Preserving an Objection for Appeal

Preserving an objection for appeal. Preserving an objection for appeal. Preserving an objection for appeal. Repeat again and again, because this is important. The lack of preservation of an objection is demonstrated in a criminal trial, Pierre v. Florida, 43 Fla.L.Weekly D1110b (Fla. 4th DCA 2018), which involved man wearing a ski-mask attempting to kill his ex-wife. Of course, his ex-wife and son saw his face, but there was other evidence to support the attempted murder. The jury found that the man was guilty of attempted murder. An issue on appeal dealt with the scope of an expert's testimony that tied...

03 September

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Improperly Admitting Hearsay can still be Harmless Error

Posted by David Adelstein

in Evidence

I have discussed the hearsay rule (the evidentiary exclusionary rule and the numerous exceptions) ad nauseam and will continue to do so because it is such an important aspect of a civil trial. There will invariably be an objection under the hearsay rule during trial. The trial court will either sustain the objection or overrule the objection, perhaps under an exception to the hearsay rule. What if a trial court makes a mistake—it happens—and overrules a hearsay objection and admits hearsay evidence? As previously mentioned, an appellate court will review the admission of evidence under an abuse of discretion standard of...

04 May

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Trial Court’s Error is Harmless when there is No Reasonable Possibility Error Contributed to Verdict

Posted by David Adelstein

in Appeal, Trial Perspectives

Just because the trial court committed an error does NOT mean the error constitutes reversible error warranting a new trial. The trial court's error could very well be harmless error. When it comes to a trial court's error, the recipient of the error should prove that "there is no reasonable possibility that the error contributed to the verdict." Maines v. Fox, 41 Fla.L.Weekly D1062a (Fla. 1st DCA 2016) quoting Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1256-57 (Fla. 2014). The trial court's error is harmless if the recipient of the error proves there is no reasonable possibility that the...

05 November

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Recipient of Trial Court’s Error Needs to Prove Harmless Error

Posted by David Adelstein

in Evidence

I previously discussed that the “no reasonable possibility test” is the harmless error test in civil trials. This means that even if the trial judge committed an error, the recipient of the error (generally the appellee) has to prove that the error was harmless in that there was no reasonable possibility that the error contributed to the verdict (against the appellant). Here is a case where the trial court committed error but the appellee that prevailed at trial was unable to establish that the error was harmless. Thus, the error committed by the trial court was deemed to be reversible error entitling...

01 May

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Pinning the Poor Against the Rich at Trial…Nope due to the Presumed Prejudice!

Posted by David Adelstein

in Evidence

We all like to root for the underdog and want the underdog to succeed. In this regard, there is something compelling about pinning the poor against the rich. We perhaps seek redemption for the poor. So, how does this play out in a jury trial? The answer is it does not and should not. Why; because of the presumed prejudice to the rich and the tendency to punish the deep pocket. By eliciting this evidence, a party is exposing itself to a mistrial. “Florida has a long-standing rule that no reference should be made to the wealth or poverty of a party,...

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...

07 February

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Harmless Error and the “No Reasonable Possibility” Test

Posted by David Adelstein

in Appeal, Burden of Proof

The terms “harmless error” and “reversible error” are well known terms in the trial and appellate world. In a nutshell, a harmless error is an error committed by the trial judge that does NOT impact the fairness of the trial; a reversible error is an error that does impact the fairness of the trial. A party appealing a trial judge’s ruling (appellant) aims to establish that the trial judge’s ruling, etc. amounted to reversible error. The party responding to the appeal (appellee) aims to establish that there was no error, but if there was, it was harmless. If an error amounts to...