Accurate Jury Instructions are Important

Accurate jury instructions that are read to a jury are important. This is because accurate jury instructions help a jury properly resolve issues important to the case. “A decision to give or withhold a jury instruction is reviewed for an abuse of discretion.” Vainberg v. Avatar Property & Casualty Ins. Co., 46 Fla. L.Weekly D1141d (Fla. 4th DCA 2021). In Vainberg, the trial judge refused to give a jury instruction requested by the plaintiff. The case involved a property insurance dispute where the insurer, pursuant to the terms of the property insurance policy, elected to perform the repairs. After the insurer’s contractor...

14 December

0 Comments

Sticky

Deficient Jury Instruction could Amount to Reversible Error

Posted by David Adelstein

in Appeal

In a recent case, Cooper v. Federated National Insurance Company, 44 Fla. L. Weekly D2961a (Fla. 5th DCA 2019), involving an insured suing their property insurer for bad faith, discussed in more detail here, a jury returned a verdict in favor of the insurer and against the insured. The insured appealed arguing that the trial court’s bad faith jury instruction amounted to reversible error. The trial court refused to present to the jury the jury instruction drafted by the insured and instead went with a standard form bad faith jury instruction. The appellate court agreed that the standard form jury...

27 July

0 Comments

Sticky

Avoiding the Mistrial

Posted by David Adelstein

in Trial Perspectives

If you prevailed at trial, there is nothing worse than a mistrial. Talking about taking the wind out of your sails. It happens. Unfortunately. Boyles, Personal Representative vs. Dillard’s Inc., 41 Fla.L.Weekly D1709a (Fla. 1st DCA 2016), is a case where the defense prevailed, but on appeal, the court granted a mistrial for multiple (or cumulative) reasons, only two of which will be discussed below. Both reasons, however, could have been avoided. A. Closing Argument First, during closing argument, the defense counsel tried to attack the credibility of the plaintiff’s trial testimony by bringing up what the plaintiff testified to during her deposition....

01 April

0 Comments

Sticky

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 March

0 Comments

Sticky

Using Demonstrative Aids or Exhibits at Trial

Posted by David Adelstein

in Trial Perspectives

It is common to use demonstrative aids or exhibits at trial. These are exhibits (e.g., models, diagrams, charts, photographs, etc.) that are used to help explain or illustrate testimony or other evidence. The operative word is “help” because these exhibits need to help explain the testimony and help the trier of fact in understanding the testimony. These exhibits, however, are for demonstrative purposes only and do not constitute substantive evidence. No different than evidentiary exhibits, the probative value of a demonstrative exhibit must outweigh any prejudice to the adverse party. Regarding the use of demonstrative evidence, the Florida Supreme Court stated: “Demonstrative...