Law School Outline- Florida Civil Practice Outline by BrittanyGibbons

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									Florida Civil Practice FINAL EXAM OUTLINE- Spring 2007 - Terry Lewis

•Action - Judicial proceeding for determination of claim by one party against another –
R 1.040 Rule 1.040: One Form of Action (The Merger Doctrine = Merger of Equity & At Law suits into one civil action category) A) If we file a complaint, it can seek equitable and at law relief all in one. 1) But, the jury does not decide on all counts. The judge still decides the equitable relief, but the jury answers for the at law counts. 1. Statutory causes of action A) More and more there are causes of action created by stat. This is a new animal. The stat will specify how the suit must be brought, whether there will be a jury, and if there is a cap on damages. B) The stat preempts everything else re: procedure. 1) When asking for declaratory relief, the stats have an entire chapter on procedure. C) Are still considered at law actions, but can be mixed at law & equitable if the stat allows for declaratory/equitable relief.

•Cause of Action - right to initiate a proceeding in court to pursue a certain kind of
claim (basically, a right to bring a claim) TYPES OF CLAIMS

(Negligence, intentional tort, breach of contract)

(Injunction, rescission, specific performance)

(Civil theft, whistle blower, mortgage foreclosure, public records)

•Court Created

(Comparative negligence, loss of child’s companionship)

•Compensatory – actual losses; the damages compensate you for your actual losses •General – damages that naturally flow directly from the breach of contract

•Special – MUST specifically plead this in the complaint •Liquidated vs. Unliquidated •Liquidated: easy to calculate •Unliquidated: NOT easily quantified; trier of fact decides what the damages


Pain and suffering; loss of companionship

•Statutory – damages given as specified in statute •Punitive – damages awarded to punish the wrongdoer
Injunctions – R 1.610

•In order to get an injunction, generally must show: (1) Clear legal right, (2) inadequate
legal remedy, (3) irreparable harm.

•Temporary (with and w/out notice) •Permanent •Dissolving – hear w/in 5 days of motion •Bond
Declaratory Relief

•Chapter 86

•There MUST be an actual and present controversy •Seek declaratory relief when: Question as to right or privilege under a law or document •Examples (FHBA v City of Tallahassee, insurance coverage)
Extraordinary Writs – R 1.630

•Mandamus – ministerial duty of public officer, not discretionary, not available if other
remedies exist, procedure •Mandamus is only available when a person wants to make a public official do something

•Prohibition - to prevent the unlawful exercise of jurisdiction, not a substitute for

•Only available when a person wants to make a public official do something •Quo Warranto – right to hold office •Certiorari – departure from the essential requirements of law, not a substitute for

•Accrual – when the last act or omission occurs (element) 95.031(1) •Conditions Precedent – example – Sec 768.28 notice, employment discrimination,
civil theft

• Required waiting periods – e.g. 90 day in Medical Malpractice claims •Statute of Limitations / Laches - Ch 95 •Laches apply to Equitable claims •SOL are for legal claims •Laches and SOL are designed to prevent stale claims and resulting prejudice •Delayed discovery doctrine – knew or reasonably should have known •Tolling of Statute of Limitations – use of false name, absent from state •Statutes of repose – an outer limit regardless of reasonably should have known, e.g.,
products liability

•Joinder and Severance – arising out of the same right, alternative claims if not
mutually inconsistent. OK if just inconsistent remedies

•Splitting Claims – all damages flowing from same incident in single suit.

•Participant in an action (e.g., plaintiff, defendant, petitioner, respondent).
Real Party in Interest

•Person or entity that can enforce the judgment or provide the remedy. •Fed Rules requires it, Fla Rules permits it – but either way, the real party in interest
must be represented.

•Purpose of requiring action to be prosecuted by or on behalf of real party in interest : •protect a defendant from a subsequent similar action and to insure that any
action taken to judgment will have its proper effect as res judicata

•Representative Capacity – e.g. Guardian, Personal Representative, Trustee •Proper party - permitted BUT NOT required to join an action or defense. •Necessary party – rights will be affected by the outcome of the action. The party is
NOT essential or indispensable to the action.

•Indispensable party – absence will prevent a complete and efficient resolution of the
controversy between the other parties.

•HYPOS: •(1) Correctional officers at FSH were reclassified to institutional security
specialists; it meant a loss of certain benefits including a supplemental payment for special risks of dangerous patients. HRS argued that the Department of Administration was an indispensable party, noting that by law it is responsible for the establishment, coordination, review, and maintenance of a uniform classification plan for career service positions.

•They were found to be an indispensable party •(2) Miami police officers suffered permanent, work-related injuries. They were
granted workers' compensation benefits and disability pension benefits. The city reduced the pension benefits by the amount of workers' compensation benefits. When sued, City argued that its pension fund was an indispensable party. The city

is responsible for the payment of both workers' compensation and pension benefits regardless of the funds from which these monies are withdrawn, and the city has strenuously litigated this case on behalf of its pension fund throughout these proceedings.

•Found NOT to be an indispensable party

•(3) Were legal fathers of children indispensable parties in Department of
Revenue's actions on behalf of mothers against putative biological fathers, seeking to determine paternity and to establish child support? Each mother was married to a man other than the alleged biological father at the time of the child's birth.

•YES, they were indispensable parties •(4) An attorney alleges that he was named as a copayee on a number of checks
or drafts issued by insurance companies, that a former employee forged his signature and Bank was negligent in cashing the checks and giving the money to the employee. Bank moved to dismiss, saying co-payees on checks were indispensable parties.

•The suit is about the negligence of the bank •The Co-Payee is NOT an indispensable party
•Capacity – free from a legal disability of age or incompetence
–Infants (minor – a person under 18) and Incompetents –Corporations and partnerships –Government agencies 

Standing – a real and sufficient stake in the outcome, so as to give a right to challenge.

•Permissive Joinder – if person is a necessary or proper party •Failure to Join Parties – dismiss if it’s an indispensable party, or abate. •Misjoinder – remedy is to strike or drop the party, or sever claims
•Intervention – If you are a necessary party, the judgment will affect your rights

•E.g.: Person(I) against whom D has a purported claim seeks to intervene in
action in which P has agreed not to attempt to collect against D if D will consent to the entry of Judgment. In other words, P will only attempt to satisfy the judgment against third persons who may owe D money.

