Florida Civil Procedure Clarke Fall 2012

ACTIONS AND DAMAGES

Actions- Who has the right to sue another person? R 1.010- "These rules shall be construed to secure the just, speedy, and inexpensive determination of every action." o This is the big picture; the polestar to guide interpretation. Three questions: o What can you sue for? o What is your theory of recovery? o What's your remedy under the law?

Cause of Action Action- Judicial proceeding for determination of a claim by one party against another. o R 1.040 o "Cause of Action"- the right to bring a claim. Types of claims/causes of action 1. Legal- i.e. negligence, intentional tort, breach of contract, etc. 2. Equitable- i.e. injunction, rescission, specific performance, etc. i. Based on equity principles of unjust enrichment, quantum meruit, etc. 3. Statutory- i.e. civil theft, whistle-blower, mortgage foreclosure, public records, etc. . Statute-based causes of action. 4. Court-Created- i.e. comparative negligence, loss of child's companionship, etc. Judge-created causes of action- i.e. common law.

Remedies 1. Damageso Damages are only available for legal claims! Note: some statutory claims can give you both. o Overarching Types of Damages: Compensatory- $ given to the victim to compensate him/her. i.e. to put the victim back to where they started. Punitive- $ given to the victim with the purpose of punishing the wrongdoer. Also used to discourage society from repeat or additional offenders. o General v. Specific Damages: General- $ for damages that's directly tied to the harm. i.e. car crash = fixing the car. Special- $ for damages that's not directly tied to harm; rather it's indirect. 1

Unexpected damages that flow from the harm. i.e. car crash = paying victim for lost income, etc. Liquidated v. Unliquidated Damages: Liquidated- a pre-determined damages amount; the amount is certain- not subject to opinion. i.e. money required to be paid to the realtor if the house closing doesn't go through. Unliquidated- a damages amount that is up to be determined. i.e. damages for "pain and suffering." Statutory Damages- damages that are set out by the statute. Similar to liquidated damages; may or may not have to do with the "compensatory" amount.

2. Injunctions- R. 1.610 o Requirements for an injunction: i. Clear legal right; ii. Inadequate legal remedy- damages arent appropriate; and iii. Irreparable harm if the injunction isn't enforced. o Commonly used for domestic violence issues- i.e. restraining order- you don't want money, you want the other person to leave you alone which is your legal right. o Types: 1. Temporary- the injunction is provided for until the case goes to court. Available both with and without notice (very strict without notice) Without Notice= very hard to get. You'd have to allege/prove to the judge that to give notice to the other side would exacerbate the problem you're trying to prevent. i.e. you're trying to get a temporary restraining order, and giving the wife-beater notice would enrage him and put the wife in more danger. Bond- $ given to the court by the movant prior to it issuing a temporary injunction, to be used for the payment of costs/damages sustained by the adverse party in the event that the adverse party is wrongfully enjoined. Designed to protect the other side if the plaintiff was wrong. Used to compensate the defendant who won, NOT penalize the plaintiff who lost. The designated amount is in the discretion of the judge. i.e. you got an injunction to temporarily shut down my business and you were found wrong in court- this is what's paid by the plaintiff to the defendant to compensate him for the business being shut down during that period. 2. Permanent- the injunction is extended to the victim, even after the court has adjourned. Dissolution of the Temporary Injunction: The party that is being enjoined may move to dissolve or modify the injunction at any time. The motion should be heard within 5 days of the adverse party applying for it. 3. Declaratory Relief o Fla. Statutes Chapter 86. Purpose- If we can resolve something and avoid damages, that'd be a good idea. o Used when there is a question as to a right or privilege under a law or document. The judge will "declare" certain things if you have a dispute with someone. Usually a dispute over a document- i.e. insurance coverage FHBA v. City of Tallahassee o Requirements for Declaratory Relief: Actual and present controversy 2

4. Extraordinary Writs- R. 1.630 o Mandamus- where someone has a clear legal duty to do something and they won't do it; more common. i.e. the Secretary of State won't certify you to run for office even though you meet all of the qualifications. Mandamus = mandate. Components: There is a ministerial duty of a public officer. Not discretionary- you can't make them do something that's in their discretion. i.e. they have to be required to do something for mandamus to be applicable. There are no other remedies available. o Prohibition- directs a subordinate to STOP doing something that they may not do, according to law, but are doing anyways. Generally, these are used to prevent the unlawful exercise of jurisdiction. A superior court will issue the writ to the lower court to cease any action over the case because it doesn't fall within the inferior court's jurisdiction. Not a substitute for appeal. i.e. it's a jurisdictional issue- if the judge had ruled "wrong," you would appeal it. o Quo Warranto- right to hold office. Extremely rare o Certiorari- there is a departure from the essential requirements of law. Very serious- basically the judge applied the wrong standard. The higher court will review the decisions that an inferior court has made. Not a substitute for appeal- higher standard than for appeal.

Accrual- When Do Causes of Action Actually Occur? Accrual- When the last act or omission occurs (element). o i.e. If we're talking about a motor vehicle accident (suing for negligence), the accrual is at the time the accident occurs- when you suffer damages. o 95.031(1). o Once accrual (and conditions precedent, if required) occurs, the SOL clock begins to run. Conditions Precedent- legal requirements, in addition to an accrual and a cause of action, that are required to have occurred before you are allowed to file suit. o i.e. Sec 768.28- In order to file an X suit: there must be notice, employment discrimination, civil theft, contractual relationship, etc. Required Waiting Periods o i.e. 90 days in Medical Malpractice claims, etc.

Statute of Limitations/Laches- When is it Too Late to File Suit? Chapter 95 Laches- statute of limitations violations. o i.e. if the lawsuit is filed after the statute of limitations has expired, the court will deny the complaint for laches. o Designed to prevent stale claims and resulting prejudice. Delayed Discovery Doctrine- the cause of action doesn't accrue until P knows or reasonably should know of the tortious act (absent of discovering the damage) that gives rise to the cause of action. Tolling Statute of Limitations- the SOL is tolled (extended) because the defendant used a false name, is absent from the state, etc. 3

Statutes of Repose- an outer limit regardless of if the damage reasonably should have been known. o Even if the damage wasn't reasonably able to be known, there is still an outer SOL limit that can't be tolled. o i.e. for products liability- the statute of repose is 12 years. The SOL ends after 12 years, no matter what.

Joinder and Severance of Claims Both arise out the same right. o Alternative claims are okay, as long as the claims are not mutually inconsistent. i.e. alternative claims can't contradict each other. o Inconsistent remedies between the claims are okay. i.e. you can ask for different types of remedies. Joinder v. Severance of claims: o Joinder- trying claims (lawsuits) together- involve the same D and the same issues. o Severance- trying claims (lawsuits) separately- involve different D's and issues.

Contribution, Indemnity, and Subrogation Contribution- the right of a joint tortfeasor who has paid more than his/her fair share of the common liability to seek reimbursement from other tortfeasors. o Exception- you can't get contribution if you are an intentional tortfeasor, per 768.31. Indemnity- the right to have a person's loss or liability shifted to another person. o Indemnity can be the result of a 1) contract or 2) law based on the relationship of the parties (i.e. employment). Subrogation- the right of a person who has paid another person's loss to seek recovery of that amount from the person(s) who actually caused the loss. o Similar to contribution, but you're seeking recovery from the person who ACTUALLY caused the loss rather than from the person who ALSO caused the loss. o You step into the shoes of the claimant. o i.e. the insurance company will pay for your accident, but will seek recovery (subrogation) from the 3rd party that actually caused the accident. The insurance company is subrogating the at-fault 3rd party.

Collateral Sources Collateral Source Rule- allows, at common law, an injured party to recover the full amount of damages from the tortfeasor, irrespective of any funds recovered from independent sources. o Note: you can't mention it at trial in front of the jury. This common law rule does NOT apply in FL, though: Sec 768.76- the trial court is to reduce the total amount recovered against the tortfeasor for payments received from certain independent sources. o i.e. the damages amount WILL be reduced if the victim has received/is receiving money for the injury/damage from another source. Procedure: the court will render a verdict, and then the total amount will be reduced by the amount of money being received by the victim from 3rd parties. o The amount is pro rata (and minus prorate share of costs and attorney's fees to prosecute the claim). Collateral sources under the statute include: o Disability and medical under Social Security or a similar state program. o Health, accident, or disability insurance or similar contracts. Excluded "sources": 4

o o o

Life insurance Public medical benefits- i.e. Medicaid Provider who has a right of subrogation against the tortfeasor- i.e. money from an insurance company. Note: they're excluded even if the subrogation right isn't exercised!

PARTIES
Party

Party- the participant in an action. i.e. plaintiff, defendant, petitioner, respondent

Capacity Capacity- free from a legal "disability" of age or incompetence. o Infants ( < 18 years old) and incompetents- can't sue! o Corporations and partnerships- can sue o Government agencies- can sue

Standing Standing- the party suing must have a sufficient stake in the outcome to be able to sue. There must be more than just a slight harm. o i.e. Marlowe Jr. (Marlowe's son) doesn't have standing. Caveat- he may have standing if the termite infestation caused damage to HIS personal property. The issue is most likely to arise in declaratory judgment actions or representative capacity.

Real Party in Interest Real Party in Interest- the person or entity that can enforce the judgment OR provide the remedy. o i.e. the person that got hit by the car & the person that drove the car. The Federal Rules requires it, the Florida Rules permits it (can be represented by someone else)- but either way, the real party in interest must be represented. The purpose of requiring the action to be prosecuted by or on behalf of the real party in interest: o Protects a D from a subsequent similar action and to ensure that any action taken to judgment will have its proper effect as res judicata. o Representative capacity- i.e. Guardian, Personal Representative, Trustee, etc.

Classifications of Parties Proper Party- permitted, but not required to join an action or defense. o The party isn't required to be in the action in order for a judgment to be obtained. i.e. the Marlowes' son, if his stuff was damaged by the termites. Necessary/Indispensible Party- the party whose rights will be affected by the outcome of the action, and whose absence will prevent a complete and efficient resolution of the controversy between the other parties.

i.e. Phil and Mrs. Marlowe- both of their rights are affected based on the outcome of the lawsuit since they co-own the house.

Issues with Joinder- initiated by one of the current parties Permissive Joinder- joinder of a party to the action if the person is a necessary or proper party. Failure to Join Parties-when the necessary parties aren't represented in the case. o The remedy is to either dismiss the case if it's an indispensible/necessary party, or abate. Misjoinder-when the wrong parties (parties with no interest) ARE represented in the case. o The remedy is either to strike or drop the party, or to sever the claims of the parties- i.e. have 2 separate lawsuits.

