Demonstrative Evidence
CHAPTER 14 DEMONSTRATIVE EVIDENCE ERVIN A. GONZALEZ12 SYNOPSIS § 14.1. INTRODUCTION A. Importance Of Demonstrative Evidence B. Nature And Definition C. Demonstrative Aids § 14.2. ADMISSIBILITY A. In General B. The Court’s Discretion C. Pretrial Procedures D. Laying Foundation § 14.3. TYPES A. In General B. Charts C. Models D….
Succeeding with Millennial Jurors Requires Understanding of Their Generational Traits
Trial attorneys have traditionally relied on juror demographic tendency studies and statistics, and volumes of research and articles have been devoted to the considerations for attorneys to bear in mind in presenting cases to members of the Silent and Baby Boom generations as well as Generation X. Members of Generation…
Redlined Federal Rules of Civil Procedure 2015 Amendents
Redlined Federal Rules of Civil Procedure 2015 Amendents
No Ideas But in Things: A Practitioner’s Look at Demonstrative Evidence
The power of visual stimulation in forming a persuasive argument cannot be understated. Poet Williams Carlos Williams famously wrote, “no ideas but in things….” In writing that line, it can be argued that Dr. Williams was simplifying a universal truth that carries over to modern-day courtrooms: The art of conveying…
DEPOSITION FORM OBJECTIONS
DEPOSITION FORM OBJECTIONS Many times a lawyer in a deposition objects to the form of a question in order to preserve the objection for trial in case the deposition is read or shown to the jury. The phrase object to form or simply form is often used to raise any…
Voir Dire
PREPARING AND CONDUCTING VOIR DIRE This article focuses on the purpose, practice, and procedure of jury “voir dire.” Voir dire is the process of questioning potential jurors during jury selection. F1a.R.Civ.P. 1.431(b). THE PURPOSE OF VOIR DIRE The purpose of voir dire is to select an unbiased jury by attempting…
Trial Organization
One of the most important goals a trial attorney should have is the presentation of his or her case in a clear and orderly manner so that it may be easily understood by the jury. A trial attorney should strive to appear organized, in control, well prepared and familiar with…
Trial By Ambush
It’s about 4:30 p.m. on a Friday afternoon in the middle of your trial when an opposing counsel informs you that he has just “found” a witness in your case that he intends to call to testify against you. Of course, this is the first time that you have ever…
Taking It On The Chin
At a recent gathering of graduates of the University of Miami School of Law, I spoke with Barry Wax, an excellent criminal defense attorney. I had not seen Barry in a long time and was very interested in what he had been doing for the last 14 years. During the…
Sick Buildings and Property
Sick Buildings and Sick Property: Who is to Blame? What Are the Remedies? The “Sick” Building Designers of office buildings in the 1970’s, seeking lower energy costs, began to design structures that were completely sealed against the outside environment. Windows were merely ornamental and did not open to permit circulation…
Settlement Brochure, Ethics of
The Ethics of Settlement Brochure Recently trial attorneys representing Plaintiffs in personal injury cases have been using settlement brochures in an attempt to settle their cases. Settlement brochures are highly effective and clearly set out the entire matters under consideration for the opposing side to review and evaluate. The use…
Rule 1.070(J), Application of
Application of Rule 1.070(J) Trial Attorneys beware, the Florida Supreme Court in the case of Leslie Pearlstein, M.D. v. William King, 18 F.L.W. S.8 (Fla. Dec. 24, 1992), recently held that the 120 day limit for serving defendants after the initial pleading has been filed applies to complaints filed before…
Punitive Damages, Florida
The Current Status of Punitive Damages in Florida The Florida Supreme Court, in the case of W.R. Grace & Co.-Conn v. Waters, 638 So.2d 502 (Fla. 1994), held that successive lawsuits awarding punitive damage awards against a single defendant for the same course of conduct were appropriate. The Court restated…
Psychological Injury, Claims For
Claims for Psychological Injury Every trial attorney knows that a plaintiff in an impact related personal injury lawsuit is entitled to recover psychological or mental injury for pain and suffering as a result of a physical injury caused by a tort feasor. What is sometimes confusing is determining whether a…
Prior Evidence & Subsequent Accidents