•TEST: The interest that will entitle a person to intervene MUST be of such a
direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.

•Interpleader – neutral party with something two parties want, not sure who to give it

•Survivor and Substitution – R 1.260 •90 days after notice of death •New public officer, transfer of interest
Class Actions

•A way to resolve similar claims or defenses in same action. R 1.220(a) •Numerosity – too many to join •Commonality – common issues of law or fact •Typicality – P’s claim is typical of others •Adequacy – P is able to adequately represent all Ps
Jurisdiction Subject Matter Jurisdiction •Cannot be established by waiver or consent. •A party can object to it at any time – by motion or responsive pleading. Jurisdiction of County Courts - section 34.01(c)(4) – $15K or less, LL-Ten eviction w/in $ limit. •Concurrent with Circuit for equitable matters w/in $ limit; LL-Ten eviction over $ limit; simplified DOM. •Small Claims – $5,000 or less – different rules. Jurisdiction of Circuit Courts

•Circuit Courts - Section 26. 012 - implementing Article V of Fla. Constitution – have
jurisdiction over everything else.

•Over $15,000, equity, title and boundaries, probate and guardianship, ejectment,
legality of tax assessments, appeals from County Court, extraordinary writs.

•Concurrent with other states – based on comity or uniform state laws •Concurrent jurisdiction with Federal court – e.g. civil rights claim under sec 1983. •Jurisdiction depends on the good faith allegations of the complaint – NOT the end

•Damages only – not interest, costs or attorney fees. •Note that a late fee is a penalty—it is punitive—and thus can be accounted for
when trying to get to $15k

•In Rem Jurisdiction – determine title, possession or ownership of property •Quasi in Rem (attachment, replevin, garnishment)
Personal Jurisdiction

•Power and authority over the parties. •It can be waived – by participating, seeking affirmative relief, OR not raising timely. •Service of process (Serving a copy of the complaint in prescribed manner). • If NON-resident of Fla., minimum contacts AND substantive acts within statute
(48.193) –Engage in business, commit a tort, own real estate, contract for insurance, cause injury via solicitation of sales, services or products, breach a contract, domicile for support or sex for paternity –Catchall – engage in substantial and NOT isolated activity, i.e. continuous and systematic general business contact Objections to Jurisdiction Venue

•Generally - chapter 47 •Venue is proper where: •Where Defendant resides •Where cause of action accrued

•Where property in litigation is located •Nature of the Action – determines where cause of action accrues •Residence of the Defendant – any one Defendant, but if natural defendant and corporate
must be in joint residence

•Choice of venue is Plaintiff’s •Not affected by counterclaims, cross claims or third party claims •By contract •State agencies, subdivisions – Home venue privilege •Four exceptions
• waived • joint tortfeasor • constitutional rights • public records
plead it.

•Pleading Venue – NOT necessary IF residence of D BUT otherwise yes you must •Improper Venue – by motion to dismiss or transfer •Change of Venue – impractical to get a jury or fair trial •Inconvenient Forum – convenience of the witnesses
•A trial court presented with a motion to dismiss on the basis of forum non conveniens engages a four-step analysis: (1) Does an adequate alternative forum exists which possesses jurisdiction over the whole case. (2) Consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing plaintiffs' initial forum choice.

(3) If this balance of private interests is equal or near equal, do factors of public interest

tip the balance in favor of a trial in [another] forum. (4) If the balance favors such a ··· forum, must ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice. Section 57.105 FS 1) Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; OR (b) Would not be supported by the application of then-existing law to those material facts.

•However, the losing party's attorney is not personally responsible if he or she has acted
in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney's fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest.

•(2) •3)

Paragraph (1)(b) does NOT apply IF the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success. At any time in any civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney's fees, and other loss resulting from the improper delay.


A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. The Initial Pleading

•The Complaint or Petition (Statement of Claim) •Purpose – to serve notice on the D of the claim •Form – caption, title, signed, civil cover sheet, disposition sheet

•Rules 1.100-190 •Commencement or Introductory Statement •Jurisdictional Allegations •E.g.: action for damages for more than $15k and thus in circuit court •Allegations of the Claim - Short, Plain Statement of Ultimate Facts •Ultimate facts – not evidentiary facts, but not just legal conclusions either. The
logical conclusion from the evidentiary facts, the legal effect of them.

•If you do not allege it, you cannot try it. •A separate count for each cause of action. •General Allegations common to all counts •CANNOT incorporate the substantive allegations of one count into another. •May plead in the alternative •Separate counts may be inconsistent BUT NOT within a single count. •And/or •Can seek both equitable and legal relief •Exhibits – attach or incorporate (do not do both) those upon which action is based •What if very bulky? •Not necessary to attach prerequisites like notices or claim of lien. Just allege it •Doesn’t have to be an executed copy
Pleading Special Matters (e.g. Fraud and Special Damages)

•Generally, not necessary to plead legal capacity, BUT •Must allege status of person suing in representative capacity •Mental state such as malice or intent may be alleged generally

•Statutory notice MUST be alleged BUT copy NOT required to be attached
Fraud and mistake

•As may performance or occurrence of conditions precedent

•MUST be plead with as much specificity as the circumstances will allow •For fraud, identify the misrepresentation of fact and explain how false, and material •Plead with sufficient detail to apprise defendant of what he is called upon to answer to •Special damages MUST be specifically plead – e.g., lost profits •Punitive damages – do NOT have to pled right away; you have to let the judge know
and then you have to put forth some evidence to be allowed to plead punitive damages

•Attorney fees basis (statutory or contract) should be pled •Do NOT have to plead costs •If seeking Interest by contract but not by law •Conclusion/Prayer for Relief •State what P wants; could do it at the end or after each count •Jury or Non Jury •State what you want •Signature •Verification – NOT usually required BUT in some cases concerning certain claims it is •Amendments

•Can do it without leave of court IF the other party has NOT filed a responsive

•Supplemental Pleadings •If something happens after you filed complaint then you file a supplemental
pleading Service of Process

•Bringing the Parties Within the Court’s Authority •Process refers to the document served with the complaint that gives notice to the
Defendant and informs of time and method for responding.