Intervention- not initiated by one of the current parties Intervention- the procedure allowing a nonparty (i.e. the intervenor) to join ongoing litigation, either as a matter of right or by the discretion of the court, without the permission of the original litigants. o 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. Note: the person is NOT originally a necessary party, though. Example: o Person (I) against whom D has a purported claim seeks to intervene in an 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. o Person (I) will be able to intervene, without P's permission, since the judgment will have a direct and immediate outcome on him/her.

Interpleader Interpleader- a neutral stakeholder that's in the unfortunate situation of having money that 2 people claim- & you're unsure who to give the money (or whatever the item is) to. o i.e. an escrow agent in a real estate transaction. Basically, you're filing a motion to let the court deal with it so that you, as the neutral party, can get out of the mess.

Survivor and Substitution Rule 1.260 Survivor- when the party to an action changes. o Reasons- death, incompetency, transfer of interest. o The 'new' party (representing the old party or receiving the old party's interest) will carry on the lawsuit like nothing happened. Substitution- the statutory right to change the presiding court official. o i.e. Pam Bondi just became the new Attorney General, so now all lawsuits filed by the state will have her name on it, etc. They'll just substitute her name for the prior AG- there's no fundamental change in the lawsuit. The motion for substitution/survivor must be done within 90 days of the notice of death, transfer, incompetency, etc. o If not, the action will be dismissed. 6

Class Actions Class Action Lawsuit- A way to resolve similar claims or defenses in the same action. Rule 1.220(a) Requirements: o Numerosity- there's too many people to simply join each member to the action. o Commonality- there is a common issue(s) of law or fact. o Typicality- Plaintiff's claim is typical of the others. o Adequacy- Plaintiff is able to adequately represent all plaintiffs.

JURISDICTION
Subject Matter Jurisdiction

SMJ CANNOT be established by waiver or consent. o A case will be overturned on appeal if there is no SMJ- there HAS to be SMJ. A party can object to it at any time- by motion or a responsive pleading. County Courts v. Circuit Courts: o County Courts- courts of specific jurisdiction (they only have jurisdiction over certain topics). Section 34.01(c)(4) County Courts have jurisdiction over: Civil cases with damages of $15,000 or less; Landlord-tenant evictions within $15,000; and All equitable matters within the $15,000 limit. County Courts have Concurrent jurisdiction with Circuit Courts for: Equitable matters within $ limit; and Landlord-tenant evictions over the $ limit. There is a simplified DOM. Note: There are two separate divisions in County Courts: Regular County Court- see above. Small Claims Court- jurisdiction over civil cases with damages of $5,000 or less. Less, simplified rules. o Circuit Courts- courts of general jurisdiction (jurisdiction over everything not specifically covered by another court). Section 26.012- implementing Article V. Circuit Courts have jurisdiction over: Civil cases over $15,000; Equity, title and boundaries; Landlord-tenant evictions; Probate and guardianship; Legality of tax assessments; Appeals from the County Court; and Extraordinary writs. Circuit Courts can have Concurrent jurisdiction with other states- based on comity or uniform state laws. Ex: the circuit court would have concurrent jurisdiction with a federal court for a civil rights claim under Sec. 1983. Jurisdiction depends on the good faith allegations of the complaint- NOT the end result (actual award). 7

o o

If you allege that your complaint is in excess of $15,000, it'll be in Circuit Court, even if you only collect $5,000, etc. Note: you're ONLY looking at the $ amount of damages- you DON'T take into account interest, costs, or attorney's fees. However, you DO take into account late fees on a loan. Becker v. ReMax Horizons Realty, Inc. Also, even if the amount actually recoverable (per the law or contract) is less than the jurisdictional amount, the claim will still be heard in Circuit Court as long as it was made in good faith. Neumann v. Seaboard Coastline RR. If the P's claim for damages satisfies Circuit Court jurisdiction and D then files a counterclaim for damages that are less than the jurisdictional amount, the suit STAYS in Circuit Court. If P's claim for damages doesn't satisfy Circuit Court jurisdiction (< $15,000) and then D files a counterclaim for damages that are MORE than the jurisdictional amount (> $15,000), the suit CAN be moved to Circuit Court.

Personal Jurisdiction

The court has power over the person (in personam) or the property (in rem or quasi in rem). Personal jurisdiction is waiveable, unlike SMJ.

In Rem Jurisdiction In Rem Jurisdiction- the court has jurisdiction over a thing, usually real estate. o The property is the primary object of the action. o i.e. to determine title, possession or ownership of the property. Quasi in Rem- The suit involves property that is physically located in the court's jurisdiction. o The property is NOT the primary object of the action, however it's involved in the action- i.e. determining property division in a divorce proceeding. o i.e. for attachment, replevin, garnishment, etc.

In Personam Jurisdiction In Personam- the court has power and authority over the parties, themselves. Residents get in personam jurisdiction two ways: 1. Service of Process- serving a copy of the complaint in the prescribed manner. 2. Waiver/Consent- the jurisdiction is waived by participating in the action, seeking affirmative relief, or not challenging personal jurisdiction in a timely manner. i.e. you waive personal jurisdiction by participating in the case in any form or fashion- except for a "special appearance." This is the opposite of what's available for SMJ- SMJ is challengeable at any time and cannot be waived. If D is a non-resident, there must be minimum contacts to the state and substantive acts that fall within the statute for in personam jurisdiction to be available. o "Minimum Contacts"- A connection with the state sufficient so that it's reasonable for you to be on notice that you could be hailed into court there. Catchall: if you engage in substantial, and not isolated, activity in FL. i.e. a continuous and systematic business contact. Examples: if you engage in business, commit a tort, own real estate, contract for insurance, cause injury via solicitation of sales, services or products, breach of FL contract, domicile for support or sex for paternity. 8

Challenging Personal Jurisdiction: Issue- What if you don't think that you have sufficient minimum contacts to justify being hailed into a Florida court? Procedure for (Challenging) Jurisdiction: o Plaintiff uses the long-arm statute basis ('minimum contacts') for jurisdiction. o Defendant raises lack of personal jurisdiction and Plaintiff responds- both with affidavits. o If the affidavits cannot be harmonized, the Court conducts a hearing.

VENUE
Generally Venue- what court in the jurisdiction you can bring your action in; the location where the case is heard. o A person could have jurisdiction in several states/courts, but venue is where the case actually occurs- i.e. in which county/circuit court, federal district court, etc. o Jurisdiction v. Venue Jurisdiction is the AUTHORITY of the court to hear a particular case. Venue is concerned with the geographical LOCATION of the court where a lawsuit is commenced. Chapter 47 Choice of venue is generally up to the plaintiff, as long as there isn't a specific statute on point. o Venue isn't affected by counter-claims, cross-claims, or third-party claims (but those MAY be transferred). i.e. these subsidiary claims don't affect the plaintiff's right to sue in whichever venue he/she prefers! Venue can be contracted for prior to an action occurring. o It has to be mandatory, rather than permissive. i.e. "venue will be here" is okay, but "venue can be here" is not legally-binding. o The provision must not violate public policy. o If enforceable, though, it takes precedent over any discretion that P may have! Note: It doesn't matter if venue is proper if jurisdiction is on a basis OTHER than residence. Absent a specific statute on point, there are 3 general choices for venue: 1. Where a Defendant Resides Resides at TIME OF SUIT- not at the time of the action/accrual. Multiple Defendants- can be in any one D's residence, but if there's a national defendant or corporation, it must be where their residence is. If that D is dropped, you don't have to change venue if venue is filed in good faith, initially. Corporations: Corporations have multiple residences. Domestic v. Foreign Corporations' Residences: Domestic Corporations- residence is anywhere it maintains an office for the transaction of business. Foreign Corporations- residence is anywhere it has an agent or representative. 2. Where the Cause of Action Accrued It's the nature of the action that determines where the cause of action actually accrues. Examples: Negligence Injury- where the accident occurred. Contract Breach for Failure to Pay- where the creditor resides. Contract Breach for Delivery of Goods/Services- where the delivery was to be made? 9

Promissory Note Breach- where the note was signed. 3. Where the Property in Litigation is Located Local Action Rule- Venue is proper where the property is located IF the suit determines title, boundaries, or possession of property- i.e. the suit is about the property. i.e. mortgage foreclosure- venue is proper where the house is. Comparable to In Rem Jurisdiction. Contrast with a transitory action- a suit that affects property, but isn't about property. i.e. divorce affects property (house, etc.), but it isn't actually about property- so the suit wouldn't necessarily be in the venue where the property is located.

State Agencies & Subdivisions Home Venue Privilege- for a state agency, venue is proper in the county where the state, agency, or subdivision maintains its principle headquarters. o i.e. State Agencies' in FL have a RIGHT (but not the obligation) to have venue be in Leon County, in Tallahassee, FL. Exceptions: o Waiver of HVP. o Joint Tortfeasor- can be at any D's residence. o Constitutional Rights Shield- if you are being sued by a government agency to enjoin you from doing/enforcing something that is constitutional, then you have a right to be sued wherever you are/where the issue is happening. You can't use this as a sword- you have to be the one who's BEING SUED (i.e. you are the defendant). o Public Records- if the records are located somewhere else.

Pleading Venue Pleading venue is not necessary if the venue is the residence of D, but otherwise it's perhaps a good idea.

Improper Venue Improper venue can be brought to light by motion to dismiss or transfer. The D has the burden to prove improper venue. o i.e. this is not a proper venue. Helpful hint- attach an affidavit to set forth the facts of why it's improper. Theres no time requirement- the right to bring it up cannot be waived by inaction.

Change of Venue Change of Venue is appropriate when it's impractical to get: 1. An unbiased jury or fair trial; or Note: Change of Venue based on fair trial is fairly routine for criminal cases, but not for civil cases. 2. A convenient trial for the parties, witnesses, or both OR in the interests of justice. Lots of discretion for the court to decide. This is fairly common for civil cases. Time limit for change of venue-it's waived if not brought within 10 days of the action becoming 'at issue.' o See class # 10. o Caveat- Change of Venue may still be allowed if you can show good cause for the failure to file. 10

Note: if you change the venue from venue A to venue B, the party cannot later change the venue back to venue A, but he/she CAN change it to yet another venue. Change of Venue to Another State: o If D seeks to move to another state: 1. Does an adequate, alternative forum exist which possesses jurisdiction over the whole case? i.e. the cause of action must be recognized in the new state. 2. Consider all relevant factors of PRIVATE interest, weighing in the balance a strong presumption against disturbing plaintiff's 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 a different forum. 4. If the balance favors such a forum, it must be ensured that the plaintiffs can reinstate their suit in the alternative forum (state/venue) without undue inconvenience or prejudice.