When litigating a products liability case, it is important to determine whether any prior or subsequent accidents involving the same product have occurred. Such information is crucial to a plaintiff’s attorney because it assists the jury in deciding whether the product is dangerous or whether the manufacturer, retailer or seller…
Premptory Challenges, Number of
Number of Peremptory Challenges The recent amendment to Florida Rule of Civil Procedure 1.431(g)(2), did not affect the number, method, or process involved in raising peremptory challenges directed to the main jury panel. The number of strikes, the methods used, and the process remain the same. Each party is still…
Pleading and Pre-trial Motion Practice
Motion practice is an important aspect of every case since it sets the tone of what opposing counsel and the court may expect of you. It is extremely important to appear prepared, controlled, organized, efficient, effective, serious and as a winner to opposing counsel and the judge. In order to…
Photographs
A trial attorney holding a photograph in his hand and approaching a witness with it will undoubtedly catch the attention of the jury, opposing counsel and the judge. All present will tend to lean forward as the lawyer shows the photograph to the witness. Photographs tend to be extremely powerful…
Personal Beliefs During Closing Argument
Personal Beliefs Should Not Be Assessed During Closing Argument When presenting closing argument to the jury, you should never assert your personal belief about the facts in the case or about anyone’s credibility at trial. A trial lawyer who states what she thinks about the case or about the witnesses’…
Opening Statement
A good opening statement paves the way to success at trial. It represents the attorney’s first opportunity to persuade the jury in the client’s favor. A trial attorney should develop the entire case during the opening and show that the evidence will prove that his or her client should win…
Offer of Judgment & Settlement Statute
In the case of Leapai v. Milton, 17 F.L.W. S61 (Fla. 1992), the Supreme Court held that all of the offer of judgment/settlement statutes are constitutional and valid. The Supreme Court found that Fla.Stat. §§45.061 and 768.79 were not inconsistent with the rule making authority of the Florida Supreme Court….
Offers Of Judgment & Settlement, Florida
In the case of Leapai v. Milton, 17 F.L.W. S61 (Fla. 1992), the Supreme Court held that all of the offer of judgment/settlement statutes are constitutional and valid. The Supreme Court found that Fla.Stat. §§45.061 and 768.79 were not inconsistent with the rule making authority of the Florida Supreme Court….
Offers of Judgment
In the case of Leapai v. Milton, 17 F.L.W. S61 (Fla. 1992), the Supreme Court held that all of the offer of judgment/settlement statutes are constitutional and valid. The Supreme Court found that Fla.Stat. §§45.061 and 768.79 were not inconsistent with the rule making authority of the Florida Supreme Court….
Motor Vehicle Accident Priviledge
Florida law considers communications between police officers and parties involved in motor vehicle accidents to be privileged. The reasoning behind this privilege is to promote honesty in reporting the facts involved in an automobile crash case to the police. The Privilege Pursuant to Fla. Stat. §316.066(4), accident reports are not…
Motions In Limine
A motion in limine is an excellent tool that a trial attorney should use to eliminate improper matters from being mentioned or introduced during a jury trial. The motion in limine may be considered to exclude improper evidence or arguments. This motion is under-utilized and should be incorporated as an…
Misjoinder, Remedy For
For purposes of judicial economy and efficiency, a trial lawyer may seek to collectively file a lawsuit involving several plaintiffs against the same defendant or defendants. This should be done only if there is commonality among the issues, the damages, and the plaintiffs. If the theories in the claims are…
Jury Selection, Modern Philosophy
The purpose of this article is to discuss the modern jury selection methodology and philosophy used by trial lawyers and recommended by jury psychologists throughout the country. The days of asking the prospective jury panel several limited, leading questions about their ability to follow the law and to be fair…
Joinder of Plaintiffs
Trial attorneys should consider joining Plaintiffs in the same lawsuit if the action arose out of the same core of operative facts and if the plaintiffs’ interests do not conflict. Rule, 1.210, Fla.R.Civ.P. allows any and all persons having a unified interest in a matter to join in a lawsuit…
Impeachment of a Witness