•Issuance and Form – by clerk, in form prescribed by rule, eg summoms Form 1.902 •Process Servers – sheriff, his designee, chief judge list. Plus trial judge may appoint
(any competent person not interested in the case) Method of Service – Ch 48, R 1.170

•Personal Service – on the individual or at usual place of abode on person over 15 who
resides there and is informed of the papers.

•If NON-resident, same procedure – with server authorized in that state. •If person refuses to accept? •Substitute Service

•Strictly construed. •Serve the agent as per law. Example: nonresident auto owner (Sec of State) •Serve Defendant by mail, certified or registered. •File return receipt and affidavit of compliance

•Constructive Service

•Publication or posting •Only available in certain actions, eg lien, real property, adoption, dissolution of

•Diligent search and inquiry •Strictly construed •Affidavit of basis •Service By Mail – formalizes agreement, saves money - R 1.070(i) – does NOT waive
objection to jurisdiction.

•Time for Service – 120 days – can be extended by court •Objections – by motion. Waived if not raised timely (at time of response)
Court Papers Generally R 1.100

•Pleadings, Motions, Orders, Judgments and other Court Papers •Caption – file number, name of court, name of the first party on each side •Title - designation of party filing and the nature of the filing •Uniform size •Pleadings – complaint/petition, answer (not response), counterclaim, cross claim, third
party complaint, reply to affirmative defense

•Motions – a request for judicial action, in writing unless made in open court. •Orders and Judgments •Other Court Papers – Notice of hearing, Case Management Report, Response to Order
to Show Cause Filing and service of court papers

•R 1.080

•Different than service of process •File either before or immediately after service

•Must serve all parties •If party has a lawyer, serve the lawyer •Serve by mail or hand delivery: •Handing it to attorney •Leaving at office with a person in charge or in a conspicuous place •At usual abode if office closed, with a family member over 15 •By fax – BUT must follow up with mail •Judge serves orders and judgments
addressed envelopes Computation of time – 1.190

•Can require attorneys to provide proposed orders and stamped and

•Begins to run the day after the event from which time is measured •Ends on the last day that is NOT a Saturday, Sunday or holiday •If less than seven days to do it, Saturday, Sunday and holidays do NOT count in

•If service by mail, add five days (if time is measured from time of service)

•Can extend if requested before period ends – unless jurisdictional •Notice of hearing – reasonable time – depends on the circumstances •Most time requirements or limitations can be waived – but not jurisdictional
Sham Pleadings

•Palpably or inherently false and must have been known to be false •Supported by affidavit •No response required •Requires a hearing

•Grant only if NO material facts are in dispute AND pleading NOT supported by the

•Resolve all doubt in favor of the pleader
Defensive Pleadings and Motions •Framing the Issues, R 1.140 –If you do not plead it, you cannot try it.

•Time to Respond – 20 days of service, either by Answer or Motion •Waiver of defenses, default
Defenses that can be raised by motion  Lack of subject matter jurisdiction     Lack of personal jurisdiction Improper venue Insufficiency of process Insufficiency of service of process

•Failure to state a cause of action •Failure to join and indispensable party •Others (statute of limitations, sovereign immunity) if clear on face of the complaint •Motion to dismiss – state grounds with particularity and the relief requested •Motion for more definite statement – if allegations are vague and ambiguous •Motion to strike – If contains improper material (eg attorney fees with no basis,
irrelevant, scandalous allegations )

•The Answer – R 1.110 - deny by paragraph. May admit part of paragraph and deny the

•Affirmative Defenses – even if allegations in complaint are true, bar to recovery

•statute of limitations •estoppel •sovereign immunity •comparative negligence? •Counterclaim – R 1.170 - see complaint

•Compulsory and Permissive •Compulsory means that the claim arises out of same transaction of •Permissive means that you have a claim against P but it has nothing to
do with events, transactions, occurrences that form the basis of the complaint

•Cross Claim – R1.170 - One defendant sues another defendant (usually but could be a

•E.g.: Construction Contractor sues a Subcontractor in a breach of contract

•Cross Claims can be Compulsory or Permissive •Third Party Claim – R 1.180 - must include a claim for indemnity, contribution or
subrogation, then can have others if arise out of the subject matter of complaint. In essence, D says someone else is responsible for D’s liability to P. Defaults – R 1.500

•When the other side fails to respond •Purpose – avoid time and expense if claim not to be defended •By Clerk •By Court – file a motion of default. Must serve a copy of the motion on the other party
BUT do NOT have to give notice of the hearing when the hearing is set Relief from Default Can get relief from default IF 3 elements are met:

•(1) Excusable neglect

•(2) Meritorious defense; AND •(3) Due diligence

•Assignment – chief judge every year assigns judges to particular departments (e.g. civil
or criminal)

•Substitution •Disqualification and recusal

–Grounds – reasonably believe you CANNOT get a fair hearing –Must be in writing –Sworn to by party –Certified by attorney that made in good faith –Must be made within 10 days of discovery of grounds –Granted or denied on basis of whether legally sufficient on its face –CANNOT question the truth of the allegations (but next judge can on subsequent motion


•To simplify issues, eliminate surprise, encourage settlement, avoid costly litigation, and
achieve a balanced search for truth to ensure fair trial.

•To prevent use of surprise, trickery, bluff and legal gymnastics. •Not to provide a way to annoy and harass opposing party, to make litigation time
consuming and costly, in order to coerce a favorable settlement. Forms of discovery

•Requests for Admission – usually must happen within 30 days (CHECK RULE) •Interrogatories •Request for Production •Depositions •Production from Nonparties •Medical and Psychological Examinations •Entry and Inspection

•Reasonably calculated to lead to discovery of admissible evidence. •The information itself need not be admissible. •Discovery should not be used to harass or embarrass party or witness. •Balance against excessive expense or unduly burdensome and oppressive. •Standard on review is abuse of discretion.

But the discretion must be exercised within permissible scope of discovery as set forth in R.Civ.P.

•Can’t rely on unsworn statement of attorney as to relevancy (if not obvious from

•If claim undue burden, must be supported by record evidence (such as an affidavit)
detailing the basis.

•Can’t compel information equally available to both sides. •Interrogatories that require considerable research are objectionable (though some effort

• Generally:

Parties may obtain discovery on any matter, not privileged, that is relevant to the subject matter of the pending action. Florida Rules of Civil Procedure 1.280(b)(1).