THE INITIAL PLEADING (THE COMPLAINT)

Basics The Complaint or Petition- i.e. the Statement of the Claim. Purpose- to serve notice of the claim on the D. o The formal way of telling them why you think they owe you something because of something that they did. Form- caption, title, signed, civil cover sheet, disposition sheet. Rules 1.100-.190

Components of the Complaint 1. Commencement or Introductory Statement. 2. Jurisdictional Allegations- state what gives you jurisdiction in that court. o Remember, venue is not required to be plead, but it's probably a good idea to do it if it's on a basis other than residence. 3. Allegations of the Claim- "short, plain statement of ultimate facts." o The claims that entitle you to the relief you seek. o Ultimate Facts- the logical conclusion that flows from the evidentiary facts; the legal effect of the evidentiary facts. It's essentially a combination of evidentiary facts and legal conclusions. Plead so that the judge can look at it and say- if you prove this allegation, you're entitled to the remedy that you're seeking. o Illustration: To allege that A murdered B is to allege a conclusion. To allege that at a certain time and place A hated B and lay in wait for B and aimed and fired a pistol at B and that the bullet fired from A's pistol struck B and caused B to die, is to allege evidence. To allege that A killed B deliberately and intentionally without legal justification or excuse, is to allege ultimate facts. 4. Conclusion/Prayer for Relief. 5. Jury/Non-Jury Request. 6. Signature. 7. Verification.

The Allegation of the Claim If you don't allege a claim/cause of action in your complaint, you CANNOT later bring it up in court. 11

You have to allege a separate 'count' for each cause of action. o Different/Separate 'counts' are allowed to be inconsistent. o However, the complaint can't be inconsistent within a single count, itself. If you sue for breach of contract and you allege X, Y, and Z and the attached affidavit (exhibit) works to prove F, G, and H- there's inconsistency within the complaint itself. Subject to a motion to dismiss. General Allegations are common to all counts. o However, you can't incorporate the substantive allegations of one count into another. They must be separate; see above. Remedies: o You are allowed to plead in the alternative- I want a remedy of either X or Y. o You can seek both equitable and legal relief. Exhibits- attached or incorporated documents that predicate upon which an action is based. o Note: don't do both! o What if the exhibit is very bulky? You can just make reference to the document if approved by all parties. o It's NOT necessary to attach prerequisites to a lawsuit (i.e. notices or claims of lien); just allege it! o The exhibited document doesn't have to be an executed copy. i.e. it doesn't have to be a legally-executed contract, just a copy of it.

Pleading Generally v. Pleading Special Matters Generally, it's NOT necessary to plead legal capacity to sue. o Caveat- you MUST specifically allege the status of the person suing in a Representative Capacity- i.e. Guardian, Trustee, etc. Pleading Generally- simply stating the issue suffices; no further explanation is needed. o What can be alleged GENERALLY: Mental state, such as malice or intent; Performance; Occurrence of Conditions Precedent; and Statutory notice; Note: a copy isn't required to be filed; it only needs to be generally alleged. Pleading Special Matters- the issue must be plead with as much specificity as the circumstances will allow. o Plead with sufficient detail to apprise the defendant of what he is called upon to answer. o REQUIRED to be SPECIFICALLY plead: Fraud/Mistake; i.e. Identify the misrepresentation of fact and explain how it's false and material. Special damages (i.e. lost profits); Punitive damages; Attorneys fees, but NOT costs; and Interest by contract (i.e. loan), but not by law.

A Note on Simplicity, Precision, Conciseness, and Clarity Generally- the ability to communicate effectively is a very important skill that should be developed and honed. o In a written document you have more time to get it right- so get it right! There are differing views (from judges) on how strict they're going to be, but it's best to play it safe. o So you may not get your pleading dismissed, etc. but intangibles are at play. o Plus, you look like an idiot. Basics: o Simplicity: 12

Short words Short sentences One idea/element- one paragraph Avoid legalese, Latin Use definite, concrete terms rather than abstract ones o Precision- avoid ambiguity; choose the right word. o Conciseness: brevity is to be prized; eliminate unnecessary words. o Clarity: the goal of the other three: Grammatically correct Numbered paragraphs Logical flow Don't forget these to ensure clarity! o Conclusion/Prayer for Relief o Jury v. Non-Jury Trial o Signature! o Verification- whether it has to be sworn, notarized, etc. Not very common.

Amendments to the Complaint Rule- you're allowed to amend ONCE without leave of court IF there has been no responsive pleading filed. o Otherwise, you need a motion for leave to amend and an order or consent from the opposing party. The motions are liberally granted- they'll generally be allowed. o When determining whether to grant the motion to amend, judges assess: How substantial is the amendment? If everyone knows what's going on its NBD. Will the other side be prejudiced? Does the amended claim relate back to the time that it was filed? o General rule- if the amendment concerns the same conduct/series of acts that form the basis of the complaint, it will relate back IF it doesnt violate SOL criteria. It's effective as of the day I file. It depends on the facts of the case whether the judge will allow the amendment (based on subject matter). o So if the amendment concerns a different conduct/series of actions that form the basis of the original complaint, it likely won't be allowed to relate back- i.e. have the original complaint amended to include these new claims. o SOL issues- you can't amend the original complaint to include claims where the SOL has effectively run. You can't use amendments to add 'expired' claims. The defendant must respond to the amended complaint within 10 days of it being filed. Supplemental pleadings, contrasted- different than amended pleadings. o Amended Pleadings- Something happened BEFORE I filed my complaint, but I didn't know that it existed when I filed. o Supplemental Pleadings- Something has happened SINCE I filed my complaint.

Rule 11- Federal Rules of Civil Procedure By presenting to the court a pleading, written motion, etc., you are certifying that: 1. The claim is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; 2. The claims, defenses, etc. are warranted by existing law OR by a non-frivolous argument for extending, modifying, or reversing existing law or establishing new law; 13

i. Not frivolous as long as it's in good faith 3. The factual contentions have evidentiary support; and 4. The denials of factual contentions are warranted on the evidence. Sanctions- the court may impose an appropriate sanction of any attorney, law firm, or party that violated the rule or is responsible for the violation. o Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee. Florida Statutes Section 57.105: 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 to 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: i. 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: 1. Was not supported by the material facts necessary to establish the claim or defense; or 2. Would not be supported by the application of then-existing law to those material facts. ii. Exception: the losing party's attorney is not personally responsible if he/she has acted in good faith, based on the representations of his/her client as to the existence of those material facts. 1. If the court awards attorney's fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest. 2. Paragraph 1(ii) 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 is applied to the material facts, with a reasonable expectation of success. 3. 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 attorneys fees, and other loss resulting from the improper delay. 4. 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. i. Safe harbor provision- the motion can't be filed on you until you've had 21 days' notice to fix your alleged mistake. ii. This is important!

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SERVICE OF PROCESS
Service of Process Service of Process- bringing the parties within the Court's authority. o Process- refers to the document served with the complaint that gives notice to the defendant and informs of the time and method for responding. Issuance and Form- process is issued by the clerk, in the form prescribed by the rule. o i.e. Summons Form 1.902 o 48.031(5)- A person serving process shall place, on the copy served, the date and time of service and his/her identification number and initials for all service of process. Rule 1.070(e)- similar requirement. Process Servers- the sheriff or his designee, chief judge list. o Plus, the trial judge may appoint any competent person not interested in the case. Time for Service: o Service must be done within 120 days of filing the initial pleading (complaint), but can be extended by the court. Usually, judges are pretty lenient and are willing to extend the time limit as long as it's for a good reason (i.e. pretty much anything except for because you were lazy).

Method of Service- Ch. 48, Rule 1.070 (listed by priority): 1. Personal Service- service on the individual OR at his usual place of abode on a person over the age of 15 who resides there and is informed of the papers; 48.031(1)(a). o Either 1) physically handing the defendant the summons (service of process & complaint) or 2) leaving it at the defendant's usual place of abode with a person over age 15 who lives there. Usual place of abode = YOUR house. You can't be served at your boyfriend's house, even if you spend the night there a lot. o Non-Residents: with non-residents, it's still the same procedure, but with a server that's authorized in that state. o What if a person refuses to accept? Use substitute service instead! 2. Substitute Service- If you try to avoid being served, all they have to do is say that they tried to serve you and it's good enough to post it on your door, etc. o Strictly construed- you must allege a basis for substitute service. If there's no statutory basis or if the procedure is not followed, there's NO personal jurisdiction! This is a big deal! So it's much better to personally serve someone, if possible. 15

o o

Note: for concealment cases, you must plead that you underwent a diligent search and inquiry to find defendant. i.e. an honest and good faith (conscientious) effort to locate the defendant. Non-Residents: with non-residents, you must serve the agent as per law. i.e. a non-resident auto owner can have the Secretary of State served on his behalf (to satisfy substitute service). With substitute service, you must file a return receipt and affidavit of compliance. Manners of Substitute Service: Posting it on D's door, etc. By mail, either certified or registered.

3. Constructive Service- service by publication or posting in a public forum (i.e. newspaper, etc.). o For Constructive Service to be appropriate, you have to allege that you can't personally serve the personbecause you either don't know who he is or because you can't locate him. You must be unable to personally serve. o Also strictly construed- requires an affidavit of basis, diligent search and inquiry, etc. o As a result, it's only available in certain actions- i.e. lien, real property, adoption, dissolution of marriage, etc. 4. By Mail- arises out of a formal agreement between the parties (attorneys). o Used all the time in small claims court. o Favored because it saves time and money. o R 1.070(i)- agreeing to be served by mail does NOT waive a defendant's objection to jurisdiction.

Return of Execution of Process 48.21 Once Service of Process has been effected, the process server must file a "Return of Service" or "Proof of Service" with the court. Return of Service Form- shall note: o The date and time when it comes to hand; o The date and time when it is served; o The manner of service; o The name of the person on whom it was served; and o If the person is served in a representative capacity, the position occupied by the person (representative). The Return of Service Form should be signed by the process server and will serve as prima facie evidence that service of process was effectively made.

Objections to Effective Service of Process Objections to Effective Service of Process are achieved by motion. o The objections are waived if they aren't raised timely (i.e. at the time of the response/answer).

