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voir dire

Striking / Excusing a Prospective Juror for Bias during Voir Dire

Posted by David Adelstein on November 04, 2017
Appeal, Burden of Proof, Standard of Review, Trial Perspectives / Comments Off on Striking / Excusing a Prospective Juror for Bias during Voir Dire

An attorney’s opportunity to question prospective jurors (the jury venire) is an important part of the trial process. This is known as voir dire. Attorneys want to ask tailored questions to determine those persons in the venire that should be stricken for cause, those for which they should exercise a peremptory challenge, and those, quite frankly, they want to sit on the jury panel. There is strategy involved including wanting to develop a rapport with jurors. These are the potential folks that will render a verdict in the case and analyze the factual evidence based on the law (jury instructions). Having the opportunity to speak to them and ask them questions cannot be overlooked! Parties need a reasonable opportunity to ask prospective jurors questions during voir dire.

An important part of voir dire is to figure out biases of potential jurors. Obviously, if a juror cannot truly be impartial or fair based on their preconceived biases, then an attorney will want them stricken for cause. But in order to truly determine whether a juror has a bias that should render them stricken for cause, both sides need the reasonable opportunity to question the venire. Otherwise, the determination of a juror’s prejudicial bias will be one-sided based on one side’s questioning without any context from the questions the opposing side will ask.

In recent case, Irmi v. Estate of Dale Moyer, 42 Fla. L. Weekly, D2156b (Fla. 4th DCA 2017), dealing with wrongful death associated with cigarette smoking, the plaintiff’s counsel asked the venire whether they felt that if someone has been smoking essentially all of their life whether their family should not be allowed to file suit against the tobacco companies. Numerous jurors felt that the family should not be allowed to sue in this scenario. Such jurors were then asked whether this belief was strongly held and if they had a reasonable doubt whether they could set this feeling aside (establishing the bias of the jurors). The defense counsel wanted the opportunity to question such jurors in private to see if any of them could be rehabilitated (so they are not stricken for cause) but the court would not allow this. The defense counsel then wanted the opportunity to speak with the entire venire panel before the court struck jurors for cause based on their bias regarding long term cigarette smoking. The court denied this, over the defense counsel’s objection, and allowed approximately 30 jurors to leave without the defense ever questioning them.

After a jury verdict was entered for the plaintiff, the defendant moved for a new trial arguing that the court erroneously dismissed jurors for cause after the plaintiff’s questioning during voir dire without ever allowing the defense to question these jurors. The trial court recognized this error and granted a new trial because the court prevented the defense from its reasonable opportunity to question jurors about biases based on the plaintiff’s voir dire questioning. The plaintiff appealed the trial court’s granting of a new trial.

When an appellate court reviews a trial court’s order granting a new trial, it is done under a limited abuse of discretion standard of review. “A trial court’s discretion to grant a new trial is of such firmness that it would not be disturbed except on a clear showing of abuse.” Irmi, supra, quoting Thigpen v. United Parcel Servs., Inc., 990 So.2d 639, 645 (Fla. 4th DCA 2008).

Here, the trial court granted a new trial because it realized it excused jurors for cause based on bias without allowing the defense the opportunity to ever question these jurors. When a trial court is deciding whether to excuse a juror for bias, the test is whether the juror possesses the state of mind necessary to render a verdict in accordance with the evidence and not based upon preconceived opinions.” Irmi, supra (internal quotation and citation omitted). This means that each side – both the plaintiff and defense – must be given an opportunity to orally question jurors so that the entire context of the juror’s answers can be considered. “A trial court must excuse a juror where there is reasonable doubt whether the juror is impartial. To determine whether such reasonable doubt exists, the trial court should consider the context and entirety of the juror’s responses.” Irmi, supra (internal quotation and citation omitted).

In this situation: “The trial court had the unique perspective to reflect upon its own decision to eliminate thirty-one people from the venire without allowing the defense to ask a single question. We provide great deference to trial courts in making such decisions. We agree with the trial court in correcting its initial error and granting a new trial.” Irmi, supra.


Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Avoiding the Mistrial

Posted by David Adelstein on July 27, 2016
Trial Perspectives / Comments Off on Avoiding the Mistrial


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. The problem, however, was that the defense brought up the plaintiff’s deposition when the deposition transcript was NOT introduced into evidence or apparently used to impeach the plaintiff during her trial testimony. The defense only brought this up during closing in order to insinuate that the plaintiff was not telling the truth based on deposition testimony that was NOT in the record. This is a huge no-no! The appellate court expressed:

[B]ecause the inadmissibility of appeal to non-record evidence during closing arguments is such a fundamental and longstanding canon of trial practice and ethics, codified in rule 4-3.4 of the Rules Regulating the Florida Bar, defense counsel’s violation, if not intentional, was at least grossly reckless, particularly because it was committed during closing arguments, when such improper statements are especially likely to inflame the minds and passions of the jurors so that their verdict reflects an emotional response . . . rather than the logical analysis of the evidence in light of the applicable law.

Boyles, supra (internal quotations omitted).

B. Voir Dire


Second, and another basis for a mistrial, during voir dire, the plaintiff read a standard jury instruction to the venire (jury pool) and essentially asked whether anyone would have a problem applying the law. The defense objected and the trial court precluded the plaintiff from asking a potential juror about the jury instruction.   The appellate disagreed: “[D]enial to counsel of the opportunity to question prospective jurors on their ability to follow the law constitutes abuse of discretion and is grounds for a new trial.Boyles, supra (internal quotations and citations omitted).


Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Importance of Laying the Appropriate Foundation for the Business Records Exception to the Hearsay Rule

Posted by David Adelstein on February 08, 2015
Evidence / Comments Off on Importance of Laying the Appropriate Foundation for the Business Records Exception to the Hearsay Rule


As you can tell from prior postings, I love the business records exception to the hearsay rule because of its importance in civil disputes, particularly business disputes. Without the business records exception, many business records that are needed to prove a claim or defense which maybe held on a Cloud ERP would be excluded as evidence under the hearsay rule. But, with the business records exception, these important records are admissible as long as a witness lays the appropriate foundation. The reason an appropriate foundation is required is to ensure the reliability or trustworthiness of the business records before deeming the records admissible evidence.

The case of Bank of New York v. Calloway, 2015 WL 71816 (Fla. 4th DCA 2015) is a case involving the business records exception to the hearsay rule in a mortgage foreclosure action. During the non-jury trial (as many promissory notes and mortgages contain a waiver of jury trial clause), the lender called a witness from the lender’s servicer (company that services the loan) to lay the foundation for the business records exception.

The witness testified that the servicer was not the original servicer of the loan. The prior servicer transferred the original loan documents along with business records detailing the payment history on the loan. To lay the appropriate foundation for the payment history documents, the witness testified that the payment history: 1) was a true representation of the payment history for the loan and was reviewed by the servicer before inputting the information into the servicer’s system; 2) was kept in the regular course of business activities by a person with knowledge of the event; 3) the person making the documents had a duty to accurately make the documents; and 4) it is the regular practice of the servicer to make the documents.

The borrower (or person alleged to have defaulted on the loan) objected and requested to voir dire the witness. This ultimately means that the borrower wanted to question and cross-examine the witness before the witness continued with her direct examination. In this case, the borrower wanted to immediately cross-examine the witness as to the foundation the witness laid for the business records exception in furtherance of ascertaining whether the proper foundation was laid. During questioning, the witness testified that her servicing company did not generate the payment history documents, rather it was documents transferred by the prior loan servicer. Thus, the witness was unable to answer how the prior servicer input payment information, who at the prior loan servicer input the payment information and whether this person did so with knowledge of its contents, and whether the information was entered as a regularly conducted business activity. Based on these answers, the borrower argued that the lender failed to satisfy the requirements for the business records exception to the hearsay rule; thus, the payment history constituted inadmissible hearsay. The trial court agreed and sustained the objection excluding the payment history as evidence.

On appeal, the central issue was whether the trial court properly excluded the payment history documents as hearsay or whether the lender properly laid the foundation for the business records exception. The Fourth District Court of Appeal held that the lender properly laid the foundation for the business records exception and the payment history should not have been excluded as inadmissible hearsay.

