18 April

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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...

07 April

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Difference Between Lay Opinion Testimony and Expert Opinion Testimony

Posted by David Adelstein

in Appeal, Evidence, Standard of Review

Although I have numerous blog articles regarding the appellate standard of review when it comes to the admissibility of evidence, it is important to remember that “[a] trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion; however, the trial court’s interpretation of the evidence code is reviewed de novo.” L.L. v. The State of Florida, 41 Fla.L.Weekly D854a (Fla. 3d DCA 2016). In L.L., a criminal case, a police officer testified that he smelled the strong odor of marijuana from the defendant and that a plastic bag in defendant’s possession contained marijuana. The defendant objected...

27 March

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Prejudicial Closing Argument Could Result in Mistrial / New Trial

Posted by David Adelstein

in Standard of Review, Trial Perspectives

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...

24 March

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Discoverability of Opposing Party’s Attorney’s Fees Records

Posted by David Adelstein

in Evidence, Trial Perspectives

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...

19 March

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Race-Neutral Reason for Peremptory Challenge

Posted by David Adelstein

in Voir Dire

During the voi dire / jury selection process, a party is entitled to 3 peremptory challenges. This means a party can strike prospective jurors for any race-neutral reason. There are times where a party uses a peremptory challenge to strike a juror and the opponent believes the peremptory challenge is being used for a racially motivated reason (i.e., to strike a particular prospective juror due to that juror’s race or ethnicity). Even when the proponent of the peremptory challenge explains the race-neutral reason for the challenge, the opponent believes that the race-neutral reason is merely a pretext. The Second District Court...

09 March

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Make Sure to Timely Raise Your Daubert Objection to Expert Testimony

Posted by David Adelstein

in Evidence, Expert Testimony

If you are going to raise a Daubert objection or challenge (or request a Daubert hearing), you need to TIMELY do so before the expert witness testifies. A Daubert motion / challenge / hearing relates to the admissibility of an expert witness’ testimony. As you can imagine, this is an extremely important issue as many cases depend on expert witness testimony to support their burden of proof. In Rojas v. Rodriguez, 41 Fla.L.Weekly D423a (Fla. 3d DCA 2016), a defendant raised a Daubert objection post-verdict. The defendant was challenging the admissibility of the testimony of plaintiff's neurosurgeon expert in requesting a new trial....

05 March

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Agent’s Out-of-Court Statements Could Constitute Admissions by a Party Opponent

Posted by David Adelstein

in Evidence

Below is an example in a criminal trial of the exception to the hearsay rule referred to as admissions against party opponents when a party’s agent makes an out-of-court statement. Check out this article and this article for more on this important hearsay exception embodied in Florida Statute s. 90.803(18). In Osorio v. State of Florida, 41 Fla.L.WeeklyD547b (Fla. 4th DCA 2016), the police used a confidential informant to make an arrest in a drug case. The confidential informant happened to be a co-worker of the defendant (that had previously been arrested on an unrelated drug charge and turned into an...

27 February

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Incorrect / Misleading Jury Instructions and Reversible Error

Posted by David Adelstein

in Jury Instructions

I have discussed the importance of jury instructions. Time should be taken crafting applicable jury instructions based on the law to discuss during the charging conference where the judge determines the jury instructions to read to the jury. What happens if a court reads a misleading and incorrect jury instruction? Final judgment may be reversed and a new trial ordered--reversible error! In a first-party property insurance coverage dispute, the court read a jury instruction relating to the insured and insurer’s burden of proof. The jury instruction, however, was confusing and contained an incorrect burden of proof for the insurer. As a...

20 February

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The Nonparty Fabre Defendant

Posted by David Adelstein

in Burden of Proof, Trial Perspectives

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...

16 February

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Witness Laying Foundation for Business Records Exception Need Not be the Person that Prepared the Business Records

Posted by David Adelstein

in Appeal, Evidence

If you have visited this blog before, then you know the importance I place on the business records exception to the hearsay rule in civil business disputes. (Check out this article too.) Lately, the business records exception to the hearsay rule is a hot topic in mortgage foreclosure cases. In yet another foreclosure case, Wells Fargo Bank, N.A., as Trustee, on Behalf of the Harborview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-1 v. Balkisson, 41 Fla.L.Weekly D308a (Fla. 4th DCA 2016), the trial court entered an involuntary dismissal in favor of the borrower and against the lender after sustaining...