01 November

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State of Mind Hearsay Exception

Sometimes hearsay statements are introduced at trial not to show the truth of the matter asserted by the out-of-court statement, but to prove a certain state of mind of the person that heard the out-of-court statement. In this situation, the out-of-court statement would be admissible and not considered hearsay. Florida Statute 90.803(3)(a) provides the following hearsay exception: (a) A statement of the declarant's then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, [is an exception to hearsay] when such evidence is offered to: Prove the declarant's state of mind,...

15 October

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Authentication of Document and the “Reply Letter Doctrine”

Posted by David Adelstein

in Evidence

Authenticating evidence, such as a document, is important to show that the document being admitted into evidence is what it purports to be. See Fla. Stat. s. 90.901 ("Authentication...

06 October

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Ruling on Admissibility of Evidence Reviewed Under Abuse of Discretion

Posted by David Adelstein

in Evidence, Standard of Review

The trial court allowed certain testimony / evidence to be introduced at trial. I objected, but the trial court overruled my objection. That evidence was introduced and I lost the trial. I am considering an appeal based on the trial court's admissibility of this evidence. "Rulings on the admission of evidence are reviewed [on appeal] under the abuse of discretion standard [of review]." Cantore ex rel. Cantore v. West Boca Medical Center, Inc., 2015 WL 5603449 (Fla. 4th DCA 2015). This discretion, however, is limited by the Florida Rules of Evidence. Johnston v. State, 863 So.2d 271, 278 (Fla. 2003). For...

02 October

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Arbitration and the Lax Rules of Evidence

Posted by David Adelstein

in Evidence

I'm sure you have heard of arbitration. Arbitration is a method of dispute resolution. If parties want to arbitrate their dispute as opposed to litigate their dispute in court, they need to include an arbitration provision in their contract. This is because arbitration is a creature of contract and you cannot be compelled to arbitrate a dispute that you did not contractually agree to arbitrate as the method of dispute resolution. (If you are arbitrating your dispute, then you are not litigating your dispute in court.) In arbitration, the rules of evidence are lax. For example, Rules 35 and 36 of the Construction Industry...

26 September

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Judicial Notice of a Court’s File does NOT Circumvent Inadmissible Hearsay

Posted by David Adelstein

in Evidence

Judicial notice is the “cognizance of certain facts which judges or jurors may properly take and act upon without proof, because they already know them.” Wyatt v. State, 270 So.2d 47, 48 (Fla. 4th DCA 1972) (quotation and citation omitted). A court may take judicial notice of “[r]ecords of any court of this state or of any court of record of the United States or of any state, territory, or jurisdiction of the United States.” Fla.Stat. s. 90.202(6). However, just because a court can take judicial notice of records in the court’s file cannot be used to circumvent otherwise inadmissible hearsay statements...

19 September

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Showing Bias to Impeach a Witness such as an Expert

Posted by David Adelstein

in Expert Testimony

If you have an expert testifying on your behalf at trial, the opposing party will ask how much you or your agents have paid the expert for his testimony. Why? Because this shows bias, right? The sentiment is that the expert is a hired gun being paid for his testimony; although, this cuts both ways in a case where both parties have a testifying expert. In the personal injury case of Vazquez v. Martinez, 40 Fla. L. Weekly D2170a (Fla. 5th DCA 2015), the plaintiff showed that the defendant’s expert witnesses were paid almost $700,000 by the defendant or her agents....

17 September

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Your Reasonable Attorney’s Fees Expert May be a Taxable Cost

Posted by David Adelstein

in Expert Testimony

I am the prevailing party and I am entitled to recover my attorney’s fees from the opposing party! Now what? If you are unable to come to an agreement with the opposing side regarding the amount of attorney’s fees you incurred, then you need to have an evidentiary hearing for the court to determine your reasonable attorney’s fees. This requires your attorney to testify as to the rates and the number of hours expended on the matter. This also importantly requires to you to have an expert testify as to the reasonableness of the attorney’s fees you incurred. See Jaffe v....

12 September

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Expert Witnesses can Rely on Hearsay….But…

Posted by David Adelstein

in Evidence, Expert Testimony

Expert witnesses can rely on hearsay (or inadmissible evidence) in arriving at their expert opinions subject to exceptions set forth below. Vega v. State Farm Mut. Automobile, 45 So.3d 43 (Fla. 5th DCA 2010) (expert automobile appraiser was entitled to rely on other persons knowledge in vintage automobiles to arrive at estimated value of vintage vehicle); Houghton v. Bond, 680 So.2d 514 (Fla. 1st DCA 1996) (expert allowed to rely on inadmissible study to arrive at expert opinion). Indeed, Florida Statute s. 90.704 supports this point by stating: If the facts or data are of a type reasonably relied upon by experts in...

02 September

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

Posted by David Adelstein

in Trial Perspectives

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...