25 November

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Introduce the Right Circumstantial Evidence for Purposes of “Admission by Party Opponent” Hearsay Exception

One of the exceptions to hearsay is known as an admission by a party opponent. In Florida, this hearsay exception is included in Florida Statute s. 90.803(18): (18) ADMISSIONS.—A statement that is offered against a party and is: (a) The party’s own statement in either an individual or a representative capacity; (b) A statement of which the party has manifested an adoption or belief in its truth; (c) A statement by a person specifically authorized by the party to make a statement concerning the subject; (d) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence...

29 January

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Contract is Not Hearsay; It has Independent Legal Significance

Posted by David Adelstein

in Evidence

Are words of a contract hearsay? Or do they have independent legal significance such that the hearsay doctrine does not apply? The answer is explained in a recent foreclosure dispute, U.S. Bank National Association as Trustee for Ramp 2006 EFC2 v. Bell, 48 Fla.L.Weekly D218a (Fla. 5th DCA 2022). In this case, a trustee filed a foreclosure action. To establish it was the holder of the promissory note when it filed the foreclosure lawsuit, the trustee tried to introduce a Pooling and Servicing Agreement where the trustee was one of the parties that executed it. The borrowers objected to the Pooling...

19 September

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Affidavit Used to Support or Defend Against Summary Judgment

Posted by David Adelstein

in Trial Perspectives

I recently discussed a case found here where the appellate court affirmed summary judgment in favor of the plaintiff finding that the affidavit proffered by the defendant did NOT create a genuine issue of material fact. A major reason the appellate court affirmed summary judgment is because an affidavit cannot be based on hearsay. The affidavit MUST be based on personal knowledge that is more than conclusory in nature and lays a factual predicate. This is important to remember when moving for summary judgment and defending against a summary judgment to ensure your affidavits are done correctly and you are...

30 January

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Expert Cannot Serve as Conduit for Inadmissible Evidence / Hearsay

Posted by David Adelstein

in Evidence

The law allows an expert to rely on hearsay when formulating expert opinions, but an expert cannot serve as a conduit for inadmissible evidence / hearsay. This point is discussed in the wrongful death action, Dayes v. Werner Enterprises, Inc., 46 Fla.L.Weekly D233b (Fla. 3d DCA 2021), a case that resulted in a defense verdict that was reversed on appeal. The case involved a tractor-trailer backing up and killing someone. The plaintiff (the estate of the deceased person) raised an issue on appeal that it was error for the trial court to allow a detective to testify “that another officer...

23 June

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Hearsay within a Medical Record (Double Hearsay)

Posted by David Adelstein

in Evidence

A medical record is admissible under the business record exception to the hearsay rule. Strong v. Underwood, 44 Fla. L. Weekly D1598c (Fla. 5thDCA 2019). What about a party's statement within a medical record (double hearsay - hearsay within hearsay)? Well, that hearsay statement may be admissible if another exception permits its admissibility. Once such exception that could apply is an admission by a party opponent. For instance, in Strong, a person driving a motorcycle collided with an SUV. The motorcyclist sued the driver of the SUV. ...

09 December

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Then-Existing State of Mind Hearsay Exception

Posted by David Adelstein

in Evidence

While this hearsay exception is predominantly applicable in criminal trials, it is still worth mentioning the then-existing state of mind hearsay exception. This is a hearsay exception where hearsay is admissible, not to prove the truth of the matter asserted by a declarant (the person that made the out-of-court statement), but the declarant’s then-existing state of mind. Naturally, the declarant’s state of mind has to be at-issue for this exception to come into play. For example, in the criminal matter of Rodriguez v. State, 2018 WL 6331764 (Fla. 3d DCA 2018), a pregnant woman requested her friend go to her neighbor’s apartment and...

06 May

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Admitting a Business Record Under the Hearsay Exception

Posted by David Adelstein

in Evidence

If you have perused this blog, then you know if there is a new case discussing the business records exception to the hearsay rule, I am writing about it. The reason being is that it comes up in many business disputes. Lately, there has been a trend where this business records exception comes up in mortgage foreclosure cases where the borrower argues that the lender failed to properly introduce key evidence (such as payment histories) under the business records exception. As a result, the evidence was inadmissible hearsay warranting a reversal of a foreclosure judgment. The recent opinion in Evans v....

01 October

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Business Records Exception (to Hearsay Rule) When Business Takes Custody of Another’s Records

Posted by David Adelstein

in Evidence

If you have looked through the articles on this blog before, you will know that the business records exception to the hearsay rule is a very important hearsay exception in business disputes (or any dispute involving business records!). The business records exception requires a proper foundation to be laid by a witness before the records are admitted into evidence to ensure the accuracy and reliability of the records. The proper foundation requires the witness to show that "(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a...

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...

23 April

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A Promissory Note is NOT Hearsay

Posted by David Adelstein

in Evidence

A promissory note is NOT regarded as hearsay. This means a party introducing a promissory note does not need to lay down the foundation to a hearsay exception such as the business records exception in order to admit the note into evidence. The Fifth District Court of Appeal in Deutsche Bank National Trust Co., Etc. v. Alaqua Property, Etc., 41 Fla.L.WeeklyD994b (Fla. 5th DCA 2016) explained that a promissory note in a foreclosure action is NOT hearsay because it is NOT being offered to prove the truth of the matter asserted; rather, the note has independent legal significance, that being “to establish the existence of...