•Burden is on the person claiming privilege. •Must produce a privilege log sufficient to evaluate the claim. •MUST file within time frame for response (30 days) but the case law is NOT

•Can be a waiver if no privilege log, but not necessarily.

Discretion of court.

•Failure to produce it when discovery due is not automatically a waiver. •But need to get it done before the hearing.

•Waiver if voluntarily disclose.
•Inadvertent disclosure. To determine if there is a waiver, MUST consider: •Reasonableness of precautions taken to prevent disclosure. •Number of disclosures. •Extent of disclosure. •Any delay and measures taken to rectify. •Overriding interests of justice in relieving party of error.
Trade Secret

•Trade Secret:

―[A] formula, pattern, compilation, program, devise, method, technique or process‖ that derives actual or potential independent economic value ―from not being generally known to, and not be readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use‖ when it is the subject of reasonable efforts under the circumstances to maintain its secrecy.‖ Section 668.002(4), Florida Statutes. Basically, Secret or confidential information that is commercially valuable.

•Initial burden is on the party claiming trade secret and harm if disclosed. •It’s a balancing test : protecting the trade secret against showing from party seeking
production reasonable necessity for the requested information.

•Will almost always require an in camera review. •As a practical matter, will probably need to have parties present to explain as to
particular documents or information.

•If court orders production or disclosure, must set out findings. •Confidentiality agreements to defer decision on privilege.

• Work Product - Factual information:

•Prepared or gathered in anticipation of litigation •Discoverable, but only if party can show a need for the materials in preparation of case
and is unable without undue hardship to obtain the substantial equivalent by other means.

•The litigation need not be pending or threatened, just possible. •Doesn’t apply if prepared pursuant to a duty unrelated to litigation. •Doesn’t apply if reasonably expect to use at trial. •Failure to assert it at earliest opportunity in response to discovery request is not a
waiver as long as claim is made before actual disclosure.

•Judge should conduct an in camera inspection if it is asserted. •Heavy burden on party seeking it.
burden. Need particularized showing of need and undue

• Evidence must show material is critical to case with specific explanations and reasons. •Unsworn statements not enough.

•You get your own statements, though, regardless of need. Identity of witnesses not
protected, but witness’ statements are.

•Pre-suit materials in medical mal case protected. •Insurance claims files generally protected.

Section 766.106(5), Florida Statutes;

•But not necessarily in a bad faith claim by insured.
2 types of Work Product

•Work Product - Opinion: •Mental impressions of attorney (personal views as to how and when to present
evidence, evaluation of its relative importance, knowledge of which witnesses will give what testimony, proposed arguments, legal citations, personal notes and records about witnesses and jurors)

•Absolutely privileged.

Florida Rules of Civil Procedure, 1.280(b)(3).

•Can you ask them what specific facts support their allegations and what
evidence relied on for those facts?

•Prof.: This is an unresolved question

•Can you ask them to Identify witnesses and exhibits intended to be used at trial? •YES •Privilege log required, as with other privileges.
Electronic Discovery – GUEST SPEAKER

ADD depos, interogatoris, request for producton/insoect land Expert Discovery R1.280(b)(4)

•Interrogatories to ID experts, disclose subject matter and substance of testimony, and
basis for opinion

•Depose any such person identified concerning opinions and other pertinent information,
e.g. other cases

•Can’t get financial records •Pay reasonable fee

•Number of Times Expert has Testified for Party or Attorney? •Percentage of Income From ―Being an Expert‖. You can ask expert this; it
could show expert’s bias or motive

•Amount Paid to the Expert? •Frequency of an expert’s testimony and the corresponding payments to the
expert is discoverable from the defendant insurer in a personal injury action. Allstate v. Boecher, 733 So. 2d 933 (Fla. 1999). Request for CME Examination (Compulsory Medical Examination) Rule 1.360


How do you get a CMA? o If physical or mental condition is in controversy o Request shall specify a reasonable time, place, manner, conditions and scope of the examination. o The time, place and circumstances of a CME are within the sound discretion of the Court. McKenny v. Airport Rent-A-Car, Inc., 686 So.2d 771 (Fla. 4th DCA 1997).

Determining time and Place Court should take into account: 1. the availability of willing and qualified examiners 2. the convenience of the parties.  If Plaintiff has to travel…it is appropriate to shift the cost of the travel to the requesting party.

HYPOTHETICAL Here is a List of plaintiff’s demands:

•Allowing videotape of examination. OK •Allowing the presence of a videographer, lawyer or court reporter is reasonable.
Byrd v. Southern Prestressed Concrete, 928 So.2d 455 (Fla. 1st DCA 2006); Broyles v. Reilly, 695 So.2d 832 (Fla. 2d DCA 1997).

•Allowing a court reporter to be present. OK •Allowing plaintiff attorney to be present. OK •Allowing expert witness to be present. NO •Allowing the Plaintiff’s expert is NOT permissible.
So.2d 563 (Fla. 1st DCA 2006).

Stephens v. State, 932

•Requiring the defendant to provide records from treating physicians. •Requiring records to be provided in advance may be too much but it is up to

•Defendant has requested a urine sample as part of the exam. OK •Allowing the urine sample is reasonable. Depfer v. Walker, 169 So.2d 660 (Fla.

•In Walker, The Supreme Court allowed any test deemed necessary to
ascertain physical condition of the party examined including blood test, xray, urine.  Query: is the videotape taken by the Plaintiff of a CME examination discoverable? Videotape of CME is generally NOT discoverable at trial.

o Exam made with both parties’ consent at the direction of the plaintiff’s attorney, and not intended for use at trial, is attorney work product prepared in anticipation of litigation or for trial and is subject to discovery only upon the requisite showing of need and undue hardship. McGarrah v Bayfront Medical Center, 889 So.2d 923 (Fla. 2d DCA 2004). Procedure for Resolving Discovery Disputes

•Protective Order •Motion to Compel •Sanctions

Rule 1.380(d) - Failure of party to attend deposition, serve answers to interrogatories or respond to request for inspection.