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DEFENSIVE PLEADINGS & MOTIONS AND DEFAULT

Defensive Pleadings and Motions Rule 1.140 Framing the Issues- every defense in law must be asserted in the responsive pleading. o Affirmative Defenses- an affirmative defense is deemed to be waived if you (D) don't state it in your defensive pleading. Time to respond- within 20 days of service of process, either by an Answer or by a Motion. o Default- if you don't respond within the designated time period, you automatically lose by default.

Defenses Raised by Motion Lack of SMJ Lack of Personal Jurisdiction Improper Venue (Motion to Transfer) Insufficiency of Process- the summons (form) is incorrect. o Almost never happens, but it could. Insufficiency of Service of Process- the actual service was done on the wrong person, too late, etc. Failure to State a Cause of Action o You get this fairly often Failure to Join an Indispensible Party Others- allowed if clear on face of the complaint: o Statute of Limitations o Sovereign Immunity

General Types of Motions Motion to Dismiss- motion for the court to drop/dismiss the case. o You must state the grounds with particularity and the relief requested. o Basically, even if all the allegations are true, the cause of action still doesnt entitle P to relief. Motion for a More Definite Statement- used if the allegations are vague and ambiguous. o Often done as an alternative to the MTD. Motion to Strike- used if P included "improper material" in the complaint. o i.e. attorneys fees with no basis (i.e. theyre not plead with particularity), irrelevant allegations, scandalous allegations, etc. o Motion to Strike a Sham Pleading- used when the complaint is palpably or inherently false and the plaintiff reasonably must have KNOWN it to be false. Tough motion to succeed on, but if you're able to strike the suit based on it being a sham pleading, you are awesome. 17

Supported by affidavit. No response by P required. Requires a hearing. Motion to Strike due to a Sham Pleading is granted ONLY if 1) no material facts are in dispute AND 2) the pleading is not supported by the facts. Resolve all doubt in favor of the pleader (Plaintiff).

The Answer Rule 1.110 D must deny allegations set forth in the complaint by paragraph. o May admit part of the paragraph and deny the remainder. Can set forth affirmative defenses, counter-claims, cross-claims, and/or third-party claims. 1. Affirmative Defenses- provides that even if the allegations in the complaint are true, this occurrence will bar the recovery. Admitting the complaint is true as stated, but denies recovery based on another stipulation. Waived if not stated in the answer. Examples of affirmative defenses: Statute of limitations Estoppel, wavier Sovereign immunity Comparative Negligence- depends on the jurisdiction. 2. Counter-claim- R 1.170- when the defendant sues the plaintiff; follow the same protocol as with a complaint. Compulsory v. Permissive Counterclaims: Compulsory- when the counter-claim arises out of the same transaction. Permissive- when the counter-claim arises out of a different transaction. We allow this to be brought during this case because we want to expedite the legal process. 3. Cross-Claim- R 1.170- When one defendant sues another defendant. This is usually the occurrence, but it could be a plaintiff suing another plaintiff- rare! Compulsory v. Permissive- same as above. 4. Third-Party Claims- R. 1.180- In essence, D says someone else is responsible for D's liability to P. Must include a claim for contribution, indemnity, or subrogation. D can only have the third-party claims included IF they arise out of the subject matter of the complaint.

The Different Types of Court Papers Rule 1.100 1. Pleadings- any time you file a claim with factual allegations wherein the other party needs to reply. o If you don't need to reply, it's not a pleading! o Categories: Complaint Answer (NOT Response) Counterclaim Cross-Claim Third-Party Complaint Reply to Affirmative Defense 2. Motions- a request for judicial action, in writing, unless made in open court. 18

i.e. any time you want the judge to do something for you. 3. Orders and Judgments- made by the court/judge. 4. Other: o Notice of Hearing o Case Management Report o Response to Order to Show Cause

Filing and Service of Court Papers Rule 1.080 o Note: this is NOT the same as Service of Process, which is strict and formalized. General Rules: 1. A party must file their court papers before or immediately after service regarding that document. 2. You must serve the court papers on ALL involved parties. You never want to file something that you don't give the other side a copy of. It's okay to serve the other party's lawyer instead of him/her personally. Pleadings and Motions- served by the Parties: o Serve by mail or hand delivery: Handing it to their attorney. Leaving it at an office with a person in charge or in a conspicuous place. At usual abode if the office is closed, with a family member over the age of 15. By Fax- however, you must follow up with mail! Orders and Judgments- served by the Judge: o Can require attorneys to provide proposed orders and stamped and addressed envelopes.

Computation of Time Rule 1.190 The computation of time begins to run the day AFTER the event from which time is measured. o So you don't count the day that the actual order, etc. goes into effect (is signed); you start counting the day after it was signed. The "time" ends on the last day that is NOT a Saturday, Sunday or Holiday. o i.e. the last day has to end on a working weekday. o Note: Saturday, Sunday, and Holidays still count in the actual computation, it just can't END on those days. Caveat- If there is less than 7 days to do it- Saturday, Sunday, and Holidays don't count in the computation AT ALL. o i.e. it'd only be 7 business days, with the last day not ending on a Holiday. If there's service by mail- add 5 days if the "time" is measured from the time of service. The judge can extend the time computation if it's requested before the period ends. o Exception- time can't be extended if it's a jurisdictional issue/time limit. Most time requirements or limitations can be waived. o Exception- again, except jurisdictional issues/time limits. Notice of Hearing- must be done in "a reasonable time." o "Reasonable time" depends on the circumstances.

Defaults Rule 1.500 Default- when you don't (appropriately) respond to a court paper within the designated number of days. 19

Basically, you lose because you didn't participate. Purpose of Default Rules- to avoid time and expense if the claim is not to be defended. Remember that you may answer or plead ANY TIME before the default is entered. o The preference is to determine a claim on the merits, not on default. There are two ways in which you can default: 1. By the Clerk- when a party against whom affirmative relief is sought has failed to file or serve any paper in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such paper. Only available if NO court paper has been served/filed. The court paper indicates an intent to defend. The paper must be from you or your attorney to count. It's up to the judge to decide what is a paper if you file something and it isn't immediately clear whether it's a paper or not. Service of a paper is 'complete' upon mailing. Similarly, the Return of Service/Certificate of Service form is prima facie proof that P has been served (even if they say they haven't been). If the paper is filed the same day the time limit expires, but after default is entered by the clerk, it will be set aside by the judge. i.e. the default won't be valid. Practical Matter: if you receive actual notice of the opposing party of their intent to defend- don't seek a clerk default. You'll look like an ass to the judge. 2. By the Court- when a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party, provided that if such party has filed or served ANY paper in the action, that party shall be served with notice of the application for default. Appropriate when a paper has been served or filed, but just not adequately. o So it's ONLY available if clerk default is not proper (i.e. a paper has been filed), but there is still no adequate answer or responsive pleading that's been filed. Requires a motion, served on the party. o You DO have to tell the other party you're doing it (notice of the application), but you DON'T have to give them the notice of hearing on the motion. Note: it's better practice to do this in most cases.

What if the complaint was amended after default (by clerk or court)? o You have to re-serve the defendant if the change is substantial! i.e. in this case, the default process (timeline, etc.) starts all over again with the amended complaint.

Relief from Default To obtain relief from default, the D must show: 1. Excusable Neglect Factual allegations must be specific and sworn to. If facts are in dispute (via a counter-affidavit), there will be an evidentiary hearing. Standard of review of trial judge's findings is 'abuse of discretion.' When appealing the denial of a motion to vacate the default. Examples of Excusable Neglect: Failure to follow office policy 20

Note: NOT available if there's gross negligence. Clerical error- i.e. misfiling, misplacing, etc. Miscommunication- i.e. I told my secretary to do something and she didn't understand me, etc. Miscalculation of time- i.e. wrote down the wrong date on calendar, etc. Didn't understand legal consequences Didn't hire an attorney Did not understand English language Note: summons are given in 3 languages, so this is less likely to happen. May be different if coupled with (mental) incompetence issues. 2. Meritorious Defense Not just a general denial of the allegations- be specific, what is your defense here? Need not show likelihood of success, only a good faith defense to the claim. Can be shown by affidavit, specific allegations, or by a copy of the proposed pleading. 3. Due Diligence How long you waited to file for relief of default after learning about the default. Takes into account the factor of delay and reasons for delay. The longer the delay, the better reason you need to have. Fact-intensive; the sooner you act the better. Even if you prove the 1st two, if you slack on the 3rd (due diligence) you may still not be able to receive relief from default. Note: the above requirements aren't necessary if the default wasn't properly entered. Obviously, the longer you wait to gain relief from default, the less likely you are to receive the relief.

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JUDGES
Introduction Assignment- of cases by the chief judge. Substitution- death, incapacity, rotation. o Note: the new judge can't rule on anything that he hasn't heard (i.e. that the old judge heard and he didn't). Exception: unless the parties agree to it. o He can't RULE on it, but he can REVERSE it! Authority of successor judge to reverse decision of predecessor judge- ultimate authority. o Pretty much anything that the prior judge ruled on, the predecessor judge can overrule/overturn. o Exception: Motion for Rehearing in a non-jury trial HAS to be done by the judge that heard the case. ??

Disqualification & Recusal This comes about when a judge is taken off of a case. o Disqualification- when a judge is involuntarily taken off of a case. Motion for disqualification can only be used 1 time per case. i.e. if you get a judge disqualified, you can't get the next (or another) judge disqualified regarding the same case. A satisfied motion is an immediate order- the judge must be removed within 30 days. Also, no further rulings can be made, testimony heard, etc. until the judge has removed himself. i.e. the trial can't resume until the judge is replaced. o Recusal- when a judge voluntarily takes himself off of a case. Grounds for disqualification of a judge: o Judge is a party to the case. o Related within the 3rd degree of party or attorney. o Judge is a material witness. o Previous involvement in the case as a lawyer or witness. o Economic or other interest in the outcome. o Personal bias or prejudice against party or attorney. Less common/obvious- this is where all of the case law (i.e. disagreement) arises. Requirements- Motion for Disqualification: 1. You must reasonably believe you can't get a fair hearing. Comments Gestures, facial expressions- rolling eyes, sighing deeply, etc. Ex parte communication- the judge can't have a discussion about the case to one of the parties without the other party receiving that same exact communication. 22

This would be a big factor; less subjective than the other factors. Ties to party or attorney Judge has a conflict with your lawyer Created conflict by attorney or party- the party/lawyer gets "embarrassed" by the judge in court. Bar complaint filed against your attorney Civil action against the judge (to get off)- usually for conspiracy, etc. Probably not going anywhere with this. Judicial campaigns- depends on the level of involvement. Note: adverse rulings are NOT grounds by themselves; must be coupled with another factor. 2. Must be in writing. 3. Sworn to by the party moving for disqualification. Note: the facts may be sworn to by another. 4. Certified by your attorney that the motion is being made in good faith. 5. Must be made within 10 days of the discovery of the grounds to disqualify. Further requirement: The motion must be legally sufficient on its face. o You can't question the truth of the allegations. However, the next judge CAN question the truth of those allegations on a subsequent motion.

