 Fla.L.Weekly D1062a (Fla. 1st DCA 2016) quoting Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1256-57 (Fla. 2014). The trial court's error is harmless if the recipient of the error proves there is no reasonable possibility that the...

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Election of Remedies PRIOR to Final Judgment

Oftentimes, a plaintiff will plead alternative claims or theories of liability against a defendant(s).   Pleading in the alternative is allowed under Florida Rule of Civil Procedure 1.110(g).   The plaintiff is entitled to elect--between two mutually exclusive (alternative) remedies--the remedy it prefers any time prior to the entry of final judgment. See Liddle v. A.F. Dozer, Inc., 777 So.2d 421 (Fla. 4th DCA 2001); see also  Burr v. Norris, 667 So.2d 424, 426 (Fla. 2d DCA 1996) (“Plaintiffs are also allowed to plead inconsistent or alternative actions and need only elect remedies before final judgment.”) This allows the plaintiff to present...

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Prejudicial Closing Argument Could Result in Mistrial / New Trial

Closing argument is a very, very important part of jury trials to sum up the evidence in the context / theme of your case based on the applicable law. It is your last opportunity to talk directly to the jury about the theme of your case. Check out this article for the purpose of closing argument. While lawyers are afforded latitude in presenting closing argument, improper and prejudicial argument could result in an appellate court granting a new trial. The opposing party must, however, timely object to the improper and prejudicial argument in order to properly preserve this objection for...

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Discoverability of Opposing Party’s Attorney’s Fees Records

Interesting new Florida Supreme Court case regarding the discoverability of an opposing party’s fees records in a dispute regarding the reasonableness of your fees. For instance, say you are entitled to your reasonable attorney’s fees after prevailing in a dispute. The parties are entitled to an evidentiary fee hearing to determine the reasonableness of your fees—to determine the reasonable hourly rate and number of expended hours. Oftentimes, the party that prevailed serves discovery on the opposing / contesting party to discover their attorney’s fees records. The opposing / contesting party typically objects to this discovery as being irrelevant. But, not so fast...

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The Nonparty Fabre Defendant

I want to discuss the concept of a “Fabre defendant.” This is an important concept in negligence cases, particularly personal injury and property damage cases. “A ‘Fabre defendant’ is a nonparty defendant whom a party defendant asserts is wholly of partially responsible for the negligence alleged [by the plaintiff].” Salazar v. Helicopter Structural & Maintenance, Inc., 986 So.2d 620, n.1 (Fla.2d DCA 2007). As further explained in Florida Statute s. 768.81(3): (3) Apportionment of damages.--In a negligence action, the court shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the...

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Strategic Reasons for Serving a “Good Faith” Proposal for Settlement

You know how proposals for settlement / offers of judgment ("proposals for settlement") work because I previously wrote about this topic. You know that such proposals for settlement need to be made in good faith. Remember, proposals for settlement create the argument to recover attorney's fees from the date the proposal for settlement is served on forward. The recent case of Key West Seaside, LLC v. Certified Lower Keys Plumbing, Inc., 40 Fla. L. Weekly D2052b (Fla. 3d DCA 2015), exemplifies a defendant relying on a proposal for settlement.  In this case, a defendant served the plaintiff with a proposal for settlement....

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Recoverable / Taxable Costs to the Prevailing Party

  When a party prevails in litigation, the party should be entitled to recover its “costs” incurred in connection with the litigation. This is different than that party’s attorney’s fees. See Fla. Stat. s. 57.041 (“The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment.”). While the taxable or recoverable costs a party is entitled to is within the discretion of the trial court, there are important guidelines to be followed known as the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions. See Fla.R.Civ.P. Taxation of Costs. The guidelines set...

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Asking the Witness Leading Questions (that Suggest the Intended Answer)

  A leading question is a question asked of a witness that already suggests the witness’ answer. A leading question is asked by a lawyer to clue the witness to the intended answer he/she is seeking from the witness. Florida Statute s. 90.612(3) states: “Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness's testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.” This means that leading questions...

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Impeaching (Attacking Witness’s Credibility) with a Prior Inconsistent Statement

  Impeachment is the art of attacking a testifying witness's credibility or truthfulness at trial.  One of the most common forms of impeachment during cross-examination at trial is with a prior inconsistent statement, such as deposition or affidavit testimony. The objective of impeachment is to establish that the witness is not a trustworthy witness, hence the reason it is referred to as attacking the witness’s credibility!  A prior inconsistent statement made by a testifying witness is a great way to attack that witness’s credibility at trial. See Elmer v. State, 114 So.3d 198, 202 (Fla. 5th DCA 2012). (“It is axiomatic...

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Jury Trial Considerations: Directed Verdict and the Verdict Form

Previously, I discussed a motion for directed verdict and, then, a motion to set aside a jury’s verdict. This is an important procedural vehicle to know because a party opposing a claim generally always moves for a direct verdict. In some instances, the court reserves ruling on the directed verdict to see how the jury decides the case. If the jury enters a verdict in favor of the party moving for a directed verdict (e.g., the defendant) then the court does not need to rule on the motion for directed verdict (it becomes moot). Recently, I wrote an article about a...

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