16 September

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Moving to Enforce the Appellate Court’s Mandate

When an appellate opinion is issued (and after any post-opinion motions have been resolved or the timing to file same has expired), oftentimes the matter is remanded back to the trial court to implement the appellate court’s opinion or mandate. This mandate is the “official mode of communicating the judgment of the appellate court to the lower court, directing the action to be taken or the disposition to be made of the cause by the trial court.” Tierney v. Tierney, 290 So.2d 136, 137 (Fla. 2d DCA 1974). In other words, once that mandate is issued, the trial court is obligated...

03 September

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Improperly Admitting Hearsay can still be Harmless Error

Posted by David Adelstein

in Evidence

I have discussed the hearsay rule (the evidentiary exclusionary rule and the numerous exceptions) ad nauseam and will continue to do so because it is such an important aspect of a civil trial. There will invariably be an objection under the hearsay rule during trial. The trial court will either sustain the objection or overrule the objection, perhaps under an exception to the hearsay rule. What if a trial court makes a mistake—it happens—and overrules a hearsay objection and admits hearsay evidence? As previously mentioned, an appellate court will review the admission of evidence under an abuse of discretion standard of...

24 August

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Actions for Declaratory Relief / Declaratory Judgment

Posted by David Adelstein

in Trial Perspectives

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....

24 July

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Appealing Trial Court’s Interpretation of Contract

Posted by David Adelstein

in Appeal, Standard of Review

Many disputes turn on the interpretation of a contract, contractual term, or written document. When the trial court rules on the interpretation, there will typically be a party that disagrees with the court’s interpretation. In these instances, this party will appeal the trial court’s interpretation. There is a value to appeal because the appellate standard of review is de novo meaning the appellate court will review the trial court’s record anew without giving deference to the trial court’s interpretation. The interpretation of a written contract is a question of law and the appellate court construes the contract under a de novo...

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...