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DISCOVERY
Introduction to Discovery Purpose of Discovery- to give the court a meaningful way to determine fault. o To simplify issues; o To eliminate surprise; o To encourage settlement; o To avoid costly litigation; o To achieve a balanced search for truth and ensure a fair trial; and o To prevent the use of surprise, trickery, bluff, and legal gymnastics. Conversely, discovery should NOT be used to harass or embarrass a party or witness, used to make litigation time-consuming and costly, or used in order to coerce a favorable settlement. Balance against excessive expense or unduly burdensome and oppressive.

Discovery Tools Interrogatories- written questions, used to reveal documents, witnesses, etc. Depositions- documented oral testimony. Request for Admission- asking the adverse party to admit/deny certain facts. Request for Production- asking the adverse party to produce certain documents. Medical/Psychological Evaluations Entry and Inspection on Land Production from Nonparties- i.e. request through a subpoena of a non-party.

Scope of Discovery The scope is fairly broad as long as you can prove some relevance. General Scope: "any matter not privileged that is relevant to the subject matter of the pending action." o The discovery has to relate/be relevant to the subject matter of the action. o The information itself need not be admissible, rather it must be "reasonably calculated to lead to the discovery of admissible evidence." The court may ask the lawyers what their reasoning is for having certain subject matter included in discovery to determine whether it's actually relevant. o i.e. to determine if it's actually within the scope of the action. EXCEPTION- privileged information is generally NOT discoverable: o Rule 1.280(b)(1)- parties may obtain discovery on any matter, not privileged, that is relevant to the subject matter of the pending action. o Types of Privileges: 1. Attorney-Client Privilege- NEVER discoverable, unless the privilege is waived. 24

o o o

The burden to prove the privilege is on the party claiming the privilege. You must produce a privilege log sufficient to evaluate the claim. Waiver of Privilege: Failure to produce the log when the discovery materials are due is NOT automatically a waiver. However, you need to get the log to opposing counsel before the hearing. Additionally, absence of a privilege log also doesn't necessarily lead to a waiver. The judge has discretion in determining whether it results in a waiver. However, there IS a waiver if you voluntarily disclose any supposedly privileged information. The waiver will only apply to the information waived; everything else can be considered privileged. Inadvertent Disclosure- to determine if there's actually been a waiver, the court will consider: Reasonableness of precautions taken to prevent the disclosure; Number of disclosures; Extent of disclosure; Any delay and measures taken to rectify the disclosure; and The overriding interests of justice in relieving the party in error.

2. Discovery Work Product- work that the attorney has done in order to prepare for trial; essentially the lawyer's case. There are two types of work product: 1. Factual information prepared or gathered in anticipation of litigation- tangible. The litigation need not be pending or threatened, just possible. The privilege doesnt apply if the information was obtained/prepared pursuant to a duty UNRELATED to the current litigation. The privilege doesnt apply if the information is reasonably expected to be used at trial. This kind of work product is ONLY discoverable if the other party can show 1) a need for the materials and 2) an inability, without undue hardship, to obtain the substantial equivalent by other means. i.e. the photographs you want were destroyed so there's no other way for you to get them. There's a heavy burden on the party seeking this disclosure. They need a particularized showing of need and undue burden. The evidence must show that the material is critical to the case with specific explanations and reasons. Unsworn statements won't suffice. Failure to assert the privilege at the earliest opportunity in response to a discovery request is NOT a waiver, as long as the claim is made before actual disclosure. The judge should generally conduct an in-camera inspection if it's asserted. Note: the identity of the witnesses isn't protected- only their statements are protected. You can get your own statements, though, regardless of need. COMPLETELY Undiscoverable Factual Work Product Material: Pre-suit materials in medical malpractice cases are protected. Insurance claims files are generally protected. Caveat- not necessarily in a bad faith claim by the insured. 25

2. Impressions and Opinions of the attorney- mental Opinion work product is ABSOLUTELY privileged- you can never discover it, per Rule 1.280(b)(3). Exception: perhaps discoverable in bad faith insurance claims. Privilege log is required, as with the other privileges. 3. Trade Secrets- "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 being 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; Fla. Statutes 668.002(4). Essentially, it's secret or confidential information that is commercially valuable. The initial burden is on the party claiming the trade secret that it'll harm them if it's disclosed. It's a balancing test- protecting the trade secret v. showing the party seeking production that has a reasonable necessity for the requested information. Will almost always require an in-camera review. As a practical matter, you'll probably always need to have the parties present to explain, as to the particular documents or information. If the court orders production or disclosure, the opposing party must set out the findings. Confidentiality agreements to defer decision on privilege.

Expert Witnesses: o Discovery of Facts and Opinions of Expert Witnesses- Rule 1.280(b)(4) o Interrogatories to Identified Experts- disclose the subject matter and the substance of testimony, and basis for opinion. o Depose any such expert about their opinions and: Scope of employment in the case; % of work for P's and D's; % of income from expert witness work (but not total income); and Identity of other cases he/she acted as an expert witness for (within a reasonable time period). o You can't get financial records except under the most unusual and compelling circumstances. o You can't make them produce non-existent records or document. o You must pay them a 'reasonable' fee. o The discovery is available ONLY as to experts who are expected to testify at trial. Exception- experts who conduct physical or mental examinations pursuant to Rule 1.360. Otherwise, you have to show exceptional circumstances to obtain discovery from 'consulting' experts.

General Rules The court can't rely on unsworn statements (evidence) of the attorney as to relevancy. If it's not obvious from the pleadings. If you claim undue burden in the opposing party's discovery request, it must be supported by record evidence (i.e. an affidavit) detailing the basis. You can't compel information that's equally available to both sides. Interrogatories/discovery that requires considerable research is objectionable, though SOME effort is expected. There's no particular required sequence/order of discovery that's required. i.e. you DON'T have to do depositions before interrogatories, etc. 26

It doesn't matter whether the other party is engaged in discovery or not for YOU to be able to engage in discovery. There is NO requirement to supplement your discovery responses. i.e. if you engage in discovery and give a sworn statement, etc. and something changes, you are under NO obligation to supplement your response as long as it was true and correct at that time. Rationale- it'd put a burden on the party to remember what was requested before, but it's the other party's problem to deal with. You can't request things that they don't have- conversely, you don't have to produce something that you don't have. Expert Witnesses have to be paid a "reasonable fee." There's generally not a dispute to whether the fee is reasonable; usually everyone just pays it. You can't get discovery from the adverse party's expert UNLESS he testifies. Non-testifying expert witnesses are considered opinion work product, which is nearly impossible to get 'discovered.'

Depositions Give reasonable notice of the deposition in writing to all parties. o Note: non-parties must be subpoenaed. Depositions are appropriate any time after 30 days of service of process. Can be done in person, in writing, and over the phone (court reporter on the other side of the line, etc.). o Must be done in the presence of a court reporter, notary public, judicial officer, or other person authorized by law. Note: it CAN'T be done by someone associated with the case. o Generally, they're conducted in the county of residence of the witness. However, the plaintiff or other party seeking affirmative relief may have it done where the suit is filed. o Typically done in person- video deposition. You still must have a stenographer present. The party taking the deposition keeps the original tape and provides a copy to others upon payment of cost. Video depositions are done the most frequently because cameras have the ability to capture everything that goes on. Demeanor of the witness is very important, and when a deposition is read in court there is no inflection, tone, etc.- it's done 'objectively' and is very boring and unpersuasive. Video, however, shows inflection, tone, mood, etc., so it can be persuasive. Regarding Non-Parties: o If the person isn't a party to the action, you must subpoena them. i.e. all witnesses that aren't a P or D in the action must be subpoenaed. o Also, if there is a request to produce at the time of the deposition you must subpoena duces tecum them. o Mileage must be paid for by the party that wants the deposition. Remember experts also have to be paid a reasonable fee. Depositions must be done within 30 days after general notice is given. o Really not that big of a deal unless you have a bunch of parties or they don't get along. If you're suing a corporation, you take the deposition of the registered agent of the company. Whoever wants the deposition has to pay for it. Actions During a Deposition: o Depositions are carried out basically the same way as a direct or cross-examination in court. Deponent is under oath, recorded. Questions are asked and answered by the deponent. 27

Objections can be made during Depositions. There's a difference between the objecting to the form of the question (how it's asked) and objecting to the substance (what's being asked- i.e. relevance/admissibility of the questionhearsay, etc.). o Depositions that are going to be used in court will be filed with the court and given to the other side. So depositions aren't automatically filed unless it's necessary for resolution of the matter before the court. Same is true for interrogatories, etc. Use at Trial: o Depositions of the adverse party can be used for any reason at trial, as long as the subject matter is admissible as evidence. o Depositions of non-parties can be used for two reasons at trial: 1. Impeachment- if a witness makes different testimony in court under oath than they did during the deposition. "Witness, you said X, but in your deposition you said Y." Deponent Review- after the deposition is taken, the deponent has 30 days to review the transcript and change/amend their answers after requesting a review. Your ability to effectively impeach at trial will include letting the judge know that the witness had ample time to cure his/her inconsistent statement. Errata Sheet- the document where you make the changes to the deposition transcript. Make changes on the errata sheet, explain reason for changes, sign the errata sheet. Exhibits 2. Witness unavailability- because of death, distance (more than 100 miles away), illness, infirmity, or prison. o Completeness Rule- when part of a deposition is introduced at trial, the adverse party (deponent) may require that the party also introduce any other part of the deposition which, in fairness, ought to be considered contemporaneously. Avoids having deponent's words taken out of context. o Rules of admissibility of evidence still apply. o You waive procedural defects if there's not a timely objection. o Note: it's apparent that you don't necessarily read the entire deposition, you just use the relevant portions of it. Motion to Terminate- a deposition o Available upon a showing that: The examination is being conducted in bad faith; The examination is being conducted to annoy or embarrass deponent; or The deponent is being advised not to answer or is being coached. o If granted, the deposition will be suspended until the matter can be heard by the court.

