Leading Questions Forming Basis of Appeal

During a direct examination at trial, a party will always tiptoe on the fine line of asking the witness leading questions in order to elicit the desired testimony. Leading questions, in most circumstances, are objectionable during direct examination because it allows the lawyer asking questions to basically testify while leading the witness to the answer he or she is seeking. Look, a lawyer will ask leading questions if he/she can get away with it—until the trial court sustains objections. But, just because a trial court sustains an objection does not necessarily mean the lawyer will stop asking leading questions during direct...

27 July

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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 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,...