•Applies where there is a complete failure to respond: •Sanctions:
–Certain facts deemed established. –Not allowing designated matters in evidence. –Striking pleadings or parts thereof. –Stay of proceedings until order is obeyed. –Dismissal of case or any part thereof. –Default judgment. –Expenses and attorneys fees.

Rule 1.380(a) - Failure to make discovery

•Applies to failure to :

one or more questions propounded at a deposition.

–designate corporate

representative most knowledgeable as to issues designated by discovery proponent.

one or more specific interrogatories.


to one or more specific requests for production, either by objection or inadequate response.

to a request for examination of a person under Rule 1.360(a), or to object thereto. Rule 1.380(b) - Remedies for failure to comply with an order compelling discovery

•Permissible sanctions:

–Certain facts taken as established.

–Prevent disobedient party from supporting or opposing claim of defense. –Striking pleadings or parts thereof; dismissal; rendering default judgment; stay of proceedings –Treat failure to obey as contempt (except failure of parties to submit to physical/mental exam). –Expenses and attorney’s fees. Options as to Non Parties:

Unlike Subdivision (a), NO attorney fees against counsel. Non party witnesses or records custodian - contempt is the only sanction available.
Rule 1.310(d)

•The Court may stop or limit scope and/or manner of deposition if it appears conducted
in bad faith, unreasonably annoying, embarrassing or oppressive of deponent or party. Rule 1.280 - Protective Orders. –Rule 1.280(c). In general, the Court may protect a party or person from annoyance, embarrassment, oppression or undue burden or expense by ordering that: •the discovery not be had. •discovery only on specified terms and conditions •discovery by a method other than that selected •the scope of discovery be limited to certain matters. •discovery be conducted with only certain persons present. •a deposition transcript be sealed. •Certain confidential information not be disclosed or be disclosed only in a designated way. •specified documents be filed under seal. Resolving the Case Short of Trial

•Settlement •Mediation •Arbitration •Summary Trial •Summary Judgment •Dismissal - voluntary, involuntary, failure to prosecute

•R 1.700 et seq

•Most civil cases (but not extraordinary writs, contempt, bond estreatures) •Party may move to dispense with if:
•Previously mediated •Issues of law only •One specifically excluded under the rule •Other good cause

•When and by whom? •Mediator determines procedures •Settlement agreement, if reached, must be in writing •Agreement can be enforced by Court •Mediation in County Court – county court usually sends cases to mediation first

•R 1.800-820 – Voluntary (NON-binding) arbitration •Similar limitations on the types of cases as in mediation •Similar rights to object, to choose arbitrator, etc •Hearings are informal •Parties must attend •Not bound by the decision •R 1.830 – Binding Arbitration •Required by contract or by statute, or by agreement of the parties •Procedures can be defined by agreement •Decision can be appealed
Proposal For Settlement

•768.79 F.S. and R 1.442 •Purpose is to encourage settlement by shifting risk of costs and attorney fees •25% formula •Time Restrictions on Proposal for Settlement

•Earliest is 90 days after offeree becomes a party, or if on Plaintiff, 90
days after action is filed.

•No later than 45 days before trial date •Must accept within 30 days – in writing •Serve the offer but don’t file it •Must be specific as to party, amount, conditions, whether includes attorney fees, etc •Court must award unless find made in bad faith
Voluntary Dismissal

•R1.420(a) •Can be done any time up until jury deliberations, Submitted to judge in non-jury
trial, hearing on summary judgment motion

•Don’t need court approval or order – unless counterclaim is pending •Generally is without prejudice, but… •Liable for costs
Involuntary Dismissal

•R 1.420(b) •In non-jury trial in lieu of directed verdict •Failure to Prosecute •As a sanction – Factors to consider:

•Attorney’s disobedience willful rather than neglect, previous sanctions,
client involved, prejudice to other side, any reasonable justification offered, created significant judicial administration problems

Setting the Case For Trial

•R 1.440 •Case MUST be ―at issue‖ •Notice of Trial must be filed •Case Management Conference •R 1.200(a) - Schedule service of motions; Set trial date; Discovery Disclosure of
Experts; Pursue possibility of Settlement; Consider alternative dispute resolution; Schedule other conferences

•Order Setting Trial

•Pre-Trial Conference

•Trial date (or session) •Witness and Exhibits •Mediation or other ADR •Discovery Cut-off •Conference of Parties/Attorneys •Jury Instructions •Pre-trial Conference

•R 1.200(b) •Simply the issues •Amendments to pleadings •Admissions/stipulations •Limit on expert witnesses •Motions in Limine •Any other matter as in a CMC •Pre-Trial Order

How to Select A Blue Ribbon Jury

•Who’s qualified to serve? •Jurors shall be taken from the male and female person at least 18 years old who
are citizens SEE RULE

•Who’s NOT qualified to serve?

•Who can opt out?

•Cabinet officer •Clerk of Court •Judge •Party having interest in issue tried •Governor or Lt. Governor

•Full time law enforcement officer •Any expectant mother; any parent not employed full time who has custody of a
child under 6 years of age

•Who can be excused at judge’s discretion? •Practicing physician •Practicing attorney •Person infirmed from jury service •Person showing hardship, extreme inconvenience, or public necessity
Special Rules for the Deaf Under F.S. Sec. 40.013, a hearing impaired person cannot be excused from service, if he or she desires, unless the Court finds that the evidence to be presented requires “auditory discrimination” or “the timely progression of the trial will be considerably affected thereby. F.S. Sec. 90.6063 requires the appointment of an interpreter for a deaf juror. Voir Dire

•Person 70 years old or older •Person who served jury duty in last one year •Person caring for another who can’t care for his or her self

•The primary purpose of voir dire is to determine whether the juror is qualified and will
be fair and impartial, free from all bias, prejudice or interest in the cause being tried. Ritter v. Jimenez, 343 So.2d 659, 661 (Fla. 3rd DCA 1977)

•The examination of a juror on his voir dire has a two fold purpose, namely, to ascertain
whether a cause for challenge exists, and to ascertain whether it is wise and expedient to exercise the right of peremptory challenge given to parties by the law. * * * Loftin v. Wilson 67 So.2d 185, 192 (Fla.1953) May trial judge require lawyers to submit list of questions to be read by judge instead of lawyers?

