01 April

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Proving Affirmative Defenses and the Affirmative Defense of Comparative Negligence

When a defendant is sued, the defendant will typically assert affirmative defenses (or defenses to the claims asserted by the plaintiff). Just like a plaintiff has the burden of proof to prove its claims against a defendant, the defendant has the burden of proof to prove its affirmative defenses. The recent opinion in Bongiorno v. Americorp., 40 Fla L. Weekly D760c (Fla. 5th DCA 2015) exemplifies that a defendant that asserts an affirmative defense has the burden of proving that defense. This case was a personal injury negligence case. The defendant argued that the plaintiff’s negligence contributed to her negligence, i.e.,...

29 March

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Considerations Involving Proposals for Settlement / Offers for Judgment

Posted by David Adelstein

in Trial Perspectives

There needs to be a contractual or statutory basis in order to be entitled to recover your reasonable attorneys' fees at trial. See Cadenhead v. Gaetz, 677 So.2d 96, 97 (Fla. 1st DCA 1996). This means either the contract needs to support a basis for the party to recover attorney’s fees (such as a prevailing party attorneys’ fees provision or a contractual indemnification provision that authorizes attorneys’ fees) or there needs to be a statute that authorizes you to recover reasonable attorneys' fees. Absent these bases, there is generally no basis to recover attorneys' fees. However, there is a vehicle under...

26 March

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Using Demonstrative Aids or Exhibits at Trial

Posted by David Adelstein

in Trial Perspectives

It is common to use demonstrative aids or exhibits at trial. These are exhibits (e.g., models, diagrams, charts, photographs, etc.) that are used to help explain or illustrate testimony or other evidence. The operative word is “help” because these exhibits need to help explain the testimony and help the trier of fact in understanding the testimony. These exhibits, however, are for demonstrative purposes only and do not constitute substantive evidence. No different than evidentiary exhibits, the probative value of a demonstrative exhibit must outweigh any prejudice to the adverse party. Regarding the use of demonstrative evidence, the Florida Supreme Court stated: “Demonstrative...

21 March

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Know Your Standard of Appellate Review Regarding the Admissibility of Evidence

Posted by David Adelstein

in Appeal, Standard of Review, Uncategorized

The standard of appellate review regarding the trial court’s admissibility of evidence is an abuse of discretion. See Vavrus v. City of Palm Beach Gardens, 927 So.2d 992 (Fla. 4th DCA 2006); Castaneda ex rel. Cardona v. Redlands Christian Migrant Ass’n, Inc., 884 So.2d 1087 (Fla. 4th DCA 2004). Naturally, a party needs to preserve this issue by objecting to the admissibility of the evidence. If a trial court sustains an objection and excludes the evidence, the party trying to introduce the evidence should make a proffer / offer of proof. On the other hand, the standard of review for the trial court’s...

15 March

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Benefit of Corporate Representative Depositions

Posted by David Adelstein

in Depositions, Evidence

Depositions are a routine form of discovery in civil disputes. In disputes involving businesses or governmental bodies (the “Entity”), the opposing party will take what is known as a corporate representative deposition. In a corporate representative deposition, the party taking the deposition will designate topics that they want the Entity to answer questions about. The Entity then has to duty to prepare a representative or representatives to answer questions relating to the topics. The Entity has discretion on the representative(s) it chooses to answer questions relating to the topics provided that the representative(s) it chooses is reasonably prepared. For example, assuming there...

12 March

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Inadmissible Subsequent Remedial Measures

Posted by David Adelstein

in Evidence

Sometimes plaintiffs try to introduce evidence of subsequent remedial measures a defendant undertook after a defective condition caused an injury or damage to prove the existence of the defective condition and the culpability of the defendant. In other words, the plaintiff wants to show that if the remedial measure was performed to the defective condition prior to the injury or damage the injury or damage would probably not have occurred. This evidence of subsequent remedial measures is not admissible subject to an impeachment exception (where the evidence is not admitted as substantive evidence but to impeach a witness). To this...

07 March

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Proximate Causation in a Negligence Action and the Granting of a Directed Verdict in a Negligence Action

Posted by David Adelstein

in Burden of Proof, Evidence

Mostly everyone has heard of the term “negligence.” Negligence actions oftentimes form the basis of personal injury claims and, in certain instances, property damage claims. (For example, this article discusses negligence actions in premise liability claims.) To prove a negligence claim, a plaintiff must prove the following elements: 1) the defendant owed a duty of care to the plaintiff, 2) the defendant breached that duty of care, 3) the defendant’s breach proximately caused damages to the plaintiff, and 4) the plaintiff suffered injuries / damages. The Florida Supreme Court in Sanders v. ERP Operating, Ltd. Partnership, 2015 WL 569041 (Fla. 2015) recently...

28 February

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Photographic / Video Evidence Needs to be Relevant and Outweigh any Unfair Prejudice to the Opposing Party

Posted by David Adelstein

in Evidence

During trial, a party may move to admit photographic evidence. The opposing party, however, may object based on either the relevancy of the evidence or, if relevant, that the probative value of the evidence is outweighed by the unfair prejudice to that party if the evidence is admitted. “The test for admissibility of photographic evidence is relevancy rather than necessity.” Pope. V. State, 679 So.2d 710, 713 (Fla. 1996) (photographs in murder trial were relevant to establish manner in which murder was committed and condition of crime scene). This same test applies to video evidence. See Zelaznik v. Isensee, 2014 WL 2596140...

20 February

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Admissions Against a Party Are Admissible Exceptions to the Hearsay Rule

Posted by David Adelstein

in Evidence

Previously, I discussed the business records exception to the hearsay rule (of inadmissible evidence). Another exception to the hearsay rule deals with admissions against party opponents. This is an important exception to the hearsay rule that will apply in civil disputes so that a witness can testify about a statement made by a representative / employee of an opposing party without this statement being deemed inadmissible hearsay. This hearsay exception in Florida Statute s. 90.803(18) states that the following statements (admissions) are admissible: (18) Admissions.--A statement that is offered against a party and is: (a) The party's own statement in either an individual or a...

08 February

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Importance of Laying the Appropriate Foundation for the Business Records Exception to the Hearsay Rule

Posted by David Adelstein

in Evidence

As you can tell from prior postings, I love the business records exception to the hearsay rule because of its importance in civil disputes, particularly business disputes. Without the business records exception, many business records that are needed to prove a claim or defense would be excluded as evidence under the hearsay rule. But, with the business records exception, these important records are admissible as long as a witness lays the appropriate foundation. The reason an appropriate foundation is required is to ensure the reliability or trustworthiness of the business records before deeming the records admissible evidence. The case of Bank...