03 February

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A Contractual Waiver of the Right to Challenge Venue is Enforceable

Many contracts contain a forum selection provision or a venue provision. Contracts may even contain language that parties agree not to challenge or otherwise waive the venue of any filed lawsuit. An example of such a provision was included in an operating agreement: This Agreement is to be construed and governed by the laws of the State of Florida (without giving effect to principles of conflicts of laws). Each party hereto irrevocably agrees that any legal action or proceeding arising out of or in connection with this Agreement may be brought in any state or federal court located in Florida (or in...

29 January

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Impeachment as to Prior Crimes in Civil Trials

Posted by David Adelstein

in Evidence, Trial Perspectives

In a civil trial, I want to attack (impeach) the credibility of a testifying witness by bringing up a crime that witness committed. Can I do this? When it comes to impeaching the credibility of a witness based on crimes, Florida Statute s. 90.610 states in material part: (1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or...

13 January

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Do I or Do I Not File a Reply to Affirmative Defenses?

Posted by David Adelstein

in Trial Perspectives

I’ll be the first to tell you that I seldom file a reply to affirmative defenses unless I am truly looking to avoid an affirmative defense – I have a defense to the defense. When I do file a reply, it is typically specific and catered to a specific defense (again, a specific defense to a specific affirmative defense). This is an important consideration and not filing a reply and specifically avoiding a defense (when you have a defense to the defense) can be problematic as an insured recently found out in an insurance coverage dispute. Thus, if you have an...

01 January

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Quick Note: An Ambiguous Agreement will Lead to Admissibility of Parol Evidence

Posted by David Adelstein

in Trial Perspectives

In an earlier article I explained that parol evidence (extrinsic evidence) is inadmissible to determine the intent of an unambiguous agreement. The corollary is that parol evidence is admissible to determine the intent of an ambiguous agreement. Naturally, parties want their agreements to be clear—crystal clear—to avoid any argument regarding an ambiguity. For example, in a recent case, a commercial lease was deemed ambiguous regarding the tenant’s lease rate. As a result, the landlord could not ram its commercial eviction claim through the court due to what it claimed to be the tenant not paying the right lease rate. Instead, evidence needed...

24 December

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Recoverability of Expert Witness Fees in Federal Court

Posted by David Adelstein

in Trial Perspectives

Many litigants are unaware that testifying expert costs are not automatically recoverable in federal court like they are in state court. Expert witness fees / costs are not an automatic taxable costs. 28 U.S.C. s. 1920 discusses taxable costs. 28 U.S.C. s. 1821 discusses a witness’ per diem costs of $40/day for each day’s attendance. See 28 U.S.C. 1821(2)(b) (“A witness shall be paid an attendance fee of $40 per day for each day's attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the...

12 December

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(Extract on) Business Judgment Rule

Posted by David Adelstein

in Trial Perspectives

Directors that serve on a board owe a fiduciary duty to their company and members. Directors are generally protected from personal liability for decisions they make by what is known as the business judgment rule. See Fla. Stat. s. 607.0830 (“(5) A director is not liable for any action taken as a director, or any failure to take any action, if he or she performed the duties of his or her office in compliance with this section.”); see also Florida Statute s. 617.0834 (regarding directors that serve on a nonprofit board). These are very important statutes (607.0830 and 617.0834) for...

03 November

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Prevailing Party for Purposes of Attorney’s Fees in Breach of Contract Claims

Posted by David Adelstein

in Trial Perspectives

To be entitled to attorney’s fees, there needs to be a contractual or statutory basis to recover attorney’s fees (absent serving a proposal for settlement). There is oftentimes the misconception in breach of contract cases that the party that recovers a positive net judgment will automatically recover their attorney’s fees. While, certainly, sometimes this is the case, this is NOT what you should be banking on. The law has tried to progress to a point where it does not want certain cases to be driven solely by the prospect of recovering attorney’s fees just because you won $1. The Florida Supreme Court in Moritz v....

26 October

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Prejudgment Interest and Post-judgment Interest

Posted by David Adelstein

in Trial Perspectives

Prejudgment interest is routinely a component of a claimant’s monetary damages. The claimant wants prejudgment interest on the principal amount due and owing. If no interest rate is set forth in the claimant’s contract, then the interest will accrue at the statutory rate. Then, once a judgment is entered, post-judgment interest will accrue on the judgment until it is paid. See Florida Statute s. 55.03. Florida’s statutory interest rate is set by the Chief Financial Officer and published here. For instance, the current statutory interest rate is 4.75% per annum (and it has been 4.75% for numerous years). This translates to a...

16 October

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Proposals for Settlement when there is a Contractual or Statutory Basis for Attorney’s Fees

Posted by David Adelstein

in Trial Perspectives

In an earlier posting I talked about proposals for settlement / offers of judgment. Again, these are used as a vehicle to create an argument for attorney’s fees down the road, particularly in cases where a party does not have a contractual or statutory basis to recover attorney’s fees. Please check out this article for more information on proposals for settlement because they have become an unnecessarily complicated vehicle with nuances that have resulted in an exorbitant amount of case law. As a result, while the argument to recover fees is preserved by serving the proposal for settlement, it is...

06 October

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The Simple, All-or-Nothing Verdict Form

Posted by David Adelstein

in Trial Perspectives

Attention should be given to the verdict form you want the jury to fill out after listening to and seeing the evidence presented in the case. This verdict form dictates how the jury decides the facts in your case in the context of the theme of your case and the jury instructions. Needless to say, the verdict form is very, very important! There are times when a party may want a simple, all-or-nothing verdict form. A party may like this (such as the plaintiff) versus a special interrogatory form that contains numerous potentially confusing questions the jury is asked to answer. For...