02 September

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Strategic Reasons for Serving a “Good Faith” Proposal for Settlement

You know how proposals for settlement / offers of judgment ("proposals for settlement") work because I previously wrote about this topic. You know that such proposals for settlement need to be made in good faith. Remember, proposals for settlement create the argument to recover attorney's fees from the date the proposal for settlement is served on forward. The recent case of Key West Seaside, LLC v. Certified Lower Keys Plumbing, Inc., 40 Fla. L. Weekly D2052b (Fla. 3d DCA 2015), exemplifies a defendant relying on a proposal for settlement. In this case, a defendant served the plaintiff with a proposal for settlement....

29 August

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Fact Witness Testimony Must be Based on Their Personal Knowledge

Posted by David Adelstein

in Evidence

Fact witnesses may only testify as to matters within their personal knowledge. Fla.Stat. s. 90.604. “[A fact] witness is limited to testifying to facts that are within the witness's knowledge rather than the witness's speculation and conjecture.” A&A Electric Services, Inc. v. Jurado, 40 Fla.L.Weekly D1963a (Fla.2d DCA 2015). For example, in Jurado, the plaintiff was testifying as to a document he signed and the principal of the defendant signed. In doing so, he testified as to the principal’s intent in signing the document. But, how did he know the principal's intent? Wasn’t he merely speculating as to the principal's intent? Of course...

22 August

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Recoverable / Taxable Costs to the Prevailing Party

Posted by David Adelstein

in Appeal, Trial Perspectives

When a party prevails in litigation, the party should be entitled to recover its “costs” incurred in connection with the litigation. This is different than that party’s attorney’s fees. See Fla. Stat. s. 57.041 (“The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment.”). While the taxable or recoverable costs a party is entitled to is within the discretion of the trial court, there are important guidelines to be followed known as the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions. See Fla.R.Civ.P. Taxation of Costs. The guidelines set...

13 August

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I Lost the Appeal. Should I File an Appellate Motion for Rehearing???

Posted by David Adelstein

in Appeal

There are times when appeals lose. In these situations, people often find themselves lost and unsure what to do next. Do they file an appellate motion for rehearing? Florida Rule of Appellate Procedure 9.330(a) states in pertinent part: "A motion for rehearing...

06 August

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Rule of Completeness so Entire Writing or Statement is Contemporaneously Introduced

Posted by David Adelstein

in Evidence

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...

31 July

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

Posted by David Adelstein

in Trial Perspectives

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...

24 July

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

Posted by David Adelstein

in Depositions, Evidence, Expert Testimony

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...

17 July

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

Posted by David Adelstein

in Evidence

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...

05 July

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

Posted by David Adelstein

in Trial Perspectives

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...

27 June

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Jury Trial Considerations: Directed Verdict and the Verdict Form

Posted by David Adelstein

in Appeal, Trial Perspectives

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...