The importance of the Court’s ruling is that it articulates the ways in which a party that obtains certain records from a predecessor company/business can lay the foundation for the admissibility of business records to satisfy the business records exception to the hearsay rule:

First, the proponent [or party introducing business records] may take the traditional route, which requires that a records custodian take the stand and testify under oath to the predicate requirements. Second, the parties may stipulate to the admissibility of a document as a business record. Third and finally…the proponent has been able to establish the business-records predicate through a certification or declaration….


When employing this first option, it is not necessary to call the individual who prepared the document; however, the witness through whom the document is being offered must be able to show each of the requirements for establishing a proper foundation.


Where a business takes custody of another business’s records and integrates them within its own records, the acquired records are treated as having been made by the successor business, such that both records constitute the successor business’s singular business record. However, since records crafted by a separate business lack the hallmarks of reliability inherent in a business’s self-generated records, proponents must demonstrate not only that the other requirements of the business records exception rule are met but also that the successor business relies upon those records and the circumstances indicate the records are trustworthy.


Given this trustworthiness threshold, mere reliance by the incorporating business on records created by others, although an important part of establishing trustworthiness, without more is insufficient. In most instances, a proponent will clear this hurdle by providing evidence of a business relationship or contractual obligation between the parties that ensures a substantial incentive for accuracy. In the alternative…the successor business itself may establish trustworthiness by independently confirming the accuracy of the third-party’s business records upon receipt. In any of the abovementioned circumstances, the sufficiency of the evidence is left to the trial court’s discretion.

Bank of New York, supra, at *3-5 (internal citations and quotations omitted).

Here, the lender’s witness testified that the servicer reviewed the accuracy of the payment history it received from the prior servicer before inputting that information into its system. Thus, the Court found that this established the trustworthiness of the payment history documents such that it was an abuse of discretion for the trial court to deem the documents inadmissible hearsay.

As previously mentioned, it is important to lay the appropriate foundation for business records. If the appropriate foundation is not laid at trial, it could result in a key document being deemed inadmissible thereby preventing you from proving your claim or defense at trial.


Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Voir Dire and Reasonable Opportunity to Examine Prospective Jurors

Posted by David Adelstein on January 25, 2015
Appeal, Standard of Review, Voir Dire / Comments Off on Voir Dire and Reasonable Opportunity to Examine Prospective Jurors


Voir dire, as mentioned in prior postings, is a very important part of the jury trial process. Voir dire is when the parties have an opportunity to examine and question prospective jurors in the context of their theme and case in order to determine which six jurors (and alternate) should be sworn in on the jury panel. The objective behind voir dire is to ensure that parties have a fair and impartial jury. Williams v. State, 424 So.2d 148 (Fla. 5th DCA 1982).

The right of parties (and even the trial court) in civil dispute to engage in voir dire is set forth in Florida Rule of Civil Procedure 1.431 which provides in pertinent part:

(b) Examination by Parties. The parties have the right to examine jurors orally on their voir dire. The order in which the parties may examine each juror shall be determined by the court. The court may ask such questions of the jurors as it deems necessary, but the right of the parties to conduct a reasonable examination of each juror orally shall be preserved.”

The trial court has discretion to control voir dire including limiting argumentative or repetitive examination. Leamon v. Punales, 582 So.2d 8 (Fla. 3d DCA 1991); Allen v. Se-Go Industries, Inc., 510 So.2d 1097 (Fla. 3d DCA 1987) (trial court had discretion to conduct voir dire and then limit each party to 20 minutes to examine prospective jurors); but see Carver v. Niedermayer, 920 So.2d 123 (Fla. 4th DCA 2006) (trial court limiting parties voir dire to 30 minutes to examine 19 prospective jurors was arbitrary and constituted reversible error).

