Quick Note: Appeal of Jury Instructions with Wrong Burden of Proof

I recently talked about the burden of proof when it comes to an all-risk property insurance policy. This article is important for insureds that have a property insurance claim and are dealing with certain insurance coverage issues with their property insurer. The case at-issue discussed in the article dealt with an appeal of the jury instructions that were read to the jury. Specifically, the issue was whether the trial court applied the right burden of proof in the jury instructions. This issue is reviewed under a de novo standard of appellate review. See Jones v. Federated National Ins. Co., 43...

15 May

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Proving Your Case Through Circumstantial Evidence

Posted by David Adelstein

in Evidence

The plaintiff puts on her case through circumstantial evidence so that inferences can be drawn from that evidence. The defendant moves for a directed verdict after the plaintiff put on her case through circumstantial evidence. The trial court denies the motion and the jury enters a verdict in favor of the plaintiff. The defendant appeals the trial court's denial of the motion for a directed verdict. The standard of review for the denial of a motion for directed verdict is de novo. Broward Executive Builders, Inc. v. Zota, 41 Fla.L.Weekly D1126a (Fla. 4th DCA 2016). In Broward Executive Builders, the plaintiff, a painter, fell...

29 January

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You Cannot Contradict Testimony with Affidavit Testimony in Response to Summary Judgment

Posted by David Adelstein

in Appeal, Expert Testimony

Preparing expert witnesses for deposition is vital. To this end, working with an expert witness to ensure their expert opinions fit within the context and theme of your case and burden of proof is equally vital. Not doing so can be fatal to your case. This can lead to unprepared testimony or opinions that may appear innocuous but are in fact detrimental to your claims. For example, in the recent opinion in Lesnik v. Duval Ford, LLC, 41 Fla.L.Weekly D281a (Fla. 1st DCA 2016), the plaintiff’s expert witness was deposed. The case involved a single vehicle accident where the plaintiff asserted claims...

01 April

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Proving Affirmative Defenses and the Affirmative Defense of Comparative Negligence

Posted by David Adelstein

in Burden of Proof, Jury Instructions

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.,...

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...