One of the most effective ways of impeaching a witness at trial is through the use of depositions and inconsistent statements. Unfortunately, many trial attorneys do not know how to properly impeach using depositions and inconsistent statements. This results in embarrassing situations for those attorneys. The purpose of this article…
Hearsay Exception, Former Testimony
FLORIDA STATUTE SECTION 90.803 FORMER TESTIMONY HEARSAY EXCEPTION Take notice, the former testimony exception to the hearsay rule, Florida Statute Section 90.803 (22), has been changed. This change comes in the form of a legislative amendment which now allows prior sworn testimony to be introduced even if the party that…
Golden Rule, The
During closing argument, the attorney for the plaintiff may not ask the jury to place themselves in the place of the plaintiff when deciding how much the plaintiff should be awarded as compensation for the legal wrong in question. If this occurs, the defendant’s attorney needs to immediately object and…
Forum Non Conveniens
The Florida Supreme Court recently changed Florida law on forum non conveniens in its unanimous decision in Kinney System, Inc. v. Continental Insurance Co., 21 F.L.W. S43 (Fla. 1996). The Kinney decision overturned the longstanding landmark case of Houston v. Caldwell, 359 So.2d 858 (Fla. 1978), which held that the…
Fed. Rules of Civil Procedure, Changes
Changes In The Federal Rules of Civil Procedure The Federal and Florida Rules of Civil Procedure have been changed in many significant ways. The revisions are important and should be noted. The purpose of this article is to summarize the amendments and revisions so that the trial practitioner may become…
Exculpatory Clauses Signed By Minors
Exculpatory Clauses Signed by Minors are Voidable Florida law is clear that a contract with a minor is voidable. Orange Motors of Miami, Inc. v. Miami National Bank, 227 So.2d 717 (Fla. 3d DCA 1969); Liberty Mutual Ins. Co. v. Conley, 152 So.2d 521 (Fla. 1st DCA 1963); Mossler Acceptance…
Exculpatory Changes In Written Agreement
Exculpatory clauses in written agreements are alive and well in Florida. Nevertheless, they are not favored by the courts and are only effective if they plainly and clearly state that the defendant is released from liability for its negligence. O’Connell v. Walt Disney World Co., 413 So.2d at 446. To…
Errata Sheets-Changing Testimony
Changing Substantive Testimony in Deposition Errata Sheets As trial lawyers we have all heard or have even said to the witness at the conclusion of a deposition that she has the right to read the deposition transcript to make sure that her testimony was accurately transcribed by the court reporter….
Ensuring Client & Witness Attendance For Trial
Ensuring Client and Witness Attendance For Trial Often overlooked in preparing a case for trial is the critical step of ensuring that you have your client and all of your witnesses in attendance to testify at trial. If you do not take steps to ensure their attendance, most witnesses will…
Documents, Ancient
Ancient Documents Contrary to the title of this article, ancient documents as referred to in the Florida and Federal Evidence Codes are not limited to archeological findings or hieroglyphics. Under the codes, ancient documents encompass, but are not limited to, the following documents which are over 20 years old: letters,…
Discovery of Expert Witness’
Discovery of Expert Witnesses Has Been Severly Restricted One of the most effective and damaging methods of cross examination used against an expert witness has now been severely curtailed by the Florida Supreme Court in the case of Elkins v. Syken, 21 F.L.W. S159 (Fla. 1996). Trial attorneys are no…
Direct Examination
A successful direct examination can be accomplished by controlling the witness without hampering her ability to testify freely, truthfully, and honestly. This balance can only be reached by thoroughly preparing for the questioning. This article offers some helpful suggestions on preparing and presenting a successful direct examination. I. Preparing for…
Deposition, Preparing Clients For
Preparing Clients For Deposition Lawyers should take the time to properly prepare their clients for depositions. Too many times attorneys treat their clients’ depositions as informal matters and do little to assist their clients in preparing. These depositions will be conducted by your opponent to hurt your case. They will…
Demonstrative Evidence
Since the days of “show & tell,” “demonstrative type evidence” has been a very important teaching tool. Learning through seeing and hearing things is much easier and more fun. Most jury psychologists, including Amy Singer, believe that people learn much more through seeing and hearing rather than from hearing alone….