Interrogatories- Rule 1.340 Interrogatories- written questions used when you're not really concerned with spontaneity (you're not asking the next question based on the answer of the prior question). o They are the 2nd most common type of discovery tool used (besides for RFP's). You can serve interrogatories on the adverse party any time after the suit is filed- oftentimes P will file them along with the service of complaint on D. o You have to answer or object within 30 days, unless there's an agreement/court order. There's room to answer on the document itself. Note: you can respond AND object. 28

It's NOT objectionable if the person answers with an opinion, contention, etc.- basically anything other than a FACT. i.e. asking your opinion about something isn't objectionable! o Serve, but don't file unless/until necessary in determining the matter before the court. Potential Uses- You'd ask them to identify documents, witnesses, etc. that are related. o Then you'd ask them to produce those documents- RFP. o Usually, along with interrogatories, there's an 'option to produce records'- basically so you don't have to also file an RFP on someone. Available if answers can be ascertained from the records. The burden is substantially the same for either party. Identify the records in sufficient detail or assist in locating and identifying them. Give the other party a reasonable opportunity to examine. Generally, there are court-approved forms that you use for interrogatories. o i.e. the interrogatory form is generally not objectionable.

Request for Production- Rule 1.350 Most common type of discovery tool used. o Can be used to produce any document or tangible item. o The document has to already exist and must be in their possession/control (or of their agent, attorney, etc.). o Must describe the document with reasonable particularity. o You must give the other party a reasonable time, place, and manner for inspecting and copying. Two Types- RFP's for people and for documents. You can produce either by category (i.e. all emails, etc.) or by item (i.e. we want this specific document, etc.). o Note: it's valid to not have to produce if you're business conducts itself in a way that you can't easily produce all the documents/items in that way, etc. With RFP's, you can also go on the person's land and inspect the property, etc. o Same procedure used as with RFP of documents. Just like with depositions, the party requesting has to pay for the reasonable cost of providing the people/documents. Production from Nonparties- Rule 1.351: o Requires a subpoena- serve notice of intent on all parties. If no one objects within 10 days, the subpoena may be issued. If any party objects within 10 days, the requesting party must either proceed with a deposition and duces tecum, or get a ruling from the court on the objection before proceeding. Note: if the custodian objects at any time before production, you must proceed with a deposition and subpoena duces tecum. o No testimony can be taken. o The custodian may deliver or mail copies instead, any may require reasonable costs. o The party obtaining must provide copies to others if requested upon payment of reasonable costs. Response to the Request: o Must be within 30 days. o For each item or category state whether the inspection will be permitted or objected to. If you're objecting, state your reasons for objecting. o You can be required to produce 1) as kept in the usual course of business or 2) as corresponding with the categories requested. o Only the response is filed.

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Medical and Psychological Examinations Rule 1.360- comes into play when a person's physical or mental condition is controversy. o This tool is usually used by the defense counsel. o If granted, the person will be examined by a doctor appointed by the moving party. The request shall specify a reasonable time, place, manner, conditions and scope of the examination. If the non-moving party objects or moves for a protective order, the judge decides whether to grant the examination. The court should take into account: 1. The availability of willing and qualified examiners; 2. The convenience of the parties; and 3. If P has to travel- it is appropriate to shift the cost of the travel to the requesting party.

Requests for Admissions Rule 1.370- when plaintiffs feel that certain facts aren't disputed, they can file a request for admission so that neither party has to spend time dealing with them during full-blown discovery methods. o Includes genuineness of documents. o Yes/No format. Keep RFA's simple- if they're compounded, there may be one part that you can admit, but one part that they deny so they deny the entire thing instead of getting the 1 actual admission out of the way. Response to Requests for Admissions: o If they're not denied or objected to, they're deemed admitted. So if you don't respond, the questions are deemed admitted! o If you object to answering a question, you have to give a valid reason as to why you don't want to answer the question. o If you can't answer the question, explain why, and you must have used due diligence. o If you can answer to part, do so.

Electronic Discovery Relates more to the production of documents. Types of electronic data: o Active data- works-in-progress. i.e. open word documents. o Replicant data- a form of inactive data; allows recovery of inadvertent data loss. i.e. the 'document recovery' function in Word. o Backup or Archival data- data that is copied to removable media in the event of a system failure. i.e. data on a USB drive. o Residual data- information that appears to be gone, but is still recoverable from the computer system. i.e. deleted emails. o Hidden or Embedded or Metadata- data that is not recorded by the file creator; rather, network operating software automatically records and maintains information about the use of the system, including when, where, and who accesses the system. i.e. changes that were made to a document, etc. Preservation and the routine destruction of digital information. o It's not illegal to destroy digital information that is reasonable to have been destroyed (i.e. it's routinely destroyed). o However, it may be obstruction if a party non-routinely destroys information. Balancing secrecy and access to electronic discovery. Special Masters and Neutral Experts. 30

There's a new federal rule on Electronic Records Discovery, Handling, and Preservation. o Florida Rule Committees are working on new or modified rules for eDiscovery and electronic court records. Some considerations: o Volume. o Electronic communications- email, etc. o Digital information defies deletion- it's never actually deleted. o Choice of form of production. o Cost of privilege screening, copies, etc.

Procedure for Resolving Discovery Disputes Protective Order o What do you do if you're a lawyer and you think that the discovery is overreaching? o Motion for a protective order! o 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: o Discovery can only be done on specified terms and conditions; o Discovery can only be done by a method other than that selected; o The scope of discovery be limited to certain matters; o The discovery not be had at all; o Specified documents be filed under seal; o Discovery can be conducted with only certain persons present; o A deposition transcript be sealed; and/or o Certain confidential information is not to be disclosed, or can only be disclosed in a designated way. o In granting protective orders, the judge has discretion. o The key is looking at whether there's a legitimate interest being served. o The appellate standard of review is 'abuse of discretion.' o However, the discretion must be exercised within the permissible scope of discovery as set forth in the Rules of Civil Procedure. o Note: You'd also want a protective order when you want to prevent the opposing counsel from obtaining discovery work product, trade secrets, etc. during discovery. Rule 1.380- Failure to Make Discovery: 1. Motion to Compel- motion to compel the requested party to comply with discovery. 2. Sanctions Rule 1.380(a)- Failure to Make Discovery Applies when there's a partial failure or insufficient response. Applies for failure to: Answer one or more questions propounded at a deposition; Designate a corporate representative that's most knowledgeable as to the issues designated by the discovery proponent; Respond to one or more specific requests for production, either by objection or inadequate response; Respond to a request for examination of a person under Rule 1.360(a), or to object thereto; and Answer one or more specific interrogatories. Sanctions: Prevent the disobedient party from supporting or opposing a claim of defense. 31

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 mental/physical exam). Certain facts are taken as established. Expenses and attorneys fees. Rule 1.380(d)- Failure of party to attend deposition, serve answers to interrogatories, or respond to request for inspection. Applies when 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 the order is obeyed; Dismissal of case or any part thereof; Default judgment; and/or Expenses and attorneys fees. Options as to Non-Parties: o Unlike Rule 1.380(a), there are no attorneys fees against counsel. o As a result, for non-party witnesses or records custodians, contempt is the ONLY sanction available.

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PRE-TRIAL PROCEDURE AND RESOLVING THE CASE SHORT OF TRIAL

Case Management Conference

Rule 1.200(a). Schedule service of motions, pleadings, etc. Set trial date, if the case is at issue (see below). Limit, schedule or expedite the discovery process. Pursue possibility of settlement. Consider alternative dispute resolution. Schedule other conferences or determine other matters that may aid in the disposition of the action.

Setting the Case for Trial Notice of Trial- R. 1.440 Case at Issue- the action is 'at issue' after: o Any motions directed to the last pleading served have been disposed of; or o If no such motions have been served- 20 days after service of the last pleading. After that point, any party may file and serve a notice that the action is 'at issue' and is ready to be set for trial. If the court finds the action is ready to be set for trial, it shall enter an order fixing a trial date. o The trial date shall be within 30 days from the service of the notice of trial. Pre-Trial Conference Rule 1.200(b) Simply the issues Necessity/desirability to amend the pleadings Admissions/stipulations. Limit on expert witnesses. Motions in Limine- a motion made before the start of the trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial. o Used to shield the jury from possibly inadmissible and unfairly prejudicial evidence. Any other matter as in a CMC Pre-Trial Order- what the judge issues in the pre-trial conference, reciting the action to be taken by the parties.

Resolving the Case Short of Trial

Common Rules for Mediation & Arbitration Rule 1.700 Both are available for most civil cases. o Exception- not available for extraordinary writs, civil/criminal contempt, or bond estreatures or validations. 33

Rule 1.700, 1.800 Either the judge can order it or the parties can ask for it. The initial mediation/arbitration meeting will be held within 60 days of the order of referral. o Takes place in County Court. A party may move to dispense with the mediation/arbitration within 15 days of the referral if: o The issue has been previously mediated or arbitrated; o There are issues of law only; o The order violates the availability exceptions stated above; or o There's other good cause.

Mediation Mediation- a process wherein a neutral party assists the facilitation of a settlement agreement. The mediator determines the procedures. A settlement agreement, if reached, must be in writing. o The agreement will be enforced by the court. Arbitration Arbitration- a process wherein a third party reviews the case and imposes a legally-binding decision. Voluntary v. Mandatory Arbitration: o Voluntary- arises from consent/agreement of the parties. o Mandatory- arises from a statute or contract between the parties. Non-Binding v. Binding Arbitration: Non-Binding Arbitration: o Rule 1.820 o Purpose- to encourage settlement by giving the parties a preview of how the issues will be treated in court. o The hearings are informal, however the parties must attend them. o The agreement is NOT binding and will not be enforced by the courts. Binding Arbitration: o Rule 1.830 o The procedures can be defined by an agreement. o The agreement is binding and will be enforced by the courts. o The decision can be appealed within 30 days of service of the decision. Proposal for Settlement FL Statute 768.79 and Rule 1.442. The purpose is to encourage settlement by shifting the risk of costs and attorneys fees. The settlement has to be specific as to the party, amount, conditions, whether the settlement includes attorneys fees, etc. You serve the offer, but you dont file it until it's necessary to enforce it (i.e. until it's accepted). You can revoke the offer up until the other party accepts the offer in writing. If accepted, the court MUST award the settlement, unless it was done in bad faith. 25% formula. Time Restrictions: o The earliest you can propose a settlement is 90 days after the offeree becomes a party, or 90 days after the action is filed. o Settlement can be proposed no later than 45 days BEFORE the trial date. o If the party is going to accept the settlement, he/she must accept within 30 days, in writing. Voluntary Dismissal 34

Rule 1.420(a) Voluntary dismissal is raised by the suing party (P). It can be done any time up until jury deliberations. o The dismissal is submitted to the judge in a non-jury trial. o Hearing on summary judgment motion. P doesnt need court approval or an order to voluntarily dismiss. o Caveat- unless a counterclaim is pending; in that case, the court will need to approve the dismissal. Generally, the case will be dismissed without prejudice (but not always!). P is liable for costs associated with the trial.

