08 November

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Proving Fraud on the Court with Clear and Convincing Evidence

When a party files a motion that the opposing party perpetuated a fraud on the court, they are looking for the court to sanction the opposing party, with the harsh remedy of striking the opposing party’s pleadings. Fraud on the court is described as: The requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or...

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)....

26 October

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Election of Remedies Doctrine and Claims for Specific Performance and Breach of Contract

Posted by David Adelstein

in Trial Perspectives

In an earlier article, I talked about the election of remedies doctrine. The purpose of this election of remedies doctrine is to preclude the plaintiff from obtaining a windfall by double-recovering its damages under alternative (or mutually exclusive) theories of liability. If a plaintiff could double recover on mutually exclusive theories of liability based on inconsistent facts, then plaintiffs would recover double than what they are rightfully entitled to. That isn't fair! Before a trial court can apply the election of remedies doctrine, it must determine whether the remedies are factually consistent. A party may not obtain judgment for two remedies...

19 October

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The Contingency Fee Multiplier is NOT just for the Rare and Exceptional Dispute

Posted by David Adelstein

in Trial Perspectives

In a great victory for those handling difficult contingency fee disputes (particularly contingency fee disputes dealing with economic damages, such as me), the Florida Supreme Court held that the contingency fee multiplier is not to be applied only in the rare and exceptional case. Oh no! Had the Court entered such a ruling, this would have virtually eliminated the application of the contingency fee multiplier. Boo! This multiplier is important as it incentivizes those attorneys that handle difficult contingency fee cases by adding a multiplier on the reasonably determined attorney's fees. (For example, if the Court determines that an attorney’s reasonable...

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....

01 October

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Strictly Complying with Procedural Requirements when Moving to Amend to Add Punitive Damages

Posted by David Adelstein

in Trial Perspectives

Punitive damages can be an important component of a plaintiff’s damages. No doubt about it. No defendant wants the jury to be able to determine whether to award these damages or the quantum of punitive damages associated with its/his/her gross negligence or intentional misconduct. Punitive damages can be a game changer. The objective behind punitive damages is to punish the wrongdoer-defendant and deter the wrongful conduct, rather than to compensate the plaintiff. Estate of Despain v. Avante Group, Inc., 900 So.2d 637, 640 (Fla. 5th DCA 2005). “Because the amount of an award [of punitive damages] may be a pittance to...

16 September

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Referral Sources can be a Protected Legitimate Business Interest

Posted by David Adelstein

in Trial Perspectives

In a big case for employers that rely on referrals for the viability of their business, the Florida Supreme Court held that referral sources may be a protected legitimate business interest under Florida Statute s. 542.335 based on the context and proof. Hence, referral sources can be protected under a non-compete / non-solicitation agreement that prohibits the employee, upon leaving, from soliciting referrals for a period of time. White v. Mederi Caretenders Visiting Services of Southeast Florida, LLC, 42 Fla. L. Weekly S803a (Fla. 2017) (holding that referral sources for a home health care company may be a protected legitimate business...

27 August

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Collateral Source Rule – Prohibiting an Injured Plaintiff from having Its Cake and Eating It too

Posted by David Adelstein

in Trial Perspectives

The collateral source rule is the source of unnecessary confusion. This rule is aimed at preventing an injured-plaintiff from having its cake and eating it too – from receiving a windfall from the defendant-tortfeasor based on compensation the plaintiff received from collateral sources. The collateral source rule allows an injured plaintiff to present all of its damages to the trier of fact (jury) irrespective of payment the injured party received from a collateral source (e.g., insurance, social security, etc.). Evidence of payments the injured plaintiff received from a collateral source is inadmissible at trial due to the confusion that could result...

18 August

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Caveat Emptor = Buyer Beware = Watch Out!

Posted by David Adelstein

in Trial Perspectives

Caveat Emptor. Buyer Beware!!!! This is a doctrine that applies to commercial property transactions. Watch out and do your due diligence when entering into a commercial real estate transaction. If you do not, the doctrine of caveat emptor will apply which puts the onus on you, the buyer, to discover material facts relating to the property. In Transcapital Bank v. Shadowbrook at Vero, LLC, 42 Fla.L.Weekly D1657b (Fla. 4th DCA 2017), a bulk buyer purchased 123 out of 164 condominium units for approximately $11 Million. The buyer, thereafter, sued the seller / lender for fraud, among other counts, claiming it was...

06 August

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Florida Statutory Cause of Action for Misleading Advertisement

Posted by David Adelstein

in Trial Perspectives

Have you been duped into procuring something through misleading advertising? There is a Florida Statute that provides a civil cause of action for misleading advertising. Florida Statute s. 817.41 provides a statutory cause of action for misleading advertising that gives the prevailing party a basis to recover their attorney’s fees in addition to a potential claim for punitive damages. This is probably a less known statutory cause of action, but it is a particularized statutory fraud claim that is available. Additionally, the statute maintains that, "There shall be a rebuttable presumption that the person named in or obtaining the benefits of...