28 December

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

in Appeal, Standard of Review, Voir Dire

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...

27 December

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Civil Jury Trials and the Basics of Peremptory and Cause Juror Challenges

Posted by David Adelstein

in Voir Dire

Civil jury trials in a Florida state court require 6 jurors. See Fla.Stat. s. 69.071. The court also generally directs for 1 or 2 alternate jurors to be selected. See Fla.R.Civ.P. 1.431(g). During jury selection in civil trials, or the voir dire process, parties have peremptory challenges and challenges for cause that are used to strike a prospective juror(s) from being sworn on the jury panel. These challenges are a very important component of the jury trial process designed to not only prevent biased or partial jurors from being sworn to the jury panel (challenges for cause), but to allow a party to strike...

26 December

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Satisfying the Burden of Proof by a “Greater Weight of the Evidence”

Posted by David Adelstein

in Burden of Proof, Evidence

The burden of proof (or burden of persuasion) in a civil case is NOT the same “beyond a reasonable doubt” burden that the government has in convicting a criminal defendant. The burden of proof in a civil case is a much lesser burden. Rather, the burden of proof in a civil case is often referred to as the burden to prove YOUR case by a “preponderance of the evidence” now known as the “greater weight of the evidence.” It is this “greater weight of the evidence” burden of proof that a jury will be instructed upon. The jury will be instructed that it is...

25 December

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The Burden to Establish Petitions for Writs of Certiorari (“Cert”)

Posted by David Adelstein

in Appeal, Standard of Review

What is a petition for a writ of certiorari (or “cert,” for short)? A petition for a writ of cert is when a petitioner wants to appeal a non-final order (e.g., an interlocutory order that does not finally dispose of the dispute such as a final adverse judgment against the petitioner) issued by the trial court when there is no direct right to appeal that non-final order. In order for an appellate court to entertain a petition for a writ of cert, the petitioner MUST establish that (a) the trial court departed from the essential requirements of the law and (b) this...

24 December

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Abuse of Discretion Standard of Review for Trial Court Granting or Denying New Trial

Posted by David Adelstein

in Appeal, Standard of Review

Previously, I discussed the de novo appellate standard of review relating to a summary judgment. Now, I’d like to discuss the appellate standard of review when a trial judge grants or denies a motion for a new trial. This means there was a trial. There was a presumed winner and there was a presumed loser. The presumed loser, by way of example, moved for a new trial with the trial court and that motion was either (a) granted by the trial court prompting the presumed winner to appeal the trial court’s granting of a new trial, or (b) denied by the...

15 December

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Introducing Business Records — An Exception To Hearsay

Posted by David Adelstein

in Evidence

Business records are oftentimes introduced during trial. But, just because the record is called a “business record” does not automatically mean the record is admissible during trial. The business record still needs to be properly introduced (the foundation for the record properly laid) at trial; otherwise, the record constitutes hearsay: an out-of-court statement (written or oral) introduced to prove the truth of the matter asserted in the out-of-court statement. Thus, a business record would constitute hearsay evidence since it would most likely be introduced at trial to prove the truth of the matter asserted in the record. Florida’s Evidence Code contains...

14 December

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De Novo Appellate Standard Of Review For Summary Judgments

Posted by David Adelstein

in Appeal, Standard of Review

An appellate court’s standard of review when reviewing a trial court’s summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000); accord L’Etoile Homeowners Ass’n, Inc. v. Fresolone, 940 So.2d 1170 (Fla. 4th DCA 2006). A de novo standard of review means that the appellate court will examine the trial court’s record anew and will rule on the record evidence and law without giving any deference to the trial court. This is a favorable standard of review for an appellant (party appealing trial court’s ruling) because there is no deference afforded to the...

14 December

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The Trial Court Reached The Right Result For The Wrong Reason – The Tipsy Coachman

Posted by David Adelstein

in Appeal

Trial courts sometimes reach the right result / ruling, but for the wrong reason. This wrong reason serves as the basis of an appeal. However, under the appellate principle known as the “tipsy coachman doctrine,” an appellate court can affirm a trial court’s ruling even if the trial court reached the right result / ruling, but for the wrong reason. The right reason(s), though, needs be supported by the record before the trial court (that makes up the record before the appellate court). See Dade County School Board v. Radio Station WQBA, 731 So.2d 638 (Fla. 1999); accord State Farm Fire...

13 December

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Is Greed Really Good?

Posted by David Adelstein

in Trial Perspectives, Uncategorized

We all remember the famous "Greed is Good" speech from the movie Wall Street. How do you not love this movie and this speech? But, is greed really good? Does, greed really clarify the essence of the evolutionary spirit? When it comes to a dispute, sometimes--and most of the time--it is perhaps better to analyze the dispute from a big picture perspective in order to come a reasonable resolution. Yes, this reasonable resolution may not result in the resolution you ideally wanted, but it may potentially be the right resolution where greed and principle remain on the outside. It is not always the...

07 December

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Exploring The Fee Arrangement Between A Client And Lawyer

Posted by David Adelstein

in Fee Arrangements

A lawyer's representation of a client is typically memorialized in an engagement agreement or fee agreement. There are many types of business relationships between a lawyer and client regarding how a client is to compensate a lawyer. Both the lawyer and client need to explore which business relationship works best for them based on the nature of the matter. From the client's perspective, a client should want an attorney they know will be efficient, proactive, and assist them in making the best business decision(s) based on the pros (the good) and cons (the bad) of the dispute. Types of fee...