Involuntary Dismissal Rule 1.420(b) An involuntary dismissal is raised by the adverse party for a partys failure to follow rules, court orders, etc. o It's proper in a non-jury trial in lieu of a directed verdict. Failure to Prosecute As a Sanction- factors to consider: o Whether attorney's disobedience was willful rather than neglect; o Previous sanctions; o Whether the client is involved; o Any prejudice to the other side; o Any reasonable justification offered; o Whether it'd create significant judicial administration problems. Summary Judgment Rule 1.510 Summary Judgment is proper when there is NO genuine dispute as to the material facts- thus, those facts shouldn't be tried/go to trial. o On those material facts, the movant is entitled to judgment as a matter of law. SJ is different from a Motion to Dismiss (failure of P to state a claim) or Motion for Judgment on the Pleadings (motion for the court to issue a judgment after pleadings have been entered). Can be partial or full SJ: o Liability, but not damages; o One claim, but not others; o Eliminate one legal theory or form of damages; and/or o Determine that certain facts are not in dispute. Procedural Requirements: o File the Motion for SJ any time before trial. Discovery can still be ongoing. o State with particularity the grounds and the law to argue. o Specifically identify the record evidence relied upon. o Serve on the opposing party at least 20 days BEFORE the hearing. Adverse party, likewise- 5 days before if by mail, and 2 days before if there's hand-delivery. o The court may refuse to consider Motion for SJ's that are filed late. The SJ Hearing: o No additional evidence is proffered at the hearing. o The non-moving party gets all favorable inferences. o The moving party must conclusively refute any affirmative defenses. o If the moving party initially shows undisputed facts, the burden shifts to the opposing party. o It can't be just an assertion that facts are disputed. Affidavits, both in support AND in opposition, must aver FACTS, not conclusions. 35

Must be based on personal knowledge and based on admissible evidence. If evidence is not available but can be, the party must file an affidavit explaining why. If the affidavit is filed in bad faith or for purposes of delay- sanctions will be imposed! So don't be an ass.

TRIAL PROCEDURE I: JURY SELECTION- WITNESSES

Jury Selection This is the next step if the case isn't resolved short of trial. Jury selection is commonly treated as the most important aspect of the trial. o To Kill a Mockingbird- "A court is only as sound as its jury, and a jury is only as sound as the men who make it." o Traditionally, Americans have viewed the right to a trial by jury as a bulwark of democracy; many maintain an idealistic view- i.e. Atticus Finch. Also, it's where the trial actually begins.

Qualification of Jurors Jurors shall be taken from the male and female persons, ages 18 +, who are citizens of the US and are legal residents of the state and their respective counties and who possess a driver's license or ID card issued by the Dept. of Highway Safety and Motor Vehicles, pursuant to chapter 322 or who have executed the affidavit prescribed in s. 40.011. o Florida Statute 40.01 Who's Not "Qualified", per. FL Statute 40.012: o Cabinet officer o Clerk of court o Judge o Party having interest in the issue tried o Governor or Lt. Governor Who Can Opt Out: o Full-time law enforcement officer o Any expectant mother o Any parent not employed full-time who has custody of a child under 6 years of age o Persons 70 years old + o Persons who have served jury duty in the past year o Persons caring for another person who can't care for him/herself Who Can Be Excused at the Judge's Discretion: o Practicing physician o Practicing attorney o Person infirmed from jury service o Person showing hardship, extreme inconvenience, or public necessity.

Special Rules for the Handicapped Deaf Jurors: 36

FL. Statute 40.013- "a hearing-impaired person CANNOT be excused from service, if he/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. o FL Statute 90.6063 requires the appointment of an interpreter for a deaf juror. Blind Jurors: o No FL provisions address the matter. o Jones v. NYC Transit (NY)- blind juror was dismissed because a significant amount of the evidence consisted of physical evidence, the interpretation of which would be extremely important for the jurors to reach a verdict. Illiterate Jurors: o Lewis- granted challenge for cause of an illiterate juror because a considerable amount of evidence was documents, X-rays, etc.

Voir Dire Examination Voir Dire- the process of questioning the jurors to determine any biases. o Ritter v. Jimenez- the primary purpose 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. o Loftin v. Wilson- 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 preemptory challenges given to the parties by law. Rule 1.431(b) Examination by Parties- the parties have the right to examine jurors orally on their voir dire. o The order in which the parties may examine each juror shall be determined by the court. o 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. Scope of Inquiry: o Jackson v. State- "prospective jurors are examined on their voir dire for the purpose of ascertaining if they are qualified to serve, and it is not proper to propound hypothetical questions purporting to embody testimony that is intended to be submitted, covering all or any aspects of the case, for the purpose of ascertaining from the juror how he will vote on such a state of the testimony. Such questions are improper, regardless of whether or not they correctly epitomize the testimony intended to be introduced." Basically, potential jurors can't be asked how they'd 'rule' on a certain issue, etc. o Further, "the scope of voir dire questioning rests in the sound discretion of the court and will not be interfered with unless that discretion is clearly abused. May the trial judge require lawyers to submit a list of questions to be read by the judge instead of lawyers? o Answer- NO. Rule 1.431(b) preserves the right parties to "examine the jurors orally." Voir Dire Limitations- kind of a grey area. o Allen v. Se-Go Industries, Inc.- the TC was allowed to conduct voir dire and limit counsel's further questioning of prospective jurors to 20 minutes per side. o Knapp v. Shores- the TC committed a reversible error as to the plaintiff, Knapp, based on the circumstances in this case in limiting the voir dire of the prospective jury to a total of 15 minutes for BOTH plaintiffs after the court had conducted a very short voir dire consisting of only 7 general questions. o Judge Lewis- will give you some slack, but they have to be relevant or he'll cut you off.

Challenges for Cause 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. 37

There's no hard line- it's all on a sliding scale, case-by-case basis. Also, it depends on the judge. You have an unlimited number for challenges for cause as long as you have legitimate reasons. Cases: Seminal Case: Slinger v. State City of Live Oak v. Townsend Rule 1.431 (c)- Challenge for Cause: o "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 an 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." Rehabilitation- when the prospective juror says something that could be bad, but the other attorney redirects the question wherein the prospective juror now answers favorably (so the counsel is trying to avoid getting a juror thrown out). o Johnson v. Reynolds -"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 believe than the former?" Challenges for Cause Examples: o General or abstract bias about a particular class of litigation will not disqualify a juror IF it can be put aside. Conversely, if the bias is specific, it's going to be easier to win the challenge. Straw v. Assoc. Doctors Health and Life o Juror who will have difficulty following law on temporary pain and suffering damages where a permanent injury is NOT shown, should be excused for cause. Pacot v. Wheeler o No abuse of discretion in denying a challenge for cause of juror who expressed sympathy for plaintiff's injuries, but WOULD follow the law (i.e. the bias could be put aside). Liberty Mutual v. Williams o 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." Too much of a bias. Goldenberg v. Regional Import & Export Trucking Preserving Error: o See Griefer v. DiPetro o How to Preserve Your Ability to Appeal: Exhaust all preemptory strikes/challenges. Request additional preemptory strikes/challenges. Identify the juror who would be struck with an additional preemptory challenge. Renew objection before the jury is sworn.

o o o o

Preemptory Challenges These aren't unlimited like Challenges-for-Cause; generally you have 3 per side/party in civil court. o Parties on the same side with a "common interest" share the 3 per side. i.e. principle and agents will be treated as being on the same side and will have to share the preemptory challenges. o With an uneven number on each side, the opposing side is entitled to the same number as the side with the larger number of parties. 38

What if there are 4 on one side and 3 on the other? Order of Preemptory Challenges: o Ter Keurst v. Miami Elevator Co.- the trial court must allow counsel to exercise their challenges singularly, alternately, and orally so that, before counsel exercises the preemptory challenge, he has before him the full panel from which the challenge is to be made. You have the right to see the full panel before making preemptory challenges. Discriminatory Challenges: o State v. Neill- you CANNOT use a preemptory challenge to discriminate against a juror because of race, gender or ethnicity. Neill applies to civil cases, per City of Miami v. Cornett. o Three-Step Test for Discriminatory Challenges: 1. There must be a timely objection that shows the challenged juror is of distinct racial, ethnic, or gender group. Note: the 'distinct group' doesn't have to be a minority group! Essentially anyone can be a 'distinct group,' you just have to identify and put on the record what group you're talking about. 2. Proponent of strike must assert a race-gender-ethnic neutral reason for the strike. 3. Court must determine whether the reason given is genuine and not a pretext. If so, the strike stands; otherwise, it doesn't stand. Back-Striking- you are allowed to come back to a juror and strike them after you've seemingly implicitly 'agreed' to keep them. o Remember that you have a right to see the 'entire panel' when using your preemptory challenge so you can say that you agreed on them then, but now after you see more people (as a result of striking other people), you've now decided that you don't like that person. o What's the cutoff time? You can back-strike until the jurors are sworn! So basically up until the actual start of the trial- can be a real pain in the ass. o Swearing of the jury must be postponed until all challenges have been exercised. Some judges will go back and be ask "do you still select juror #1?", and so on. o Litigants have the right to view the whole panel in order to use their challenges effectively. o It's a per se reversible error to prohibit challenges prior to the swearing of a jury. Preacher v. Cohn

Motions in Limine No longer have to renew, but it may be advisable: o 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 appropriate time during the trial avoids an argument that the trial court had not made a "definitive" decision to exclude the evidence.

