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Proffers / Offers of Proof when Trial Judge Precludes Evidence or Testimony from being Introduced

What is an offer of proof or evidentiary proffer?  During trial there are times where the opposing party objects to a question (testimony) and/or the introduction of evidence. If the judge sustains (or agrees with) an objection, the witness is precluded from offering testimony in response to the question and/or the evidence is excluded and deemed inadmissible.   Ouch!!  When this happens, it is important for the party trying to offer the excluded testimony or evidence to make a proffer or offer of proof in furtherance of preserving this issue for appeal. The reason a proffer or offer of proof of...

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Voir Dire and Reasonable Opportunity to Examine Prospective Jurors

Voir dire, as mentioned in prior postings, is a very important part of the jury trial process. Voir dire is when the parties have an opportunity to examine and question prospective jurors in the context of their theme and case in order to determine which six jurors (and alternate) should be sworn in on the jury panel. The objective behind voir dire is to ensure that parties have a fair and impartial jury for your case.Williams v. State, 424 So.2d 148 (Fla. 5th DCA 1982). The right of parties (and even the trial court) in civil dispute to engage in...

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Application of the Business Records Exception to the Hearsay Rule

Hearsay (an out-of-court statement offered at trial for the truth of the matter asserted) is inadmissible at trial. But, there are exceptions to this exclusionary hearsay rule to allow such evidence / testimony to be admissible at trial. Previously, I wrote about one exception known as the business records exception contained in Florida Statute s. 90.803. The business records exception is commonly relied on in business disputes in order to admit business records as evidence.   What if there is an appeal concerning the admissibility of evidence introduced at trial under an exception to the hearsay rule?   Standard of Appellate Review   Whether evidence is...

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Moving for a Directed Verdict and, then, a Motion to Set Aside the Verdict

  Moving for a directed verdict is a standard procedure in a jury trial.  Simply put, after the plaintiff puts on its case-in-chief (evidence supporting its claims against the defendant), the defendant moves for a directed verdict stating that even assuming all of the evidence is true and undisputed, and all inferences relating to that evidence favor the plaintiff, the plaintiff failed to prove its case as a matter of law and a jury cannot reasonably enter a verdict in favor of the plaintiff based on that evidence. See Wald v. Grainger, 64 So.3d 1201 (Fla. 2011); see also Etheredge v....

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Expert Opinion Testimony and the Standard of Appellate Review

Previously, I discussed expert opinion testimony and the Daubert gatekeeping test employed by trial courts to determine the admissibility of the expert testimony. But, there is much more to expert opinion testimony.  An expert witness is NOT allowed to serve as a conduit for inadmissible hearsay so that a party is using an expert witness to simply get in testimony/evidence that is otherwise inadmissible. Doctors Co. v. State, Dept. of Ins., 940 So.2d 466, 470 (Fla. 1st DCA 2006) (“The rule is well established that if an expert is called merely as a conduit to place inadmissible evidence before the jury, the trial...

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Expert Opinion Testimony and Understanding Daubert’s Gatekeeping Test

Expert opinion testimony is an important aspect of complex civil litigation. Expert testimony assists in proving or disproving liability and damages. A credible and persuasive expert can make the difference in a case and retaining experts, generating expert opinions, and the manner in which expert opinions are presented should not be taken lightly. Regarding expert testimony, Florida Statute s. 90.702 provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in...

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Useful Maps Explaining Florida’s Judicial System

A picture is worth 1,000 words.  This is true.   Therefore, the best way to describe Florida's judicial system is through pictures in the form of maps:   FLORIDA COUNTIES   For more information on Florida counties, take a look at the useful maps that will tell you the cities located within each county.   FLORIDA JUDICIAL (TRIAL COURT) CIRCUITS   For more information on Florida's judicial (trial court) circuits, take a look at this map and the corresponding links to the judicial circuits.   FLORIDA APPELLATE CIRCUITS   For more information on Florida's appellate districts, take a look at this useful map that will identify the judicial (trial court) circuit and counties that...

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Verdict Forms (General or Special) and the Two-Issue Rule

I previously discussed the importance of jury instructions and the jury instruction conference. Now, I want to discuss the importance of the verdict form. This is the form the jury fills out during its deliberation that identifies the associated liability and damages it determines. There are 2 types of verdict forms used. A general verdict form is a relatively simple form that is easy to prepare and asks the jury to determine whether it believes the defendant is liable and, if so, the damages the defendant owes the plaintiff.   This is the type of form a plaintiff oftentimes wants. A special interrogatory verdict...

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Preparing Jury Instructions and the Standard of Review in Appealing Jury Instructions

Jury instructions are a vital component of any jury trial. These are the instructions that the trial judge reads to a jury explaining the elements of the plaintiff’s causes of action against the defendant, the defendant’s defenses, the required burden of proof, how to weigh the evidence, etc. There are jury instructions that are considered Florida standard jury instructions. But, outside of these standard jury instructions, there is a great deal of discretion in preparing and presenting jury instructions in civil trials as long as the instructions accurately reflect the law and are not misleading to the jury. Typically, each party...

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Appealing the Granting or Denying of a Party’s Peremptory Challenge(s)

  Previously, I discussed the basics regarding peremptory challenges. What if the court grants or denies a peremptory challenge and a party wants to appeal that ruling at the conclusion of the trial? A party will want to potentially appeal if (a) a party challenges its opponent's use of a peremptory challenge arguing that the opponent wants to strike a juror for a racially motivated basis and the court still grants / sustains the peremptory challenge or, alternatively, (b) a party challenges its opponent's use of a peremptory challenge arguing that the opponent wants to strike a juror for a racially motivated basis and...

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