24 August

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Actions for Declaratory Relief / Declaratory Judgment

Sometimes a party pursues what is known as an action for declaratory relief or declaratory judgment– for a trial court to declare their rights with respect to the application of a written document or instrument. In this manner, Florida Statute s. 86.021 states: Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed,...

20 August

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Foundation Required to Admit Prior Inconsistent Statement

Posted by David Adelstein

in Trial Perspectives

One of the most effective impeachment vehicles to attack the credibility of a testifying witness is the prior inconsistent statement. A prior inconsistent statement is exactly what it seems – a statement previously made by the witness on a material issue that directly contradicts with what the witness is testifying to at trial. The point of impeaching the witness with the prior inconsistent statement is to show the witness’ trial testimony is not credible—they are lying. By attacking the credibility, you leave doubts in the trier of fact’s mind (e.g., jury) that the witness’ trial testimony needs to be discounted...

07 August

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Leading Questions Forming Basis of Appeal

Posted by David Adelstein

in Trial Perspectives

During a direct examination at trial, a party will always tiptoe on the fine line of asking the witness leading questions in order to elicit the desired testimony. Leading questions, in most circumstances, are objectionable during direct examination because it allows the lawyer asking questions to basically testify while leading the witness to the answer he or she is seeking. Look, a lawyer will ask leading questions if he/she can get away with it—until the trial court sustains objections. But, just because a trial court sustains an objection does not necessarily mean the lawyer will stop asking leading questions during direct...

27 July

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Avoiding the Mistrial

Posted by David Adelstein

in Trial Perspectives

If you prevailed at trial, there is nothing worse than a mistrial. Talking about taking the wind out of your sails. It happens. Unfortunately. Boyles, Personal Representative vs. Dillard’s Inc., 41 Fla.L.Weekly D1709a (Fla. 1st DCA 2016), is a case where the defense prevailed, but on appeal, the court granted a mistrial for multiple (or cumulative) reasons, only two of which will be discussed below. Both reasons, however, could have been avoided. A. Closing Argument First, during closing argument, the defense counsel tried to attack the credibility of the plaintiff’s trial testimony by bringing up what the plaintiff testified to during her deposition....

16 July

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Illegality of Contract as Affirmative Defense

Posted by David Adelstein

in Trial Perspectives

There is an affirmative defense known as “illegality of contract.” Under this defense, the defendant is claiming that performance under its contract became illegal to perform; thus, the defendant should be excused from further performance. Just like any affirmative defense, the burden is on the defendant to prove the illegality of contract. See Novak v. Gray, 469 Fed. Appx. 811, 813-14 (11th Cir. 2012) (defendant has burden of proving defense of illegality of contract). An example of the application of this defense can be found in the dispute between a commercial landlord and its tenant in Lucas Games, Inc. v. Morris...

09 July

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Asserting Punitive Damages (or Appealing the Decision to Allow for Punitive Damages)

Posted by David Adelstein

in Appeal, Standard of Review, Trial Perspectives

So, you are interested in pursuing punitive damages. Then you MUST comply with the requirements of Florida Statute s. 768.72. This statute provides in relevant part: (1) In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages. The claimant may move to amend her or his complaint to assert a claim for punitive damages as allowed by the rules of civil procedure. The rules of civil procedure shall be liberally construed so...

30 June

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Just Say NO! to Frivolous Claims! Otherwise 57.105 May Apply!

Posted by David Adelstein

in Trial Perspectives

As a lawyer, it is important to examine your client or prospective client regarding the facts of their case. In this manner, it is important to conduct legal research to support legal arguments, especially arguments applied to the facts. The bottom line is that you want to make sure you are NOT filing a frivolous claim or defense, which is typically one that (a) is NOT supported by material facts necessary to support the claim or defense or (b) NOT supported by the application of the law. See Fla. Stat. s. 57.105. If you do, you could be exposed to sanctions—be liable...

25 June

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Challenging Standard for Granting Directed Verdict

Posted by David Adelstein

in Evidence, Trial Perspectives

If there is a jury trial, there will be a motion for directed verdict. But, the standard for granting a motion for directed verdict is challenging; if the directed verdict is granted, an appeal will be filed arguing the trial court’s error in granting the directed verdict. James v. City of Tampa, 2016 WL 3201221 (Fla. 2d DCA 2016) was a personal injury action. The issue at trial was whether the plaintiff’s injuries from a car accident constituted a permanent injury (as this issue impacted damages to be awarded to the injured plaintiff). At the conclusion of all of the evidence, the...

04 May

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

Posted by David Adelstein

in Appeal, Trial Perspectives

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...

18 April

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Election of Remedies PRIOR to Final Judgment

Posted by David Adelstein

in Trial Perspectives

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...