27 June

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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...

19 June

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Note on Discovery in Litigation

Posted by David Adelstein

in Discovery, Evidence

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...

16 June

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Laying the Foundation of Photographic Evidence

Posted by David Adelstein

in 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....

07 June

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Introducing Character Evidence of Prior Bad Acts in a Civil Case

Posted by David Adelstein

in Evidence

"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...

28 May

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Purpose of Closing Argument

Posted by David Adelstein

in Appeal, Trial Perspectives

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...

19 May

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Purpose of Opening Statements

Posted by David Adelstein

in Trial Perspectives

We’ve all seen movies that reflect the power of an opening statement. Remember the movies “The Devil’s Advocate” or “Philadelphia” or “A Few Good Men?” All of these show powerful opening statements with a purpose. Remember the movie "My Cousin Vinny?" This movie does not reflect a powerful opening statement with a purpose, although it sure is funny! “The purpose of opening statements is to outline what an attorney expects the evidence will establish, and control of opening statements is within the trial court’s discretion.” Bush v. State, 809 So.2d 107, 118 (Fla. 4th DCA 2002). The opening statement allows a party’s...

15 May

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Inconsistent Verdict Form – Make Sure to Timely Object

Posted by David Adelstein

in Appeal

The verdict form is a very important aspect of civil jury trials. This is the form the jury fills out during deliberation to determine liability and damages. Previously, I explained the difference between a general verdict form and a special interrogatory verdict form and the importance of timely objections to the verdict form. Be sure to consider and review (and, object, if need be) the type of verdict form submitted to the jury as well as the verdict form filled out by the jury (especially with a special interrogatory verdict form). With a special interrogatory verdict form, there is the possibility...

09 May

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Applying the Tipsy Coachman Doctrine

Posted by David Adelstein

in Appeal

In a previous article, I discussed the appellate doctrine known as the tipsy coachman doctrine, which stands for the principle that an appellate court can affirm a trial court even if the trial court reached the right result (supported by the record) but for the wrong reasons. This doctrine allows an appellee (party prevailing in the trial court and responding to appeal) that is arguing to affirm the trial court’s ruling to present any argument on appeal supported by the record even if that argument was not raised in the trial court. Dade County School Board v. Radio Station WQBA,...

01 May

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Pinning the Poor Against the Rich at Trial…Nope due to the Presumed Prejudice!

Posted by David Adelstein

in Evidence

We all like to root for the underdog and want the underdog to succeed. In this regard, there is something compelling about pinning the poor against the rich. We perhaps seek redemption for the poor. So, how does this play out in a jury trial? The answer is it does not and should not. Why; because of the presumed prejudice to the rich and the tendency to punish the deep pocket. By eliciting this evidence, a party is exposing itself to a mistrial. “Florida has a long-standing rule that no reference should be made to the wealth or poverty of a party,...

25 April

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Admissions Against Party Opponent (Hearsay Exception) Does Not Need to be Based on Party’s Personal Knowledge

Posted by David Adelstein

in Evidence

An admission against a party opponent is an important exception to the hearsay rule. I previously discussed this hearsay exception in detail because it is an exception that routinely applies in order to admit testimony / evidence at trial. Recently, the case of Jones v. Alayon, 2015 WL 1545005 (Fla. 4th DCA 2015) discussed the applicability of this exception. This case was a wrongful death action brought by the decedent’s daughter as personal representative of the estate stemming from an automobile accident caused by an off-duty police officer that originally fled the scene of the accident. The jury awarded the plaintiff...