Opening Statement Purpose- to tell the jury what you think the evidence will be- i.e. what to expect; an outline of the case. It's an implied right. Restrictions and Limitations: o Don't make your argument as to why they should return a verdict for your client. o i.e. don't put in a 'conclusion' to your opening statement. Techniques: o Theme o Tell a story 39

o o o o o

Address weaknesses Be yourself and sincere KISS- keep it simple stupid Let the facts make the argument for you Don't promise what you can't deliver

Witnesses Subpoena! o Best to subpoena, even if they're willing to come voluntarily. If they don't show up and they weren't subpoenaed, you're screwed. Also, it's seen as more objective if they're subpoenaed. o Subpoena Duces tecum if you want documents from the witness, too. o Remember that you have to pay attendance fee and mileage. o Note: expert witnesses are treated differently. Rule of Sequestration- witnesses can't be in the trial DURING the trial. o They're only allowed in the courtroom when they're testifying, and that's it. o They're also prohibited from talking about their testimony with anyone other than the attorneys. o Exceptions: If you're a party in the action. If you're an expert, sometimes. If you're an investigator? o Violations- there's no strict rule, it's up to the judge to decide what to do if they violate the rule of sequestration. They'll often look at whether it was a flagrant v. an accidental violation. Witness Competency o The party objecting a witness' competency has the burden. o That party must show that the witness is: Incapable of expressing herself so as to be understood; or Incapable of understanding and appreciating the oath. Control by Court o Section 90.612(1) o Judges are needed in order to: Facilitate the discovery of truth. Avoid needless consumption of time. Protect the witness from harassment and undue embarrassment That's why you have to ask permission to approach the witness, etc. Curb emotional displays. This is a difficult thing, but you have to make sure that the courtroom is neutral. Potential options- take a recess, etc.

Direct Examination of Witnesses Easiest to do- it's your witness so you (should) know what they're going to say. o Just make sure your questions aren't objectionable. o Be prepared, but don't read from a script. o Prepare your witness! Limitations: o No leading questions- questions that 'suggest the answer.' The witness has to come about the answer on his/her own. 40

Exceptions: for preliminary matters- i.e. a child witness in the discretion of the judge.

Cross Examination of Witnesses You can still prepare well if you've done your discovery adequately. o So be prepared! o Don't ask a question that you don't know the answer to, UNLESS you don't care what the answer is. Plan of attack: o Discredit the testimony. o Bring out favorable facts. o Leadings questions are preferred. i.e. "that light was red, wasn't it Ms. Smith?" o Don't argue with the witness- don't rip them to shreds or the jury will hate you.

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TRIAL PROCEDURE II: EVIDENCE- JUDGMENT

Objections to Evidence Must make a timely objection to the evidence. Generally, must include a statement of the specific legal ground for excluding the evidence. An objection to a question asked of a witness must be made BEFORE the witness answers the question. Further, an objection is not waived by questioning the witness about the alleged objectionable evidence on cross-examination. Motion to strike- ask the jurors to disregard the evidence. o Easier said than done.

Offers of Proof You have to preserve the issue in the record in order to later appeal the issue. o The process of doing this is called the 'offer of proof.' Note: A formal offer of proof is NOT required if the substance of the excluded evidence is apparent from the context of the question asked of the witness. o But it's probably a good idea to do it anyways, just to make sure that you reserve the right to appeal. The TC must allow a party to make a necessary offer of proof. o Failure to do so is reversible error, regardless of the merits of the argument relating to the admissibility of the evidence in question. o So don't let the judge intimidate you- you can ALWAYS make the offer of proof. Two ways to preserve the record for appeal: 1. When the TC sustains an objection to evidence that is admissible, ask for an opportunity to make a formal offer of proof. 2. Present the disputed evidence to the court while the jury has been removed. Most common method of making an offer of proof. However, it takes longer.

Use of Depositions at Trial Rule 1.330 Can be an exhibit, but it's usually read. Deposition of an adverse (opposing) party can be used for any purpose, so long as the subject matter is admissible. A non-party deposition can be used if the witness is: 1. Dead; Greater than 100 miles; Can't come because of age, illness, infirmity or imprisonment; or You're unable to procure attendance by subpoena- you tried to serve them 6 times, etc. o Making inconsistent statements- i.e. use it to impeach.

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Exhibits Exhibit- any kind of tangible, physical evidence. Two Categories of Evidence: o Primary Evidence- it's the actual thing. i.e. the object itself. o Secondary Evidence- its not the actual thing, it's a representation of the thing. i.e. a model, map, photo, demonstration, etc. Demonstrative Aids- used for illustrative purposes, but they're technically not considered an exhibit.

Motions For Mistrial- when something really bad happens and you don't think you can get a fair trial; you want to start over. o Potential reasons: Juror misconduct Severely prejudicial evidence For Directed Verdict- the plaintiff didn't prove the case. o Defendant will move for this; motion for this no matter if you really think P proved the case or not. o Similar to summary judgment, but it's done during/at the conclusion of the trial as opposed to BEFORE the trial, like with SJ.

Closing Argument Implied right. Court discretion. Order- whoever has the burden of proof goes first. The closing argument is based on evidence and law, NOT: o Personal attacks; o Personal opinion; o Curry Favor- thanks so much for your service, jurors; stroking their ego; o Sending a message- find for P to send a message, etc. o Golden Rule- think of how you would feel, etc. They'll probably do this a little bit, but you can't outright 'put them in a party's shoes.' There are a lot of cases that get reversed because of a faulty closing argument- so be careful! Remember points from your opening statement: o Follow your theme o Major points on major issues o Sincerity

Jury Instructions Jury instructions- these are the legal principles that you (the jury) are to apply in this case. o VERY important part of the trial. o Mandatory in civil cases, not yet mandatory in criminal cases. Entitlement- you are entitled to jury instructions. Charge Conference- a meeting between the judge and the parties before the jury has been charged, to determine the content of the instructions to the jury and to note any objections the lawyers may have to the instructions proposed by the judge. o Generally will be held after the evidence is heard. o It's a good idea if you can do this (get the judge to rule on the jury instructions ahead of time). 43

Request for Instruction- counsel has the duty to carefully prepare and request all instructions which, in his/her judgment, are necessary to explain all legal theories upon which the defense rests. o In order to request an instruction, put it in writing. It's NOT error for a judge to deny a jury instruction if it's not put in writing! Jury Instruction Objections: o Must be put on the record, in order to preserve the issue for appeal. o Same as with offers of proof with evidence. The trend is toward more juror-friendly instructions. o Issue- should we let jurors ask questions? Not yet a mandatory right in civil court. However, a vast amount of judges today will let the jurors ask questions. If allowed, they'll usually have the juror(s) write down the questions, show them to the attorney's first for review (so it doesn't prejudice the other jurors), who then object or accept; judge oversees. Lewis- embraces this change- it could help you! Note: most objections come from the defense side.

Template for Substantive Instructions 1. Summarize the claims or contentions. 2. Tell the jury what P must prove. o i.e. "in order to prevail on this claim, P must prove A, B, and C." 3. Define any legal terms you used. o i.e. "burden of proof," "preponderance of the evidence," etc. 4. Give the jury any principles that affect how they are to determine if the claim is proven. 5. Tell them what happens if the claim is not proven (Verdict for Defendant) and if it is proven (then consider any affirmative defenses or counterclaims). 6. Summarize the defenses/counter-claims and proceed in explaining them in the same manner as the initial claim, as above. 7. Repeat the process for cross-claims and/or 3rd party claims. 8. Give the general rules to apply- the rules that apply in every case. o i.e. believability of witnesses, etc.

Verdict Deliberations o There's really no jury instructions that tell the jury how to do their job. The only mandatory stipulation/direction they get is that they have to select a foreman. o Rule- they can't discuss any information that's outside of the evidence. i.e. they can't talk to anyone about the case, research on the internet, bring in news reports, etc. If you do find out that this happens, you may have grounds to set aside the verdict. General v. Special Verdict Forms o General Verdict Form Not seen very often- only seen in very simple cases where there's only one issue. o Special Verdict Form Most common- used when there are multiple issues, theories, etc. Similar to interrogatory questioning- you'll ask a series of questions that the jury will answer. i.e. 1) Did P prove he had a proper claim? 2) Did the D engage in negligence?, etc. Rendition of Verdict: 1. Jury is charged and deliberates. 44

2. 3. 4. 5. 6. 7. 8. 9.

Jury comes to a verdict- must be unanimous or it's a mistrial. Foreman hands the verdict form to the bailiff. Bailiff hands the verdict to the judge. Judge checks that it's not inconsistent, the form is filled out correctly, etc. Judge gives verdict back to foreman to read. Foreman reads the verdict. Judge asks the jury if this is their verdict- they say yes (Lewis has never had anyone said no). Loser has the ability to poll the jury.

Post-Trial Motions Motion for New Trial/Rehearing o Very rarely will you get a new trial on the basis that the evidence was insufficient- that's what a motion for a directed verdict is. Most people will do it just in case- they don't want to waive something. o Sound discretion of the judge. Motion for Attorney Fees and Costs- use if you win to get your attorneys fees reimbursed. o i.e. you may be able to get back Westlaw fees, mileage fees, etc. o Always reserve the right. o File the motion within 30 days or it's waived- file the motion as soon as the verdict is rendered. Motion to Tax Costs- use if you lose to contest a claim for court costs submitted by the prevailing party in a lawsuit. o Essentially, it asks the judge to deny or reduce claimed costs. o The judge has discretion.

Judgments Entry of Judgment- the judge signs the form, but the judgment isn't official until it's entered by the clerk. Execution- satisfying the judgment. o Essentially, taking the steps to get your judgment against Defendant. o Issue- A lot of times D's dont have the money to satisfy the judgment. o Using discovery to aid in the execution: I have the right to make you produce documents, sit for a deposition, etc., all for the purpose of determining what you have in order to satisfy a potential judgment against you. If they don't answer, go to the judge-the judge will compel them to answer or will hold them in contempt. Motion for Relief From Judgment o Rule 1.540 o In addition to your right to appeal if you think the judge did something wrong, there are also a few categories wherein you can ask for relief from the judgment: 1. Clerical mistake- transposed letters or something. 2. Mistake, inadvertence, surprise, or excusable neglect. 1. 1 year to file 3. There's newly-discovered evidence that you couldn't have reasonably discovered before the verdict. 1. 1 year to file 4. Fraud, misrepresentation or misconduct by the winning party. 1. 1 year to file 5. Judgment was void at the time- i.e. it was a domesticated judgment from another state that can't be enforced here for jurisdictional reasons. 45

6. The judgment/decree has been satisfied, released or discharged, OR a prior decree/judgment upon which it has been based has been reversed or otherwise vacated. Satisfaction of the Judgment- get paid!

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