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Rule of Completeness so Entire Writing or Statement is Contemporaneously Introduced

Florida Statute s. 90.108(1) provides: “When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously. An adverse party is not bound by evidence introduced under this section.” This is referred to as the rule of completeness. The objective behind this rule of completeness is to avoid misleading the jury with a statement that is based on incomplete information. See Harden v. State, 87 So.3d 1243,1249 (Fla. 4th...

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Asking the Witness Leading Questions (that Suggest the Intended Answer)

  A leading question is a question asked of a witness that already suggests the witness’ answer. A leading question is asked by a lawyer to clue the witness to the intended answer he/she is seeking from the witness. Florida Statute s. 90.612(3) states: “Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness's testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.” This means that leading questions...

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Using Deposition of Expert Witness at Trial and Reading Portion of Deposition Transcript

Expert witnesses are an important part of civil trials (and criminal trials).   Parties utilize expert witnesses at trial to render expert opinions. But, a testifying expert does not need to be at trial live (or, in person) to render an expert opinion.   Florida Rule of Civil Procedure 1.330(a)(3) provides in pertinent part: “The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:…(F) the witness is an expert or skilled witness.” Similarly, Florida Rule of Civil Procedure 1.390(b) provides: “The testimony of an expert…witness may be taken at any time...

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Classic Hearsay: Declarant’s Out-of-Court Statement Offered to Prove the Truth of the Matter Asserted

I previously discussed the concept of hearsay and that hearsay is inadmissible evidence at trial. There are exceptions to hearsay---such as the business records exception or admissions against a party opponent—that I have written about since they are important hearsay exceptions at trial that come into play to admit evidence at trial. What is classic hearsay? Hearsay is simply an out-of-court statement (written or oral) introduced at trial to prove the truth of the matter asserted in the out-of-court statement. “[W]hen the only possible relevance of an out-of-court statement [introduced at trial] is directed to the truth of the matters stated by...

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Impeaching (Attacking Witness’s Credibility) with a Prior Inconsistent Statement

  Impeachment is the art of attacking a testifying witness's credibility or truthfulness at trial.  One of the most common forms of impeachment during cross-examination at trial is with a prior inconsistent statement, such as deposition or affidavit testimony. The objective of impeachment is to establish that the witness is not a trustworthy witness, hence the reason it is referred to as attacking the witness’s credibility!  A prior inconsistent statement made by a testifying witness is a great way to attack that witness’s credibility at trial. See Elmer v. State, 114 So.3d 198, 202 (Fla. 5th DCA 2012). (“It is axiomatic...

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Jury Trial Considerations: Directed Verdict and the Verdict Form

Previously, I discussed a motion for directed verdict and, then, a motion to set aside a jury’s verdict. This is an important procedural vehicle to know because a party opposing a claim generally always moves for a direct verdict. In some instances, the court reserves ruling on the directed verdict to see how the jury decides the case. If the jury enters a verdict in favor of the party moving for a directed verdict (e.g., the defendant) then the court does not need to rule on the motion for directed verdict (it becomes moot). Recently, I wrote an article about a...

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Note on Discovery in Litigation

Here is a quick note on discovery in litigation (e.g., document requests, depositions, interrogatories). An objective of discovery is to discover information that is reasonably calculated to lead to the discovery of admissible evidence. In other words, just because the discovery appears irrelevant does not necessarily mean that pursuing such discovery will not reasonably lead to the discovery of admissible evidence. By taking a more liberal approach to the discovery process,  hopefully, some of the unfortunate gamesmanship that occurs during discovery is eliminated or reduced. In particular, parties should not be able to unilaterally dictate what they believe is relevant to...

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Laying the Foundation of Photographic Evidence

Photographs make good evidence as they illustrate what a witness is testifying about or conveying.   I want to show the witness a relevant photograph, but the witness did not take the photograph.   How do I get this photograph into evidence?  No different than any other evidence, the proper foundation needs to be laid to admit a photograph into evidence. Metropolitan Dade County v. Zapata, 601 So.2d 239, 244 (Fla. 3d DCA 1992). “[A]ny witness with knowledge that the photograph is a FAIR and ACCURATE REPRESENTATION may lay the necessary foundation for admission of a photograph.” Scarlett v. Ouellette, 948 So.2d 859, 863 (Fla....

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Introducing Character Evidence of Prior Bad Acts in a Civil Case

"Relevant evidence is evidence tending to prove or disprove a material fact." Fla.Stat. s. 90.401. I have previously discussed that evidence needs to be relevant for it to be admissible but that not all relevant evidence is admissible (e.g., if the probative value of that evidence is outweighed by unfair prejudice, etc., then the relevant evidence is not admissible). When is evidence of a person's character ever relevant (such as the character of a plaintiff or defendant) to prove or disprove a material fact in a civil case? Generally speaking, it is not relevant and, even if it was relevant, the...

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Purpose of Closing Argument

  We talked about the purpose of opening statements. Now, let’s talk about the purpose of closing argument. One of my favorite all-time shows is Law and Order. Jack McCoy can certainly deliver a closing argument like no other where the purpose of his closing argument always seems abundantly clear.  The purpose of closing argument is to help the jury understand the evidence presented to the law. See Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla. 2000).   It serves as the final opportunity for the lawyer to fully connect his/her client’s theme of the case (possibly explained during opening) based on...

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