•No. Rule 1.431(b) preserves right of parties to ―examine jurors orally.‖

•Trial court could conduct voir dire and limit counsel's further questioning of
prospective jurors to 20 minutes per side, in products liability action against window manufacturer by homeowner who was sexually assaulted when two intruders broke into home through window. Rule 1.431(b). Allen v. Se-Go Industries, Inc. 510 So.2d 1097 (Fla.App. 3 Dist.,1987)

•First, we conclude that the trial court committed reversible error as to the
plaintiff Jeffrey Knapp based on the circumstances of this case in (1) limiting the

voir dire of the prospective jury to a total of fifteen minutes for both plaintiffs after the court had conducted a very short voir dire consisting of only seven general questions, Knapp v. Shores 550 So.2d 1155, *1156 (Fla.App. 3 Dist.,1989) Challenges for Cause - the General Rule:

•Does reasonable doubt exist whether a juror possess the state of mind necessary to
render an impartial verdict based solely on the evidence submitted and the law announced at trial? Challenges for Cause; the Rule-- Rule 1.431

•(c) Challenge for Cause. •(1) On motion of any party the court shall examine any prospective juror …[as to]
whether that person is related to any party or to the attorney of any party … or has any interest in the action or has formed or expressed any opinion or is sensible of any bias or prejudice concerning it or is an employee of any party… another shall be called in that juror's place. Rule 1.431 Rehabilitation

•‖It is difficult, if not impossible, to understand the reasoning which leads to the
conclusion that a person stands free of bias or prejudice who having voluntarily and emphatically asserted its existence in his mind, in the next moment under skillful questioning declares his freedom from its influence. By what sort of principle is it to be determined that the last statement of the man is better and more worthy of belief than the former?‖ Johnson v. Reynolds,, 121 So. 793, 796 (1929), quoted in Martinez v. State, 795 So.2d 279, 283 (Fla. 3rd DCA 2001). Challenges for Cause; Examples it can be put aside.

•General or abstract bias about a particular class of litigation will not disqualify a juror if •Juror who will have difficulty following law on temporary pain and suffering damages
where a permanent injury is not show, should be excused for cause. Challenges for Cause; Examples

•No abuse of discretion in denying a challenge for cause of juror who expressed
sympathy for plaintiff’s injuries, but would follow the law.

•Error to deny challenge for cause of juror who opined that those who sued without
substantial injuries were ―dishonest‖, but said that she is ―a fair person.‖ Challenges for Cause; Preserving Error

•Exhaust all peremptory strikes.

•Request additional peremptory strikes. •Identify juror who would be struck with an additional peremptory. •Renew objection before jury is sworn.
Peremptory Challenges; some basics:

•3 per party. •Parties on same side with ―common interest‖, e.g. principal and agent, treated as one. •Uneven number on each side, then opposing side entitled to same number as side with
larger number of parties.

•What if there are 4 on one side and 3 on the other?
Peremptory Challenges; order

•Trial court must allow counsel to exercise their challenges singularly, alternately, and
orally so that, before counsel exercises peremptory challenge, he has before him full panel from which challenge is to be made. Ter Keurst v. Miami Elevator Co. 486 So.2d 547 (Fla.1986) Peremptory Challenges; Discriminatory Challenges.

•Cannot use peremptory challenge to discriminate against a juror because of race, gender
or ethnicity. State v. Neill, 457 So.2d 481 (Fla. 1984).

•Neill applies to civil cases.

City of Miami v. Cornett, 463 So.2d 399 (Fla. 3rd DCA

•3-Step Test for Discriminatory Challenges. –1. There must be timely, objection; objection must show challenged juror
is of distinct racial, ethnic or gender group. Court then asks proponent of strike to explain reason for strike.


Proponent of strike must assert a race-gender-ethnic neutral reason for strike. Peremptory Challenges; Discriminatory Challenges (cont.)


Court must determine if reason given is genuine and not a pretext. If so, the strike stands; otherwise not. Sample of race-gender-ethnic neutral reason for strike Backstriking. What’s the cut-off time?

•Jurors can be peremptorily challenged until they are sworn. •Swearing of jury must be postponed until all challenges have been exercised.

•Litigants have right to view whole panel in order to use challenges effectively. •Per se reversible error to prohibit challenges prior to swearing of jury. Peacher v. th
Cohn, 786 So.2d 1282 (Fla. 5 DCA 2001). Summary Judgment

•R 1.510 •Purpose ????? •Standard – no material facts in dispute, shown by affidavit or record evidence •At least 20 days notice •MUST have opportunity to be heard BUT it does not have to be oral; it can be

•Counter affidavits within 2 days of hearing •No testimony •Partial summary judgment
Motions in Limine •It is a motion to resolve issues before trial •Usually you do it ahead of time to prevent something from happening •No longer have to renew

•It may be advisable to renew an objection even though that is no longer required:

–Section 90.401(1)(b) does not prohibit the trial court from reconsidering its ruling when the issue is presented in the full context of the trial. –Renewing the objection at the time the appropriate time during the trial avoids an argument that the trial court had not made a ―definitive‖ decision to exclude the evidence.

•Trial judges might avoid making ―definitive‖ pretrial rulings on evidence
Opening Statement

•Importance – this is second in importance next to jury selection •The right to give it is implied •Purpose – to establish theme of case •Restrictions and Limitations

•CANNOT argue the case; CANNOT give personal belief about case; CANNOT
tell juror to put themselves in the shoes of the victim Techniques

•Theme •Tell a story •Address weaknesses •Be yourself and be sincere •KISS •Let the facts make the argument for you •Don’t promise what you can’t deliver

•Subpoena •Best to subpoena even if voluntary •Duces tecum if you want documents •Attendance fee and mileage •Expert witness different
Rule of Sequestration

•Exclusion of witnesses from courtroom •Prohibited from talking about testimony •Exceptions
•Party •Expert, sometimes •Investigator?