A trial court’s control or limitations imposed on voir dire will not be disturbed unless the trial court abused its discretion. Sisto v. Aetna Cas. and Sur. Co., 689 So.2d 438 (Fla. 4th DCA 1997). Hence, the standard of appellate review is abuse of discretion. A trial court will be deemed to abuse its discretion in controlling the voir dire process if it prevents a party of its right in conducting a reasonable examination to ensure a fair and impartial jury is selected. A reasonable voir dire examination assists the parties “in determining whether a particular juror should be the subject of either a challenge for cause or a peremptory challenge.Carver, 920 So.2d at 124 (quotation and citation omitted). Thus, it would be an abuse of discretion to deprive a party of this right to reasonably identify prospective jurors to challenge. See id.

For instance, in the personal injury case Sisto, the trial court prevented the plaintiff from inquiring as to prospective jurors’ views concerning personal injury lawsuits and damage awards. This limitation prevented the plaintiff from going into prospective jurors’ views and feelings on non-economic damages that are largely the type of damages awarded in a personal injury case. If you’ve suffered a personal injury you might have been unable to work. You can Click Here if you need to seek some advice if you are unable to work. Obviously, the longer you take off work, the less money you will be earning. If you have to take this to court then you might want to double check how much you are owed (you can calculate lost wages for personal injury case here). Naturally, this is an important aspect of a personal injury case that impacted the plaintiff’s exercise of peremptory challenges or excusing a prospective juror for cause based on that juror’s feelings and views about non-economic damages awarded in the personal injury context. The jury found for the plaintiff but did not award the plaintiff any non-economic damages. The plaintiff appealed and the appellate court found that the trial court abused its discretion in limiting the plaintiff’s voir dire examination and remanded the case for a new trial.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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Civil Jury Trials and the Basics of Peremptory and Cause Juror Challenges

Posted by David Adelstein on December 27, 2014
Voir Dire / Comments Off on Civil Jury Trials and the Basics of Peremptory and Cause Juror Challenges

Civil Jury Trials

Civil jury trials in a Florida state court require 6 jurors. See Fla.Stat. s. 69.071. The court also generally directs for 1 or 2 alternate jurors to be selected. See Fla.R.Civ.P. 1.431(g).

During jury selection in civil trials, or the voir dire process, parties have peremptory challenges and challenges for cause that are used to strike a prospective juror(s) from being sworn on the jury panel.   These challenges are a very important component of the jury trial process designed to not only prevent biased or partial jurors from being sworn to the jury panel (challenges for cause), but to allow a party to strike a certain number of prospective jurors that are not preferable to their trial themes / strategies for reasons other than a discriminatory basis (peremptory challenges).



Each party is entitled to 3 peremptory challenges. See Fla.R.Civ.P. 1.431(d). Peremptory challenges entitle a party to strike a prospective jury for any reason although that reason CANNOT be discriminatory / racially motivated. See Melbourne v. State, 679 So.2d 759 (Fla. 1996). Let’s say a plaintiff sues a defendant. During jury selection, each party will have 3 peremptory challenges. But, let’s say a plaintiff sues 2 different defendants. Under Florida law, each side is entitled to the same number of peremptory challenges. Since there are 2 defendants and each defendant is entitled to 3 peremptory challenges, this means that the entire defense has 6 peremptory challenges.   In this scenario, it would be unfair for the plaintiff to have an unequal number than the defendants’ total so the plaintiff is entitled to have 6 peremptory challenges. See Fla.R.Civ.P. 1.431(d).

If the court directs alternate jurors, each party is entitled to 1 peremptory challenge but the same rule applies that each side is entitled to an equal number of peremptory challenges. See Fla.R.Civ.P. 1.431(g).



There is not a cap on the number of cause challenges but the basis for the cause challenge MUST be stated with specificity and determined by the judge. A challenge for cause is moving to strike a juror because that juror cannot be fair or impartial. See Fla.R.Civ.P. 1.431(c) (explaining cause challenges in civil trials); Fla.Stat. s. 913.03 (factors that allow a juror to be stricken for cause in criminal trials). “[I]f there is reasonable doubt about the juror’s ability to be fair and impartial, the juror should be dismissed for cause.” Four Wood Consulting, LLC v. Fyne, 981 So.2d 2, 4-5 (Fla. 4th DCA 2007).


Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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