Decision To Consolidate Your Case
This article addresses the pros and cons, procedures and methods of consolidating cases. Florida Rule of Civil Procedure 1.270(a) provides that a court may order a joint hearing or trial of any and all matters at issue in actions involving common questions of law or fact, including ordering consolidation of…
Death of the Doctorine of Joint & Several Liability
The long-standing tort doctrine of Joint and Several Liability was completely repealed this legislative session. Now the law will hold Defendants in a tort case responsible only for the percentage of the damages that each caused the Plaintiff to sustain. In its pure state, the Doctrine of Joint and Several…
Cross Examination of the Expert Witness
In trial there may be nothing more challenging and dangerous than cross examining an expert witness. The lawyer about to cross examine an expert witness needs to be very careful and very well prepared prior to cross examining the expert. One of the problems that the trial practitioner encounters in…
Consortium Claims, Children
Before the enactment of Florida Statute §768.0415 in 1988, a child could not recover for the loss of parental consortium even if the child’s parent had been severely injured through the fault of another. This led to situations where children with parents who suffered catastrophic injuries were unable to attain…
Comparative Negligence of Children
When a trial practitioner is representing a plaintiff that is a minor child in a personal injury case, the issue as to whether the minor was comparatively negligent usually arises. The purpose of this article is to discuss the status of Florida law regarding the comparative negligence of children. Pursuant…
Communicating With Your Client
To be a successful trial attorney you need to know more than the law, courtroom rules and procedures. A successful trial attorney in this day and age must know how to communicate with his or her clients. By communication, I do not mean the ability to use legalease or an…
Collateral Source Rules
One of the major new laws affecting trial attorneys to come out of the 1993 Legislative Session was a significant amendment to the collateral source rules. The changes, which apply to all actions accruing after October 1, 1993, greatly standardized collateral source limitations in Florida by eliminating the Automobile Collateral…
Closing Argument
The closing argument is one of the most important parts of a trial. The entire trial leads up to the summation. The argument is especially significant if the outcome of the trial is too close to predict. At that point, all that matters is the attorney’s last minute attempt to…
Breast Implant Litigation
Top officials of a major manufacturer of breast implants have recently confessed to knowing of the medical dangers related to breast implants for many years, yet, no warnings were ever provided. Breast implants have caused thousands of women to suffer serious physical injuries. As a result, hundreds of lawsuits have…
Bad Faith, First Party Actions For
An insurer has a duty to exercise good faith in evaluating and examining the validity of claims against its insured. Florida Courts have long recognized a claim for violation of that duty to exercise good faith. The actions have traditionally been called “Bad Faith Lawsuits” filed against insurance companies. Prior…
Autopsies In Wrongful Death Cases
A trial lawyer representing a client in a wrongful death case involving a dangerous, hazardous or toxic substance encountered by the decedent during his employment, has the right to have the County Medical Examiner perform an autopsy of the deceased. See Fla. Stat. 406.11. This may be very helpful, because…
Amended Complaint: Punitive Damages
AMENDING YOUR COMPLAINT TO INCLUDE A PUNITIVE DAMAGE CLAIMS Before bringing a punitive damages claim, seek sufficient facts through discovery to support a motion to amend your complaint to add a claim for punitive damages. Pursuant to Florida law, you are not permitted to assert a punitive damages claim in…
Airplane Accidents, International
No Compensation Caps for Plane-crash Victims The Herald reports that the world-wide airline industry has recommended revisions to the compensation system for injuries and deaths resulting from international airplane accidents. The Warsaw Convention of 1929 limits damages to $75,000 per person unless “intentional or reckless” conduct on the airlines’ part…