•Party asserting it has burden •Must show witness

•incapable of expressing herself so as to be understood, OR •incapable of understanding and appreciating the oath

Control By Court

•Section 90.612(1), F.S. •Facilitate discovery of truth •Avoid needless consumption of time •Protect witness from harassment and undue embarrassment •Curb emotional displays
Direct Examination

•No leading question •Exceptions for preliminary matters, child witness in discretion of judge •Be prepared •But do NOT read from a script •Prepare your witness
Cross Examination

•Discredit the testimony •Bring out favorable facts •Leading questions are preferred •Be prepared •Don’t ask if you don’t know the answer •Unless you don’t care what the answer is •Do not argue with the witness
Who May Impeach witness. Purpose of Impeachment

• Any party, including the party calling the witness, may attack the credibility of a •Attack the credibility of a witness •No purpose if witness has not given testimony prejudicial to you
Proper Impeachment

•ALLOWED •(1) the witness gives testimony that is affirmatively harmful, or

• NOT ALLOWED •A party knowingly calls a witness for the purpose of introducing the
impeachment testimony. Inconsistent Statements

•(2) the witness gives testimony that is partly favorable and partly unfavorable.

•Must be a prior statement given by the witness and not by a third party. •Must be directly contrary to the trial testimony, materially different, or it must omit a
material circumstance that would be natural to mention.

•Whether it is inconsistent is a preliminary question for the court. •May be used to impeach even if not admissible as substantive evidence.

•Bias must be relevant and is subject to the balancing test under 90.403. •May be brought up for the first time on cross •If the witness admits the bias, the impeachment is complete and no further evidence is
admissible on the point.

•If the witness denies the bias, may introduce other evidence to prove the bias.
Reputation for Truthfulness •The only character trait that can be used to attack or support the credibility of a witness is truthfulness

•Proven by evidence of the reputation of the witness in the community, not by specific
instances or opinion

•The community must be sufficiently broad •Is admissible only after the credibility of the witness has been attacked
Conviction of Certain Crimes •Proper in both civil and criminal cases.

•Felony or a misdemeanor involving of dishonesty or false statement. •An arrest or pending criminal charge is insufficient •A juvenile adjudication is not a conviction. •An order withholding adjudication is not a conviction.

•A conviction may be used for impeachment even if it is pending on appeal.

•Have you ever been convicted of a felony? •Have you ever been convicted of a crime of dishonesty or false statement? •Have you ever been convicted of a misdemeanor involving dishonesty or false
statement? (If felony at issue too.)

•How many times?
Ability to Observe or Describe Event

•Showing a defect in eyesight, memory, ability to understand or remember, and a host of
other mental and physical impairments affecting his or her ability to perceive or describe the events. Evidence of Drug Use

•Is allowed ONLY IF it would show: •(1) the witness is using drugs at the time the testimony is given. •(2) the witness is using drugs at the time of the event that is the subject of the

•(3) there is other relevant evidence to show that the use of drugs had an effect on
the witness’ ability to observe, remember, and recount. Contradiction by Other Evidence •By confronting the witness with contrary evidence on cross examination or by presenting evidence that is contrary to what the witness has said.

•May also be admissible to prove a substantive fact at issue in the case, subject to the
balancing test under 90.403.

•May not impeach on a collateral matter •An issue is collateral for the purpose of impeachment if it cannot be introduced for any
purpose other than to contradict the witness. Objections

•Must make a timely objection to the evidence.

•Generally, must include a statement of the specific legal ground for excluding the

•An objection to a question asked of a witness must be made before the witness answers
the question.

•Motion to strike, ask jurors to disregard •An objection is not waived by questioning the witness about the alleged objectionable
evidence on cross examination. Offers of Proof •When the trial court sustains an objection to evidence that is admissible, ask for an opportunity to make a formal offer of proof.

•The most common method of making an offer of proof is to present the disputed
evidence to the court while the jury has been removed.

•A formal offer of proof is not required if the substance of the excluded evidence is
apparent from the context of the questions asked of the witness.

•The trial court must allow a party to make a necessary offer of proof. It is reversible
error regardless of the merits of the argument relating to the admissibility of the evidence in question. Refreshing Memory •Proper ONLY IF witness has NO recollection of the event.

•Counsel may show the witness a document or object which the witness may then

•If it jogs the memory of the witness, the witness may then testify from his or her
refreshed memory.

•The opposing party may examine any document or object used to refresh the memory of
a witness.

•Not admissible unless there is an independent basis
Lay Opinion •A lay witness may give an opinion on the mental or physical condition of another person or the mental state of another person. For example, a lay witness may testify that another person appeared to be intoxicated or that another person appeared to be angry. •A lay witness may express an opinion on common physical characteristics or measurements such as approximate speed or distance.

•A lay witness may NOT give an opinion on causation. •A lay witness may NOT give an opinion based on hearsay.
Opinions by Experts •Subject matter will assist the jury, in understanding the evidence or in determining a fact in issue

•Witness is properly qualified to express an opinion on the subject. •Opinion may be based on inadmissible evidence but may not use an expert witness
merely as a conduit to present inadmissible evidence.

•An expert may not vouch for the credibility of another person. •An opinion that is otherwise admissible is not objectionable on the ground that it
includes the ultimate issue to be decided in the case. § 90.703. Scientific Reliability

•Florida follows the Frye test in determining whether an expert opinion based on novel
scientific evidence is admissible. The party offering the opinion must show that the methodology or principle employed by the expert has sufficient acceptance and reliability.


•An objection is ordinarily made before trial. •The court must then hold a hearing and evaluate the proffered opinion under the
Frye test.

•Both sides may present evidence on the acceptance of the underlying scientific
method or principle.

•The party offering the opinion has the burden of proving by the greater weight of
the evidence that methodology is widely accepted in the applicable scientific community.

•The trial court’s decision in a Frye hearing is reviewable de novo on appeal. •Relevancy

•Section 90.401 incorporates the concept of logical relevance (whether the
evidence tends to prove the fact it was offered to prove) with materiality (whether the fact the evidence tends to prove is a fact at issue in the case).

•Evidence is irrelevant, and therefore inadmissible, if it does not meet both parts
of this test.


•Not all relevant evidence is admissible. •Section 90.402 recognizes that there are policies in the law that may operate to
exclude evidence that is otherwise relevant.

•Balancing Test

•Whether relevant evidence should be excluded under section 90.403 is a matter
within the discretion of the trial judge. •In weighing probative value against the danger of unfair prejudice, the court should consider: –The need for the evidence. –The tendency of the evidence to suggest an improper basis for deciding the case. –The emotional impact of the evidence. –The chain of inference necessary to establish the material fact. –The effectiveness of a limiting instruction.

Hearsay •Evidence Code § 90.801 – (Definitions and Exceptions) •―Hearsay‖ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. •A ―declarant‖ is a person who makes a statement. •A ―statement‖ is: an oral or written assertion; or nonverbal conduct of a person if it is intended by the person to be an assertion. General Rule

•Except as provided by statute, hearsay evidence is inadmissible. •Many Exceptions

•This exception applies only to the statement of a party or a person who qualifies as a
representative of a party.

•The statement must be one that is offered against a party. •The statement must have a bearing on a material issue. •The statement need not be a statement against interest.

•An adoptive admission - a statement agreeing with the statement of another – is
admissible under this exception. Declaration Against Interest Distinguished •An admission is made by a party - in contrast a declaration against interest is made by a witness who is not a party. •A declaration against interest is admissible only if the declarant is unavailable – in contrast, an admission by a party opponent can be introduced in evidence regardless of availability. •A declaration against interest must be harmful in some way to the declarant – in contrast an admission may be introduced in evidence against a party even if it is not harmful to that party. Spontaneous Statements •The statement must be both spontaneous (made without reflection or analysis) and contemporaneous (made at or very near the time the witness perceived the event), and it must be a statement that describes or explains the event. •The theory of his exception is that a spontaneous expression is not likely to be a conscious misrepresentation. •It is not necessary to show that the statement was made while the declarant was in an excited state. •The trial court has discretion to exclude a spontaneous statement if it was made under circumstances that indicate a lack of trustworthiness. Excited Utterances •The exception applies only to a statement made while the declarant was under the stress of excitement caused by a startling event. •The theory of this exception is that a statement made while the delcarant is still in an excited state is not likely to be contrived. •Unlike a spontaneous statement, an excited utterance need not be made contemporaneously – the critical issue is whether the declarant is still under the stress of excitement caused by the startling event. •While there is no set time, a statement made more than several hours after the startling even is not likely to qualify as an excited utterance. •The necessary state of mind is a preliminary issue of fact for the court – the factors the court may consider include the declarant’s age, mental condition, the nature of the startling event and the subject matter of the statement. State of Mind •The statement must be a statement of the declarant’s present state of mind or physical condition. •The statement is admissible to prove the truth of the matter asserted – the declarant’s state of mind or physical condition. •The declarant’s present state of mind or physical condition must be material.

•The statement of the declarant’s then existing state of mind or physical condition is
admissible to prove the declarant’s subsequent conduct, but not the declarant’s prior conduct. Medical Diagnosis or Treatment •The exception applies only to statements made for the purpose of medical diagnosis, not to all statements made in the course of a medical examination. •The theory of this exception is that a statement made for the purpose of medical diagnosis is likely to be trustworthy. •The statement need not be made to a medical doctor. •The statement must be made by the patient or by a person who is legally responsible for a patient who is unable to communicate. Past Recollection Recorded •The contents of a writing or document may be read into evidence in place of live testimony if: –The document or memorandum was made by the witness concerning a matter about which the witness had knowledge and at a time when the matter was fresh in the memory of the witness. –The witness does not presently remember the matter. –The document correctly reflects the witness’s knowledge of the matter. •The writing or document is admissible in evidence when offered by the opposing party. Refreshing Recollection Distinguished

•The document may have been prepared by anyone. •It is used merely to refresh the memory of the witness. •Once that is done, the document has little significance. •The document is not read aloud or introduced in evidence.
Business Records •The record must be one that is regularly kept in the course of a business activity. •The record must have been made at or near the time of the event recorded. •The person making the entry in the record need not have personal knowledge of the matter recorded. •Opinions contained in business records are not admissible unless they meet the criteria for the admission of opinion testimony. § 90.803(6). •A business record may be excluded if it was made under circumstances showing a lack of trustworthiness. •The party offering the record has the burden of establishing the predicate for admitting a business record, but the opposing party has the burden of showing that it is not trustworthy.

•A business record can be introduced without the records custodian by submitting a certification or written declaration, but in that event, notice is required. § 90.803(6)(c). •The absence of an entry in a business record may be admissible to show that an event did not occur. § 90.803(7). Statement of Child Victim •The child must be under the physical, mental, emotional or developmental age of 11. •The statement must be one describing an act of child abuse or child sexual abuse. •The trial court must determine that the statement is reliable. •The statement is admissible only if the child testifies at trial or if the child is unavailable to testify at trial. •In a criminal case, the state must give the defendant notice of its intention to use a statement of a child victim. •A statement by a child victim may be inadmissible under the 90.403 balancing test if it is used merely to bolster the child’s testimony at trial. Pardo v. State, 596 So. 2d 665 (Fla. 1992). Former Testimony

•The declarant must be unavailable. •The statement must be under oath in a prior proceeding. •The statement must have been subject to cross examination in the prior proceeding. •This exception expands the use of depositions in civil cases, but not in criminal cases.
Use of Depositions

•R 1.330 •Can be an exhibit but is usually read •Deposition of adverse party can be used for any purpose, so long as subject matter is

•Non party deposition if witness is:

•Dead, greater than 100 miles, can’t come because of age, illness, infirmity or
imprisonment, unable to procure attendance by subpoena

•Authentication •Demonstrative Evidence

•Real Evidence – the object itself •Secondary Evidence – a model, map, photo, demonstration, etc. •Demonstrative Aids – for illustrative purposes but not an exhibit
Original Document Rule

•Must prove contents of document by the original •Exceptions swallow the rule – 90.953 allows duplicate unless: •Negotiable instrument •Authenticity of original is questioned •90.954(3) applies if can’t get the original by judicial process

•For Mistrial •For Directed Verdict •Directed verdict – the party carrying the BOP did NOT make a prima
facie case and thus one party should get a directed verdict

Closing Argument – NO SLIDE Jury Instructions

•Entitlement •Charge Conference •Request for Instruction •Objections •Form •Deliberations •Rendition of Verdict


Post Trial Motions

•Motion for New Trial/Rehearing – MUST be made within 10 days

•Motion to Tax Costs •Motion for Attorney fees •Motion for Relief From Judgment


•Entry •Execution •Discovery in Aid of Execution • •Relief from Judgment •Satisfaction of Judgment

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